Opinion
NO. 2019-CA-000465-ME
04-17-2020
C.M.B. APPELLANT v. K.R.; J.M.P., A MINOR CHILD; AND CABINET FOR HEALTH AND FAMILY SERVICES APPELLEES
BRIEF FOR APPELLANT: Carol B. Meinhart Radcliff, Kentucky BRIEF FOR APPELLEE, K.R.: Lewis H. Graham Elizabethtown, Kentucky BRIEF FOR APPELLEE, J.M.P.: Bruce J. Ferriell Elizabethtown, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE PAMELA K. ADDINGTON, JUDGE
ACTION NO. 18-AD-00070 OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: COMBS AND LAMBERT, JUDGES; BUCKINGHAM, SPECIAL JUDGE. COMBS, JUDGE: This case involves the termination of parental rights and the adoption of a minor child. C.M.B., the mother, appeals from an order of the Hardin Circuit Court denying her motion for CR 60.02 relief from the prior orders of that court that terminated her parental rights to her child, J.M.P., and granted an adoption of the child to K.R. After our review, we vacate and remand.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
Kentucky Rules of Civil Procedure.
J.M.P. was born on March 17, 2016. C.M.B. is the biological mother, and the biological father is deceased. C.M.B. has a history of drug abuse and criminal offenses that led to prison sentences on three occasions, the last of which resulted in her incarceration from September 2016 through the time of the termination hearing in November 2018.
K.R. is the second cousin of C.M.B. At the termination hearing, K.R. testified that she first began to care for J.M.P. around June 15, 2016, and that C.M.B. left the child with her continuously from July 24, 2016, until August 29, 2016. K.R. returned the child to C.M.B. on August 29, 2016, but C.M.B. brought the child back on August 31, 2016.
The child was placed in the custody of K.R. on September 1, 2016, in a juvenile action in another court and has remained in her custody continuously since that date. Permanent custody was awarded to K.R. by the circuit court in another case in March 2017. C.M.B. remained incarcerated through the termination hearing in November 2018. She was released from prison on parole shortly after the termination hearing.
In June 2018, K.R. filed a petition to terminate C.M.B.'s parental rights to J.M.P. C.M.B. was represented by Amy Turner (court-appointed counsel) beginning on July 13, 2018. A final hearing was scheduled, but Turner asked that it be delayed until it could be determined if C.M.B. would receive parole. The court delayed the hearing until November 15, 2018, which was agreeable with Turner. A pre-trial conference was scheduled for October 16, 2018, and C.M.B. thereafter retained private counsel, Carol Meinhart.
The court delayed the pre-trial conference until November 6, 2018, at which time Meinhart asked the court to delay the trial date once again so that C.M.B., who was scheduled to be released on parole from her prison sentence, could help prepare for the hearing. The court denied the motion to continue, and the hearing was held as scheduled on November 15, 2018.
C.M.B. was released for the hearing, was present in court, and was represented by Meinhart. K.R. was present as well and was also represented by counsel. The child was before the court through the service of a guardian ad litem appointed by the court. Although Cabinet representatives were present, the Cabinet was not a party and was not represented by counsel.
On December 21, 2018, the court entered its final order and judgment terminating C.M.B.'s parental rights and allowing the child to be adopted by K.R. The circuit court clerk placed copies of the orders and judgment in the courthouse box for the attorneys in the clerk's office on that day, but the copies were not mailed -- even though CR 77.04(1) requires the clerk to serve notice of entry by mail.
December 21 was the last day before the Christmas holiday, and the courthouse was to be remodeled during the holiday season. The clerk's office did not open again until January 2, 2019, at which time C.M.B.'s attorney first learned of the orders and judgment. The following day, thirteen days after the orders and judgment were entered, C.M.B.'s attorney filed a motion to alter, amend, or vacate pursuant to CR 60.02, CR 52.02, and CR 52.04.
The motion filed by C.M.B.'s attorney provided the following reason to support the motion:
[T]he Findings of Fact tendered by the Petitioner and adopted by the Court, were not supported by the testimony and evidence presented at Court. The Respondent, [C.M.B.] is no longer incarcerated, is no longer using drugs, and there is no support for the finding that there will be no change as this change has already occurred.
