BOBBY NOBLE v. NATHAN MILLER; LOLA MILLER
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RENDERED:
JANUARY 14, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2004-CA-001213-MR
BOBBY NOBLE
v.
APPELLANT
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE JOHN DAVID CAUDILL, SPECIAL JUDGE
ACTION NO. 02-CI-00245
NATHAN MILLER;
LOLA MILLER
APPELLEES
OPINION AND ORDER
DISMISSING
** ** ** ** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; MINTON, JUDGE; MILLER, SENIOR JUDGE.1
MILLER, SENIOR JUDGE:
Bobby Noble appeals from a May 27, 2002,
order of the Perry Circuit Court adjudging that the appellees,
Nathan Miller and Lola Miller, are de facto custodians of their
grandson, Bobby Jacob Noble (Jacob).
Because the circuit court
order appealed from is interlocutory, we are compelled to
dismiss the appeal.
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110.(5)(b) of the Kentucky Constitution and
KRS 21.580.
Bobby Noble and the daughter of the appellees,
Kathleen Noble, were married on July 4, 1998.
was born on June 10, 1999.
Their son, Jacob,
Kathleen died on September 17, 2000.
The appellees, Nathan and Lola Miller are the maternal
grandparents of Jacob.
Following Kathleen’s death, the
appellees began providing care and support for Jacob.
The
extent and significance of that care and support is fiercely
contested between the parties.
Eventually, the arrangements for Jacob’s care, and
perhaps other factors, led to a disagreement between the
parties.
On May 8, 2002, Nathan and Lola filed a petition in
Perry Circuit Court seeking custody of Jacob.
The petition
alleged that Nathan and Lola were de facto custodians of Jacob
pursuant to Kentucky Revised Statutes (KRS) 403.270(1).
On February 3, 2004, an agreed order was entered under
which a hearing would be held before the Domestic Relations
Commissioner on the sole issue of whether Nathan and Lola
qualified as de facto custodians of Jacob.
The agreed order had
the effect of bifurcating the proceeding into two phases –
first, a determining of whether the appellees qualified as de
facto custodians of Jacob, and, if so, second, a determining of
custody pursuant to the best interest factors contained in KRS
403.270(2).
2
A hearing on the de facto custodianship issue was held
before the Commissioner on March 23, 2004.
On April 14, 2004,
the Commissioner tendered a “Custody Decree”2 setting forth his
recommendations.
The Commissioner recommended that the
appellees be granted de facto custodian status; that the parties
be “awarded joint custody of the minor, Bobby Jacob Noble, and
until further Orders of the Court [] shall follow the
[previously established visitation schedule]”;3 and that “[a]ll
further issues concerning the care, custody and control of
[Jacob be] passed consistent with the bifurcated nature of these
proceedings.”
Bobby subsequently filed exceptions to the
Commissioner’s recommendations.
On May 27, 2004, the circuit
court entered an order overruling Bobby’s exceptions and
adopting the Commissioner’s recommendations in its entirety.
The order contained the recital “[t]his is a final and
appealable order with no just cause for delay.”
This appeal
followed.
Pursuant to Ky. R. Civ. P. (CR) 54.01, "[a] final or
appealable judgment is a final order adjudicating all the rights
of all the parties in an action or proceeding, or a judgment
2
We note that contrary to this caption, the tendered recommendation does not
purport to establish the permanent custody arrangements for Jacob.
3
A July 29, 2002, order reflects that Bobby currently has custody of Jacob
and that Nathan and Lola are entitled to visitation every weekend from Friday
evening to Sunday evening.
3
made final under Rule 54.02."
Further, CR 54.02(1) states, in
pertinent part, that “[w]hen more than one claim for relief is
presented in an action, whether as a claim, counterclaim, crossclaim, or third-party claim, or when multiple parties are
involved, the court may grant a final judgment upon one or more
but less than all of the claims or parties only upon a
determination that there is no just reason for delay. The
judgment shall recite such determination and shall recite that
the judgment is final.”
However, "[b]efore the processes of CR 54.02 may be
invoked for the purposes of making an otherwise interlocutory
judgment final and appealable, there must be a final
adjudication upon one or more of the claims in litigation."
Hale v. Deaton, 528 S.W.2d 719, 722 (Ky.App. 1975).
Moreover,
"[w]here an order is by its very nature interlocutory, even the
inclusion of the recitals provided for in CR 54.02 will not make
it appealable."
Hook v. Hook, 563 S.W.2d 716, 717 (Ky. 1978).
Further, even if the parties do not raise a finality issue in
their briefs, "the appellate court should determine for itself
whether it is authorized to review the order appealed from."
Id. at 717.
Although the circuit court's May 27, 2004, order
included CR 54.02 finality language, “[t]his is a final and
4
appealable order with no just cause for delay,” this is not a
case which involves multiple claims or multiple parties and CR
54.02 is not applicable.
The appellants and the appellees are
the only parties to the case, and the only claim before the
circuit court is the appellees’ petition for custody.
The issue
of whether the appellees are de facto custodians is merely an
intermediate issue ancillary to the appellees’ custody claim.
See KRS 403.270(1).
It is clear that the trial court’s May 27, 2002, order
simply resolved an intermediate issue without disposing of any
of the claims or parties.
As the order did not finally
adjudicate any of the claims in litigation, it is by its very
nature an unappealable, interlocutory order which cannot be made
final by the inclusion of CR 54.02 language.
It necessarily
follows that the appeal from that order is not properly before
this court.
Being sufficiently advised, this Court sua sponte
ORDERS that this appeal be and it is hereby DISMISSED.
ALL CONCUR.
ENTERED:
January 14, 2005
/s/ John D. Miller
SENIOR JUDGE, COURT OF APPEALS
5
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Dawn R. Watts
Simmons & Watts
Jackson, Kentucky
No Brief for Appellees.
6
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