RENDERED: MAY 9, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0445-MR
ANN NICOLE HENSON APPELLANT
APPEAL FROM CLARK CIRCUIT COURT v. HONORABLE SAMUEL TODD SPALDING, SPECIAL JUDGE ACTION NO. 19-CI-00445
WILLIAM ROBERT TUDOR APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, L. JONES, AND MCNEILL, JUDGES.
JONES, L., JUDGE: Appellant, Ann Nicole Henson (“Mother”), appeals from an
order of the Clark Circuit Court entered on March 20, 2023, which denied her
motion filed pursuant to CR1 60.02 to set aside the October 8, 2021, order that
determined final custody of the parties’ minor child (“Child”) and denied Mother’s
1 Kentucky Rules of Civil Procedure. request for CR 11 sanctions against the counsel of Appellee, William Robert Tudor
(“Father”). After carefully reviewing the record and the relevant law, we affirm.
BACKGROUND
The underlying case has a long and litigious history spanning multiple
counties and having several judges presiding over the proceedings. The relevant
facts pertinent to the appeal at hand follow below.
Father commenced the underlying case by filing a petition to
determine custody of Child with the Boyle Circuit Court in 2015. This appeal
arises from the civil custody action, but for reasons that will soon become
apparent, we must briefly mention two companion cases.
In the fall of 2018, the Cabinet for Health and Family Services (“the
Cabinet”) filed a Dependency, Neglect, and Abuse (“DNA”) petition which alleged
that Father had sexually abused Child; however, the Boyle Circuit Court dismissed
the DNA case before an adjudication hearing took place.
The day after the DNA case was dismissed, Mother filed a petition for
an order of domestic violence against Father and moved for Father’s parenting
time to be suspended in the underlying civil custody case based upon the same
sexual abuse allegations raised in the DNA case. Over the next several months the
sexual abuse allegations became the primary point at issue concerning the Child as
it related to custody and parenting time. As a result, in August 2019, the circuit
-2- court dismissed the domestic violence case and set a hearing in the civil custody
case to ultimately determine if sexual abuse had occurred and put the matter to rest.
(Record (“R.”), at 485.)
The circuit court conducted an extensive evidentiary hearing
concerning the allegations of sexual abuse. Some of the evidence considered by
the Court included testimony from a variety of individuals as well as an in camera
interview with Child. On December 17, 2019, the circuit court entered an order in
which it found that no sexual abuse had occurred and set a parenting time schedule
for Father. (R. at 789.) Notably, this order was not final and appealable as the
circuit court otherwise reserved all issues relevant for a final custody hearing.
Mother began representing herself pro se soon after the entry of the
December 17, 2019, order. Since then, Mother has continued to raise arguments
concerning the sexual abuse allegations, the administration of the DNA case, and
her grievances with various individuals involved in the administration of
proceedings at every possible date.2 She has filed numerous motions to disqualify
the judges involved in the underlying case, motions to impose CR 11 sanctions on
2 Some of these individuals include Father’s counsel, Mother’s previous counsel, the guardian ad litem involved in the proceedings, the judges involved, various Cabinet workers and attorneys representing the Cabinet, law enforcement personnel involved, and the Clark Circuit clerks. Notably, Mother filed a federal action against a number of these individuals, though that case was ultimately dismissed. Henson v. Burke, Civil Action No. 5:22-288-KKC, (E.D. Ky. May 19, 2023). Mother also filed a civil action against a number of these individuals; that matter is currently on appeal before this Court and shall be addressed by a separate opinion. Henson v. Burke, Appeal No. 2024-CA-0303-MR.
-3- Father’s counsel, and motions to alter, amend, or vacate under CR 59.05
challenging almost every order of the circuit court.
Eventually, Judge Samuel Spalding was assigned as special judge, and
a final custody hearing was set in September 2021. Though the December 17,
2019, order found no sexual abuse to have occurred, the circuit court permitted
Mother to introduce more evidence and subpoena numerous witnesses to testify
regarding the sexual abuse allegations and the administration of the DNA case at
the final custody hearing in September 2021.3
On October 8, 2021, the circuit court entered an order denying
Mother’s pending requests for CR 11 sanctions against Father’s counsel. It also
entered a final custody order that awarded Mother sole custody and set a visitation
schedule for Father. (R. at 3104.) Considering Child’s best interests as required
under KRS4 403.270, the circuit court found that Father’s visitation over the
previous twenty-one (21) months had occurred without incident, and, again,
ultimately found that an act of sexual abuse did not occur. In doing so, it made
extensive findings about the administration of the DNA case, and did not find that
the DNA case was fraudulent or otherwise inappropriately mishandled.