C.M.B.'s attorney filed an affidavit in support of the motion, reiterating the reasons set forth in her motion and adding that her request for a continuance of the hearing for one month to allow C.M.B. to help prepare for the hearing had been improperly denied, thus preventing C.M.B. from having the opportunity to fully prepare her defense. C.M.B.'s attorney also stated in the affidavit that:
It would be inappropriate for the Court not to consider this motion was timely filed within the 10 day[s]. . . . Given the lack of access to the Courthouse and the Respondent's inability to have known about this order before yesterday, January 2, 2019.
In an order entered by the court on February 22, 2019, the court denied C.M.B.'s motion, stating as follows:
IT IS HEREBY ORDERED AND ADJUDGED that the Respondent [C.M.B.'s] Motion to Alter, Amend or Vacate the orders entered on December 21, 2018 is hereby denied because it was not timely filed and because it is not supported by law or fact.
C.M.B.'s motion stated on its face that it was filed "under CR 60.02, CR 52.02 and CR 52.04." However, it was framed as a motion to alter, amend, or vacate, which would be a motion invoking CR 59.05. CR 59.05 provides that "[a] motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment." Furthermore, although C.M.B.'s attorney called it a CR 60.02 motion (which must be brought "within a reasonable time, and on [some] grounds . . . not more than one year after the judgment"), she stated in her affidavit that her motion should not be barred by the ten-day rule which applies to CR 59.05 motions.
The circuit court characterized the motion as one to alter, amend, or vacate, which would be a motion under CR 59.05, and held that it was untimely under that rule. But again, the motion on its face was captioned as a CR 60.02 motion. On appeal, C.M.B. refers to her motion as one made under CR 60.02.
If the motion were truly meant to be a motion to alter, amend, or vacate under CR 59.05, then it was, as the circuit court stated, "not timely filed." It was not served within ten days as required by that rule, and we have not been cited to any authority that would allow the time limit to be waived under these circumstances. Therefore, we will consider the issue as it was stated in the motion and as it has been argued on appeal, and we will treat it as a CR 60.02 motion.
CR 60.02 provides, in relevant part, as follows:
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief.CR 60.02 also provides: "The motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken." (Emphasis added.)
K.R. acknowledges in her brief that C.M.B.'s motion was timely filed under the terms of CR 60.02 as it was filed thirteen days after the orders and judgment. Thus, it was clearly filed "within a reasonable time" as allowed by CR 60.02. If that were the end of the matter, we would remand the case to the circuit court for a hearing on the merits of the motion. However, the circuit court denied the motion for the additional reason that it "is not supported by law or fact."
There are several cases addressing circumstances similar to those in this case that have not been mentioned by the parties. In Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454 (Ky. 2002), our Supreme Court faced the issue of "whether a trial court may vacate a CR 59.05 order under CR 60.02 upon a finding that a party did not receive notice of entry of the order." Id. at 455. In that case, following entry of a summary judgment, the party filed a motion to alter, amend, or vacate pursuant to CR 59.05. The motion was denied in an order entered on June 29, 2000, but the party was not sent notice of entry by the clerk. Id.
Upon learning of the entry of the judgment nearly two months later, the party filed a CR 60.02 motion requesting the trial court to vacate the June 29 order and to enter a new order ruling on its CR 59.05 motion. Id. The trial court acknowledged that it had made a mistake by not including the party on the distribution list on the June 29 order, and it granted the party's CR 60.02 motion on the grounds of "mistake, inadvertence, excusable neglect and reasons of an extraordinary nature justifying relief." Id. (quoting CR 60.02). The trial court then entered a new order denying the CR 59.05 motion, and the party appealed. Id.
