Taylor Lambdin v. Nicholas Lambdin ( 2022 )

RENDERED: MAY 6, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0719-MR
TAYLOR LAMBDIN APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
v. HONORABLE STEPHEN M. JONES, JUDGE
ACTION NO. 16-CI-00455
NICHOLAS LAMBDIN APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND GOODWINE, JUDGES.
GOODWINE, JUDGE: Taylor Lambdin (“Taylor”) appeals from the order of the
Knox Circuit Court, Family Division sua sponte vacating all orders entered in the
underlying dissolution action except for the decree of dissolution. After careful
review, we vacate and remand.
Taylor and Nicholas Lambdin (“Nicholas”) were married in 2014.
One minor child was born to the parties during the marriage. Thereafter, the
parties separated, and Taylor petitioned for dissolution of the marriage. The
parties entered into a separation agreement wherein they chose to share joint
custody with Taylor having primary residential custody. Nicholas agreed to
supervised visitation with the child. On April 13, 2018, the family court entered a
decree dissolving the marriage and incorporating the parties’ agreement therein.
On September 10, 2020, Taylor moved to modify custody, requesting
sole custody, and properly noticed Nicholas for the court’s September 25 motion
hour. The court heard the motion remotely. Neither Nicholas nor his counsel was
present at motion hour. The court scheduled a final hearing on Taylor’s motion for
December 2, 2020. Taylor and her counsel were present at the December 2
hearing.1 Neither Nicholas nor his counsel was present either in the courtroom or
remotely despite being properly notified by the court and Taylor’s counsel, who
sent Nicholas a Notice of Zoom Hearing and filed the Notice in the record herein.
Record (“R.”) at 69-70.
On December 2, 2020, the court conducted a full evidentiary hearing
on Taylor’s motions. At the close of evidence, the family court made oral findings,
noted its findings on the docket sheet, and granted Taylor’s motion. The docket
sheet was signed and entered the same day. The court ordered Taylor’s counsel to
draft and tender an order consistent with its oral findings within ten days.
1
The hearing was held virtually because of COVID-19 restrictions.
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On December 4, 2020, prior to a written order being tendered, counsel
for Nicholas moved to alter, amend, or vacate the court’s “previous order.” In the
motion, Nicholas did not request a new hearing. Rather, he requested only that the
court vacate its December 2 ruling. Taylor contested Nicholas’ motion, arguing it
was premature because the order modifying custody had not been entered yet and
that, on this basis, the court did not have jurisdiction to rule on the motion. At the
court’s December 13 motion hour, the court again heard arguments from counsel
on Nicholas’ motion to alter, amend, or vacate and directed each counsel to tender
a proposed order within 14 days.
Taylor complied and tendered the order modifying custody and an
order denying Nicholas’ motion to alter, amend, or vacate on December 18, 2020.
On January 5, 2021, the family court entered the order modifying custody tendered
by Taylor and made it final and appealable. There is no indication in the record
that Nicholas tendered, electronically or otherwise, a proposed order within the 14-
day period. Nicholas did not appeal the January 5 order.
Following entry of the January 5 order, Nicholas did not file a motion
to alter, amend, or vacate the order. Instead, his counsel tendered an order stating,
“the order made by the Court on December 2, 202[0], during the hearing shall be
vacated,” and “this matter shall be reset for a final hearing upon Motion from
either party.” R. at 92. The tendered order does not address the order entered on
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January 5, 2021. For reasons unexplained by the court, it signed and entered the
order on January 13, 2021.
On March 4, 2021, Nicholas requested a final hearing. Taylor
objected, arguing the January 5 order modifying custody remained in effect. The
motion and objection were heard at motion hour on March 12, 2021. On May 3,
2021, the family court, sua sponte, vacated all prior orders except the decree.2 This
appeal followed.
Nicholas has not filed a brief on appeal.
If the appellee’s brief has not been filed within the time
allowed, the court may: (i) accept the appellant’s
statement of the facts and issues as correct; (ii) reverse
the judgment if appellant’s brief reasonably appears to
sustain such action; or (iii) regard the appellee’s failure
as a confession of error and reverse the judgment without
considering the merits of the case.
CR3 76.12(8)(c). Kentucky courts have held sanctions under CR 76.12(8)(c)(iii)
are inappropriate where child custody is at issue. Oster v. Oster, 444 S.W.3d 460,
461 (Ky. App. 2014) (citations omitted). Therefore, we will accept Taylor’s
statement of the facts and issues as correct under CR 76.12(8)(c)(i) and proceed
with our consideration of the merits of her appeal.
2
On a docket sheet entered on March 12, 2021, the court noted its decision to sua sponte vacate
all prior orders.
3
Kentucky Rules of Civil Procedure.
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On appeal, Taylor argues: (1) the family court was without
jurisdiction to set aside the January 5, 2021 order; (2) the family court abused its
discretion by sua sponte setting aside all orders in this matter; and (3) the family
court erred by failing to specify the grounds on which it set aside the orders.
The family court did not have jurisdiction to vacate the January 5
order on May 3, 2021. It is well-settled that a court loses jurisdiction over a
judgment ten days after its entry where no motion to alter, amend, or vacate is
filed. See Marrs Electric Co., Inc. v. Rubloff Bashford, LLC, 190 S.W.3d 363, 367
(Ky. App. 2006); see also Commonwealth v. Steadman, 411 S.W.3d 717, 721 (Ky.
2013). Under CR 59.05, a motion to alter, amend, or vacate a judgment must be
served not later than 10 days after entry of the final judgment.
On January 13, 2021, the family court signed a tendered order
appearing to vacate its December 2 “order”4 but did not vacate the January 5 order
modifying custody. Thereafter, Nicholas did not move to alter, amend, or vacate
the order within 10 days of entry. Instead, months later, he requested a final
hearing and, after nearly four months, the court sua sponte vacated all orders,
including the January 5 order modifying custody. The court acted outside its
jurisdiction by vacating the order more than ten days after its entry.
4
There was no written order entered on December 2, 2020. The court made oral findings and
made notations on its December 2 docket sheet.
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Because we are vacating and remanding the family court’s order on
this basis, we need not address Taylor’s remaining arguments.
Based on the foregoing, we vacate the May 3, 2021 order of the Knox
Circuit Court, Family Division, and remand this matter for further proceedings
consistent with this Opinion, namely, to reinstate the order modifying custody
entered on January 5, 2021.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FILED FOR APPELLEE.
Kelly Kirby Ridings
London, Kentucky
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