Arnold Jawahir v. Dagmar Jawahir

RENDERED: FEBRUARY 4, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0633-ME
ARNOLD JAWAHIR APPELLANT
APPEAL FROM MEADE CIRCUIT COURT
v. HONORABLE KENNETH H. GOFF, II, JUDGE
ACTION NO. 18-CI-00340
DAGMAR JAWAHIR APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
DIXON, JUDGE: Arnold Jawahir appeals from the findings of fact, conclusions
of law, and judgment/decree entered by the Meade Circuit Court on May 13, 2021.
After careful review of the briefs, record, and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
The underlying proceeding is for dissolution of the parties’ marriage
and attendant orders relating to their children, maintenance, and the allocation of
marital property. A hearing was held before a domestic relations commissioner
whose recommendations were then accepted, without objection, by the court on
May 13, 2021. Arnold timely filed a notice of appeal.
ANALYSIS
The crux of Arnold’s appeal is that, through what he alleges is clerk
error, he did not receive various orders of the court and, as a result, was deprived
notice of the proceedings and prevented from presenting his own evidence.
Accordingly, Arnold argues the judgment should be set aside due to excusable
neglect and urges this Court to grant him relief pursuant to CR1 60.02.2 Dagmar
disputes Arnold’s claim of excusable neglect and, moreover, argues that Arnold’s
claims are not properly before this Court. We agree that Arnold’s claims are not
ripe for our review.
On appeal, the role of the appellate court is to review the decisions of
the trial court. See Jones v. Livesay, 551 S.W.3d 47 (Ky. App. 2018).
Accordingly, it has long been held that “‘[a] new theory of error cannot be raised
1
Kentucky Rules of Civil Procedure.
2
In his brief, Arnold acknowledges that his claims would customarily be raised via a CR 60.02
motion; however, citing the fact that CR 60.02 motions do not extend the time to take an appeal,
Arnold asserts his only viable choice was to file this direct appeal. We disagree. CR 60.02
provides a method for raising claims which cannot be raised in other proceedings. McQueen v.
Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). One of the acknowledged purposes of the
rule is to “bring before the court that pronounced judgment errors in matter of fact which . . . the
party was prevented from so presenting by duress, fear, or other sufficient cause.” Id. (quoting
Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983).
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for the first time on appeal’” and that such claims “will not support a favorable
ruling on appeal.” Id. at 52 (quoting Springer v. Commonwealth, 998 S.W.2d 439,
446 (Ky. 1999)). Herein, because Arnold has not afforded the circuit court an
opportunity to rule upon his claim of excusable neglect, it cannot serve as a basis
of reversal on appeal, and we must therefore affirm.
CONCLUSION
Therefore, and for the forgoing reasons, the judgment of the Meade
Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Wallace N. Rogers Douglas E. Miller
Louisville, Kentucky Radcliff, Kentucky
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