The Court of Appeals granted the adverse party's motion to dismiss the appeal, holding that the appellants had "failed to demonstrate 'excusable neglect' as required by CR 60.02." Id. at 456. In reversing the Court of Appeals, our Supreme Court held that the trial court did not abuse its discretion in granting the CR 60.02 motion where "[t]he trial judge clearly believed himself or his office staff (not Appellants) to have been culpable in the error that prevented Appellants from learning of entry of the June 29 order, and in our view, CR 60.02 was adopted for such circumstances." Id. The Supreme Court further addressed the interplay between CR 60.02 and CR 77.04, and held that "[i]n the present case, literal application of CR 77.04 would effectively make CR 60.02 nonexistent and would deprive courts of an important error correcting device and otherwise offend established equitable principles." Id. at 457.
In Hoffman v. Hoffman, 500 S.W.3d 234 (Ky. App. 2016), this Court was faced with facts indicating that a final order reducing a maintenance award had been entered by the trial court on March 27, 2014. But the appellant claimed that she did not receive a copy of the order until April 9, 2014. Id. at 235. Recognizing that her CR 59.05 motion would be untimely, the appellant filed a motion to vacate pursuant to CR 59.05, CR 60.01, and CR 60.02. Despite acknowledging that the appellant's failure to timely file the motion was not her fault and despite being sympathetic to her situation, the trial court denied the motion, stating it had lost jurisdiction and authority to alter the March 27 order after the expiration of the ten-day rule in CR 59.05. Id. at 236.
On appeal, this Court framed the issue as "whether the failure to timely file the CR 59.05 motion precluded the family court from considering its merit." Id. Referring to our Supreme Court's opinion in Kurtsinger, supra, this Court reversed the trial court and held:
Pursuant to CR 60.02, the family court had the authority to grant Gloria relief and remedy the prejudice caused by the clerk's failure to promptly mail the order reducing maintenance. With the entry of a new order, all time periods for post-order motions will begin.Id. at 237-38.
Both Kurtsinger, supra, and Hoffman, supra, provide ample precedent for C.M.B. to invoke relief in this case from the denial of her CR 60.02 motion. Although neither case involved the critically sensitive issue of termination of parental rights as does the case before us, the courts in these cases recognized that CR 60.02 is capable of equitably relieving a party from the ten-day rule of CR 59.05 where egregious circumstances so dictate.
Such extreme circumstances are indeed present in this case. The failure of the clerk to comply with the mandatory duty to mail the copies of the orders and judgment alone justifies resort to CR 60.02 to rectify the error. It was the Christmas season, and the courthouse was closing for renovation during the holidays. That fact, coupled with the clerk's dereliction of a mandatory duty, created "a perfect storm" to the detriment of C.M.B. Additionally, as soon as her attorney discovered the passage of the ten-day deadline, she immediately filed her motion - within one day.
In its order denying the motion, as noted earlier in this opinion, the circuit court recited as follows:
IT IS HEREBY ORDERED AND ADJUDGED that the Respondent [C.M.B.'s] Motion to Alter, Amend or Vacate the orders entered on December 21, 2018 is hereby denied because it was not timely filed and because it is not supported by law or fact.
We conclude that the circuit court erred in denying relief pursuant to CR 60.02 and instead relying on the timeliness issue underlying CR 59.05. CR 60.02 properly supplants application of CR 59.05 under the unique circumstances of this case.
Additionally, although the court added the conclusory language that the motion was "not supported by law or fact[,]" it failed to enter any specific findings on that substantive issue. Especially in the context of termination of parental rights, such a perfunctory denial will not suffice.
We surely do not predict or dictate the outcome of the court's ruling following a hearing on the merits of this motion. But we do vacate and remand so that a hearing will be held.
Accordingly, we VACATE the circuit court's February 22, 2019, order denying the motion on appeal and REMAND for a hearing on the merits.
LAMBERT, JUDGE, CONCURS.
BUCKINGHAM, SPECIAL JUDGE, DISSENTS AND FILES SEPARATE OPINION.
BUCKINGHAM, SPECIAL JUDGE, DISSENTING: C.M.B. was denied the right to file a CR 59.05 motion in a timely manner due to a clerk's error in failing to mail her attorney a copy of the trial court's judgment. The error did not, however, deprive her of the right to appeal the trial court's judgment in a timely manner, see CR 73.02(1)(a) and (1)(d), but she did not do so. Instead, C.M.B. elected to attack the judgment by way of a CR 60.02 motion, which I believe was lacking because it was based on grounds that could have been raised on direct appeal. I would affirm the trial court's denial of C.M.B.'s CR 60.02 motion and thus respectfully dissent.
