MITCHELL JOE MUSSER v. SUSAN G. MUSSER, NOW HENDERSON
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RENDERED: April 23, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001991-MR
MITCHELL JOE MUSSER
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 94-CI-00328
v.
SUSAN G. MUSSER, NOW
HENDERSON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, AND MILLER, JUDGES.
DYCHE, JUDGE:
Mitchell J. Musser appeals from an order of the
Boyd Circuit Court denying his motion to extend the time within
which he could appeal from another order of that court which
related to the custody of the parties’ daughter.
We affirm.
The original order, from which appellant desires a
belated appeal, granted sole physical custody of the parties’
daughter to appellee, and also granted her the “final decision”
on matters of the child’s education, and medical and
psychological treatment.
appellant on May 13, 1998.
That order was entered and served on
The time to appeal from that order
expired on June 12, 1998.
Kentucky Rule of Civil Procedure
(“CR”) 73.02(1)(a).
On June 18, 1998, appellant filed a motion seeking an
extension of the time for filing his notice of appeal.
The
ground given for such an extension was,
Due to his heavy work schedule and the press
of other matters, he did not immediately
learn of the entry of said Order and
subsequent thereto had to miss two
appointments scheduled with his attorney to
discuss same, and his appellant [sic] rights
pertaining thereto, due to unavoidable health
problems he endured.
CR 73.02(1)(d) provides,
Upon a showing of excusable neglect based on
a failure of a party to learn of the entry of
the judgment or an order which affects the
running of the time for taking an appeal, the
trial court may extend the time for appeal,
not exceeding 10 days from the expiration of
the original time.
The trial court conducted a hearing on appellant’s
motion, and entered an order denying same, due to the fact that
appellant did not allege failure to learn of entry of the May 13
order.
We affirm.
The rule allowing the trial court to extend the appeal
period is very specific and limited; for excusable neglect in
finding out about the entry of an order or judgment, the
aggrieved party may be granted up to 10 days additional time
within which to file a Notice of Appeal.
No other grounds are
allowed.
[The trial court] may not extend the time for
taking any action under Rule[] . . . 73.02
. . . except to the extent and under the
conditions stated in [it].
-2-
CR 6.02(b).
The trial court sympathized with appellant’s
predicament, as do we, but illness is not given as an acceptable
reason for extending the time for appeal.
The order of the Boyd
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gerald B. Reams, Jr.
Catlettsburg, Kentucky
Jeffrey L. Preston
Catlettsburg, Kentucky
-3-
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