Opinion
NO. 2014-CA-002052-MR
12-09-2016
SHARON GREEN APPELLANT v. ROBERT D. GREEN APPELLEE
BRIEF FOR APPELLANT: Mary-Ann Smyth Corbin, Kentucky NO APPEAL FOR APPELLEE
NOT TO BE PUBLISHED APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE DANIEL BALLOU, JUDGE
ACTION NO. 12-CI-00469 OPINION AND ORDER
DISMISSING APPEAL AS INTERLOCUTORY
** ** ** ** **
BEFORE: JONES, MAZE, AND NICKELL, JUDGES. JONES, JUDGE: The Appellant, Sharon Green, seeks review of the Whitley Circuit Court's November 19, 2014, order denying her motion for a new trial. The Appellee, Robert Green, has moved to dismiss Sharon's appeal as untimely. Having reviewed the record in excruciating detail, we hold that this appeal is interlocutory because the trial court has never ruled on Sharon's August 18, 2014, request to set aside certain portions of its August 13, 2014, final decree. Therefore, we must dismiss this appeal for want of subject matter jurisdiction.
I. Background
Ordinarily, we would not delve into the procedural intricacies in so much detail as part of an opinion and order of dismissal. However, in this case, an extensive understanding of the procedural history is necessary to place the issues in the proper analytical framework.
Sharon and Robert were married on February 12, 2011, in Whitley County, Kentucky. They have one minor child, M.G., born in October of 2009. Sharon filed for dissolution of marriage on July 16, 2012. On August 17, 2012, Robert filed a verified response to Sharon's petition. That same day, Robert filed a motion seeking temporary custody of M.G. and child support. Sharon responded by filing her own motion for temporary custody. Therein, she argued that she should be granted temporary custody of M.G. because Robert was unemployed "and has no financial stability to maintain care of the minor child." She also argued that Robert had "exhibited questionable behavior which could be detrimental to the safety and welfare of the minor child."
The trial court set the competing motions for temporary custody of M.G. for a hearing. It also appointed a Guardian Ad Litem ("GAL"), Hon. Paul Croley, to represent M.G. Following the hearing, the trial court entered an order for temporary custody and timesharing. The order provided that the parties were to share custody and parenting time. The order detailed the parenting time schedule and provided that exchange was to occur at the Corbin Police Station.
Shortly thereafter, on October 17, 2012, Robert filed a motion asking the trial court to set the matter for a final hearing. The hearing was originally scheduled for January 10, 2013; it was rescheduled numerous times. On June 4, 2014, Sharon and Robert, along with their counsel and the GAL, appeared before Whitley Circuit Court Judge Dan Ballou for the hearing. At the beginning of the hearing, Sharon's counsel requested permission to approach the bench. He explained that Sharon would need another continuance because one of Sharon's witnesses, Tracy Miller, a counselor at Cumberland Valley Children's Advocacy Center in London, Kentucky, was not present despite having been served with a subpoena. Robert's counsel adamantly objected to any further continuance on the basis that Robert had not seen M.G. in almost two years due to a no contact order that had been entered in Laurel County. After lengthy discussions, the trial court informed the parties that the hearing would proceed unless the parties could reach an agreement that would allow Robert to have visitation with M.G. pending a final custody determination. Eventually, it was agreed that Robert would be allowed supervised visitation with M.G. in accordance with the trial court's October 2012 timesharing order. Robert's mother was designated to supervise the visits. It was then agreed that the court would only hear proof on issues related to the dissolution of the parties' marriage and would continue the hearing for the purpose of receiving proof on the custody issue.