In Fortney v. Mahan, 302 S.W.2d 842 (Ky. 1957), our highest court held as follows:
Direct attacks upon a judgment, as by appeal or by motion for new trial, are commonly accepted practice. CR 60.02 in addition provides the trial court with extensive power to correct a judgment even after recourse has been had to the usual methods of attack. On motion, the court is empowered to relieve a party from a final judgment under certain extraordinary circumstances and upon such terms as it deems just. CR 60.02 addresses itself to the sound discretion of the trial court. Two of the factors to be considered by the trial court in exercising its discretion are whether the movant had a fair opportunity to present his claim at the trial on the merits and whether the granting of the relief sought would be inequitable to other parties.Id. at 843 (citations omitted).
The grounds for relief stated in C.M.B.'s motion are insufficient for relief under CR 60.02. She raises grounds that might have been proper arguments on direct appeal of the orders and judgment, but none of the grounds for relief under CR 60.02 are present. The entirety of her motion reads as follows:
Comes the Respondent, [C.M.B.], by counsel, and moves the Court to Alter, Amend or Vacate the order entered on December 21, 2018 under C.R. 60.02, C.R. 52.02 and C.R. 52.04 for the reason that the Findings of Fact tendered by the Petitioner and adopted by the Court, were not supported by the testimony and evidence presented at Court. The Respondent, [C.M.B.], is no longer incarcerated, is no longer using drugs, and there is no support for the finding that there will be no change as this change has already occurred.
A supporting affidavit from her attorney was attached to the motion. In addition to reiterating the grounds stated in the motion, the affidavit also stated that the trial court's denial of a continuance prevented her from having the opportunity to fully prepare her defense, and that "[it] would be inappropriate for the Court not to consider that this motion was timely filed within the 10 day [sic]. Given the lack of access to the Courthouse and the Respondent's inability to have known about this order before yesterday, January 2, 2019 [sic]."
The motion stated no CR 60.02 allegations of mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, perjury, falsified evidence, or "any other reason of an extraordinary nature justifying relief." Rather, in C.M.B.'s motion, she argued she should have been granted a continuance until she was released from prison, she is no longer incarcerated or on drugs, and the evidence supporting the findings of fact was insufficient to support the court's findings. All of these grounds would have been available on direct appeal. In addition, when C.M.B.'s attorney learned of the entry of the orders and judgment, there was still time to file such an appeal and raise the challenges she raised in her CR 60.02 motion.
Likewise, in her brief in this appeal, C.M.B. merely restates the same grounds she raised in her CR 60.02 motion. As K.R. notes in her brief in response, those grounds could have been raised on direct appeal and are insufficient to support a CR 60.02 motion to vacate.
The only other argument raised by C.M.B. in her brief was that her CR 60.02 motion was timely filed. The trial court stated in its order that the motion was untimely, but as the majority states and K.R. concedes, the motion was filed within a "reasonable time" as required by CR 60.02. That fact, however, has no bearing on the merits of the CR 60.02 motion, which was based on insufficient grounds to support it.
The majority cites Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454 (Ky. 2002), and Hoffman v. Hoffman, 500 S.W.3d 234 (Ky. App. 2016), neither of which was cited by C.M.B. in her brief, to support its position. In fact, C.M.B. cited no authority addressing whether CR 60.02 relief would be appropriate where a party did not receive notice of entry of a court's order or judgment. She merely argues that her motion was timely filed, which is true.
Despite Kurtsinger and Hoffman, I believe the facts in this case are more akin to those in Kerbaugh & Rodes v. Whitaker Bank, Inc., No. 2011-CA-002112-MR, 2013 WL 3105524 (Ky. App. Jun. 21, 2013), an unpublished opinion from this Court. In Kerbaugh, this Court faced the issue of "whether the circuit court erred when it refused to set aside a finding that it made in its July 18, 2011 order and judgment . . . solely because Kerbaugh was not given any notice of the entry of that judgment." Id. at *1. The appellant argued to the trial court in support of its CR 60.02 motion that the judgment was "erroneous in its conclusion that the property was not susceptible to division without materially impairing its value and that it was prejudiced due to lack of notice of the sale because it was not afforded the opportunity to bid on individual parcels at the sale." Id. at *2. On appeal, the appellant argued that the trial court erred in denying its CR 60.02 motion.
