RENDERED: JULY 2, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2025-CA-0406-MR
JOSHUA COOLEY APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT v. HONORABLE DOUGLAS BRUCE PETRIE, JUDGE CASE NO. 16-CI-00240
ASHLEY COOLEY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: A. JONES, KAREM, AND MOYNAHAN, JUDGES.
KAREM, JUDGE: Joshua Cooley (“Joshua”) appeals pro se from the February
28, 2025 order of the Boyle Family Court, granting in part and denying in part his
motion to alter, amend, or vacate its order entered on April 12, 2024.1 The
1 Joshua filed a second appeal with this Court, No. 2026-CA-0181, regarding an order entered by the family court on January 14, 2026, denying his motion to alter, amend, or vacate a December underlying litigation concerns the ongoing disputes between Joshua and his former
wife, Ashley Cooley (“Ashley”), over custody and timesharing of their two minor
children. Upon careful review, we affirm.
Before turning to the merits of the appeal, we note that Joshua’s brief
does not comply with Kentucky Rules of Appellate Procedure (“RAP”) 32(3) and
RAP 32(A)(4). RAP 32(A)(3) requires an appellant’s opening brief to contain “[a]
statement of the case consisting of a summary of the facts and procedural events
relevant and necessary to an understanding of the issues presented by the appeal[.]”
Kentucky’s Basic Appellate Practice Handbook describes the statement of the case
as the “story” of the case, setting out the facts and the procedural events the judges
need to know in order to understand the case. Joshua’s brief does not contain such
a narrative, which means that his arguments lack any context.
RAP 32 (A)(4) requires that a brief contain “[a]n argument . . . with
ample references to the specific location in the record[.]” “Each reference in a
brief to a segment of the designated official recording shall set forth the letters
‘VR’ and the month, day, year, hour, and minute (or second if necessary) at which
the reference begins as recorded.” RAP 31(E)(4). One of Joshua’s main
allegations of error is that an order drafted by opposing counsel did not reflect the
19, 2025, order which denied Joshua’s motion to alter, amend, or vacate a September 27, 2024, order. The second appeal is still pending.
-2- proceedings of a hearing conducted on March 29, 2024, but he provides no specific
citations to the video record of that hearing.
“It is not the function or responsibility of this court to scour the record
on appeal to ensure that an issue has been preserved.” Koester v. Koester, 569
S.W.3d 412, 415 (Ky. App. 2019). Similarly, it is not our function nor our
responsibility to create a statement of the facts of the case from the record, which
in this case contains five volumes spanning almost ten years of litigation.
When a party fails to substantially comply with the appellate rules, the
penalties may include the following:
(1) A deficiency notice or order directing a party to take specific action,
(2) A show cause order,
(3) Striking of filings, briefs, record or portions thereof,
(4) Imposition of fines on counsel for failing to comply with these rules of not more than $1,000,
(5) A dismissal of the appeal or denial of the motion for discretionary review, and
(6) Such further remedies as are specified in any applicable rule.
RAP 10(B).
Because pro se pleadings “are not required to meet the standard of
those applied to legal counsel[,]” Beecham v. Commonwealth, 657 S.W.2d 234,
-3- 236 (Ky. 1983), we will not adopt any of these measures. We will, however, rely
primarily on the statement of the case presented in the appellee’s brief,
supplemented by our own review of the record. Joshua has not filed a reply brief
raising any objections to the appellee’s summary of the facts and procedural
history of the case.
FACTUAL AND PROCEDURAL BACKGROUND
Joshua and Ashley M. Cooley were married in 2009. They have two
children, a daughter born in 2010, and a son born in 2017. A domestic violence
order (“DVO”) was entered against Joshua by the Boyle Family Court on April 23,
2016, after Joshua grabbed Ashley by the neck and threw her to the ground. The
episode was witnessed by their daughter. As a result of this incident, Joshua
entered a guilty plea to a charge of assault in the fourth degree, and a dependency,
neglect, and abuse (“DNA”) petition was filed against him in Boyle Family Court.
He stipulated to neglect of his daughter on December 5, 2016.
Joshua thereafter violated the terms of the DVO when he went to
Ashley’s home and beat on her car, yelling and screaming. As a result, he pleaded
guilty to violating the DVO on August 17, 2016, and served thirty days in county
jail.
Meanwhile, on July 19, 2016, Ashley filed a petition for dissolution of
marriage. A decree of dissolution was entered on July 28, 2017. A partial
-4- settlement agreement provided for joint custody of the children, with Ashley
designated as the primary residential custodian.