For reasons that are not apparent from the record provided to this Court, the final hearing did not take place on the January 10, 2013, as originally scheduled. On February 20, 2013, Robert filed a motion asking the trial court to reassign the hearing for a date certain. On March 8, 2013, the trial court entered an order setting the matter for a hearing on June 6, 2013. Three days prior to the hearing date, Sharon filed a motion to continue the hearing. Sharon explained that a continuance was necessary because "there have been new allegations of sexual abuse on the minor child by [Robert]. Social Services has substantiated and the worker is unavailable for testimony due to gall bladder removal surgery." The record does not contain an order granting or denying Sharon's motion. It is clear, however, that the hearing did not occur on June 6, 2013. On June 28, 2013, Sharon filed a motion with the trial court asking it to "stop any visitation previously ordered . . . [because] the minor child has made sexual abuse allegations against [] father." No response by Robert appears in the record. From the docket, it appears that the trial court may have taken this matter up as part of its motion hour on July 3, 2013, but no written order resolving this motion appears in the record. The matter appears to have been largely dormant for the next seven months. Eventually, the trial court set a hearing for May 8, 2014. That hearing was rescheduled to June 4, 2014.
Thereafter, the trial court swore in both Robert and Sharon. Each was questioned by counsel regarding their marriage. While some questioning did occur regarding where M.G. was currently residing, the questioning was almost exclusively related to the perfunctory issues that had to be resolved before the trial court could dissolve the parties' marriage. At the conclusion of this proof, it was agreed that Robert's counsel would submit a decree of dissolution for the trial court's signature as well as an order for temporary supervised visitation in accordance with the parties' agreement. Sharon's counsel agreed to prepare an order setting the new hearing date relative to the custody issue.
On June 19, 2014, an order was entered setting the custody matter for a final hearing on August 7, 2014. Although the trial court orally ordered temporary supervised visitation during the June 2014 hearing, we are unable to locate a written order to this effect in the record. Nevertheless, on June 30, 2014, Robert filed a motion asking the trial court to hold Sharon in contempt for denying him visitation with M.G. Robert stated that his mother presented herself at the Corbin Police Station on two separate occasions to pick up M.G. for visitation, but Sharon did not appear there with M.G. Sharon responded to the motion by stating that she attempted to comply with visitation, but that Robert was not present with his mother at the designated location and Robert's mother was not allowed visitation in his absence. There is no written order disposing of this motion. Instead, there is an unsigned, typed docket entry for July 10, 2014, which states "motion disposed—10 days-mom to meet grandmother at CPD for ordered visitation or be held in contempt."
This was the date the parties orally agreed upon at the hearing.
On July 29, 2014, approximately a week before the rescheduled hearing was to take place, Sharon filed a motion asking the trial court to stop visitation and transfer venue of the matter to Laurel County. In support of her motion, Sharon stated that Robert got into an argument with his girlfriend in M.G.'s presence during which he intentionally broke the glass of a vehicle his girlfriend had locked herself inside. Sharon also stated that: "the Laurel County Social Services Office has an open and ongoing case regarding abuse allegations involving [Robert] and the minor child herein. [Robert] continues to dodge service of process for the Laurel County action. The abuse allegations are extremely serious and visitation should be halted until [Robert] avails himself to Laurel Family Court jurisdiction." Sharon asserted that jurisdiction was proper in Laurel County because she was now living in Laurel County with M.G., Robert had moved away from Whitley County, and the Laurel Family Court was adjudicating the dependency, neglect, and abuse petition concerning Robert's alleged sexual abuse of M.G. Robert objected to Sharon's motion. In addition to denying all abuse allegations, Robert asserted that Sharon was merely "forum shopping." A docket entry appears indicating that the trial court entertained something related to this case at its August 4, 2014, motion hour. However, it is not apparent what was considered on that date. Furthermore, there is not a signed order in the record ruling on Sharon's motion.
The docket sheet indicates that the trial court conducted some sort of a proceeding on August 7, 2014, the day the custody hearing was supposed to occur. However, we have not been provided with any record from this proceeding. The unsigned, typed docket entry states only "Scheduled Event August 7, 2014 at 9:05 a.m. Other Hearing Hon. Dan Ballou Re-notice of motion to stop visitation and transfer venue." Elsewhere in the record, Sharon asserts that no hearing occurred on August 7, 2014, because Judge Ballou was absent and the sitting circuit court judge filling in for him did not wish to hear the matter given Judge Ballou's extensive history with the parties.
