RENDERED: JUNE 23, 2023; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 20 2 2

- CA

- 1199

- ME

NATHAN IEL L . HERRELL APPELLANT

APPEAL FROM DAVIESS CIRCUIT COURT v. HONORABLE JOE CASTLEN , SPECIAL JUDGE ACTION NO

. 15

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- 0 0134

- 002

KELSEY R. MILLER APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: CALDWELL , COMBS , AND KAREM , JUDGES.
KAREM , JUDGE : Nathan iel L. Herrell appeals from the Daviess Family Court ’s entry of a n amended domestic viole nc e order ( “ DVO ” ) o n September 7, 2 022, extending for anot h er three years a DVO entered on July 3, 2019

. The DVO was
entered on behalf of H errell ’s minor son, M. H. ( “ Child ” ) and Child ’s mother, Kelsey R. Miller

. H errell ’ s arguments that his due process r i ghts were violated by- 2

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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 , t he fa mily

court was r equired to appoint a guardian ad litem ( “ GAL ” ) for Child in accordance
with the directive in Smith v. Doe , 627 S.W.3 d 903 (Ky. 2021) ; however , we hold
the family court ’ s failure to do so in this case i s harmless error and therefore
affirm

. Herrell and Miller a re the nat ural parent s of Child

. T hey lived toget he r u ntil shortly aft er Child was b o rn, when , according to H er rell ’ s testimony , he “ kicked her out

. ” When Child was four years of age , M iller filed a petition for
an emergency protective order ( “ EPO ” ) on behalf of Ch ild relating to an incident
which occur r ed d uring a weekend visitation wit h Herrell

. Child ’ s visi tat ion with
his father commenced on Thursday, June 20, 2019 , and Herrell returned Child to
his dayca re the following Monday morning. When the daycare workers asked
Child what he did on the weekend , Chi ld respon ded , “ I sucked on dad d y ’ s wee wee and he su ck ed on min e . Daddy put his we e 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 report ed that the da y car e worker said Child was showin g signs of pain and told he r “ his butt hurts ” when she picked him up to h old him.
She also told the officer that Child seemed embarrassed to talk about what happened and kept chewing his shirt in a ne rvous mann er. The n urse at the- 3

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emer gency room who exam i ned Child told the offi cer there was no sign of penetration but there wa s bruising on Child ’ s legs “ not inc onsistent with child
abuse. ” T he Cabinet for Health and Family Services and the Davies s County
Sheriff ’ s Offic e initi a ted invest igations into the i n cident

. Ultimately, th e C abinet 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, whil e the investig ation s into the incident wer e still ongoing, the family cou rt held a hearing on whethe r to gr ant a DVO

. Herrell was present at the hearing. He was not represented by counsel. Miller was present with counsel.
Miller ’ s cou nsel told the court they were s eekin g a thr ee
- year, no contac t orde r. The family court as ked 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 investig ations, and the possibility of c rimin al charges, anything he sa id

co uld be used against hi m
. H e 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 h e coul d always c ome back
and a sk to have the order amended

. On June 3, 2019, by agreement of the parties,

t he family court entered the DVO restraining Herrell from any contact with Miller

o r Child and from going within 500 feet of Miller ’ s residence, her p lace o f employment , a nd Child ’ s daycare. The DVO was set t o ex p ire on July 3, 2022.- 4

- On June 15, 2022, Miller a filed a motion to extend the DVO

. After conducting a hearing in chambers with Child at which M iller was present , t he family court determined that C hild , who was seven years o f age, was com petent as

a wi tn e ss. It con ducted a fin al hearing on September 7, 2022 , at which ti me Herrell and Miller were both pre sent and represented by counsel

.

Miller testified that she wanted three more years of no con tact
betw een Herrell and Child. Child was examin ed by th e atto rneys in the j udge ’ s chambers and asked to recall what happened in 2 019. Child stated that he too k a shower and went to the bathroom together with H e rrell, that they la y on the couch

to gether , that Her

rell put his body on Child ’ s body, that it inv ol v ed hi s p rivate parts, a nd that Child did not have any cl o thes on at the time

.

Te s timony was also heard via telephone from the Cabinet worker assigned to the case

. S he stated that Child w as inte rviewed thr ee or four times
about the allegations a nd o ne o f th e interviews was a ye ar after the alleged event
occurred. She said there was no ev idence on examination that he had been abused.