3 The circuit court entered an order on December 3, 2020 prohibiting Mother from introducing any more evidence concerning the allegations of sexual abuse, as it had already been addressed in the December 17, 2019, order. However, that portion of the December 3, 2020, order was set aside in contemplation of the final custody hearing. 4 Kentucky Revised Statute.
-4- Additionally, it found that no agency had initiated criminal charges against Father
for the alleged abuse – despite Mother’s persistent requests for the agencies to do
so.
Mother filed a notice of appeal from the October 8, 2021 order and
essentially all previous orders entered by the circuit court. However, this Court
ultimately dismissed the appeal because Mother failed to timely appeal the October
8, 2021 order.5 Additionally, the Kentucky Supreme Court did not take the matter
under discretionary review, having denied Mother’s request for the Chief Justice to
disqualify himself and her motion for additional time to file a motion for
discretionary review.6 Upon finality of this Court’s Order dismissing Mother’s
appeal, any appeal from the October 8, 2021 order was necessarily barred under
our jurisprudence.
In October 2022, Mother filed a motion pursuant to CR 60.02 to set
aside the October 8, 2021 order. Subsequently, Mother filed a flurry of motions
below, including another motion for CR 11 sanctions against Father’s counsel. On
5 Appeal No. 2022-CA-0033-MR. Mother had filed multiple CR 59.05 motions to the October 8, 2021, order and filed her notice of appeal more than thirty (30) days after the first CR 59.05 motion was ruled upon. In dismissing the appeal, this Court held that duplicative and successive CR 59.05 motions do not toll the time to take an appeal from an otherwise final and appealable order. See Rodgers v Berry, 346 S.W.2d 43, 44 (Ky. 1961); see also Cloverleaf Dairy v. Michels, 636 S.W.2d 894, 896 (Ky. App. 1980). 6 Action No. 2022-SC-0378-D.
-5- March 20, 2023, after reviewing the record and determining a full evidentiary
hearing was not warranted, the circuit court entered an order denying Mother’s
pending motions, which included her CR 60.02 motion and motion for CR 11
sanctions. (R. at 4227.) In response, Mother filed another set of motions including
one pursuant to CR 59.05 challenging the March 20, 2023, order. (R. at 4230.)
Before the circuit court ruled on the CR 59.05 motion, Mother filed
the present appeal. In the notice of appeal, Mother appealed the March 20, 2023,
order as well as several previous orders, including the orders from December 17,
2019, December 3, 2020, and October 8, 2021, and orders from the Supreme Court
denying some affidavits of disqualification for Judge Spalding. This Court issued
an Order for Mother to show cause why the appeal should not be limited to just
those issues contained in the March 20, 2023, order, as the rest of the orders were
untimely and inappropriately taken. The Court also granted Mother’s motion to
place the appeal in abeyance filed pursuant to RAP7 3(E)(3) because of the pending
CR 59.05 motion below. The circuit court denied Mother’s CR 59.05 motion in
October 2023.
Subsequently, this Court entered an Order allowing the appeal to
proceed but directing Mother to limit the arguments in this appeal solely to those
issues arising out of the March 20, 2023 order, as that was the only order which
7 Kentucky Rules of Appellate Procedure.
-6- was timely appealed and could appropriately be brought before this Court. See
Hoffman v. Hoffman, 500 S.W.3d 234, 236-37 (Ky. App. 2016).
We have thoroughly reviewed all of the arguments Mother has raised
on appeal. Despite this Court’s clear directive, Mother’s brief raises several
arguments outside the purview of the March 20, 2023 order. We will limit our
inquiry solely to those issues which are appropriately before the Court.
Those issues are Mother’s argument regarding the circuit court’s
subject matter jurisdiction concerning the alleged sexual abuse, review of the
denial of Mother’s CR 60.02 motion concerning the October 8, 2021 order, and
review of the denial of Mother’s request for CR 11 sanctions against Father’s
counsel. Any issue not addressed herein is deemed to be without merit or should
have been raised in a direct appeal of a previous order.
ANALYSIS
Initially, we recognize that Father did not file an appellee’s brief.
RAP 31(H) provides penalties the Court may invoke if an appellee’s brief has not
been filed, and the decision whether to impose any of these penalties is within our
discretion. Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007). In this
instance we decline to impose any penalties, considering the case at hand concerns
matters affecting a child. See, e.g., Ellis v. Ellis, 420 S.W.3d 528, 529 (Ky. App.
-7- 2014) (citing Galloway v. Pruitt, 469 S.W.2d 556, 557 (Ky. 1971)). We now turn
to Mother’s arguments.
A. Subject Matter Jurisdiction
Specifically, Mother argues that the circuit court acted outside of its
jurisdiction when it determined whether sexual abuse occurred, as a circuit court
may not make that kind of finding in the context of a civil custody case. We
disagree and find this argument without merit. However, we are inclined to review
the issue as it concerns subject matter jurisdiction, which can be raised at any time.