On August 13, 2014, an order containing findings of fact, conclusions of law and a decree of dissolution was entered by the Whitley Circuit Clerk. As related to the custody of M.G., the order provides:
6. . . . The minor child has lived in this state for all her life with both [Sharon] and [Robert] prior to the separation and with [Sharon] primarily since separation. [Sharon] testified that she has filed actions in Laurel Family Court; case 13-D-00064 which was transferred to Whitley District Court and Case No. 13-J-00224. There was no action take in 13-D-00064 after the transfer and that matter was subsequently dismissed.
[Robert] has not been properly served with process in the 13-J-00224 and is not before the Court. The Court was made aware of the allegations brought by [Sharon] against [Robert] regarding the minor child during the final hearing herein, however, this Court heard no substantial nor compelling evidence to support these allegations, and further no criminal investigation has been initiated by anyone against [Robert] in more than fourteen months. The allegations were made by an interested third party and based upon an alleged statement made by a toddler. The allegations are suspect at best. The Guardian Ad Litem, Hon. Paul K. Croley, informed the Court that he was aware of these allegations against the Respondent as well but had found no evidence to support them. He recommended to the Court that the temporary parenting schedule entered by the Court on October 9, 2012, continue with Respondent's parenting time supervised by his mother, Brenda Ball until further order of the Court.(R. at 104-05). The trial court did not award child support to either party. In declining to do so, it noted the equal parenting time and only a difference of $9.70 in the two child support charts that were prepared. The court also ordered that the parties were to alternate claiming the minor child on their state and federal tax returns on an "every-other-year basis." The August 13, 2014, order states that it is a "final and appealable judgment." The typed name under the signature line on the order is "Honorable Dan Ballou Judge, Whitley Circuit Court," the judge who presided over the prior hearing. A close inspection of the order, however, reveals that it was signed by Whitley Circuit Court Judge Paul K. Winchester.
7. Based upon the foregoing and by agreement of the parties hereto as well as the Guardian Ad Litem, the Court finds the best interest of the minor child to be served by continuing the joint care, custody and control of the parties' one (1) minor child, namely [M.G.] as ordered herein on October 9, 2012. Neither party should be designated as the primary custodian of the child and [Robert] should have time sharing with the child one week from Wednesday at the hour of 7:30 a.m. until Saturday at the hour of 10:00 a.m. The parties should alternate parenting time on this schedule thereafter. All exchange of the child should occur at the Corbin City Hall, and [Robert's] mother shall be responsible for the transportation of the child on [Robert's] behalf. All of [Robert's] parenting time should be exercised at the home of his mother and under her supervision.
On August 18, 2014, Sharon filed what she styled as "objection to findings of fact, conclusion of law and decree of dissolution of marriage." Therein, Sharon stated as follows:
Comes now the Petitioner, Sharon Green, by and through counsel, and hereby objects to the Findings of Fact, Conclusion of Law and Decree of Dissolution of Marriage entered by the Court on August 13, 2014. As grounds, the undersigned counsel states that the only matter addressed at the previous hearing on June 5, 2014, was that of the dissolution of marriage of Sharon Green and Robert Green. All other matters, including custody, visitation, and child support, were reserved for the final hearing originally set for August 7, 2014. Said hearing did not take place as the presiding Judge was absent and the Special Judge declined to hear the case. The hearing was continued to September 4, 2014, at the hour of 9:00 a.m.
On August 7, 2014, the Guardian Ad Litem, Hon. Paul K. Croley, and opposing Counsel, Hon. Jane R. Butcher, both denied before the Court that an additional hearing had been ordered. A review of the record from the June 5, 2014 hearing will show that, aside from the dissolution of marriage of the parties, herein all other matters were reserved for the final hearing which is now scheduled for September 4, 2014.
