ANGELA ENGLE v. WORLEY A. ENGLE; AND ALEISA D. ENGLE, AN INFANT
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RENDERED:
DECEMBER 29, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000622-ME
ANGELA ENGLE
v.
APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
ACTION NO. 03-AD-00010
WORLEY A. ENGLE; AND
ALEISA D. ENGLE, AN INFANT
APPELLEES
OPINION
AFFIRMING IN PART,
VACATING IN PART,
AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE:
Angela Engle appeals from an order entered
December 22, 2004, that set aside and vacated the Letcher
Circuit Court’s Findings of Fact, Conclusions of Law, and
Judgment Terminating Parental Rights entered on January 8, 2004.
Because of the unusual facts associated with this case, we
affirm in part and vacate and remand in part.
Angela and Worley A. Engle were married on July 25,
1998.
One child, Aleisa D. Engle, 1 was born during the marriage
on September 23, 1999.
The parties separated on or about May 8,
2003, and Angela consulted with attorney Kevin R. Mullins about
filing a dissolution of marriage petition.
On July 8, 2003,
Angela signed a verification of petition for dissolution of
marriage that was prepared and notarized by her attorney, Kevin
R. Mullins.
On the same day a separation agreement was signed
by both Angela and Worley resolving the issues of marital assets
and debts, child custody and visitation, and child support.
parties’ signatures were notarized by Mullins.
The
Also on July 8,
2003, Worley signed an entry of appearance and waiver of notice.
In the document he acknowledged that he had received the
“Petition along with being present whild [sic] said document was
drafted and has entered into a Separation Agreement which fairly
and equitably resolves all matters.”
notarized by Mullins.
Again his signature was
The Petition for Dissolution of Marriage,
the Separation Agreement and the Entry of Appearance and Waiver
were not filed until September 25, 2003.
On August 15, 2003, between the time the petition for
dissolution, the separation agreement and the entry of
appearance was signed (July 8, 2003) and the date they were
1
In the body of the petition for dissolution and for termination of parental
rights the child’s name is spelled ALEISA. However, in the caption of the
termination case it is spelled ALEISHA. We believe ALEISA is the correct
spelling.
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filed (September 25, 2003) Worley signed a Verified Petition for
Voluntary Termination of Parental Rights.
The petition was
prepared and notarized by attorney Mullins.
also not filed until September 25, 2003.
This petition was
At that time the
dissolution was filed as civil action number 03-CI-321 and the
petition for termination of parental rights as civil action
number 03-AD-010.
In the dissolution action, Angela was the
petitioner and Worley the respondent; in the termination
petition, Worley was petitioner and Angela and Aleisha [sic] the
respondents.
In each case, attorney Mullins was attorney of
record for the petitioner.
Subsequently in the dissolution action a judgment was
entered October 6, 2003, dissolving the marriage and adopting
and incorporating by reference the Separation Agreement.
In the
termination case a guardian was appointed who filed a report on
October 10, 2003.
The extent of his report is set forth as
follows:
COMES the Guardian Ad Litem, for Aleisha
[sic] D. Engle, the minor child herein; and
for his report states as follows:
(1) The [sic] he has examined the pleadings
and entire record herein.
(2) That he conducted an interview with the
Respondents on October 9, 2003.
(3) That the Guardian Ad Litem recommends
that the parental rights of Worley A. Engle
be terminated. That said termination is in
the best interest of the child.
WHEREFORE, he files his Report and prays
that he be awarded a reasonable attorney fee
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for his service and be discharged from
further duties.
On November 4, 2003, attorney Mullins certified that he mailed a
Notice of Final Hearing to the circuit clerk, the guardian ad
litem, Angela and Worley.
The notice was filed with the court
on November 20, 2003, the date set for the termination hearing.
At the November 20, 2003, hearing Angela was present
and testified and the guardian was present and recommended that
termination of Worley’s parental rights was in the best interest
of Aleisa.
Worley was not present at the final hearing.
Following the presentation of witnesses, the trial court stated
its findings on the record, indicating that all legal
requirements had been met, and that the termination of Worley’s
parental rights was in the best interest of the child.