Commonwealth v. Steadman, 411 S.W.3d 717, 721 (Ky. 2013). “The question of
jurisdiction is ordinarily one of law, meaning that the standard of review to be
applied is de novo.” Appalachian Regional Healthcare, Inc. v. Coleman, 239
S.W.3d 49, 53-54 (Ky. 2007).
In a civil custody case such as this one, the circuit court is required to
determine best interests of the parties’ child when entering a final custody order.
KRS 403.270. Whether a parent has sexually abused that child is undoubtedly
related to the child’s best interests. See, e.g., May v. Harrison, 559 S.W.3d 789,
791 (Ky. 2018) (holding the circuit court did not err in conducting an in camera
interview of a minor child in a civil custody case for the purpose of inquiring into
sexual abuse allegations). Mother herself has argued so below, and contrary to her
position now, had at one point adamantly requested the circuit court conduct a
-8- hearing to determine whether an act of sexual abuse occurred. (R. at 527 E.) By
virtue of Mother’s actions and ceaseless inquiries into the DNA case, she
embroiled the sexual abuse allegations within the civil custody case, essentially
forcing the circuit court to address the matter in its determination of final custody.
To now argue the circuit court did not have subject matter jurisdiction to determine
whether an act of sexual abuse occurred is not well-taken and only serves as an
indication of Mother’s tendency throughout the history of the case to excessively
litigate any issue which is not decided in her favor.
B. CR 60.02
On appeal, Mother argues the circuit court erred in denying her CR
60.02 for a plethora of reasons; however, after a review of the approximately 4500-
page record on appeal, it is apparent that most of these reasons are merely a
rehashing of her previous arguments concerning the administration of the 2018
DNA case and her grievances surrounding the individuals involved with that
proceeding. While Mother goes to great lengths to enmesh those issues within her
CR 60.02 motion, the ineluctable reality is that any arguments she could have
brought in challenging or appealing the dismissal of the DNA case have long since
passed.8 Similarly, she has exhausted a direct appeal of the October 8, 2021 final
8 A notice of appeal from a judgment must be filed within 30 days after the date of notation of service. See RAP 3(A)(1). Additionally, a CR 60.02 motion “shall be made within a reasonable
-9- custody order when she failed to timely file a notice of appeal, and subsequently a
timely motion for discretionary review to the Kentucky Supreme Court.
Accordingly, we will limit our CR 60.02 inquiry to only those issues properly
brought before the Court. Pertinent to our review, Mother argues that new
evidence exists which was discovered after the final custody hearing, Father
perjured himself in his testimony during the final custody hearing, and that
Father’s counsel have engaged in fraud. These arguments were made under CR
60.02(b), (c) and (d).
In relevant part, CR 60.02 provides:
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 . . . (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; [or] (d) fraud affecting the proceedings, other than perjury or falsified evidence . . . .
This Court reviews the denial of a party’s motion filed under CR 60.02 for an
abuse of discretion. Age v. Age, 340 S.W.3d 88, 94 (Ky. App. 2011). A trial court
has abused its discretion if its “decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999). Importantly, a motion filed pursuant to “[CR] 60.02 is
time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken.”
-10- neither a substitute for, nor a separate avenue of, appeal.” Maudlin v. Bearden,
293 S.W.3d 392, 397 (Ky. 2009). “The relief [afforded by CR 60.02] is extreme,
limited, and reserved for those times when justice itself requires an avenue for the
plight endured by the aggrieved party.” Meece v. Commonwealth, 529 S.W.3d
281, 285 (Ky. 2017) (citing Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky.
1983)); see also Age, 340 S.W.3d at 94 (“[T]he law favors the finality of
judgments. Therefore, relief may be granted under CR 60.02 only with extreme
caution and only under the most unusual and compelling circumstances.”).
The evidence Mother proclaims is newly discovered under CR
60.02(b) are emails from various individuals, completely unrelated to the
proceedings at hand, that Mother received in response to questions she posited to
them about the DNA action after the conclusion of the final custody hearing.
While the emails may not have existed at the time of the final custody hearing,
they are not the kind of evidence contemplated by CR 60.02(b), because they could
have been discovered with due diligence before, or during, the final custody
hearing. See Commonwealth v. Harris, 250 S.W.3d 637, 642 (Ky. 2008).
Regarding CR 60.02(c), Mother takes issue with Father’s testimony
about the circumstances surrounding an assault between him and a third-party
before the underlying case was filed, an occasion on which he allegedly harassed
her in January 2019, and statements he made regarding his employment as a law
-11- enforcement officer during the time in which there was an active order of
protection during the pendency of the parties’ related domestic violence case.
