Late motion to alter, amend or vacate custody decision when neither party received Order within 10 days from entry - Published Opinion from Ky Court of Appeals


The trial court entered an Order reducing maintenance which neither party received until twelve days after the Order was entered. Wife filed a motion to alter, amend, or vacate pursuant to CR 59.05, CR 60.01 or CR 60.02. The trial court found that no fault could be attributed to Wife for the late filing of her motion, but concluded it had no discretion to consider her motion stating it had lost jurisdiction after ten days expired.

The Court of Appeals held that the trial court retained jurisdiction to consider Wife’s motion as it is “well within the rule’s stated grounds and the authority of the court to invoke CR 60.02 when a clerk is responsible for a mistake that prevents a party from receiving notice of the entry of an order or judgment.” The Appellate Court notes it cannot grant Wife relief on the basis of CR 59.05 alone, as it’s interlocutory in nature, but may grant relief pursuant to CR 60.02.

Digested by Elizabeth M. Howell