The
court asked attorney Mullins to prepare a Judgment for his
signature.
On January 8, 2004, Findings of Fact, Conclusions of
Law, and Judgment Terminating Parental Rights were entered.
There is no certification of service in the record but a handwritten notation indicates the judgment was sent to the guardian
and attorney Mullins.
No additional significant action took place in the
case until October 21, 2004, when Worley, through new counsel,
filed a CR 60.02 motion to set aside the findings of fact,
conclusions of law and judgment terminating his parental rights.
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In his motion, Worley alleged the judgment was entered by
mistake, inadvertence and excusable neglect.
He attached
affidavits from himself, Clayton Sandlin, and Randy Parsons.
His affidavit stated:
Comes the affiant, Worley A. Engle, and
states that he is the Petitioner in the
within action; that although the Petitioner
voluntarily signed the Verified Petition for
Voluntary Termination of Parental Rights on
or about August 15, 2003, some short time,
approximately two weeks, thereafter, the
affiant contacted the office of Kevin A.
Mullins and advised his secretary that he
wished to withdraw the petition and
requested that Mr. Mullins have the Court
establish the amount of his child support
obligation with regard to his daughter,
Aleisa D. Engle; that on or about the next
day, the affiant spoke by telephone to Mr.
Mullins and again advised that he wished to
withdraw the Petition and requested that Mr.
Mullins have the Court instead establish the
amount of his child support obligation with
regard to his daughter; that the Petitioner
received no further notification with regard
to the within action or otherwise and
assumed that the matter was withdrawn; that
the Petitioner did not receive a copy of
this Court’s Findings of Fact, Conclusions
of Law, and Judgment Terminating Parental
Rights, and the copy filed with the Clerk
does not show that a copy was sent to the
Petitioner; that the Petitioner, believing
that the Petition had been withdraw, [sic]
began making cash payments of child support
to the Respondent, Angela D. Engle,
commencing about September, 2003, and
continuing up until July, 2004, of $200. per
month; that Angela Engle came to the
Petitioner’s employment requesting and
receiving child support during this period
of time and without advising the Petitioner
that his parental rights were terminated;
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that on July 6, 2004, the Petitioner
retained counsel who filed on his behalf a
Motion for Show-Cause Order to hold Angela
D. Engle in contempt of this Court’s Order
for refusing to permit him to have
visitation with his infant child in his home
since December 28, 2003; that it was not
until the Petitioner appeared at the showcause hearing held on September 23, 2004,
that he first learned that this Court’s
Finding of Fact, Conclusions of Law, and
Judgment Terminating Parental Rights had
been entered by mistake and excusable
neglect.
The affidavits of Sandlin and Parsons supported Worley’s
contention that he had contacted attorney Mullins to withdraw
the termination petition and that Worley had paid child support
for Aleisa between May 2003 and July 2004.
In response to the CR 60.02 motion Angela and her
mother, Rebecca Mullins, filed affidavits in opposition to the
motion to vacate.
Each affirmed that Worley wanted to terminate
his parental rights, was aware of entry of the judgment
terminating his rights and that Worley had never paid any child
support for Aleisa.
On November 10, 2004, the circuit court
entered an order that the CR 60.02 motion would stand submitted
for a decision upon the pleadings.
On December 22, 2004, the
circuit court entered an order setting aside and vacating the
Judgment terminating Worley’s parental rights.
The court found
that the previous order had been entered by mistake,
inadvertence and excusable neglect based upon the court’s
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finding that Worley had advised attorney Mullins not to proceed
with filing the termination petition.
In this order the court
also ordered Worley to pay child support based upon the child
support guidelines and ordered visitation consistent with
guidelines which the court attached to the order.
On December
29, 2004, attorney Mullins representing Angela filed a motion to
alter, amend or vacate the December 22, 2004, order.
was denied by order entered March 11, 2005.
The motion
Angela filed a pro
se notice of appeal on March 17, 2005, and on April 13, 2005,
attorney Mullins filed a motion to withdraw as counsel for
Angela stating “that a conflict has arisen which precludes his
further representation in this matter.”
