Background
Derek Fields and Morgan Dickerson, who were never married, share joint legal custody of two daughters, with Dickerson serving as the primary residential parent. After Dickerson reported inappropriate conduct toward the girls by the young son of her then-boyfriend, William Gerard, Fields sought to become the primary residential parent. The Larue Circuit Court found that Gerard and his son no longer lived with Dickerson, the children had no further contact with the son, and the children were safe in Dickerson’s care. It denied Fields’s requested modification in an order he did not appeal.
Fields later learned that Dickerson and Gerard had continued a sexual relationship for a time after describing their romantic relationship as ended. Fields sought relief under Kentucky Rule of Civil Procedure 60.02(c), arguing that Dickerson had committed perjury during the earlier proceedings. The circuit court rejected that claim and separately ordered Fields to pay $5,470 toward Dickerson’s attorney’s fees, based on the parties’ substantial income disparity and the cumulative nature of Fields’s motions and discovery.
The Court’s Holding
The Kentucky Court of Appeals affirmed the denial of CR 60.02 relief. The circuit court was entitled to credit Dickerson’s and Gerard’s testimony that they distinguished a romantic relationship from a sexual one, and Dickerson’s admission that the sexual relationship continued did not compel a finding that she knowingly testified falsely. Fields therefore failed to establish perjury with reasonable certainty.
The court further held that the disputed testimony was not material because the original custody ruling principally rested on findings that Gerard’s son no longer lived in Dickerson’s home, had no further contact with the children, and that the children were safe. The court also affirmed the attorney-fee award because Fields earned substantially more than Dickerson, his litigation conduct increased the proceedings, and itemized billing records supported the $5,470 amount.
Key Takeaways
- CR 60.02 relief based on perjury requires proof with reasonable certainty that testimony was false and material and that the judgment probably would have differed had the truth been known.
- CR 60.02 cannot be used to relitigate issues that could have been raised in a direct appeal.
- A Kentucky court may base an attorney-fee award on the parties’ financial resources and litigation conduct that unnecessarily increased the proceedings and resulting fees.
Why It Matters
The decision underscores the demanding standard for reopening a final custody ruling based on alleged perjury. A later disclosure that arguably conflicts with earlier testimony is insufficient unless the movant establishes falsity and shows that the testimony probably affected the judgment.
It also confirms that a substantial income disparity and repetitive litigation may support a fee award under KRS 403.220, even when the recipient has some disposable income and does not show acute financial hardship.