The trial court entered an Order reducing maintenance which neither party received until twelve days after the Order was entered. Wife filed a motion to alter, amend, or vacate pursuant to CR 59.05, CR 60.01 or CR 60.02. The trial court found that no fault could be attributed to Wife for the late filing of her motion, but concluded it had no discretion to consider her motion stating it had lost jurisdiction after ten days expired.
The Court of Appeals held that the trial court retained jurisdiction to consider Wife’s motion as it is “well within the rule’s stated grounds and the authority of the court to invoke CR 60.02 when a clerk is responsible for a mistake that prevents a party from receiving notice of the entry of an order or judgment.” The Appellate Court notes it cannot grant Wife relief on the basis of CR 59.05 alone, as it’s interlocutory in nature, but may grant relief pursuant to CR 60.02.
Mother argued on appeal that the trial court failed to make specific, independent findings of fact in a custody case. The trial court had nearly verbatim adopted the proposed findings submitted by Father. The Court of Appeals vacated the trial court judgment holding that cases involving children and families require strict compliance with CR 52.01 which requires that the courtitself make findings of facts and conclusions of law. The Court of Appeals cites Callahan v. Callahan and the Supreme Court case Keifer v. Keifer as support for its decision. Keifer v. Keifer, 354 S.W.3d 123 (Ky. 2011);Callahan v. Callahan, 579 S.W.2d 385, 387 (Ky. App. 1979).
Justice VanMeter writes separately concurring in result alone. He disagrees with the majority writing “a trial court does not err by inviting counsel to submit Findings of Fact and Conclusions of Law, and then exercising its discretion in making its selection,” but writes that “the Findings appear to be unsupported by substantial evidence” in this case, thus he concurs in result.