While there is no
signed order addressing attorney Mullins’s motion to withdraw,
on May 2, 2005, attorney C. Darlene Johnson filed a notice of
entry of appearance on behalf of Angela and represents her in
this appeal.
On appeal Angela contends that “the trial court abused
its discretion and/or committed clear error by applying the
wrong standard when it issued an order to vacate the
Judgment . . . .”
Angela argues that Worley was represented by
attorney Mullins in the termination proceeding, received proper
service and notice of all pleadings through his attorney and
that the termination of parental rights should be upheld.
While
we believe a full hearing in open court on the record would have
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been the method of addressing Worley’s CR 60.02 motion we find
no clear error in the court’s action of submitting for a
decision upon the pleadings since the parties agreed to such a
proceeding.
After reviewing the record, the court relied upon
Worley’s affidavit that he had contacted attorney Mullins to
withdraw the petition prior to the date the petition was filed
in reaching its decision to grant the CR 60.02 motion.
Attorney Mullins clearly had a conflict of interest
and could not represent Angela in the dissolution and Worley in
the termination action.
This fact alone is sufficient reason
for the court to rely upon Worley’s affidavit and believe the
termination petition had been erroneously filed.
In addition
there is nothing in the record to believe Worley’s interests
were in fact represented by attorney Mullins in this case or
that Worley received notice of the hearing or a copy of the
judgment.
More important, KRS 625.041 and KRS 625.042(6) were
not complied with.
KRS 625.041(3) addresses the appearance-
waiver of the parent when the parent chooses not to attend the
termination hearing.
Specifically it states:
The parent may sign an appearance-waiver and
consent-to-adopt form when the parent
chooses not to attend a voluntary
termination of parental rights proceedings.
This form, prescribed by the Administrative
Office of the Courts, shall:
(a) Contain a statement of acknowledgment
and agreement, regarding the appearance
at the proceeding, signed by the parent
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counsel for the parent, and the
cabinet. If the parent is a minor, the
form shall also be signed by the
guardian of the minor parent[.]
While this statute is not mandatory it does reflect that if a
parent is not going to attend the hearing a statement “of
acknowledgment and agreement, regarding the appearance at the
proceeding, signed by the parent” should be included in the
record.
In this case no appearance-waiver is included in the
record and Worley did not appear at the hearing.
The fact that
Worley did not attend the hearing and did not enter an
appearance-waiver appears to be problematic.
KRS 625.042(6)
clearly contemplates that the initiating party be present at the
hearing.
KRS 625.042(6) states:
“At the time of the hearing,
the Circuit Court, after full and complete inquiry, shall
determine whether each petitioner is fully aware of the purpose
of the proceedings and the consequences of the provisions of
this chapter.”
In this case the court relied upon attorney Mullins
and Angela (Worley’s ex-wife) to confirm that Worley was “fully
aware of the purpose of the proceedings and the consequences of
the provisions of this chapter.”
We do not believe the statute
contemplated such testimony to satisfy the mandatory
requirements of the statute.
We note that the guardian’s report
clearly indicates that he had no contact with Worley throughout
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the proceedings and relied exclusively on attorney Mullins’s and
Angela’s representations in filing his report.
In granting Worley’s CR 60.02 motion the circuit court
held, in relevant part:
This cause came on for hearing upon motion
of the Petitioner to set aside this Court’s
Findings of Fact, Conclusions of Law, and
Judgment Terminating Parental Rights entered
on January 8, 2004, and the Court, having
reviewed the pleadings, the affidavits filed
in support thereof, and being otherwise
sufficiently advised, does hereby FIND that
this Court’s Findings of Fact, Conclusions
of Law, and Judgment was entered by mistake,
inadvertence, and excusable neglect after
the Petitioner had advised the Respondent’s
attorney that he did not wish to proceed
with the Petition for Voluntary Termination
of Parental Rights so that the matter should
have been dismissed; that therefore, the
Court does hereby ORDER, ADJUDGE, and DECREE
that the Findings of Fact, Conclusions of
Law, and Judgment Terminating Parental
Rights be, and the same is hereby SET ASIDE
AND VACATED.
