Opinion
NO. 2013-CA-000178-ME
04-25-2014
ROBIN KIMBERLY YATES (NOW KEETON) APPELLANT v. STEPHEN LEE YATES APPELLEE
BRIEF FOR APPELLANT: Sebastian M. Joy Catlettsburg, Kentucky BRIEF FOR APPELLEE: Tracy D. Frye Russell, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CARTER CIRCUIT COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 00-CI-00041
OPINION AND ORDER
DISMISSING
BEFORE: JONES, MAZE, AND MOORE, JUDGES. JONES, JUDGE: This case arises out of an order setting supervised visitation between Appellant and her two minor children. Due to subsequent events rendering the visitation order moot, we DISMISS this appeal.
I.
Appellant, Robin Yates (now "Keeton"), and Appellee, Stephen Yates, were awarded joint custody of their minor sons, R.Y. and K.Y., upon their divorce in 2002. However, after a series of issues involving Ms. Keeton's mental health and parenting capacity, Mr. Yates was awarded sole custody of both minor children on October 28, 2011. Visitation for Ms. Keeton was to be "set up by the Guardians ad Litem with supervision by [the family counselor]. Said timesharing shall begin after Ms. Keeton has met with a psychiatrist regarding her mental health issues as requested by [the custody evaluator] and has begun psychotherapy." Ms. Keeton appealed this decision and this Court affirmed.
The events leading up to this appeal began when Ms. Keeton filed a Motion to set timesharing on April 11, 2012, stating that she had complied with the court's requirement for her to begin psychotherapy. On August 13, 2012, the court granted supervised visitation between Ms. Keeton and both children. Several supervised visitations occurred. Ultimately, Ms. Keeton filed a motion to have unsupervised visits on September 24, 2012. A hearing was held on November 28, 2012. After interviewing the children and hearing from the current family counselor, the court denied Ms. Keeton's request by order entered December 4, 2012. The court stated it was denying the request for unsupervised visits because it could not place the children in "what appears to be a volatile situation." Ms. Keeton appealed this order on the basis that there was no specific finding in the trial court's order stating that visitation would seriously endanger the children's physical, mental, moral, or emotional health as required by KRS 402.320.
Thereafter, the new family counselor reported some issues regarding Ms. Keeton's behavior during counseling sessions. As a result, the circuit court held a hearing on June 11, 2013. After receiving testimony from the counselor and the recommendations of the children's GALs, the court entered an order on June 13, 2013, finding that Ms. Keeton's "behavior is a danger to the emotional and mental well being of the children." The court further ordered that Ms. Kenton's "visitation be suspended."
Ms. Keeton filed a motion to alter, amend, or vacate the order suspending her visitation. The court overruled her motion on June 16, 2013. Ms. Keeton did not appeal either the June 13, 2013, order suspending her visitation or the circuit court's denial of her motion to alter, amend or vacate that order. The time for doing so has long since expired. Based on our review of the record, the June 13, 2013, order suspending Ms. Kenton's visitation is still effective.
II.
The circuit court acted within its jurisdictional authority in rendering the June 13, 2013, order even though an appeal of its prior order was pending before our Court. The circuit court retained jurisdiction for all matters relating to the children's care and custody, including visitation, during the pendency of this appeal. See Combs v. Combs, 200 S.W.2d 481, 483 (Ky. 1947) ("[P]ending appeal in a divorce case, the circuit court retains jurisdiction of all matters pertaining to the care and custody of the children of the parties."). Therefore, it was procedurally proper for the circuit court to enter a new order regarding visitation during the pendency of this appeal.
In general, an appellate court is without jurisdiction to reach the merits of a moot appeal as the judicial power extends only to justiciable controversies. Kentucky High School Athletics Ass'n v. Runyon, 920 S.W .2d 525 (Ky.1996). Unless there is "an actual case or controversy," this Court has no jurisdiction to hear an issue and is prohibited from producing mere advisory opinions. Pursley v. Pursley, 144 S.W.3d 820, 827 (Ky.2004). An appeal is considered moot and must be "dismissed where, due to subsequent events, the circumstances have changed so as to make the determination of the question unnecessary." Sharp v. Robinson, 388 S.W.2d 121 (Ky. 1965). Additionally, an appellate court is required to dismiss an appeal when a change in circumstance renders the court unable to grant meaningful relief to either party. Brown v. Baumer, 301 Ky. 315, 191 S.W.2d 235, 238 (Ky.1945).
Ms. Keeton's appeal relates to the circuit court's decision to deny her request for unsupervised visits with the children. As noted, she argues on appeal that the circuit court failed to include findings that such visitation would "seriously endanger" the children as required by KRS 402.320. However, the circuit court's subsequent order completely suspended her visitation with the children. Even if we were to find in Ms. Keeton's favor, the second order suspending visitation would be in effect and would bar her from all visitation with the children, supervised or unsupervised.
It is obvious to this Court that we cannot grant the requisite meaningful relief to either party should we reach the merits of this case. Accordingly, we DISMISS this appeal as moot.
ALL CONCUR.
Allison E. Jones
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT: Sebastian M. Joy
Catlettsburg, Kentucky
BRIEF FOR APPELLEE: Tracy D. Frye
Russell, Kentucky