Kerr v. Osborne, Substanial Evidence To Support Custody, Reasonable Time To Vacate Agreed Order

Kerr v. Osborne 2009-CA-000351-ME   

Kerr v. Osborne 2009-CA-000351-ME   

Issue:  Substantial Evidence To Support Custody, Reasonable Time In Which To Vacate Order

Published:   Vacating and Remanding

County: Johnson


Mom appealed from FC Order denying her motion to vacate Agreed Order granting sole custody to Dad and giving her only supervised weekend visitation with Child, arguing substantive and procedural errors. 



When Child of Mom and Dad was 3 months old, Mom signed an Agreed Order giving Dad sole custody of Child and giving Mom only supervised weekend visitation until she had completed drug and alcohol program.  Per Mom, she signed the Agreed Order the morning after a night of binge-drinking, based on the persuasion of Dad and Dad’s sister/lawyer, who was also a close friend of Mom’s.  Mom also claimed she had not read the Order and believed only that it would allow Dad to care for Child while she was in rehab.  Dad claimed that Mom had not been drinking the night before and that he watched her read and sign the Agreed Order.  Neither disputed that Mom signed the Agreed Order without independent counsel.  The Agreed Order was signed the same day and mailed to all attorneys of record and Mom.  The following day, Dad petitioned FC for custody.  Petition did not provide information regarding Child’s birthplace or whereabouts and stated that Mom’s address was unknown.  Mom moved to vacate the Agreed Order 4 months later, citing undue influence; that it was statutorily deficient as it lacked the required findings of fact, conclusions of law and determination of Child’s best interests; that it was mailed to her 3 days before entry into the record; and that it lacked finality language.  She also contended that the petition was statutorily deficient; was not served upon her; that she did not answer it; that she did not waive her appearance and no appearance was entered on her behalf; that no evidence was taken; and no affidavit was submitted upon which permanent custody could be granted.  Mom moved for immediate visitation and for temporary custody.  Dad responded to Mom’s motions, stating that Mom had been following terms of Agreed Order for 4 months and only now wanted to change the terms because she had completed rehab, but she could not meet jurisdictional requirements for custody modification.  Dad argued that Mom was outside of 10 day window for filing Motion to Vacate and that Agreed Order was final when time for appeal expired, so FC lacked jurisdiction to vacate it.  FC agreed with Dad and denied Mom’s Motions, finding that 4 months was an unreasonable time to move to vacate because Mom would not have been hung over and without legal representation for the entire span of that time. 



CA held FC acted arbitrarily in finding four months to be an unreasonable time for Mom to move to set aside the agreed order and that FC misread CR 60.02 as imposing a one-year “absolute cutoff” for the filing of a motion to vacate.  CA disagreed, finding that for filing a CR 60.02 motion alleging: (1) fraud; (2) that a judgment is void, satisfied, released or discharged; or (3) any extraordinary reason warranting relief, there is precedent for concluding a delay of only four months was not unreasonable.  CA found that while it was debatable whether Mom acted under the disability of alcohol when signing the Agreed Order, there was no dispute that she acted without the advice of independent legal counsel and at the urging of individuals who had a personal stake in the outcome, and that she did not enter rehab until a month after signing the agreed order and another of the four months was spent in a Virginia treatment facility for alcohol dependence. Under these circumstances, four months was not an unreasonable amount of time to move to vacate the order. 

Although the agreed order gave FC some reason to believe Mom was struggling with drugs or alcohol, it established nothing about Dad and his ability to parent, so FC could not, and did not, make a finding that custody to Dad was in Child’s best interests.  Because no custody petition had been filed at the time the court approved and signed the agreed order giving custody to Dad, FC could not, and did not, determine it had jurisdiction to award custody.  CA also found that FC’s award of custody was not supported by substantial evidence, as only conflicting affidavits filed by the parents were in the record, and FC therefore abused it discretion in awarding custody to Dad. 


Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  



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