The police detective who conducted the investigation into th e incident
testified that t here w as not enou gh evidence t o s eek a criminal prosec uti on. He stated that the weak point of t he case was that Child called both Herrell and his stepfather “ dad. ” H e further testified, however , that he believed Child wa s refer ring to H e rrell when he described what ha d occurred

.- 5

- He rr el l testified that he did not play much with Child when he was at his home. He expl ained that he spent his time working or playing video games and did not pay much at tention to the children ; that his fiancé took care of that. He
said he was not fee di ng , clot hing, or showering wi th Child

. H e testified that he
was never naked around Child although C hild would get in the shower with him. He explained that at the first DVO hearing three years before , he though t it best to
l et the order go while the crim i n al in v estigation was on g oin g
. H e acknowledged
that in 2011, he had entered a plea of guilty to fir st

- degree criminal abuse of a child
after his ex

- wife accused him of breaking and bruising th eir son ’ s arm.

At the close of the hea ring, H errell ’ s counse l a rg ue d that Herrell ’ s du e
p rocess rights had been violated at the 2019 hearing. The judge pointed ou t that
Herrell had agreed to the DV O at that time and that many DVO s were enter ed pursuant to an agree ment of the parties. The family cou rt f ound C hild t o b e a credible witness who se statements were consistent and ent e red an order extending
the DVO for another three years
. This appeal b y Herrell followe d.

Herrell argues that even though he a greed to the entry of the DVO in 2019, it should be vacated b ec aus e t he proceedings fai led to meet the minimum requirements o f due p rocess
. Specifically, he a lleg es that his rights were violated
in 2019 bec ause he was not re presented by counsel, he was no t a ffo rded a full evidentiary hearing , the family court relie d sol ely on the contents o f t he petition,- 6

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on extra

- judic ial evidence an d hearsay , and essentially prohibit ed him from testifying by warning him ag ainst self

- incrimination. H e further argues that Mille r

was not entitled to a DVO because she made no allegat io ns of domestic violence

com mitted against her by Herrell. Herrell argue s that the circumstances of his case

are similar to those in Clark v. Parre tt , 5 5 9 S.W.3d 872 (Ky. App. 2018), in which

a p anel of this Court vacated a DVO for various due process vi ol ati ons
. Unlike the
appe lla nt in Clar

k , however, Herre l l failed to file a timely appeal from the entry of the DVO against him.

Herrell could have raised all hi s arguments in a direct appeal from t he original DVO entere d in 2019

. An individual agains t w ho m a DVO is entered is
pr eclud ed from contest ing its propriety in a later appeal if he or she fail s to file a timely appeal from the entry of the original DVO. Stinson v. Stinson , 381 S.W.3d 333, 336 (Ky . App. 20 12). “ [A]ppeals from the issuance of DV O s are required to
be fi led within 30 days. ” Erwin v. Cruz , 42 3 S.W.3d 234, 236

- 37 (Ky. App. 2014) ; Kentucky Rules of Appellate Procedure ( “ RAP ” ) 3 ( formerly Kentucky Rules of
Ci vil Procedure ( “ CR ” ) 73

. 02 )

.

Herrell attempts to evade this procedural bar by argui ng that the allege d v iolation of his due process rights renders the initial DVO , and by
extension the amended DVO , void and legally null

. A void judg ment “ unlike one which is merely e rroneous or voidable, is not entitled to any respect or deferenc e- 7

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b y the courts of the Com mon wealth but instead is open to attack anytime and any place .” Mathews v. Mathews , 731 S.W.2d 832, 833 (Ky. App. 1987) (citation a nd quotation marks omitted). This argument ignores the distin ction between a void judgment and on e t hat i s voidable. “ [T] h e g enerally accepted rule is that where the court has jurisdiction of parties and subject matter, the ju dgment, if erroneous, is
voidable , not void .” Puckett v. Cabi net for He alth and Fam ily Services , 621 S.W.3d 402, 410 (Ky. 2021 ) (quot i ng Dix v. Dix , 310 Ky . 818, 222 S.W.2d 839, 842 (1949)). H errell does not dispute that the family court had jurisdiction of the parties and subject matter when it entered the initial DVO again st him

. “ Once a court has acquired subject matter and pe r sona l jurisdiction

. . . c hallenges to its subsequent rulings and judgment are questions incident to the exercise of jurisdiction rather than to the existence of jurisdi ction. ” Cabinet fo r Health a nd Family Services v. Batie , 645 S.W.3d 452 , 470

- 71 (K y
. App. 2 022) (emph asis in origi nal) (citation s om itt ed)

. A ll 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. Ap p. 1988) , i s di stinguishable on similar grounds