WHEREFORE, the Petitioner respectfully requests that all matters which do not pertain directly to the dissolution of the parties' marriage in the Findings of Fact, Conclusion of Law and Decree of Dissolution of Marriage be set aside and held for naught and that the reserved matters be heard at the hearing set for September 4, 2014.(R. at 114-15). At the bottom of this filing, Sharon's counsel included a "notice of hearing" stating that "notice is hereby given that the above and foregoing Motion will be brought on for hearing in the Whitley Circuit Court, Williamsburg, Kentucky on the 4th day of September, 2014, at the hour of 9:00 a.m. or as soon thereafter as counsel may be heard." Id. (emphasis added). On September 15, 2014, the trial court entered an order setting Sharon's objections for a hearing on October 9, 2014. The docket indicates a hearing did occur on October 9, 2014. However, no written order resolving Sharon's motion followed this hearing.
On October 31, 2014, Sharon filed a document styled simply "motion." The "motion" asked the trial court to vacate the decree and set the matter for a new final hearing. Sharon attached a video transcript of the June 2014 hearing to the motion. On November 6, 2014, the trial court entered an order stating that the matter came on for a hearing on November 6, 2014, on Sharon's motion for a new final hearing, and that it would take the matter under submission after "reviewing the DVD of the hearing on June 5, 2014." By order entered November 19, 2014, the trial court "overruled" Sharon's motion for a new final hearing. This order does not indicate that it is a final and appealable order.
On December 18, 2014, Sharon filed a notice of appeal. It states: "notice is hereby given that the Petitioner, Sharon Green, appeals from the Order entered in this action on November 19, 2014, denying Petitioner's Motion regarding a new final hearing. On appeal, the Appellant will be Sharon Green, and the Appellee will be Robert D. Green." Instead of filing an Appellee brief, Robert filed a motion to dismiss and renewed motion to dismiss. Robert argues that the "objection" Sharon filed on August 18, 2014, did not suspend the time for filing an appeal, rendering Sharon's appeal untimely.
II. Analysis
A child subject to a custody dispute has the right "to have his or her best interest fairly and fully determined." Crews v. Shofner, 425 S.W.3d 906, 911 (Ky. App. 2014). This generally requires a full evidentiary hearing. Id. In this case, we have grave concerns that any actual proof was ever put before the trial court that would have allowed it to determine M.G's best interest in accordance with the factors set forth in KRS 403.270. At the present juncture, however, we are unable to fully consider that issue because this appeal is interlocutory.
Kentucky Revised Statutes.
It is fundamental that a court must have jurisdiction before it has authority to decide a case. "Jurisdiction is the ubiquitous procedural threshold through which all cases and controversies must pass prior to having their substance examined." Wilson v. Russell, 162 S.W.3d 911, 913 (Ky. 2005). Each court "must determine for itself whether it has jurisdiction." Id. (quoting Hubbard v. Hubbard, 303 Ky. 411, 197 S.W.2d 923 (Ky.1946)). Pursuant to KRS 22A.020, except in limited circumstances not applicable to this case, an appeal to the Court of Appeals is allowed only from a circuit court's final order or judgment. "Absent such a final order or judgment, the Court of Appeals actually lacks jurisdiction to hear the appeal." Cassetty v. Commonwealth, 495 S.W.3d 129, 132 (Ky. 2016).
Robert asserts that the "objection" Sharon filed on August 18, 2014, did not toll the time to file a notice of appeal from the final decree. We disagree. CR 7.02 governs motions. It provides:
Kentucky Rules of Civil Procedure.
An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.Id.
There is no requirement that the word "motion" must appear in the caption. See Powell v. Powell, 423 S.W.2d 896, 897 (Ky. 1968). The determinative issue is whether the filing complies with the requirements of CR 7.02: 1) it is in writing; 2) sets forth the relief sought; and 3) states with particularity the grounds therefor. Id.