On June 15, 2018, the family court entered an order finding Joshua in
contempt of court for failing to pay child support. He was found to have an
arrearage of $2,893.48. A bench warrant was issued for his arrest, and he was
ordered to serve 179 days in county jail. The court also found that Joshua’s
conduct towards his daughter, which included discussing adult issues with her, was
spiteful and retaliatory, and likely to endanger the emotional and mental well-being
of the children. Thus, the court ordered timesharing to be at the sole and complete
discretion of Ashley as to time, place, and duration.
A new DNA petition was filed against Joshua, alleging that his
daughter witnessed domestic violence between Joshua and his girlfriend in
September 2019. The incident also resulted in criminal charges being filed against
Joshua in Bourbon Circuit Court.
On May 20, 2021, the family court entered an order finding that
Ashley had presented clear and convincing evidence that Joshua had a propensity
for violence and a longstanding history of perpetrating violence on Ashley, with an
adverse effect on the children. The court directed his visitation to be supervised by
the children’s paternal grandparents. After the entry of this order, Joshua was
incarcerated for some time.
-5- In August 2022, Ashley moved to Florida with the children to take a
job as a travel nurse. She did not notify Joshua or the court of the relocation.
In May 2023, Joshua filed a pro se affidavit seeking timesharing. The
family court scheduled a hearing. Joshua retained counsel and filed a motion on
June 21, 2023, asking the court to issue an order for the children to be returned to
Boyle County immediately. He sought to have Ashley held in contempt for
relocating the children without notice, in violation of the Family Court Rules of
Procedure and Practice (“FCRPP”). He also sought an equal parenting time
schedule and lifting of the supervised parenting time restriction. Ashley filed a
motion seeking sole care and custody of the children. She claimed that the
children were terrified of Joshua and that she relocated to Florida when he was
released from jail.
The family court agreed that Ashley had violated the FCRPP by
failing to give notice of moving with the children to Florida and ordered her to pay
Joshua’s attorney’s fees of $837.50. It denied Joshua’s request to have the children
returned to Kentucky and appointed a Friend of the Court (“FOC”) to determine
the wishes of the children. It recommended Joshua engage in Reconciliation
Therapy with the children and directed him to take action to set up the therapy. It
granted Joshua timesharing from July 28, 2023 to August 4, 2023.
-6- On January 9, 2024, the Bourbon Circuit Court entered an
expungement order relating to the criminal charges stemming from the domestic
violence incident between Joshua and his girlfriend that was witnessed by his
daughter.
The family court conducted a hearing on March 29, 2024, addressing
multiple issues regarding custody, and timesharing. Ashley’s attorney prepared an
order reflecting the agreements the parties had reached on some issues and the
family’s court’s rulings on the contested issues. Joshua was represented by
counsel at the hearing and his counsel indicated that he had seen and approved the
order prepared by opposing counsel by signing “have seen” on the document. The
order was entered on April 12, 2024, granting Ashley sole care, custody and
control of the children. To support this modification of custody, the family court
cited the DVO entered against Joshua in 2016; his further violations of the DVO;
and the juvenile petitions filed in regard to the daughter. The court acknowledged
that the second DNA case was dismissed but found that it contained information
relevant to determining the daughter’s best interests in the custody case. The
family court also referred to the criminal case that had been brought against Joshua
in Bourbon County, involving violence against a third party. The court
acknowledged that it had been resolved in Joshua’s favor but further stated there
was still evidence before the court of domestic violence involving a third party.
-7- The family court found that Joshua did not seek Reconciliation
Therapy with his children as the court had recommended. Joshua refused on the
grounds that it would be difficult because Ashley and the children were out of
state, but the court noted that virtual therapy was prevalent and could have been
used. The family court also found that Ashley had moved to Florida without
giving adequate notice to Joshua and that the court had previously ordered her to
reimburse Joshua’s attorney’s fees.
The court concluded that custody should be modified because the
parties were unable to communicate or co-parent. Joshua was awarded supervised
timesharing comprised of one week in June and one week in July.
About two months later, on June 25, 2024, Joshua filed an affidavit
with the court stating that the summer timesharing agreement did not accurately
reflect the agreement of the parties at the March 29, 2024, hearing. He explained
that it was intended to be one week in June and two weeks in July, but the court
order omitted one week. The family court set the matter for a hearing as provided
by Kentucky Rules of Civil Procedure (“CR”) 60.02 and 60.01. Joshua then filed
another document seeking to hold Ashley in contempt and requesting additional
modifications to the April 12, 2024, order. The family court reviewed the record
and determined that Joshua was correct regarding the July visitation schedule. It
-8- subsequently entered an order amending the April 12, 2024, order to reflect that
Joshua would receive two weeks of visitation in July.
