EDGAR V. VAUGHN, II v. JULIA VAUGHN (NOW GARRISON)
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RENDERED: November 25, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002808-MR
EDGAR V. VAUGHN, II
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE MASON TRENAMAN, JUDGE
ACTION NO. 94-FD-002983
v.
JULIA VAUGHN (NOW GARRISON)
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE: GUIDUGLI, JOHNSON, AND KNOPF, JUDGES.
KNOPF, JUDGE.
Edgar V. Vaughn, II (Vaughn) appeals from an order
of the Jefferson Family Court denying his CR 60.02(f) motion.
He
asked the family court to reopen an order awarding sole custody
of his two (2) children to their mother, Julia Garrison
(Garrison).
findings.
Vaughn argues that the earlier order lacked required
After reviewing the record, the applicable law, and
the arguments of counsel, we affirm.
Vaughn and Garrison married in 1988.
They had two (2)
children, a boy born in 1989 and a girl born in 1991.
Garrison
petitioned for dissolution in 1995.
child support, and maintenance.
but later proceeded pro se.
1995.
She requested sole custody,
Vaughn responded through counsel
The court held a hearing in June
Garrison appeared with counsel.
was not represented.
Vaughn did not appear and
By order entered August 23, 1995, the court
dissolved the marriage, awarded sole custody to Garrison, and
ordered Vaughn to pay child support and maintenance.
In August 1997, Vaughn moved the court to reopen the
August 1995 decision under CR 60.02(f) and hold a de novo custody
hearing.
He alleged that sole custody with Garrison seriously
endangered the childrens’ mental, emotional, physical and moral
health, and attached affidavits.
KRS 403.340.
By order entered
September 30, 1997, the court denied the CR 60.02 motion and
ruled that Vaughn’s motion would proceed as a motion to modify
custody under KRS 403.340.
This appeal followed.
Vaughn argues that the court should have reopened the
case under CR 60.02(f) and ordered a de novo custody hearing
under KRS 403.270.
He maintains that the 1995 order was not
final and did not contain required findings.
Garrison responds
that the motion was not proper under CR 60.02.
The standard of review for relief under CR 60.02(f) is
abuse of discretion.
Bethlehem Minerals Company v. Church and
Mullins, Corp., Ky., 887 S.W.2d 327, 329 (1994).
"Relief under
CR 60.02(f) is available where a clear showing of extraordinary
and compelling equities is made.”
S.W.2d 823, 826 (1985).
Bishir v. Bishir, Ky., 698
Two (2) factors for the trial court to
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consider in exercising its discretion are “(1) whether the moving
party had a fair opportunity to present his claim at the trial on
the merits and (2) whether the granting of CR 60.02(f) relief
would be inequitable to other parties.”
Bethlehem, supra;
Fortney v. Mahan, Ky., 302 S.W.2d 842, 843 (1957).
Vaughn was not present at the June 1995 hearing.
Garrison’s attorney told the court that the parties had agreed
that Garrison would have sole custody of the children.
There is
a discussion on the record about reducing the agreement to
writing, getting Vaughn to sign it, and having it entered in the
court record.
However, the August 1995 order granting custody to
Garrison contains no reference to an agreement.
Nor does the
order contain any findings relative to KRS 403.270.
The trial court ruled that Vaughn did not bring his CR
60.02 motion within a reasonable time.
It noted that Vaughn
waited two (2) years, and, during that time, entered into an
agreed order to reduce his child support.
The court acknowledged
that the August 1995 order did not contain findings under KRS
403.270.
It attributed this to Vaughn’s failure to present any
proof or pleadings opposing sole custody to Garrison.
The trial court did not abuse its discretion.
Applying
Bethlehem, supra, Vaughn had a fair opportunity to present his
claim at the trial on the merits.
but did not attend.
He had notice of the hearing
On the other hand, granting CR 60.02(f)
relief would be inequitable to Garrison.
Under KRS 403.340, the
court shall not modify a prior custody decree unless a change in
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the circumstances of the child or his custodian has occurred, and
modification is necessary to serve the best interests of the
child.
KRS 403.340(2).
The burden of proof is on the parent
seeking to modify custody.
S.W.2d 485, 488 (1990).
Quisenberry v. Quisenberry, Ky., 785
Given Vaughn’s inaction, Garrison should
not be deprived of the statutory presumptions in her favor.
The
trial court correctly ruled that the case proceed under KRS
403.340.
Vaughn is correct in asserting that trial courts are
required to consider all the factors under KRS 403.270(1) and
find facts specifically.
CR 52.01; McFarland v. McFarland, Ky.
App., 804 S.W.2d 17, 18 (1991).
However, the August 1995
judgment adjudicated the custody rights of the parties and was
final and appealable.
223, 224 (1967).
CR 54.01, Gates v. Gates, Ky. 412 S.W.2d
Vaughn did not appeal the order or timely
request findings of fact.
He thus waived any error.
Cherry, Ky., 634 S.W.2d 423, 425 (1982).
Cherry v.
In August 1995 the
court believed that the parties had agreed as to who should have
custody.
If this was incorrect, Vaughn should have brought this
to the court’s attention sooner.
For the foregoing reasons, the order of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Cynthia Compton Stone
Donna Foust Townsend
Seiller & Handmaker, LLP
Louisville, KY
-4-
BRIEF FOR APPELLEE:
Leland R. Howard II
Troy Daniel Demuth
Howard & Melmers, PLC
Louisville, KY
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