RICHARD DAVID DIKIN v. PATRICIA DIKIN (NOW NEAL)
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RENDERED: JUNE 15, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000434-MR
RICHARD DAVID DIKIN
v.
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CYNTHIA E. SANDERSON, JUDGE
ACTION NO. 95-CI-00563
PATRICIA DIKIN (NOW NEAL)
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, HUDDLESTON, AND MCANULTY, JUDGES.
McANULTY, JUDGE:
This case began as a dissolution action between
appellant Richard Dikin and appellee Patricia Neal (formerly
Dikin), in which the issues of visitation of the couple's
daughter and child support were determined.
60.02 motion to amend the decree.
Appellant filed a CR
The trial court denied the
motion on the basis that appellant failed to state a claim upon
which relief could be granted.
We have reviewed the record in
this case, and we affirm the order of the trial court.
A motion for CR 60.02 relief is only warranted in
situations justifying extraordinary relief.
Co., Ky., 659 S.W.2d 185 (1983).
Davis v. Home Indem.
It is for matters which were
not and could not have been presented to the trial court.
Id.
Thus, it is not to be used as a substitute for an appeal.
United
Bonding Ins. Co. v. Commonwealth, Ky., 461 S.W.2d 535 (1970).
Determinations under CR 60.02 are addressed to the sound
discretion of the court and that exercise of discretion will not
be disturbed on appeal except when an abuse has been shown.
Brown v. Commonwealth, Ky., 932 S.W.2d 359, 362 (1996).
Appellant sought CR 60.02 relief from the trial court's
order of December 17, 1998, in which the court held that it was
not in the best interests of the parties' minor child for
respondent to have visitation, and further found that visitation
with appellant would seriously endanger the child.
The court
opined that the findings were “clearly compelled” in this case.
As a basis for its holding, the court cited the following facts:
(1) appellant had been convicted of sexual abuse in the first
degree of his stepdaughter (appellee's daughter) who was under
the age of eighteen at the time of the offense, (2) the
“atrocious nature” of the crime and the misuse of trust placed in
appellant as a stepparent as disclosed by victim impact
statements, (3) appellant's testimony that the Sexual Offender
Treatment Program was not offered at the institution in which he
was incarcerated, accompanied by the information in appellant's
institutional record that he had specifically refused to
participate in the Program, (4) the potential for the child to be
victimized if she visited appellant at the correctional
institution, because of the possibility of inadequate supervision
and (5) appellant's demonstrated “pattern of manipulative and
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evasive conduct” before the court.
In its order, the court also
determined appellant's child support arrearage.
Appellant did
not appeal.
On December 19, 1999, appellant filed a motion to amend
pursuant to CR 60.02, arguing that there was error in the trial
court's order of December 17, 1998.
Appellant basically
contended that all of the findings of the trial court were
erroneous, and sought resumption of visitation.
Appellant also
argued that it was unfair for the trial court to continue his
child support obligation when there had been a “de facto”
termination of his parental rights because he had no contact with
or information about his daughter.
Appellant further found fault
with the trial court's use of the term “pedophile” to identify
him.
Appellant argued that term was not cited in appellant's
judgment in his criminal case or in any mental health evaluation
of appellant, nor is it a part of the statute under which he was
convicted.
Finally, appellant stated that if he did not obtain
the above relief, he wanted a voluntary termination of his
parental rights and an accounting of his child support
arrearage.1
1
Subsequent to the trial court's order in this CR 60.02
case, appellee brought an action in the McCracken Circuit Court
(Case No. 00-AD-00005) to terminate appellant's parental rights.
As this was done after the trial court entered its final order in
this case, it does not constitute part of the record on appeal.
Since this was cited by appellee, we take judicial notice of it,
KRE 201(c), for purposes of this explanation; however, it did not
form a basis for our decision in this case.
According to the order in that case entered August 30, 2000,
appellant voluntarily consented to the termination of his
parental rights. Appellant was represented by counsel. The
trial court found therein that the criteria for both voluntary
(continued...)
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We believe that all of appellant's allegations of error
are unfounded.
We conclude from the record that the trial
court's order of December 17, 1998 was supported by substantial
evidence, and was in accord with applicable statutes and case
law.
The trial court properly denied visitation pursuant to KRS
403.320.
Appellant has not shown that there was any mistake in
the trial court's assessment of the evidence.
Therefore, there
was no basis for CR 60.02 relief.
The trial court properly, in accordance with recent
case law from this Court, ordered appellant to pay child support
while he was imprisoned.
396 (2000).
Marshall v Marshall, Ky.App., 15 S.W.3d
The fact that appellant was not entitled to have
visitation with his daughter does not remove his responsibility
for child support under the child support guidelines.
We also
believe that appellant errs in equating the denial of visitation
with a termination of parental rights, since he retained the
potential to have visitation restored after serving out his
sentence, as stated in the trial court's order.
There was no
error in the order, and appellant has shown no right to relief
under CR 60.02.
1
(...continued)
termination of parental rights and involuntary termination of
parental rights had been shown by clear and convincing evidence,
and that termination was in the best interests of the child. The
court held that appellant's child support obligation ceased as of
July 21, 2000, the date of hearing on the motion to terminate,
but that appellant's child support arrearage remained “due and
owing.”
We agree with appellee that much of appellant's arguments
contained in his CR 60.02 motion have been rendered moot by the
voluntary termination of parental rights. Appellant surrendered
his right to visitation with the termination of parental rights,
and that cannot be restored by the instant action.
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Appellant's last argument is that the trial court erred
in labeling him a pedophile.
The trial court stated as a finding
of fact in its order, “The respondent is a convicted pedophile.”
It is true that this term was not used to describe appellant
anywhere else in the record, and so we have no basis to determine
whether this label was appropriately applied to appellant.
However, appellant fails to show that the use of this term had
any impact on this case.
The trial court did not make its
determination to deny visitation on the fact of appellant's
conviction alone, but on all the circumstances.
This is the type
of complaint that should have been raised in the trial court and
on direct appeal.
under CR 60.02.
It is not grounds for vacating the judgment
We agree with appellee that any error in the
trial court's characterization is harmless and does not justify
relief in this case.
In conclusion, we find that the contentions cited by
appellant in his CR 60.02 motion should have been raised by way
of a direct appeal, and were not.
60.02 is not appropriate.
Thus, relief by way of CR
Based upon an examination of all of
the foregoing, we agree that the trial court correctly determined
that appellant failed to state a claim upon which relief could be
granted under CR 60.02.
Therefore, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard D. Dikin, pro se
Symsonia, Kentucky
Kevin D. Bishop
Mayfield, Kentucky
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