The remainder of Joshua’s claims were addressed at a hearing on
September 2, 2024. The family court thereafter entered an order on September 27,
2024, addressing numerous issues. It denied Joshua’s motion for immediate return
of the children and for “make up” timesharing, due to his own lack of compliance
with the timesharing order and his failure to demonstrate efforts on his part to
effectuate the missed timesharing. It specified that Joshua was to have scheduled
phone contact with his son; it stated that Stephanie Cooley, the paternal
grandmother, could supervise timesharing provided Kevin Cooley, the paternal
grandfather was not present. Otherwise, Tracy Carroll2 was to be present to
supervise timesharing and there would be no restriction on Kevin Cooley’s
presence if Ms. Carroll was supervising timesharing. It provided for Joshua to
have timesharing beginning at the conclusion of school on Tuesday, November 26,
2024, concluding on Sunday, December 1, 2024. The parties were ordered to
mediate all outstanding issues with the family court mediator.
On January 13, 2025, Joshua filed a motion to modify the custody
order entered on April 12, 2024. He sought joint custody and for the court to
2 A careful review of the record provided no explanation as to who Tracy Carroll is or why she would be identified as an individual to provide supervision during timesharing with the children.
-9- designate Ashley as the non-custodial parent. He alleged that Ashley had moved
to a new address in Florida without notifying him. He also alleged that her
boyfriend was violent, abusive, had a criminal record, and presented a danger to
the children. He also filed a motion requesting the court hold Ashley in contempt.
Ashley filed a motion to hold Joshua in contempt. He filed a response
asking, among other things, for the children to be returned to Kentucky.
On February 2, 2025, the family court entered an order denying the
motion to modify custody.
On February 12, 2025, Joshua once again filed a motion to modify the
order entered on April 12, 2024. According to Joshua, the purpose of this motion
was to request the court to include omitted orders and mutual agreements entered
on the video record on March 29, 2024, and to correct the order to accurately
reflect the video record.
The motion requested over seventeen changes and deletions to be
made to the original order. It requested two weeks in July for timesharing and
visitation during the timeshare which he would work out with Tracy Carroll. The
motion acknowledges that the family court had already entered an order to include
two weeks of visitation in July. The motion made the following additional
requests: (1) to include Spring Break 2025 for visitation with the children; (2) to
add language stating that custody has nothing to do with how much time the parent
-10- spends with the children and that everyone preserves their parental rights; (3) that
both parties agree to have access to information concerning the children’s medical
and educational records; (4) that regardless of custody, both parties agree they will
have equivalent decision-making authority regarding major medical care and
religious issues; (5) that the court will recommend Reconciliation Therapy for
Joshua and the daughter and that the daughter will participate if Joshua sets it up;
and (6) that even if she is the sole custodian, Ashley is required to notify Joshua, as
if they were joint custodians, if she seeks to relocate the children anywhere and to
keep him informed of their current address and phone number. The motion also
sought to delete provisions of the order relating to supervision of visitation and the
role of Tracy Carroll, and to delete the provision that the children have their
phones with them at all times during timesharing and have access to the FOC’s
phone number to contact him at any time. The motion also requested the court to
honor and enforce the expungement order of the Bourbon Circuit Court, dated
January 9, 2024.
Joshua also filed a second motion, pursuant to Kentucky Revised
Statute (KRS) 431.076, which relates to expungement of criminal records. He
again requested the Boyle Family Court enforce the expungement order and
remove the Bourbon County charges from the family court records. He sought to
-11- stop any testimony or hearsay about the charges in the family court proceedings on
the grounds they had been expunged and deemed never to have happened.
On February 28, 2025, the family court entered an order granting in
part and denying in part the motion to alter, amend, or vacate the April 12, 2024,
order, and denying the expungement motion. The family court noted that Joshua’s
counsel had indicated that the April order reflected the agreement of the parties and
the rulings of the court by signing “have seen” on the document. The court
reviewed the complicated procedural record of the case, and the multiple motions
filed by Joshua since the October 2024 hearing. It thereafter addressed seventeen
of Joshua’s claims to amend or delete portions of the April order and noted that it
had already clarified aspects of the order in its order entered on September 27,
2024. The court refused to make any further amendments or deletions on the
grounds that they were without merit or had already been addressed. The court
further pointed out that it was Joshua’s second motion to alter, amend, or vacate
the April order and there was no compelling reason to allow him a “second bite” at
the apple. The court also denied the motion to expunge on the grounds that the
allegations underlying the criminal charges in Bourbon County could still be used
in assessing the best interests and protection of the children in the civil case.
