Opinion
NO. 2012-CA-001720-ME
10-25-2013
P.K. APPELLANT v. W.T. APPELLEE
BRIEF FOR APPELLANT: Rachelle N. Howell Louisville, Kentucky NO BRIEF FOR APPELLEE
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE PAULA SHERLOCK, JUDGE
ACTION NO. 00-FC-008915
OPINION AND ORDER
DISMISSING
BEFORE: LAMBERT, MOORE, AND VANMETER, JUDGES. LAMBERT, JUDGE: P.K. ("the Mother") has appealed from the September 5, 2012, order of the Jefferson Family Court denying her Kentucky Rules of Civil Procedure (CR) 59.05 motion to reconsider the order denying her motion to change the primary residence of her children from W.T. ("the Father") to herself. Because we have determined that the Mother did not timely file her notice of appeal, we must dismiss the above-styled appeal.
We shall refer to the parties using their initials to protect the privacy of the minor children involved in the case.
The Mother and the Father were never married and are the natural parents of two daughters, Child 1, born August 29, 1999, and Child 2, born December 21, 2000. Prior to Child 2's birth, the Mother filed a verified petition to determine custody, support, and visitation of Child 1. Several years after Child 2's birth, the family court entered an order on September 23, 2003, holding, in part, that the Mother and the Father were the natural parents of both children pursuant to earlier judgments of paternity; that they were to share joint custody, care, and control of the two children; that the Father was entitled to parenting time; and that the Father was to pay the Mother $120.30 per week in child support plus an additional $20.00 per week on his child support arrearage. The court also provided for medical and childcare expenses, as well as holiday and special occasion visits.
By agreed order entered December 14, 2006, the parties, proceeding pro se, agreed that they would continue to exercise joint custody of the children and that the Father would provide the primary residence for them. The children would live with him and attend school in his home district. The parties acknowledged that the order was temporary and would stay in effect until amended by later agreement or court order. Child support from the Father to the Mother would also be terminated. The parties agreed that the agreement was in the children's best interests.
On November 17, 2011, the Mother filed a motion to modify the children's primary residence. The basis for the motion was that the Father's stepson had sexually abused the children, which had been discovered the previous May. The stepson no longer lived in the Father's residence. The Mother believed it would be in the children's best interest to no longer live in the Father's home, where they had been abused, and she requested to be designated as the primary residential parent. The family court scheduled a hearing on the motion for February 22, 2012.
In January 2012, the Father filed a motion to establish child support and to continue the hearing on the Mother's motion. The Father stated that the Mother had not contributed any funds in support of the children since the entry of the Agreed Order in 2006. Following a hearing on March 27, 2012, the Father filed a motion concerning access to Child 1's Facebook account. In orders entered May 25, 2012, the court appointed a GAL for the children and ruled that the children were to have no access to Facebook until the GAL had recommended adequate safeguards for their privacy. A subsequent order addressed the Mother's motion regarding telephone contact with the children and childcare providers.
On August 8, 2012, the family court entered an order denying the Mother's motion for a change of the primary residence, describing the Mother's inappropriate actions as a basis for this ruling. The court opted not to interview the children and directed the parties to cooperate with the GAL. The court went on to grant the Father's motion to establish child support and ordered the Mother to pay $475.00 per month as her portion of the child support obligation.
In a motion filed August 13, 2012, the Father moved the court to establish an effective date for child support of January 6, 2012, the date he filed his motion, and to order wage assignment.
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On August 15, 2012, the Mother moved for reconsideration of the portion the court's order denying her motion for a change in primary residence pursuant to CR 59.05, stating that she was prevented from calling her 11- and 12-year-old daughters to testify, that the court declined to interview them in chambers, and that she disagreed with the court's finding that it was her actions that had added to the children's stress. The Mother also filed a motion on August 22, 2012, requesting that the father be required to inform her about any and all medical decisions related to the children.
By order entered September 5, 2012, the family court denied the Mother's CR 59.05 motion, stating that the Mother had not presented any legal basis to support an amendment of the August 8, 2012, ruling. The court also declared the August 8, 2012, order to be final and appealable. By separate orders entered September 7, 2012, the family court established an effective date for child support of January 6, 2012, ordered a Wage Assignment to be prepared, and gave the Father the ability to make all medical, educational, and similar decisions related to the children's health and well-being, provided that he gave the Mother notice of appointments so that she could choose to attend. This appeal now follows.
The sole issue the Mother raises in her appeal is whether the family court erred in denying her request to call the children as witnesses during the hearing on her motion to change the primary residence.
We note that the Father has not filed a responsive brief in the appeal. Kentucky Rules of Civil Procedure (CR) 76.12(8)(c) permits this Court to impose a penalty if the appellee does not file a brief:
If the appellee's brief has not been filed within the time allowed, the court may: (i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case."The decision as to how to proceed in imposing such penalties is a matter committed to our discretion." Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007). We note that the Mother has not requested that we impose any sanctions on the Father for not filing a brief, and we shall not do so. Rather, we shall continue with our review of the appeal.