As required by CR 7.02, Sharon included a "notice of hearing" above the certificate of service denoting the filing as a "motion." Additionally, Sharon set forth the relief she requested, i.e., that the trial court "set aside" all findings and conclusions related to child custody. She also specified that the reason for the request was the fact that the trial court had not yet conducted a hearing on the child custody matters. Sharon's filing satisfied the requirements for a motion under CR 7.02, and should have been treated as such. Additionally, the relief Sharon sought clearly falls within the scope of CR 59.05. See Gullion v. Gullion, 163 S.W.3d 888, 891 (Ky. 2005) ("CR 59.05 may be used to dispute an order or judgment a party believes to be incorrect.").
"A motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment." CR 59.05. "A motion pursuant to CR 59 . . . converts a final judgment to an interlocutory judgment." Personnel Bd. v. Heck, 725 S.W.2d 13, 18 (Ky. App. 1986). "A CR 59.05 motion must be ruled upon by the trial court before finality can be achieved." Kurtsinger v. Bd. of Trustees of Kentucky Ret. Sys., 90 S.W.3d 454, 458 (Ky. 2002).
While Sharon could have done a better job in making her intent clear, she substantially complied with the CR 7.02 and CR 59.05. As a result, her August 18, 2014, filing operated to suspend finality of the trial court's order. See Kentucky Farm Bureau Mut. Ins. Co. v. Conley, 456 S.W.3d 814, 820 (Ky. 2015) ("Under our policy of substantial compliance, the remedy for an insufficiently particular CR 59.05 motion may be loss of that motion or sanctions, but it is not the loss of the right to an appeal.").
Try as we might, we cannot identify any written order by the trial court disposing of Sharon's August 18, 2014, motion. While it appears the trial court held a hearing on the matter, we have not been supplied with a transcript from that hearing. The lack of transcript, however, is of no true significance because it is clear to us that no written order was entered by the trial court following its hearing. "Circuit courts speak only through written orders entered upon the official record." Oakley v. Oakley, 391 S.W.3d 377, 378 (Ky. App. 2012) (quoting Kindred Nursing Centers Ltd. Partnership v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010)). Since there is not a written order adjudicating Sharon's August 2014 motion, we must conclude that the motion remains pending. In turn, we must conclude that the August 13, 2014, order is not yet final.
Our review of the record indicates that this was a fairly common occurrence throughout these proceedings.
This brings us to the trial court's November 19, 2014. In that order, the trial court overruled Sharon's October 31, 2014, motion for a new trial. Robert and Sharon seem to agree that Sharon filed this motion pursuant to CR 60.02. It appears that she may have done so as a protective measure in the event her prior filing was determined not to have tolled the time to appeal.
The motion itself does not cite a Rule. --------
Ordinarily, the denial of a CR 60.02 motion is considered to be a final, appealable order. This is because an order denying relief under CR 60.02 generally leaves nothing for further resolution by the trial court because CR 60.02 is used to attack final judgments and orders that have the effect of making prior judgments final. See Kurtsinger, 90 S.W.3d at 458. In this case, however, there was no final judgment or order making the prior judgment final. Sharon's CR 59 motion was still pending when the trial court issued its ruling on the CR 60.02 motion. Therefore, we must conclude that trial court's order overruling Sharon's CR 60.02 was not a final and appealable order. Until the trial court rules on Sharon's CR 59 motion, there is no final judgment or order to attack. It would be illogical to allow an appeal from the denial of a CR 60.02 motion when the motion itself was directed at a non-final order.
The trial court should address Sharon's CR 59 motion in a written order. Only after it does so can the appropriate next steps be taken by the parties. We cannot allow this appeal to proceed in the absence of such a ruling. To hold otherwise would frustrate the orderly process contemplated by our Civil Rules and lead to piecemeal appeals.
III. ORDER
For the reasons set forth above, this appeal is HEREBY DISMISSED AS INTERLOCUTORY. Appellee's motion to dismiss is DENIED AS MOOT. ENTERED: December 9, 2016
/s/ Allison Jones
JUDGE, COURT OF APPEALS
ALL CONCUR BRIEF FOR APPELLANT: Mary-Ann Smyth
Corbin, Kentucky NO APPEAL FOR APPELLEE