This appeal followed.
-12- STANDARD OF REVIEW
The family court treated Joshua’s motion to alter, amend, or vacate as
one brought under Kentucky Rules of Civil Procedure (CR) 60.02, which permits
relief from judgment, and CR 60.01, which permits the correction of clerical
mistakes. We review the trial court’s denial of a motion pursuant to CR 60.02 or
CR 60.01 under an abuse of discretion standard. White v. Commonwealth, 32
S.W.3d 83, 86 (Ky. App. 2000); Aurora Loan Services v. Ramey, 144 S.W.3d 295,
299 (Ky. App. 2004). An abuse of discretion occurs when a “trial judge’s decision
was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
ANALYSIS
Joshua raises three arguments: (1) the family court unlawfully denied
his motion of February 12, 2025, to alter, amend, or vacate the order entered on
April 12, 2024; (2) the family court unlawfully denied his February 12, 2025,
motion to enforce the order of expungement from Bourbon Circuit Court under
KRS 431.076; and (3) the family court infringed on his rights to know the location
and whereabouts of his children.
(1) The family court did not abuse its discretion in denying the motion to alter, amend, or vacate.
On appeal, Joshua argues that the family court acted unlawfully in
denying his CR 60.02 motion. He disputes the family court’s statement that it was
-13- his second motion to alter, amend, or vacate, and contends he should not be bound
by his attorney signing “have seen” on the April 2024 order.
The record shows that Joshua filed a motion on January 13, 2025, to
modify the custody order of April 12, 2024. He then filed the motion to alter,
amend, or vacate the same order on February 12, 2025. Although the January
motion was not formally styled a motion to alter, amend, or vacate, it sought the
same type of relief. “[O]ur emphasis remains on substance over style.” Lassiter v.
American Exp. Travel Related Services Co., Inc., 308 S.W.3d 714, 718 (Ky. 2010).
Successive motions pursuant to CR 60.02 are frowned upon and Joshua does not
explain why he waited ten months before filing the motion to alter, amend, or
vacate. In the intervening period he filed other motions seeking to hold Ashley in
contempt and seeking to modify the timesharing arrangement. The family court
nonetheless addressed every issue raised in the February 2025 motion. Joshua
provides no reason whatsoever that the family court’s resolution of these issues
was erroneous; he merely argues that the family court should have granted his
motion but does not explain why.
Joshua also objects to the court’s reference to his attorney signing
“have seen” on the April 12, 2024, judgment. A client is bound by the acts of his
attorney, even if those acts were negligent, because the attorney was acting within
the scope of his duties as the client’s agent. Herfurth v. Horine, 266 Ky. 19, 98
-14- S.W.2d 21, 23 (1936); Douthitt v. Guardian Life Ins. Co. of America, 235 Ky. 328,
31 S.W.2d 377, 379 (1930). Joshua appears to have been aware of his attorney’s
alleged shortcomings as early as June 25, 2024, yet never moved to correct any
parts of the order except the summer timesharing provision – which the family
court promptly amended.
Next, Joshua argues that the family court erred in denying his motion
to enforce the order of expungement from the Bourbon Circuit Court. The
expungement statute states in pertinent part:
An order of expungement pursuant to this section shall expunge all criminal records in the custody of the court and any criminal records in the custody of any other agency or official, including law enforcement records, but no order of expungement pursuant to this section shall expunge records in the custody of the Department for Community Based Services. The court shall order the expunging on a form provided by the Administrative Office of the Courts. Every agency, with records relating to the arrest, charge, or other matters arising out of the arrest or charge, that is ordered to expunge records, shall certify to the court within sixty (60) days of the entry of the expungement order, that the required expunging action has been completed. All orders enforcing the expungement procedure shall also be expunged.
KRS 431.076(4).
After the expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall delete or remove the records from their computer systems so that any official state- performed background check will indicate that the records do not exist. The court and other agencies shall
-15- reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.
KRS 431.076(6).