. In Ke ar ns , t h e trial court gran ted a default judgment without notice to the defendant , even though he had timely submitted a letter to the court asser ting he was not responsible for the
debt which w as the s ubject of the action against him. The defendant then f il ed a- 8

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CR 60.02 motion to set aside the default judgment , w hich the trial court denied.
The C o u rt of Appeals reversed the trial court on the grounds that a judgment
rendered without due proces s is a n ullity f or purposes of CR 6 0.02(e) , which
pro vid es 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 set tled in Kentucky th at fail u re of the plaintif f

t o give an y 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)

. ” 7 46 S.W .2d at 96 (e mphasis supp lied)

. “ [T] he reli ef affo r ded by
CR 60

. 02 as to ‘ final j udgments, 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 defendan t in Kearns , Herrel l never filed a post

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judgm ent motion i n the family court to set aside the DVO against him

a nd 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 furthe r argue s that the family co urt ’ s findin g that domestic
vi olen ce and abuse occurred is not supported by the evidence. In sofar as he is challenging the evidentiary basis of the original DVO , his argument is barred for
the reas ons explained above. As to the evident i ary basis for the ext ension of the order, the standa rd for th e extension of a DVO differs from the standard for the- 9

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initial entry of the order. Kentucky Re vised Stat utes ( “ KRS ” ) 403.740 provides in pertinent part as follows:

A domestic violence order shall be effective for a period o f time fixed by th e c ourt, not to exceed three (3) y ears, and may be re issued upon expiration for subsequent periods of up to three (3) years each. The fact that an order has not been v iolated since its issuance may be considere d by a court in hea ring a r equest for a reiss uan ce of the order. KRS 403.740(4)

. The statutory provisio n previously in effect similarly provide d
that “ any party may present to the court testimony relating to the importance of the
fact that acts of domestic violenc e o r abuse have not occurred dur ing the p endency
of the order. ” KRS 403.750 (20 10). “ [N]either the statute nor due process require s an evidentiary hearing pr ior to the extension of a DVO. ” Co ttrell v. Cottrell , 571
S.W.3d 590, 592 (Ky. App. 2019)

. Although a n evidentiary heari ng is n o t required, “ some sho wing of a continued need f or [ a ] DVO

. . . although additional acts of domestic violence need not be proven. ” Rupp v. Rupp , 357 S.W.3d 207,
20 9 (Ky. App. 2011)

.

In this case, the family court chose t o conduct an eviden tiary h e aring
on Miller ’ s pet ition . I t heard testimony from Child, an d relied heavily on that testimony, but did n ot appoint a GAL to represent Child. Herrell correctly asserts
that our caselaw mandates the t rial court appoint an attor ney in the absence of representation f

or a minor child wh o is party in a protective order hearing. Smith ,- 10

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627 S.W.3d 903

. Additionally, Miller ’s attorney only noticed his appearance on behalf of the pet itioner ; however , the failure on the part of the family cou rt to
appo int a guardian ad litem in t his cas e 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 o r omitted by the cou rt or by any of the parties is ground f

or granting a new trial or for se tting 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 jus tice. The court at e very stage of the p roceeding must disregard any erro r or defect in the proceeding which does not affect the substantial rights of the parties.
CR 61.01

. W hile Miller ’s attorney did not formally anno unce he repres ented
C hild, h is representation during the hearing was in co n form ity with the intentio ns

o f the Ken tu cky Supreme C ou rt 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 i ntroducing evidence, and for advancing evid ence
- based argum ent s 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 peti tioner ’s attorney actively e ngaged in the
hearin g on behalf of C hild ; calling witness es and making arguments. Here, the- 11

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allegations were centered around alleged actions of Herrell toward C hild. If any party were to be aggrieved by the court ’s fa ilu re to appoin t a GAL i t wou ld be
C h ild ; and , in the cas e at bar , C hild received the utmost p ro tection afforded in the
law. There for e , any misstep on the part of the family court was harmless error. However, trial courts should be warn ed that this outcome may not fo ll ow i n

su bsequent ca ses
. Per Smith , a minor ch ild must be represente d in he arin gs for protective orders eith er as private counsel, or where there is none, by the appointment of a GAL

.

For t he foregoing reasons, the order of the Daviess Family C ourt is
affirmed.

ALL CONC UR.

BRIEF S FOR APPELLA NT:
Chris topher W

. Riccio Owensbo ro , Kentuck y BRIEF FOR AP PELLEE : Nathan Moorhouse Owensboro , Kentu c ky