The Supreme Court of Kentucky recently addressed the
granting of a CR 60.02 motion under an unusual factual situation
similar to the unusual procedure we find herein.
In Kurtsinger
v. Board of Trustees, 90 S.W.3d 454 (Ky. 2002), the court held:
The rule upon which the trial court acted,
CR 60.02, is a safety valve, error
correcting device for trial courts. It
applies in six enumerated situations:
“(a) mistake, inadvertence, surprise or
excusable neglect; (b) newly discovered
evidence . . .; (c) perjury or falsified
evidence; (d) fraud affecting the
proceedings . . .; (e) the judgment is
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void . . .; or (f) any other reason of an
extraordinary nature justifying relief.”
The rule is designed to allow trial courts a
measure of flexibility to achieve just
results and thereby “provides the trial
court with extensive power to correct a
judgment.” Accordingly, CR 60.02 addresses
itself to the broad discretion of the trial
court and for that reason, decisions
rendered thereon are not disturbed unless
the trial judge abused his/her discretion.
Id. at 456 (citing CR 60.02 and Fortney et al. v. Mahan, et al.,
302 S.W.2d 842, 843 (Ky. 1957)).
Later in Kurtsinger, our
Supreme Court cites to Potter v. Eli Lilly and Co., 926 S.W.2d
449 (Ky. 1996) for the importance of allowing a CR 60.02 motion
to correct mistakes and protect the integrity of the judicial
process.
Specifically, the court stated:
In Potter v. Eli Lilly & Co., the trial
court suspected collusion on the part of the
parties whereby a settlement had been
reached prior to the return of a jury
verdict. The trial court undertook an
inquiry into the true facts and the parties
sought a Writ of Prohibition. This Court
allowed the trial court to reopen the case
after judgment under the inherent authority
of courts to see that their judgments are
not tainted with deceit. The Eli Lilly
Court agreed that “the courts have developed
and fashioned [the equity rule] to fulfill a
universally recognized need for correcting
injustices.” Although, CR 60.02 was not
utilized by the Court in Eli Lilly, the
decision displays a belief that under the
rules of equity courts have an inherent
authority to correct mistakes and protect
the integrity of the judicial process.
Equity and fairness were the bases of that
decision and it illustrates the importance
of CR 60.02 in other contexts.
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Kurtsinger, 90 S.W.3d at 457 (footnotes omitted).
Applying the standard of review set forth above to the
facts presented herein we discern no abuse of discretion by the
trial court.
Based upon the affidavits filed by Worley with his
motion, the apparent conflict of interest of attorney Mullins,
the failure of Worley to be present at the hearing, the failure
of the court to comply with KRS 625.042(6), and the parties
agreement to submit the matter for decision upon the pleadings
(November 4, 2004 order), the court did not abuse its discretion
in granting Worley’s CR 60.02 motion.
In so doing the court was
exercising its inherent authority to correct mistakes and
protect the integrity of the judicial process.
Having affirmed the trial court’s order granting CR
60.02, this matter is remanded for further proceeding in that
the court merely set aside and vacated its previous order of
January 8, 2004, terminating Worley’s parental rights.
No
further action was taken and the case is still pending on the
original petition.
In addition, we believe the trial court
erred in addressing child support and visitation in this matter.
Those matters, depending on the disposition of the termination
petition, should be addressed in the dissolution case should the
court not terminate Worley’s parental rights.
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For the foregoing reasons we affirm the Letcher
Circuit Court’s order granting Worley’s CR 60.02 relief and
remand this matter for further proceedings not inconsistent with
this opinion.
We also vacate in part the order addressing child
support and visitation issues which are not properly before the
court in a termination petition.
ALL CONCUR.
BRIEF FOR APPELLANT:
C. Darlene Johnson
Hazard, Kentucky
BRIEF FOR APPELLEE WORLEY A.
ENGLE:
Gene Smallwood, Jr.
Whitesburg, Kentucky
NO BRIEF FROM GUARDIAN AD
LITEM.
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