Opinion
NO. 2012-CA-001069-ME
02-22-2013
J. F. APPELLANT v. Q. H. APPELLEE
BRIEFS FOR APPELLANT: Richard F. Dawahare Lexington, Kentucky BRIEF FOR APPELLEE: Mark Zoolalian Lancaster, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM GARRARD CIRCUIT COURT
HONORABLE C. MICHAEL DIXON, JUDGE
ACTION NO. 10-J-00160
OPINION AND ORDER
DISMISSING
BEFORE: CAPERTON, MAZE, AND VANMETER, JUDGES. VANMETER, JUDGE: J.F. appeals from the Garrard Circuit Court order vacating its prior order granting her custody of her minor grandchild on the basis that the proceedings were affected by fraud. Finding this action to be moot, we dismiss the appeal.
In October 2011, J.F. filed the underlying dependency, neglect and abuse petition in Garrard County alleging that her minor grandchild was a dependent. She alleged that both natural parents to the child were incapable and unwilling to care for the child, and that she had cared for the child since his birth. Warning Order Attorneys were appointed for each parent, and each filed reports indicating that neither parent could be located. The court conducted a hearing in January 2011, after which it concluded that the child was dependent and granted J.F. custody.
Q.H., the minor child's biological father, then filed a motion with the court claiming his notice was defective and his due process rights were violated by the custody order. In a hearing on the matter, Q.H. specifically alleged that J.F. withheld information from the court concerning his whereabouts. As a result, under its authority granted in CR 60.02(d), the court relieved Q.H. from its prior orders on the basis that the proceedings were affected by fraud.
Kentucky Rules of Civil Procedure.
Thereafter, J.F. filed a motion for custody in Fayette Circuit Court. After a hearing on November 19, 2012, during which both natural parents appeared, the Fayette Circuit Court awarded J.F. sole and permanent custody based upon a finding that she was the child's de facto custodian under KRS 403.270. In the meantime, J.F. appealed the Garrard Circuit Court's ruling.
Kentucky Revised Statutes.
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On appeal, J.F. argues that the Garrard Circuit Court erred by vacating its order granting her temporary custody of her grandchild under CR 60.02(d). Q.H. filed a motion to dismiss this appeal on the basis that due to the Fayette Circuit Court's order, this court is unable to grant meaningful relief to either party. We agree with Q.H.
J.F. requests this court to find the Garrard Circuit Court's order vacating its prior order granting her temporary custody to be erroneous. In doing so, we would effectively reinstate the custody order. Seeing as J.F. has already been granted sole custody by the Fayette Circuit Court, our consideration of the merits of this appeal would be meaningless under the law. See Med. Vision Group, P.S.C. v. Philpot, 261 S.W.3d 485, 491 (Ky. 2008) (an appeal is considered moot "when a change in circumstance renders that court unable to grant meaningful relief to either party[]") (citation omitted).
Accordingly, Appeal No. 2012-CA-001069 is hereby dismissed with prejudice.
ALL CONCUR.
Laurance B. VanMeter
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT: Richard F. Dawahare
Lexington, Kentucky
BRIEF FOR APPELLEE: Mark Zoolalian
Lancaster, Kentucky