VIRGINIA RAYMOND v. GREG BOYD; STACY BOYD; RAQUEL RAYMOND; AND GARY MITCHELL RAYMOND
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RENDERED: JULY 1, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001184-ME
VIRGINIA RAYMOND
APPELLANT
APPEAL FROM OHIO CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 02-CI-00261
v.
GREG BOYD; STACY BOYD;
RAQUEL RAYMOND; AND
GARY MITCHELL RAYMOND
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE.1
TAYLOR, JUDGE:
Virginia Raymond (Raymond) appeals from the
March 5, 2004, Order of the Ohio Circuit Court denying her
motion pursuant to Ky. R. Civ. P. (CR) 60.02 to set aside the
order granting sole custody of the minor child, Raquel Raymond,
to Greg and Stacy Boyd (the Boyds).
1
We affirm.
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes 21.580.
Raymond’s home was destroyed by fire sometime in
September 1999.
Raquel sustained severe injuries and one of her
siblings died as a result of injuries sustained in the fire.
2000, Raymond was arrested on drug-related charges.
In
Pursuant to
a district court order, temporary custody of Raquel was awarded
to the Boyds.2
Over the next two years, Raymond made no attempt
to regain custody of Raquel or establish visitation.
In July
of 2002, the Boyds filed a petition for legal custody and
Raymond filed a response and “petition for immediate entitlement
to custody and/or order granting liberal visitation.”
The matter was referred to the Domestic Relations
Commissioner pursuant to CR 53.03, and on December 10, 2002, a
hearing was conducted.
The Commissioner’s recommended order of
January 21, 2003, stated that it was “ordered and agreed” that
the Boyds shall have permanent sole custody of Raquel and that
Raymond would have supervised visitation.
No objections to the
Commissioner’s recommendations were filed.
Following a “status report and review of visitation,”
the Commissioner entered a recommended order on March 7, 2003.
The Commissioner found that Raquel was suffering emotionally as
a result of Raymond telling Raquel that she would be returning
to live with Raymond in the near future.
2
The Commissioner
Although the record is unclear, the Boyds apparently also had temporary
custody of Raquel for a brief period immediately following the fire. Raquel
had been returned to her mother’s custody prior to Raymond’s arrest in 2000.
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recommended that Raymond’s visitation with Raquel be suspended.
Raymond subsequently filed pro se objections to the
Commissioner’s recommendation.
Therein, Raymond asserted she
was not aware of the agreed order awarding permanent sole
custody to the Boyds and that she truly believed Raquel would be
coming home to her.3
The circuit court overruled Raymond’s
objections.
Raymond retained substitute counsel, and on January
20, 2004, a motion was filed pursuant to CR 60.02 seeking to set
aside the January 21, 2003, order awarding permanent sole
custody to the Boyds.
The circuit court denied the motion by
order entered March 5, 2004.
Pursuant to CR 59.05, Raymond
filed a motion to alter, amend or vacate the March 5, 2004,
order.
The motion was subsequently denied by order entered May
21, 2004.
This appeal follows.
Raymond contends the circuit “court’s decision is
untenable and contrary to the weight of the evidence and should
be reversed.”
We observe that Raymond appeals from the denial
of her CR 60.02 motion, and thus, have treated her contentions
of error accordingly.
following:
Raymond specifically asserts the
she was not present for the hearing on the custody
3
Although Raymond asserts she was unaware of the agreed order awarding sole
custody to the Boyds and granting her supervised visitation, we note that
Raymond was apparently operating under that agreement and exercising
visitation accordingly.
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matter; she did not consent to permanent sole custody being
awarded to the Boyds; she did not authorize her attorney to
agree to such an award; she was not informed of the order by her
attorney; and she was not aware of the order until her
visitation was subsequently suspended.
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; . . . (f) any other
reason of an extraordinary nature justifying
relief. . . .
It is well-established that the “[n]egligence of an
attorney is imputable to the client and is not a ground for
relief under . . . CR 60.02(a) or (f).”
Vanhook v. Stanford-
Lincoln Co. Rescue Squad, Inc., 678 S.W.2d 797, 799 (Ky.App.
1984).
In Vanhook, we emphasized that a litigant who
voluntarily chooses an attorney to represent him cannot later
avoid the consequences of the attorney’s acts.
Id., citing Link
v. Wabash R.R. Co., 370 U.S. 626, 82 S. Ct. 1386, 8 L. Ed. 2d
734 (1962).
This Court specifically stated that to allow a
litigant to avoid the consequences of his attorney’s acts “would
be wholly inconsistent with our system of representative
litigation, in which each party is deemed bound by the acts of
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his lawyer-agent and is considered to have ‘notice of all facts,
notice of which can be charged upon the attorney.’”
Vanhook,
678 S.W.2d at 800 quoting Link, 370 U.S. at 633.
Although we are sympathetic to Raymond’s claim that
she was not adequately represented by counsel, a motion pursuant
to CR 60.02 is not the proper remedy.
As such, the circuit
court did not err by denying Raymond’s 60.02 motion for relief.
Even if a CR 60.02 motion was appropriate, we do not
believe the circuit court abused its discretion by denying
Raymond’s motion.
It is well-established that granting relief
pursuant to CR 60.02 is within the sound discretion of the court
and some effort must be made by the moving party to demonstrate
why she is entitled to such extraordinary relief.
The court’s
discretion will not be disturbed on appeal absent an abuse
thereof.
Fortney v. Mahan, 302 S.W.2d 842 (Ky.App. 1957).
In the case sub judice, the record supports the
circuit court’s denial of Raymond’s CR 60.02 motion.
The entire
basis of Raymond’s CR 60.02 motion was that she never consented
to the custody arrangement.
However, Raymond’s attorney was
present and did agree to the custody award.
As the circuit
court noted in its May 21, 2004, order, Raymond had the
opportunity at the hearing on her CR 60.02 motion and CR 59.05
motion to call her previous counsel to testify and she did not.
Raymond made no effort, other than her bare allegation, to
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demonstrate she was entitled to relief pursuant to CR 60.02.
As
such, we do not view the circuit court’s denial of her motion as
an abuse of discretion.
For the foregoing reasons, the Order of the Ohio
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
David T. Sparks
Bowling Green, Kentucky
BRIEF FOR APPELLEES GREG BOYD
AND STACY BOYD:
Daniel A. Clark, III
Owensboro, Kentucky
BRIEF FOR APPELLEE RAQUEL
RAYMOND:
Amanda Perkins
Guardian Ad Litem
Hartford, Kentucky
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