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NOT TO BE PUBLISHED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 
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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, 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:

Christopher W. Riccio

Owensboro, Kentucky 

BRIEF FOR APPELLEE:

Nathan Moorhouse

Owensboro, Kentucky