DARRELL PERRY v. BARBARA HAYDEN; MARTY HAYDEN; CHERYL N. CURETON; RICHARD A. ROBERTSON
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RENDERED:
November 14, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO.
97-CA-2509-MR
DARRELL PERRY
v.
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE GARLAND W. HOWARD, JUDGE
ACTION NO. 94-CI-0540
BARBARA HAYDEN; MARTY HAYDEN;
CHERYL N. CURETON; RICHARD A. ROBERTSON
APPELLEES
OPINION AND ORDER
REVERSING AND REMANDING
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BEFORE:
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GUIDUGLI, JOHNSON AND SCHRODER, JUDGES.
SCHRODER, JUDGE.
This is an appeal from an order entered by the
Daviess Circuit Court on September 11, 1997, denying appellant's
motion to proceed in forma pauperis on appeal.
The Daviess
Circuit Court simply signed the printed form order at the bottom
of the KRS 31.120 Affidavit of Indigency filed by appellant and
checked the box provided therein to determine that appellant is
not qualified for the services as provided by KRS Chapter 31.
The decision to grant or deny a motion to proceed in
forma pauperis on appeal is within the discretion of the trial
court and we may not reverse that decision in the absence of
clear error.
CR 52.01;
S.W.2d 402 (1985).
Bush by Bush v. O'Daniel, Ky., 700
In the case sub judice, appellant submitted a
completed Affidavit of Indigency as required by statute for a
determination as to whether he is as a needy person.
The record
does not include any evidence controverting appellant's affidavit
and the circuit court made no findings of fact to support the
conclusion that appellant is not qualified for the services as
provided by KRS Chapter 31.
Therefore, we are of the opinion that the circuit
court's denial of appellant's motion is an abuse of discretion.
Gabbard v. Lair, Ky., 528 S.W.2d 675 (1975).
It is ORDERED that
the order denying in forma pauperis status be, and it is hereby,
REVERSED and the matter is REMANDED to the Daviess Circuit Court
with directions that the circuit court grant appellant's motion
to proceed in forma pauperis on appeal.
ALL CONCUR.
ENTERED: November 14, 1997
/s/ Wil Schroder
JUDGE, COURT OF APPEALS
COUNSEL FOR APPELLANT:
COUNSEL FOR APPELLEES:
Darrell Perry, Pro se
LaGrange, Kentucky
Cheryl Newberry Cureton
Owensboro, Kentucky
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