The family court did refer to the criminal case in its order,
acknowledging that it had been resolved in Joshua’s favor, and further stated that
there was still evidence before the court of domestic violence involving a third
party. The court stated that it was the criminal charge in Bourbon County that was
expunged, “not any of the alleged facts and circumstances under which that charge
was brought. In other words, testimony regarding the allegations under which the
Bourbon County criminal case was brought cannot and should not be excluded
from a consideration regarding the best interests and the protection of these
children in this civil case.”
A criminal proceeding necessarily begins with the filing of a formal
complaint or charge. Thus, the expungement statute encompasses the records and
legal consequences generated by that proceeding. It does not, however, erase the
underlying facts that existed independent of the criminal case itself.
Accordingly, an expungement would preclude testimony derived
solely from the expunged proceeding or its records. Individuals whose knowledge
of the events is based exclusively upon those records could not testify regarding
-16- them. KRS 431.076, however, does not bar otherwise admissible testimony from
witnesses who possess independent personal knowledge of the underlying events.
Those facts exist regardless of whether criminal charges were ultimately filed and
regardless of the outcome of any resulting prosecution.
Thus, a witness with firsthand knowledge of the conduct that led to a
criminal charge would not be prohibited from testifying about that conduct,
provided the testimony is otherwise admissible under the Kentucky Rules of
Evidence. As one treatise explains, “[a]n expungement order does not preclude
witnesses who have knowledge independent of the expunged record from
testifying.” 24 C.J.S. Criminal Procedure and Rights of Accused § 2173.
Likewise, the Tennessee Court of Appeals has recognized the distinction between
the underlying conduct and the legal consequences arising from that conduct:
“The key point is the distinction between the underlying acts, which are not erased
by expungement, and the legally operative facts resulting from those acts . . .
which are erased by expungement and cannot be considered.” Wright v. Tennessee
Peace Officer Standards and Training Comm’n, 277 S.W.3d 1, 13 (Tenn. Ct. App.
2008). Because KRS 431.076 does not bar consideration of underlying facts and
circumstances known through sources independent of the expunged criminal
proceeding, the family court did not err in considering testimony from witnesses
-17- who had independent knowledge of the conduct giving rise to the expunged
proceedings or the juvenile proceeding that was based on the conduct.
Moreover, our review of the record indicates that the family court’s
decisions regarding custody and timesharing were based primarily on other
substantial evidence in the record. CR 61.01 provides that “[n]o error in . . .the
admission . . . of evidence . . . is ground . . . for vacating, modifying, or otherwise
disturbing a judgment or order, unless refusal to take such action appears to the
court inconsistent with substantial justice.” The record is replete with other
evidence relied upon by the family court, such as the previous DVO, his violation
of the DVO, and the DNA actions in 2016; his conduct towards his daughter; his
failure to pay child support; and his failure to engage in Reconciliation Therapy as
directed by the court. Any error committed by the court in relying on the evidence
underlying the Bourbon Circuit Court case was harmless and not grounds for
reversal.
Finally, Joshua argues that the family court infringed on his rights to
know the location and whereabouts of his children. The family court initially
ordered Ashley to notify Joshua in the event of her relocation and to inform him of
her current address and phone number. The court later determined that Ashley was
entitled to invoke Kentucky’s Safe at Home Program because she had previously
obtained a DVO against Joshua, which he violated. The Safe at Home Program
-18- was established within the Office of the Secretary of State with the intent to protect
victims of domestic violence, human trafficking, stalking, sexual assault, rape, and
other sexual crimes. KRS 14.302. The Program authorizes the use of designated
addresses for victims, their minor children and other individuals residing with the
victim. KRS 14.302(3). A victim of domestic violence “may apply to the
Secretary of State to have an address designated as his or her mailing address in
place of his or her residential address[.]” KRS 14.304(1).
Ashley argues that Joshua can contact her through her attorney and
that electronic communications between the parties are permitted.
Joshua does not dispute the family court’s finding that Ashley is a
victim of domestic violence who qualifies to keep her address confidential under
this program. He does not provide a citation to the record to indicate where his
argument that the Safe at Home Program infringes on his rights was raised before
the family court. If Joshua wishes to challenge the constitutionality of the
program, he cannot do so for the first time on appeal. “A new theory of error
cannot be raised for the first time on appeal.” Springer v. Commonwealth, 998
S.W.2d 439, 446 (Ky. 1999).
CONCLUSION
For the foregoing reasons, the family court’s order of February 28,
2025, is affirmed.
-19- ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Joshua Cooley, pro se William Roberts Erwin Harrodsburg, Kentucky Danville, Kentucky
-20-