Our next consideration concerns the timeliness of the Mother's appeal. Based upon a review of the circuit court record, this Court ordered the Mother to show cause as to why the appeal should not be dismissed as untimely filed. The Court noted that the order from which the appeal was taken (the order denying the CR 59.05 motion) was entered, and the attorneys were notified of its entry by first class mail, on September 5, 2012, which made the notice of appeal filed on October 8, 2012, untimely. In response, the Mother stated that she had appealed from an order entered on September 7, 2012, and attached a copy of the order denying the CR 59.05 motion with an entry stamp dated September 7, 2012. Our review of the record establishes that the only place the order stamped September 7, 2012, appears in the record is on page 470, where it was attached to the Mother's notice of appeal. The original order denying the CR 59.05 motion is found on page 418 of the record. That order is printed on yellow paper and has an entry stamp date of September 5, 2012. Furthermore, the clerk's docket sheet reflects that the order denying the CR 59.05 motion was entered September 5, 2012, and the parties were notified of its entry by first class mail the same day.
The time for filing a notice of appeal is well-settled in the Commonwealth through both the Civil Rules of Procedure and associated case law. CR 73.02(1)(a) provides that a "notice of appeal shall be filed within 30 days after the date of notation of service of the judgment or order under Rule 77.04(2)." CR 77.04 provides for the notice of entry of judgments and orders:
1) Immediately upon the entry in the trial court of a judgment, a final order, an order which affects the running of time for taking an appeal, or an order which by its terms is required to be served, the clerk shall serve a notice of the entry by mail in the manner provided in Rule 5 upon every party who is not in default for failure to appear. Service of notice of entry of any judgment or order under this rule may be waived by the filing of a writing signed by the party or his attorney of record.CR 73.02(1)(d) provides that "[u]pon 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." However, "[t]he failure of a party to file timely a notice of appeal, cross-appeal, or motion for discretionary review shall result in a dismissal or denial." CR 73.02(2).
(2) The clerk shall make a note in the case docket of the service required in paragraph (1) of this rule and the notation shall show the date of service. The date of the notation on the docket of the service of notice of entry, or the date of filing a waiver if prior thereto, shall be the
date of entry for the purpose of fixing the running of the time for appeal under Rule 73.02(1).
(3) The trial court shall require in the order, service of notice of entry of all orders made under Rules 6.03(2), 12.01, 12.05, 43.04, 50.02, 52.02, 54.02, 59, 62.01, 62.04, and 65.08(1), and all orders heard ex parte, or any other order it deems advisable.
(4) Failure of the trial court to require service of notice of entry of any judgment or order under this rule or the failure of the clerk to serve such notice, or the failure of a party to receive notice, shall not affect the validity of the judgment or order, and does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 73.02(1). [Emphasis added.]
In Stewart v. Kentucky Lottery Corp., 986 S.W.2d 918, 921 (Ky. App. 1998), this Court addressed the timely filing of a notice of appeal:
The timely filing of a notice of appeal is not jurisdictional, but rather is a matter of procedure. Johnson v. Smith, Ky., 885 S.W.2d 944 (1994). Nevertheless, the supreme court squarely held in Johnson that the timely filing of a notice of appeal in compliance with CR 73.02 is the method by which the jurisdiction of the appellate court is invoked and that automatic dismissal of an appeal is the penalty for late filing of such a notice. 885 S.W.2d at 950. TheSee also Stinson v. Stinson, 381 S.W.3d 333, 336 (Ky. App. 2012) ("Our rules of procedure specifically and clearly provide that a notice of appeal must be filed within thirty days after notation of service of the judgment or order. CR 73.02(1)(a). 'Compliance with the time requirements of CR 73.02 is mandatory[.]' United Tobacco Warehouse, Inc. v. Southern States Frankfort Co-op., Inc., 737 S.W.2d 708, 710 (Ky. App. 1987)."). Furthermore, we recognize that "the time for filing a notice of appeal is triggered not by service but by the date of the clerk's notation on the docket of the service of notice of entry. That date is the date of entry for the purpose of fixing the running of time for appeal. CR 73.02(1); CR 77.04(2)." Fox v. House, 912 S.W.2d 450, 451 (Ky. App. 1995) (footnote omitted).
substantial compliance doctrine simply does not apply to notices of appeal.
Here, the circuit court record establishes without a doubt that the order from which the Mother has appealed was entered on September 5, 2012. The clerk's docket also shows that service of the notice of the order's entry was made on September 5, 2012, by first class mail to counsel of record. Therefore, by operation of CR 73.02(1), the time for the filing of a notice of appeal began to run on September 5, 2012, and the notice of appeal had to be filed by October 5, 2012, in order to invoke the jurisdiction of this Court. The Mother did not file her notice of appeal until October 8, 2012, and she did not seek an extension of time to file one pursuant to CR 73.02(1)(d).
Therefore, we hold that the Mother has failed to show sufficient cause why the appeal should not be dismissed. Accordingly, the above-styled appeal is ordered dismissed as untimely filed pursuant to CR 73.02(2).
ALL CONCUR.
James H. Lambert
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT: Rachelle N. Howell
Louisville, Kentucky
NO BRIEF FOR APPELLEE