Nathaniel L. Herrell v. Kelsey R. Miller

RENDERED: JUNE 23, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1199-ME
NATHANIEL L. HERRELL APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
v. HONORABLE JOE CASTLEN, SPECIAL JUDGE
ACTION NO. 15-D-00134-002
KELSEY R. MILLER APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, COMBS, AND KAREM, JUDGES.
KAREM, JUDGE: Nathaniel L. Herrell appeals from the Daviess Family Court’s
entry of an amended domestic violence order (“DVO”) on September 7, 2022,
extending for another three years a DVO entered on July 3, 2019. The DVO was
entered on behalf of Herrell’s minor son, M.H. (“Child”) and Child’s mother,
Kelsey R. Miller. Herrell’s arguments that his due process rights were violated by
the entry of the underlying DVO in 2019, are barred for his failure to bring a
timely appeal from that order. As to the amended order entered in 2022, the family
court was required to appoint a guardian ad litem (“GAL”) for Child in accordance
with the directive in Smith v. Doe, 627 S.W.3d 903 (Ky. 2021); however, we hold
the family court’s failure to do so in this case is harmless error and therefore
affirm.
Herrell and Miller are the natural parents of Child. They lived
together until shortly after Child was born, when, according to Herrell’s testimony,
he “kicked her out.” When Child was four years of age, Miller filed a petition for
an emergency protective order (“EPO”) on behalf of Child relating to an incident
which occurred during a weekend visitation with Herrell. Child’s visitation with
his father commenced on Thursday, June 20, 2019, and Herrell returned Child to
his daycare the following Monday morning. When the daycare workers asked
Child what he did on the weekend, Child responded, “I sucked on daddy’s wee
wee and he sucked on mine. Daddy put his wee wee in my butt. It doesn’t hurt if
daddy does it a little but he says harder and faster.” The detective who initially
investigated the incident reported that the day care worker said Child was showing
signs of pain and told her “his butt hurts” when she picked him up to hold him.
She also told the officer that Child seemed embarrassed to talk about what
happened and kept chewing his shirt in a nervous manner. The nurse at the
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emergency room who examined Child told the officer there was no sign of
penetration but there was bruising on Child’s legs “not inconsistent with child
abuse.” The Cabinet for Health and Family Services and the Daviess County
Sheriff’s Office initiated investigations into the incident. Ultimately, the Cabinet
did not substantiate the charges nor were criminal charges laid against Herrell.
The family court entered an EPO against Herrell on June 26, 2019.
On July 3, 2019, while the investigations into the incident were still ongoing, the
family court held a hearing on whether to grant a DVO. Herrell was present at the
hearing. He was not represented by counsel. Miller was present with counsel.
Miller’s counsel told the court they were seeking a three-year, no contact order.
The family court asked Herrell if he agreed, and he said that he did. Herrell then
told the court that he had a question. The court cautioned him that because of the
ongoing investigations, and the possibility of criminal charges, anything he said
could be used against him. He indicated that he understood and asked if, after the
criminal investigation was completed and the three years were over, he could come
back and “have this altered.” The court told him that he could always come back
and ask to have the order amended. On June 3, 2019, by agreement of the parties,
the family court entered the DVO restraining Herrell from any contact with Miller
or Child and from going within 500 feet of Miller’s residence, her place of
employment, and Child’s daycare. The DVO was set to expire on July 3, 2022.
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On June 15, 2022, Miller a filed a motion to extend the DVO. After
conducting a hearing in chambers with Child at which Miller was present, the
family court determined that Child, who was seven years of age, was competent as
a witness. It conducted a final hearing on September 7, 2022, at which time
Herrell and Miller were both present and represented by counsel.
Miller testified that she wanted three more years of no contact
between Herrell and Child. Child was examined by the attorneys in the judge’s
chambers and asked to recall what happened in 2019. Child stated that he took a
shower and went to the bathroom together with Herrell, that they lay on the couch
together, that Herrell put his body on Child’s body, that it involved his private
parts, and that Child did not have any clothes on at the time.
Testimony was also heard via telephone from the Cabinet worker
assigned to the case. She stated that Child was interviewed three or four times
about the allegations and one of the interviews was a year after the alleged event
occurred. She said there was no evidence on examination that he had been abused.
The police detective who conducted the investigation into the incident
testified that there was not enough evidence to seek a criminal prosecution. He
stated that the weak point of the case was that Child called both Herrell and his
stepfather “dad.” He further testified, however, that he believed Child was
referring to Herrell when he described what had occurred.
