PAUL JAMES LANIER v. DONNA BETH LANIER (NOW THOMAS)
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RENDERED:
NOVEMBER 4, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001291-MR
PAUL JAMES LANIER
APPELLANT
APPEAL FROM BALLARD CIRCUIT COURT
HONORABLE WILLIAM LEWIS SHADOAN, JUDGE
ACTION NO. 87-CI-00015
v.
DONNA BETH LANIER (NOW THOMAS)
APPELLEE
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE:
BUCKINGHAM, DYCHE, AND TAYLOR, JUDGES.
TAYLOR, JUDGE:
Paul James Lanier appeals from a May 28, 2004,
Order of the Ballard Circuit Court awarding Paul $10,577.60
against Donna Beth Lanier (now Thomas) for child support
payments made by Paul to Donna that were procured by her fraud.
The original order, entered April 23, 2002, awarded Paul
$25,029.35.
We dismiss.
Paul and Donna were married on December 14, 1985, and
divorced by decree of dissolution of marriage entered in the
Ballard Circuit Court on September 15, 1988.
of the parties’ marriage.
One child was born
Paul was ordered to pay child
support.
In October 9, 2000, Paul filed a motion to terminate
child support.
Attached to the motion was a copy of a DNA
Parentage Test Report.
The report stated that within a 99.95%
probability, Warren L. Thomas was the father of the parties’
child.
On January 15, 2002, Paul filed a “Motion For Return Of
Child Support Paid.”
Paul alleged that Donna had “perpetrated a
fraud upon the Court” and that he was “entitled a refund of the
child support he has paid as well as an award of damages for the
times that he was held in contempt for failure to pay child
support.”
On April 23, 2002, the circuit court entered an order
granting Paul judgment against Donna for the total amount of
child support paid, $25,029.35.
On April 22, 2004, almost two years after the circuit
court’s judgment was entered, Donna filed a “Motion To Amend
Prior Order.”
The motion stated as follows:
Much discussion was had as to the time frame
and the Court came to the conclusion that
[Donna] should repay the support she had
received for the five years prior to the
date of her paternity test. When the final
Order was provided to the Court, it
erroneously required [Donna] to repay the
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entire amount of support she had received
from [Paul].
Donna requested the court to amend its judgment to reflect an
amount equivalent to child support Paul paid in the five years
immediately preceding the date of the paternity test.
The circuit court granted Donna’s motion on May 28,
2004, and specifically stated as follows:
IT IS HEREBY ORDERED, DECREED AND ADJUDGED:
1.
That the Order entered April 19, 2002,
contained a clerical error setting the
judgment amount at $25,029.35.
2.
That the Order of the Court in open
Court on March 1, 2002, was for payment for
five years next preceding the discovery of
the fraud.
3.
That the correct amount of payment due
by [Donna] is $10,577.60.
4.
That the Order entered by this Court on
April 19, 2002, be and is hereby amended to
reflect the above amended amount of
$10,577.60.
This appeal follows.
Paul contends that the circuit court erroneously
amended the judgment from the full amount of child support he
paid Donna to the amount he paid her in the five years
immediately preceding the paternity test.
Specifically, Paul
contends that Donna’s motion to amend the judgment “pursuant to
CR 60.02” was not appropriate and was not timely filed and that
“there was no ‘clerical error’ in the damages awarded.”
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A review of the record reveals that Donna’s motion was
not made pursuant to Ky. R. Civ. P. (CR) 60.02.
The motion
merely requested that the April 23, 2002, order be amended to
“correct” the amount of the judgment and the court clearly
treated the motion as one made pursuant to CR 60.01.
CR 60.01 states, in relevant part, as follows:
Clerical mistakes in judgments . . .
arising from oversight or omission may be
corrected by the court at any time of its
own initiative or on the motion of any party
and after such notice, if any, as the court
orders.
CR 60.01 balances the interests of accuracy and finality in
judgments.
See Aurora Loan Services v. Ramey, 144 S.W.3d 295
(Ky.App. 2004).
The balancing of accuracy and finality is
accomplished by applying the unlimited time frame of the rule to
the very narrow scope of clerical errors.
See id.
This Court
explained the rationale for the rule as follows:
The rationale for the provision that a
motion to correct a clerical error may be
made "at any time" is that the judgment
simply has not accurately reflected the way
in which the rights and obligations of the
parties have in fact been adjudicated.
Id. at 298-299 (citation omitted).
In the case sub judice, it is clear that the circuit
court was merely correcting the judgment so that it accurately
reflected the ruling previously announced from the bench.
At
the March 1, 2002, hearing on Paul’s motion, the court stated
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that judgment was for an amount equal to the support paid in the
five years immediately preceding discovery of the fraud.
The
court’s written order entered on April 23, 2002, through what
appears to be a clerical error, stated that judgment was for an
amount equal to all the support Paul paid.
We believe that the
error in the court’s April 23, 2002, order is clearly the type
of error CR 60.01 was intended to correct.
It is also well-established that an appeal may not be
taken from an order correcting a clerical mistake in a judgment.
See Maslow Cooperage Corp. v. Jones, 316 S.W.2d 860 (Ky. 1958).
Where the time for taking an appeal has expired, entry of an
order correcting a clerical mistake does “not operate to
revitalize the judgment in such a way as to start anew the
running of the period for taking an appeal.”
Id. at 862.
In
this case, the original judgment was entered April 23, 2002.
Paul filed the instant notice of appeal on June 28, 2004.
As
such, the notice of appeal was not filed within thirty days as
required by CR 73.02(1)(a).
Accordingly, we must conclude the
instant appeal was untimely filed.
Now therefore be it ORDERED that Appeal No. 2004-CA001291-MR is dismissed.
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BUCKINGHAM, JUDGE, CONCURS.
DYCHE, JUDGE, CONCURS IN RESULT ONLY.
ENTERED:_November 4, 2005
BRIEF FOR APPELLANT:
_/s/ Jeff S. Taylor_____________
JUDGE, COURT OF APPEALS
NO BRIEF FOR APPELLEE
Tod D. Megibow
MEGIBOW & EDWARDS, PSC
Paducah, Kentucky
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