This Court began addressing the appellant's argument in Kerbaugh by discussing our Supreme Court's opinion in Kurtsinger and then distinguishing the facts in that case from those before it as follows:
As a caveat, however, when the Kurtsinger appellants moved for CR 60.02 relief, they were not attempting to use their motion as a vehicle for raising an argument that could and should have been raised prior to the entry of the offending judgment; they therefore acted consistently with the purpose of that rule.Id. at *3. In Kerbaugh, this Court also cited Davis v. Home Indemnity Co., 659 S.W.2d 185 (Ky. 1983), wherein our Supreme Court stated in regard to CR 60.02 relief as follows:
The purpose of [a CR 60.02 motion is] to bring before the court that pronounced judgment errors in matters of fact which (1) had not been put into issue or passed on, (and) (2) were unknown and could not have been known
to the party by the exercise of reasonable diligence and in time to have been otherwise presented to the court.Id. at 188 (quoting Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983)).
This Court further explained in Kerbaugh as follows:
Moreover, the Kentucky Supreme Court's decision in Kurtsinger does not abrogate the circuit court's discretion to deny a CR 60.02 motion; nor, for that matter, does Kurtsinger change the more general rule stated in CR 61.02, which provides:
2013 WL 3105524, at *3-4.No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every state of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
The facts in this case are more similar to the facts in Kerbaugh than to those in Kurtsinger and Hoffman, in that C.M.B. is using CR 60.02 "as a vehicle for raising an argument that could and should have been raised prior to the entry of the offending judgment[.]" Id. at *3. Although C.M.B. is seeking relief on appeal from the order denying her CR 60.02 motion, that motion itself attacks the final judgment in the manner of a CR 59.05 motion. Again, her stated grounds for relief are that she was not allowed a continuance, she is no longer incarcerated, she is no longer using drugs, and the findings of the court are not supported by the evidence. If the order denying the motion is taken in the context of CR 59.05, then "reversal on that basis alone is problematic." Hoffman, 500 S.W.3d at 236.
C.M.B. was present at the hearing and had the opportunity to raise the challenges she later raised in her CR 60.02 motion. Furthermore, C.M.B. became aware of the entry of the orders and judgment well within the time for filing an appeal. As stated in Fortney, "CR 60.02 addresses itself to the sound discretion of the trial court[,]" and one of the factors to be considered is "whether the movant had a fair opportunity to present his claim at the trial on the merits[.]" 302 S.W.2d at 843. C.M.B. had that opportunity at the trial of the case, and she also had the right to challenge the court's decision on appeal.
Finally, the majority takes the position that the trial court's order denying C.M.B.'s CR 60.02 motion should be deemed timely filed and therefore vacated and remanded for a hearing on the merits. While the trial court erred in determining the CR 60.02 motion was not timely filed, the court also addressed the merits of the motion and held that it "is not supported by law or fact." The majority takes the position that such a conclusory statement is insufficient, especially in a case involving the termination of parental rights, due to lack of findings. Therefore, the majority would vacate and remand for a hearing on the merits.
First, I believe the motion lacks merit on its face as it states insufficient grounds for relief under CR 60.02. Further, the trial court was not required to make specific findings of fact in its denial of the CR 60.02 motion. See CR 52.01, which states in relevant part that "[f]indings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41.02."
I believe the trial court acted within its discretion when it denied C.M.B.'s CR 60.02 motion and the court's order should be affirmed. BRIEF FOR APPELLANT: Carol B. Meinhart
Radcliff, Kentucky BRIEF FOR APPELLEE, K.R.: Lewis H. Graham
Elizabethtown, Kentucky BRIEF FOR APPELLEE, J.M.P.: Bruce J. Ferriell
Elizabethtown, Kentucky