Opinion
NO. 2012-CA-000963-ME
04-05-2013
JEFFREY CENTERS AND LEXIE CENTERS APPELLANTS v. LESLIE ABNER AND AMY JOHNSON APPELLEES
BRIEF FOR APPELLANTS: Douglas G. Benge London, Kentucky BRIEF FOR APPELLEE : Robert Stivers Manchester, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CLAY CIRCUIT COURT
HONORABLE GENE CLARK, JUDGE
ACTION NO. 12-CI-00026
OPINION
DISMISSING
BEFORE: KELLER, LAMBERT AND MOORE, JUDGES. KELLER, JUDGE: Jeffrey and Lexie Centers (the Centers) appeal from an order of the Clay Circuit Court denying their standing to seek de facto custodian status of Leslie Abner's (Leslie) and Amy Johnson's (Amy) minor child (the child). Finding that the order was interlocutory and not appealable, we dismiss the appeal.
Judge Michelle M. Keller authored this opinion prior to her appointment to the Kentucky Supreme Court. Release of this opinion was delayed by administrative handling.
FACTS
The following facts are not in dispute. Leslie and Amy are the biological parents of the child, who was born in August 2006. Leslie and Amy never married. On January 7, 2010, Leslie filed a petition for permanent custody in the Clay Family Court. On February 14, 2010, Amy and the child moved into the Centers's home, and Amy left the child in the Centers's sole care on March 27, 2010. Jeffrey Centers is Amy's first cousin.
Apparently, Amy could not be located and she was not served with the petition until September 3, 2010. Almost a year later, Leslie filed a pro se motion for visitation. From August 2011 to January 2012, a dispute arose concerning the appropriate venue for this action. Ultimately, the Clay Family Court was determined to be the appropriate venue.
Leslie's counsel passed away on January 7, 2011, and his estate filed a motion to withdraw as counsel on March 8, 2011. The trial court entered an order the next day allowing Leslie's counsel to withdraw.
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On February 15, 2012, Leslie filed a motion for temporary custody. In response, Amy filed a motion to dismiss arguing that paternity had not been established. Leslie's paternity was subsequently confirmed by DNA testing. On March 21, 2012, the Centers filed a motion for leave to intervene, which the trial court granted. The Centers subsequently filed an intervening petition on April 25, 2012, alleging de facto custodian status as set forth in Kentucky Revised Statutes (KRS) 403.270 (count one); that Leslie and Amy abandoned the child pursuant to KRS 403.800 (count two); and waiver of superior right to custody (count three).
On May 2, 2012, Leslie filed a motion to dismiss the Centers's intervening petition arguing that the Centers did not have standing under KRS 403.270 or KRS 403.800. Following a hearing, the family court entered an order on May 30, 2012, dismissing count one and count two of the Centers's intervening petition. The order further provided that the Centers had ten days to file an amended intervening petition as to count three - the Centers's claim that Leslie and Amy waived their superior rights to custody. We note that the order stated that "this is a final and appealable Order." It is from this order that the Centers appeal.
ANALYSIS
At the outset, we note that the order from which the Centers appeal is interlocutory and not appealable.
Kentucky Rules of Civil Procedure (CR) 54.01 provides that "[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 made final under Rule 54.02." Pursuant to CR 54.02(1),
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, 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.The language of CR 54.02(1) is mandatory, and in the absence thereof "the order is interlocutory and subject to modification and correction before becoming a final and appealable judgment or order." Wilson v. Russell, 162 S.W.3d 911, 913 (Ky. 2005).
As set forth above, the May 30, 2012, order dismissed two of the Centers's three counts in their intervening petition and stated that "this is a final and appealable Order." However, the order did not state that there was no just reason for delay as required by CR 54.02. Accordingly, the appeal from that order is not properly before this Court.
CONCLUSION
This Court orders that this appeal be and it is hereby dismissed
ALL CONCUR. BRIEF FOR APPELLANTS: Douglas G. Benge
London, Kentucky
BRIEF FOR APPELLEE : Robert Stivers
Manchester, Kentucky