TERRA O'BRYAN v. MIGUEL FERREIRA

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RENDERED: February 19, 1999; 2:00 p.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 1997-CA-003334-MR TERRA O'BRYAN APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE THOMAS B. MERRILL, JUDGE ACTION NO. 97-FC-006897 v. MIGUEL FERREIRA APPELLEE OPINION AND ORDER DISMISSING IN PART, OPINION AFFIRMING IN PART ** ** ** ** ** BEFORE: GUDGEL, Chief Judge; COMBS and GARDNER, Judges. COMBS, JUDGE: The appellant, Terra O’Bryan (Terra), appeals from two separate orders of the Jefferson Circuit Court which were entered on November 19, 1997, and December 16, 1997, respectively. Having reviewed the record, we dismiss that portion of the appeal taken from the November 19, 1997, order, and affirm with respect to the court’s order of December 16, 1997. On September 16, 1997, the appellee, Miguel Ferreira (Miguel), filed a petition for visitation with the parties’ minor female child, B.B.1 The Domestic Relations Commissioner (DRC) conducted a hearing on the matter and issued a report to the court on October 29, 1997, recommending that Miguel be granted regular visitation with B.B. On November 7, 1997, Terra filed exceptions to the DRC’s report as well as a notice-motion for a hearing before the court on the exceptions. The court denied the motion for a hearing. After Miguel’s first scheduled visitation with B.B., Terra filed an emergency motion to suspend visitation, alleging that B.B. may have been sexually abused during her visit with Miguel. On December 5, 1997, the court conducted a hearing on the motion. The court found that there was no evidence whatsoever that B.B. had been sexually or physically abused and entered an order on December 16, 1997, denying the motion to suspend visitation with Miguel. Terra filed an appeal from the court’s order granting visitation and its order denying the motion to suspend visitation. Terra argues that the court erred in refusing to conduct a hearing on her exceptions to the DRC’s report as mandated by CR 53.06(2). Conversely, Miguel argues that the court’s order of November 19, 1997, was not a final order but rather an order pendente lite. He maintains that pursuant to CR 1 The parties are not married; nor have they ever been married. At the time of B.B.’s conception, Terra was fifteen years’ old and Miguel was 22 years of age. However, criminal charges were never filed against Miguel based upon Terra’s age at the time of the parties’ sexual relationship. Miguel has admitted paternity of B.B. and has made regular child support payments to Terra since B.B.’s birth. Initially, Terra permitted Miguel to visit B.B. Later, Terra refused to allow Miguel to see B.B., and he initiated this action. -2- 53.06(2), the court is not required to conduct a hearing in pendente lite matters. Thus, he contends that her appeal as to the court’s order of November 19, 1997, should be dismissed. We agree with Miguel that the court’s order of November 19, 1997, was not a final and appealable order. The court’s order does not contain any language indicating that it is a final and appealable order. However, it does adjudicate the parties’ rights as to the issue of visitation. Second, Miguel states in his brief that when Terra’s motion for a hearing on her exceptions came before the court, the court noted that the hearing could be heard because this was a pendente lite matter. Additionally, on the prepared order setting the date of the hearing on the exceptions submitted by Terra, the court noted that the motion was overruled and cited CR 53.06(2). CR 53.06(2) provides that “ [e]xcept in pendente lite matters” the parties have 10 days after the filing of the DRC’s report to file exceptions; after a hearing, the court may adopt, modify, or reject the report. Based upon the record as whole, we agree that the court’s order of November 19, 1997, was not a final and appealable order. Terra maintains in the alternative that if the court’s order was not final, she has been denied due process. On the contrary, her due process remedy is still available by recourse to the circuit court to seek additional relief for its final adjudication of the issue. We therefore must dismiss Terra’s appeal from the court’s order of November 19, 1997, as it was not taken from a final and appealable order. -3- Terra also appeals from the order of the court entered on December 16, 1997, which denied her motion to suspend Miguel's visitation based upon allegations of sexual abuse. Pursuant to the court’s order of November 19, 1997, B.B. spent Thanksgiving Day (November 27, 1997) with Miguel, who lives with his mother and sister. Terra alleges that when B.B. returned from the holiday visit with Miguel, she exhibited bizarre behavior and that she had a red “whelp” on her face. The day after the visit, Terra took B.B. to the hospital for an examination. The court conducted a hearing based upon this allegation and denied the motion, holding that there was insufficient evidence to support an emergency order suspending visitation. The court specifically found that the hospital report submitted by Terra did not independently document any evidence of abuse or neglect. The report did not indicate any physical signs of abuse, and it spelled out and recapitulated the allegations that Terra had made to the doctor when she brought B.B. in for an examination. The court duly noted that the photograph of B.B.’s face taken by Terra on the night that B.B. returned from her visitation with Miguel revealed no evidence of a “red whelp” on the child’s face as had been alleged by Terra. At the hearing, Miguel, his mother, and his sister testified as to B.B.’s activities during her visit at their home. The court found their testimony to be credible — with no indication of abuse or improper care. The record reveals the conscientious concern of the court and its awareness of the seriousness of -4- Terra’s allegation. It is apparent that the court considered all the evidence carefully before reaching its decision. We hold that the court’s decision to deny the emergency order was supported by substantial evidence and that the court did not abuse its discretion. Therefore, we affirm the court’s order of December 16, 1997, denying Terra’s motion to suspend Miguel’s visitation with B.B. For the foregoing reasons, we hereby DISMISS Terra’s appeal from the pendente lite order of the Jefferson Circuit Court entered on November 19, 1997, and we affirm the court’s judgment entered on December 16, 1997. ALL CONCUR. ENTERED: February 19, 1999 /s/ Sara Combs JUDGE, KENTUCKY COURT OF APPEALS BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Todd K. Bolus Louisville, KY David S. Weinstein Louisville, KY -5-

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