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Herrell testified that he did not play much with Child when he was at
his home. He explained that he spent his time working or playing video games and
did not pay much attention to the children; that his fiancé took care of that. He
said he was not feeding, clothing, or showering with Child. He testified that he
was never naked around Child although Child would get in the shower with him.
He explained that at the first DVO hearing three years before, he thought it best to
let the order go while the criminal investigation was ongoing. He acknowledged
that in 2011, he had entered a plea of guilty to first-degree criminal abuse of a child
after his ex-wife accused him of breaking and bruising their son’s arm.
At the close of the hearing, Herrell’s counsel argued that Herrell’s due
process rights had been violated at the 2019 hearing. The judge pointed out that
Herrell had agreed to the DVO at that time and that many DVOs were entered
pursuant to an agreement of the parties. The family court found Child to be a
credible witness whose statements were consistent and entered an order extending
the DVO for another three years. This appeal by Herrell followed.
Herrell argues that even though he agreed to the entry of the DVO in
2019, it should be vacated because the proceedings failed to meet the minimum
requirements of due process. Specifically, he alleges that his rights were violated
in 2019 because he was not represented by counsel, he was not afforded a full
evidentiary hearing, the family court relied solely on the contents of the petition,
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on extra-judicial evidence and hearsay, and essentially prohibited him from
testifying by warning him against self-incrimination. He further argues that Miller
was not entitled to a DVO because she made no allegations of domestic violence
committed against her by Herrell. Herrell argues that the circumstances of his case
are similar to those in Clark v. Parrett, 559 S.W.3d 872 (Ky. App. 2018), in which
a panel of this Court vacated a DVO for various due process violations. Unlike the
appellant in Clark, however, Herrell failed to file a timely appeal from the entry of
the DVO against him.
Herrell could have raised all his arguments in a direct appeal from the
original DVO entered in 2019. An individual against whom a DVO is entered is
precluded from contesting its propriety in a later appeal if he or she fails to file a
timely appeal from the entry of the original DVO. Stinson v. Stinson, 381 S.W.3d
333, 336 (Ky. App. 2012). “[A]ppeals from the issuance of DVOs are required to
be filed within 30 days.” Erwin v. Cruz, 423 S.W.3d 234, 236-37 (Ky. App. 2014);
Kentucky Rules of Appellate Procedure (“RAP”) 3 (formerly Kentucky Rules of
Civil Procedure (“CR”) 73.02).
Herrell attempts to evade this procedural bar by arguing that the
alleged violation of his due process rights renders the initial DVO, and by
extension the amended DVO, void and legally null. A void judgment “unlike one
which is merely erroneous or voidable, is not entitled to any respect or deference
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by the courts of the Commonwealth but instead is open to attack anytime and any
place.” Mathews v. Mathews, 731 S.W.2d 832, 833 (Ky. App. 1987) (citation and
quotation marks omitted). This argument ignores the distinction between a void
judgment and one that is voidable. “[T]he generally accepted rule is that where the
court has jurisdiction of parties and subject matter, the judgment, if erroneous, is
voidable, not void.” Puckett v. Cabinet for Health and Family Services, 621
S.W.3d 402, 410 (Ky. 2021) (quoting Dix v. Dix, 310 Ky. 818, 222 S.W.2d 839,
842 (1949)). Herrell does not dispute that the family court had jurisdiction of the
parties and subject matter when it entered the initial DVO against him. “Once a
court has acquired subject matter and personal jurisdiction . . . challenges to its
subsequent rulings and judgment are questions incident to the exercise of
jurisdiction rather than to the existence of jurisdiction.” Cabinet for Health and
Family Services v. Batie, 645 S.W.3d 452, 470-71 (Ky. App. 2022) (emphasis in
original) (citations omitted). All other issues are subject to waiver for failure to
appeal.
Another case upon which Herrell relies, Kearns v. Ayer, 746 S.W.2d
94 (Ky. App. 1988), is distinguishable on similar grounds. In Kearns, the trial
court granted a default judgment without notice to the defendant, even though he
had timely submitted a letter to the court asserting he was not responsible for the
debt which was the subject of the action against him. The defendant then filed a
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CR 60.02 motion to set aside the default judgment, which the trial court denied.
