Kerr v. Osborne

305 S.W.3d 455, 2010 Ky. App. LEXIS 52, 2010 WL 668743
CourtCourt of Appeals of Kentucky
DecidedFebruary 26, 2010
Docket2009-CA-000351-ME
StatusPublished
Cited by2 cases

This text of 305 S.W.3d 455 (Kerr v. Osborne) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kerr v. Osborne, 305 S.W.3d 455, 2010 Ky. App. LEXIS 52, 2010 WL 668743 (Ky. Ct. App. 2010).

Opinions

OPINION

NICKELL, Judge.

Toni Jones Kerr appeals from an order of the Johnson Circuit Court, Family Division, denying her motion to vacate an agreed order signed in May 2008 by Kerr and Michael S. Osborne. That order gave custody of their baby girl to Osborne and granted Kerr supervised weekend visitation with the child. Though unmarried, Osborne and Kerr are the undisputed parents of the child. The circuit court approved and signed the agreed order, which Osborne maintains is a final custody decree under KRS Chapter 403. Kerr claims should be set aside because she was duped into signing it while under the influence of alcohol and was mislead about its contents. She argues the agreed order is not a final custody order because, among other alleged flaws, it contains no findings of fact and makes no statement about the best interests of her daughter. The trial court denied a motion to vacate because it was filed outside the ten-day window permitted by CR2 59.05, and it was not filed [457]*457within a reasonable time as required by CR 60.02. Having reviewed the record, the briefs and the applicable law, we vacate and remand for further proceedings consistent with this Opinion.

PROCEDURAL BACKGROUND AND FACTS

A daughter was born to Kerr and Osborne 3 on February 6, 2008. On May 20, 2008, when the child was three months of age, at Osborne’s instigation, Kerr and Osborne signed an agreed order giving custody of the child to Osborne, granting Kerr supervised visitation with the child for four hours every weekend and permitting Kerr to resume standard visitation with the child upon completion of a drug and alcohol education program. That same day, the agreed order was approved and signed by the circuit court judge, and the circuit court clerk mailed copies of the signed document to all attorneys of record and to Kerr. The next day, Osborne petitioned the court to award custody of his daughter to him. The custody petition stated that Osborne and Kerr were lifelong residents of Kentucky and Osborne was currently living in Paintsville but that Kerr’s address was unknown. There was no mention of the child’s birthplace, residence or whereabouts. Both the agreed order and the petition for custody were drafted by Osborne’s sister, an attorney in the law firm of Osborne & Bowlin, whose office is located directly below Osborne’s apartment, where Osborne and Kerr were living.

On September 16, 2008, nearly four months after its entry, Kerr moved to vacate the agreed order. She admitted signing it in the downstairs law office but claimed she did so without reading the document, while under such undue influence and in such poor mental and physical condition that she could not “understand the nature and consequences of the document she was pressed to sign,” and believing she was only agreeing to allow Osborne to care for the child and take her to the hospital should the need arise while Kerr was enrolled in a residential rehabilitation program. She also contended that the petition for custody was statutorily deficient and was never served on her as evidenced by the lack of a receipt for a summons; the agreed order was legally deficient under KRS 403.4804 and lacked the required findings of fact, conclusions of law and determination of the child’s best interests; the agreed order was mailed to the parties three days before being entered into the court record; the agreed order lacked finality language; Kerr did not answer the custody petition; Kerr did not waive her appearance and no appearance was entered on her behalf; no evidence was taken; and finally, no affidavit was submitted upon which permanent custody could be granted.

Attached to the motion to vacate was a two-page affidavit signed by Kerr stating she and Osborne often drank alcohol to excess and she needed to enter residential rehabilitation to break her addiction to binge drinking. Kerr spent the night of May 19, 2008, with Osborne in his apartment. She consumed so much alcohol that night that she became unconscious and remained so until the next morning. When Osborne awakened her the next morning, he took her downstairs (while still clad in her pajamas and under the influence of alcohol) to his sister’s law of[458]*458fice in order to sign a paper which she believed allowed Osborne to care for the baby (and take her to the hospital if necessary) while Kerr was in rehab. Kerr did not question Osborne or his attorney-sister about the contents of the document, she just signed her name at Osborne’s direction and went back to bed. Two to three days later, Osborne told her that their relationship was over. Osborne also told Kerr that her father had urged her to sign the agreed order. Kerr maintained there was never any mention of custody or court involvement prior to her signing the agreed order. Kerr alleged she had never seen Osborne care for their daughter and doubted that he possessed the skill to do so. Kerr completed rehabilitation but remains in outpatient treatment. Finally, Kerr stated she believed she was deceived into signing the agreed order. Kerr moved for immediate visitation with her daughter and for temporary custody.

Osborne responded to Kerr’s motion to vacate by stating that he and Kerr had followed the agreed order for four months; but now that Kerr had completed rehab, she wanted to change the terms of their prior agreement. Osborne argued that the trial court lacked jurisdiction to vacate the agreed order because Kerr’s motion was filed outside the ten-day window allowed by CR 59.05 and that the agreed order became final when the time for filing an appeal expired. Osborne maintained the only avenue by which Kerr could seek a change in custody was to file a motion for modification supported by two affidavits demonstrating their daughter was in “serious physical, mental, moral or emotional danger” as required by KRS 403.340(2).

Osborne alleged by affidavit that social services was contacted twice while Kerr was drunk and trying to care for their daughter; on May 19, 2008, Osborne allowed Kerr to stay in his apartment but told her it was in their child’s best interest for him to be named her sole custodian and for Kerr to have only supervised weekend visitation until she completed drug and alcohol rehabilitation when standard visitation would resume; Kerr agreed with Osborne’s plan; no alcohol was consumed by Kerr or Osborne on May 19, 2008; Osborne awakened Kerr on May 20, 2008, and brought her to his sister’s law office where he watched Kerr read the agreed order and sign it; Kerr exercised visitation with her daughter only once between May and October 2008; and while Kerr called Osborne one other time about visitation, she did not exercise it. Osborne denied deceiving Kerr about the contents of the agreed order and stated he believed Kerr “understood exactly what she was agreeing to in the Agreed Order.”

The motion to vacate was argued before the trial court on November 25, 2008. Both parties were represented by counsel. Kerr’s attorney argued the agreed order was not a final custody order because of its many deficiencies, relief was appropriate under CR 60.02 on several grounds including fraud and undue influence, and at the very least, Kerr should be given the opportunity to present proof.

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Bluebook (online)
305 S.W.3d 455, 2010 Ky. App. LEXIS 52, 2010 WL 668743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kerr-v-osborne-kyctapp-2010.