Antwon French v. Celia Mae Rubio

RENDERED: SEPTEMBER 23, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0506-ME
ANTWON FRENCH APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE LUCINDA MASTERTON, JUDGE
ACTION NO. 19-D-00628-003
CELIA MAE RUBIO APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON,
JUDGES.
THOMPSON, L., JUDGE: Antwon French appeals from an order of the Fayette
Circuit Court which denied his Kentucky Rules of Civil Procedure (CR) 60.02
motion. Appellant sought to vacate a domestic violence order (DVO) on the
grounds of newly discovered evidence, perjury, and judicial bias. We find no error
and affirm.
FACTS AND PROCEDURAL HISTORY
Appellant and Appellee, Celia Rubio, are the biological parents of one
minor child born in 2019. Appellee filed a DVO petition against Appellant in
January of 2020. In her petition, Appellee alleged that Appellant took the child to
California without Appellee’s knowledge or consent and would not return with the
child. She also alleged that while she was searching for Appellant and the child,
Appellant called her and told her that he would kill her other children1 if she did
not stop trying to find him and the child.
A DVO hearing was held over two days in April and May of 2020.
Appellant alleged that Appellee abandoned the child and he went to California
with some of his relatives. He also denied making any threatening phone calls.
Ultimately, the trial court believed the allegations made by Appellee and on May 5,
2020, the court entered a DVO prohibiting Appellant from contacting Appellee or
their child. Sometime later, Appellant was allowed supervised visitation with the
child one day a week.
On March 11, 2022, Appellant filed the underlying CR 60.02 motion.
He alleged that Appellee perjured herself during the DVO hearing and that he had
1
Appellee has four other children, but Appellant is not the father of those children.
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new evidence proving the perjury. Additionally, he claimed that the trial judge
who entered the DVO was biased and prejudiced against him.2
After a hearing on the motion, the trial judge denied the CR 60.02
motion. The judge held that the motion was untimely as it pertained to newly
discovered evidence and perjury. The court also held that it could not rule on the
bias issue and that the bias issue should have been raised on direct appeal. This
appeal followed.
ANALYSIS
CR 60.02 states:
On motion a court may, upon such terms as are just,
relieve a party or his legal representative from its final
judgment, order, or proceeding upon the following
grounds: (a) mistake, inadvertence, surprise or excusable
neglect; (b) newly discovered evidence which by due
diligence could not have been discovered in time to move
for a new trial under Rule 59.02; (c) perjury or falsified
evidence; (d) fraud affecting the proceedings, other than
perjury or falsified evidence; (e) the judgment is void, or
has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (f) any
other reason of an extraordinary nature justifying relief.
The motion shall be made within a reasonable time, and
on grounds (a), (b), and (c) not more than one year after
the judgment, order, or proceeding was entered or taken.
2
Appellant sued the judge who entered the DVO in federal court. Subsequently, the judge
recused herself from any further involvement with this case. Judge Lucinda Masterton was then
appointed to preside over this case.
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A motion under this rule does not affect the finality of a
judgment or suspend its operation.
“Our standard of review of a trial court’s denial of a CR 60.02 motion
is whether the trial court abused its discretion. The test for abuse of discretion is
whether the trial court’s decision was ‘arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.’” Age v. Age, 340 S.W.3d 88, 94 (Ky. App.
2011) (citations omitted).
The decision as to whether to grant or to deny a motion
filed pursuant to the provisions of CR 60.02 lies within
the sound discretion of the trial court. The rule provides
that a court may grant relief from its final judgment or
order upon various grounds. Moreover, the law favors
the finality of judgments. Therefore, relief may be
granted under CR 60.02 only with extreme caution and
only under the most unusual and compelling
circumstances.
Id. (citations omitted).
Here, we believe the trial court correctly denied Appellant’s motion.
As to the new evidence and perjury allegations, those were not brought within one
year as required by the rule. The DVO in question was entered on May 5, 2020,
and the CR 60.02 motion was filed on March 11, 2022. Appellant also argues that
we should consider the perjury issue as fraud affecting the proceedings, CR
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60.02(d), which would take it out of the one-year limitation period. We disagree
because CR 60.02(d) specifically excludes perjury.3
As to the alleged judicial bias, we disagree that the trial court could
not examine this issue. It could have been analyzed pursuant to CR 60.02(f), the
“any other reason” catchall provision; however, we will still affirm the judgment of
the court as to this issue because Appellant did not provide evidence to prove
judicial bias.4 Appellant believed the judge who entered the DVO was biased
against people of color and men. His argument was that people of color and men
are routinely ruled against in family court matters. We do not believe this is
sufficient evidence to prove that the original trial judge was unethical or biased
toward Appellant.
3
Even though perjury and falsified evidence are explicitly subject to the one-year time limitation
pursuant to CR 60.02(c), our Supreme Court has held that “a criminal conviction based on
perjured testimony can be a reason of an extraordinary nature justifying relief pursuant to CR
60.02(f) and subject to the reasonable time limitation of the rule.” Commonwealth v. Spaulding,
991 S.W.2d 651, 657 (Ky. 1999) (emphasis added). To date, the rule in Spaulding has not been
expanded to cover alleged perjury in civil proceedings, which a DVO proceeding is. “A DVO
proceeding is a civil matter that requires that the court find from ‘a preponderance of the
evidence that an act or acts of domestic violence and abuse have occurred and may again
occur[.]’” Rankin v. Criswell, 277 S.W.3d 621, 624 (Ky. App. 2008) (citation omitted). Thus,
Appellant cannot rely on CR 60.02(f) as a basis for reopening due to Appellee’s alleged perjury.
4
This Court can affirm on other grounds. See Commonwealth Natural Resources and
Environment Protection Cabinet v. Neace, 14 S.W.3d 15, 20 (Ky. 2000); O’Neal v. O’Neal, 122
S.W.3d 588, 589 n.2 (Ky. App. 2002).
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CONCLUSION
Based on the foregoing, we affirm the judgment of the trial court. The
court did not err in denying Appellant’s CR 60.02 motion.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
Antwon French, pro se
Lexington, Kentucky
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