The Court of Appeals reversed the trial court on the grounds that a judgment
rendered without due process is a nullity for purposes of CR 60.02(e), which
provides that “[o]n motion a court may, upon such terms as are just, relieve a party
. . . from its final judgment, order, or proceeding . . . [if] the judgment is void[.]”
The Kearns opinion states: “[I]t is settled in Kentucky that failure of the plaintiff
to give any notice of the application for default where the defendant has appeared
raises questions of due process, rendering the judgment void within the meaning
of CR 60.02(e).” 746 S.W.2d at 96 (emphasis supplied). “[T]he relief afforded by
CR 60.02 as to ‘final judgments, orders, or proceedings’ is available as to DVOs if
a movant sets forth any of the criteria covered by the rule.” Roberts v. Bucci, 218
S.W.3d 395, 397 (Ky. App. 2007). Unlike the defendant in Kearns, Herrell never
filed a post-judgment motion in the family court to set aside the DVO against him
and consequently we are without authority to review his due process arguments.
Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989).
Herrell further argues that the family court’s finding that domestic
violence and abuse occurred is not supported by the evidence. Insofar as he is
challenging the evidentiary basis of the original DVO, his argument is barred for
the reasons explained above. As to the evidentiary basis for the extension of the
order, the standard for the extension of a DVO differs from the standard for the
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initial entry of the order. Kentucky Revised Statutes (“KRS”) 403.740 provides in
pertinent part as follows:
A domestic violence order shall be effective for a period
of time fixed by the court, not to exceed three (3) years,
and may be reissued upon expiration for subsequent
periods of up to three (3) years each. The fact that an
order has not been violated since its issuance may be
considered by a court in hearing a request for a
reissuance of the order.
KRS 403.740(4). The statutory provision previously in effect similarly provided
that “any party may present to the court testimony relating to the importance of the
fact that acts of domestic violence or abuse have not occurred during the pendency
of the order.” KRS 403.750 (2010). “[N]either the statute nor due process requires
an evidentiary hearing prior to the extension of a DVO.” Cottrell v. Cottrell, 571
S.W.3d 590, 592 (Ky. App. 2019). Although an evidentiary hearing is not
required, “some showing of a continued need for [a] DVO . . . although additional
acts of domestic violence need not be proven.” Rupp v. Rupp, 357 S.W.3d 207,
209 (Ky. App. 2011).
In this case, the family court chose to conduct an evidentiary hearing
on Miller’s petition. It heard testimony from Child, and relied heavily on that
testimony, but did not appoint a GAL to represent Child. Herrell correctly asserts
that our caselaw mandates the trial court appoint an attorney in the absence of
representation for a minor child who is party in a protective order hearing. Smith,
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627 S.W.3d 903. Additionally, Miller’s attorney only noticed his appearance on
behalf of the petitioner; however, the failure on the part of the family court to
appoint a guardian ad litem in this case was harmless error.
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order or
in anything done or omitted by the court or by any of the
parties is ground for granting a new trial or for setting
aside a verdict or for vacating, modifying, or otherwise
disturbing a judgment or order, unless refusal to take
such action appears to the court inconsistent with
substantial justice. The court at every stage of the
proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of
the parties.
CR 61.01.
While Miller’s attorney did not formally announce he represented
Child, his representation during the hearing was in conformity with the intentions
of the Kentucky Supreme Court in Smith, which described the role of a GAL as
follows:
[T]he GAL is the child’s agent and is responsible . . . for
making motions, for introducing evidence, and for
advancing evidence-based arguments on the child’s
behalf.
Smith, 627 S.W.3d at 915 (citing CR 17.03).
In contrast to Smith, where no attorney was present to act on behalf of
the minor child, in the case at bar the petitioner’s attorney actively engaged in the
hearing on behalf of Child; calling witnesses and making arguments. Here, the
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allegations were centered around alleged actions of Herrell toward Child. If any
party were to be aggrieved by the court’s failure to appoint a GAL it would be
Child; and, in the case at bar, Child received the utmost protection afforded in the
law. Therefore, any misstep on the part of the family court was harmless error.
However, trial courts should be warned that this outcome may not follow in
subsequent cases. Per Smith, a minor child must be represented in hearings for
protective orders either as private counsel, or where there is none, by the
appointment of a GAL.
For the foregoing reasons, the order of the Daviess Family Court is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Christopher W. Riccio Nathan Moorhouse
Owensboro, Kentucky Owensboro, Kentucky
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