Bobby Newberry v. Jessica Shelton ( 2022 )

RENDERED: SEPTEMBER 23, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1507-ME
BOBBY NEWBERRY APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
v. HONORABLE SUSAN WESLEY MCCLURE, JUDGE
ACTION NO. 15-D-00148-001
J.S. APPELLEE
OPINION
DISMISSING
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
CLAYTON, CHIEF JUDGE: Bobby Newberry appeals pro se from a Hopkins
Family Court order denying his motion to alter, amend, or vacate a domestic
violence order (DVO). Because his appeal is untimely, it must be dismissed.
Newberry is the biological father of a child who was placed in the
custody of the appellee, J.S. and her husband. They subsequently adopted the
child. In 2015, the Hopkins Family Court entered a DVO against Newberry on
behalf of J.S. and the child, based on threats of violence he made against the child.
The DVO was set to expire on October 31, 2018. In 2016, Newberry, who was
incarcerated throughout these proceedings, filed an unsuccessful motion to amend
and terminate the DVO. In 2018, on J.S.’s motion, the family court extended the
termination date of the DVO to October 15, 2021. On October 18, 2021, following
a hearing, it extended the termination date of the DVO again, to October 15, 2024.
Newberry thereafter filed a document styled “Motion to appeal
domestic violence order” in which he sought to vacate, set aside, or dismiss the
DVO. He filed this motion on November 1, 2021. On November 15, 2021, he
filed a letter addressed to the Hopkins Circuit Clerk, apologizing for any confusion
the wording of the motion might have caused and clarifying his intent in filing it.
He explained that he was trying to “get this DVO lifted” as it had hampered his
rehabilitation within the Kentucky Department of Corrections. The letter then
states:
From what I understood I only had 10 days to file an
appeal on the extension of said DVO so I filed a motion
to the judge with everything wrong with extending this
DVO. I await the judge to read and rule on my motion
before I proceed towards the next step in this DVO. Now
if the judge denies my motion then yes I will file an
Appeal . . . for not just the judge but the Court of
Appeals.
The family court entered an order denying the motion. It explained
that Newberry’s motion, which he intended to be a motion to alter, amend, or
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vacate, was untimely filed under Kentucky Rules of Civil Procedure (CR) 59.05,
which requires a party to bring such a motion within 10 days of the date judgment
is entered. Fourteen days had elapsed between the entry of judgment and the filing
of the motion. Consequently, the family court denied the motion as it had lost
jurisdiction to entertain it. It further stated that either party could file a motion to
amend the DVO entered on October 18, 2021, at any time prior to its expiration on
October 15, 2024. This appeal by Newberry followed.
CR 59.05 states “[a] motion to alter or amend a judgment, or to vacate
a judgment and enter a new one, shall be served not later than 10 days after entry
of the final judgment.” “[P]rocedurally, a CR 59.05 motion stays finality until the
motion is ruled upon.” Gullion v. Gullion, 163 S.W.3d 888, 891 (Ky. 2005).
Newberry’s motion did not stay finality, however, because it was filed more than
ten days after the entry of the DVO. The family court correctly held that it was
unable to address his motion because it lost jurisdiction over the matter ten days
after the entry of its order on October 18, 2021.
“[O]rders denying CR 59.05 motions are inherently interlocutory and,
thus, ‘there is no appeal from the denial of a CR 59.05 motion. The denial does
not alter the judgment. Accordingly, the appeal is from the underlying judgment,
not the denial of the CR 59.05 motion.’” Cabinet for Health and Family Services
v. Marshall, 606 S.W.3d 99, 103 (Ky. App. 2020) (quoting Ford v. Ford, 578
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S.W.3d 356, 366 (Ky. App. 2019)). Newberry’s notice of appeal was filed on
December 21, 2021, more than thirty days after the date of notation of service of
the October 18, 2021, order. The CR 59.05 motion did not serve to stay the
finality of that order because the motion was untimely filed. The failure to file a
timely notice of appeal is a jurisdictional defect that cannot be remedied. City of
Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky. 1990). Newberry’s appeal was
not filed within thirty days as required under CR 73.02(1)(a). The penalty for
failure to file a timely notice of appeal is dismissal. Johnson v. Smith, 885 S.W.2d
944, 950 (Ky. 1994) (citing CR 73.02(2)).
For the foregoing reasons, Newberry’s appeal is dismissed.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FILED FOR APPELLEE.
Bobby Newberry, pro se
Burgin, Kentucky
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