In order for a party to gain relief under CR 60.02(c), not only does the
party invoking it need to prove that perjury actually occurred, but the party
alleging such must show with reasonable certainty that the false testimony was
material, or otherwise could have affected the judgment. See Commonwealth v.
Spaulding, 991 S.W.2d 651, 657 (Ky. 1999); see also KRS 523.020.
In the case below, Mother has not shown with reasonable certainty
that inconsistencies in Father’s testimony affected the judgment, and so they are
not material to the matter at hand. At most, the evidence presented by Mother was
appropriate to be considered by the circuit court in determining Child’s best
interests and in judging Father’s credibility, which it did. Moore v. Asente, 110
S.W.3d 336, 354 (Ky. 2003) (“[J]udging the credibility of witnesses and weighing
evidence are tasks within the exclusive province of the trial court.”).
Turning now to CR 60.02(d), Mother has alleged fraud in some form
or fashion throughout most of the underlying case. Those claims which are not
related to the administration of the DNA case, will not be addressed here, Mother
alleges that Father’s counsel have engaged in “fraudulent litigation abuse,” which
affected her substantial rights to a fair trial. Specifically, Mother argues that
-12- Father’s counsel filed “sham” motions which she argues had no legal basis to be
made,9 and failed to correctly effectuate service of pleadings on Mother.
Merely alleging fraud is an insufficient basis for relief under CR
60.02(d) to be granted. Meece, 529 S.W.3d at 291. The party alleging fraud must
show that the fraud occurred and, as a result of the fraud, the party was hindered
from raising a meritorious argument. See id.
In this case, counsel’s actions are akin to those commonly
implemented in civil custody matters such as this one, and do not rise to the level
of fraud contemplated by 60.02(d). Goldsmith v. Fifth Third Bank, 297 S.W.3d
898, 904 (Ky. App. 2009) (citations omitted) (“Fraud upon the court is ‘that
species of fraud which does or attempts to subvert the integrity of the court itself.’
Such fraud has been construed to include only the most egregious conduct, such as
bribery of a judge or a member of the jury, evidence fabrication, and improper
attempts to influence the court by counsel.”). There is no indication that the circuit
court, influenced by the actions of Father’s counsel, has deprived Mother from
raising any meritorious defense in her favor, or that Mother ultimately failed to
receive notice of pleadings filed by counsel.
9 These motions include a motion for Mother to engage in a psychological evaluation, a motion to dismiss the emergency protective order in place in the parties’ domestic violence case, and a motion for contempt from a “gag” order which Mother claims did not exist. Notably, any arguments pertaining to the disposition of these motions should have been raised in a direct appeal of the October 8, 2021 order or the order dismissing the parties’ domestic violence case.
-13- Accordingly, we hold there is no abuse of discretion in the circuit
court’s denial of Mother’s CR 60.02 motion.
C. CR 11 Sanctions
The basis of Mother’s requests for CR 11 sanctions against Father’s
counsel essentially go hand-in-hand with her arguments concerning fraud.
Generally, she alleges that Father’s counsel have engaged in “fraudulent litigation
abuse,” attorney misconduct, and an egregious abuse of the discovery process.
CR 11 provides, in relevant part:
The signature of an attorney or party constitutes a certification by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
Similar to a review of the denial of a CR 60.02 motion, “[w]here a trial court
denies a motion for sanctions under CR 11, this Court’s review is limited to a
determination of whether the trial court abused its discretion.” Lexington Inv. Co.
v. Willeroy, 396 S.W.3d 309, 313 (Ky. App. 2013) (citing Clark Equip. Co., Inc. v.
Bowman, 762 S.W.2d 417, 420 (Ky. App. 1988)). Furthermore, “[CR 11] does not
provide substantive rights to litigants but is a procedural rule designed to curb
abusive conduct in the litigation process[,]” and is only intended in exceptional
-14- circumstances. Clark Equip. Co., Inc., 762 S.W.2d at 420 (internal citations
omitted).
In the case at hand, the circuit court found Mother’s requests for CR
11 sanctions against Father’s counsel were without merit. After thorough review
of the record, we agree. Counsel’s actions in the underlying case simply do not
rise to the level of unreasonableness which generally warrant CR 11 sanctions, and
there is no evidence to indicate counsel acted contrary to the tenets of CR 11. See,
e.g., Anderson v. Kentucky Bar Ass’n, 415 S.W.3d 94, 95 (Ky. 2013) (an attorney
was found to have violated CR 11 after representing parties with conflicting
interests, obtaining a garnishment order clearly contrary to law, and filing a
frivolous lawsuit for attorneys fees). Thus, we do not hold that the circuit court
abused its discretion in denying Mother’s requests for CR 11 sanctions.
CONCLUSION
For the foregoing reasons, we affirm the March 20, 2023 order of the
Clark Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
Ann Nicole Henson, pro se Lexington, Kentucky
-15-