Opinion
NO. 2012-CA-001062-ME
06-07-2013
LINDA BLEVINS APPELLANT v. GERALDINE BRYANT APPELLEE
BRIEF FOR APPELLANT: Robert M. Melvin Harlan, Kentucky BRIEF FOR APPELLEE: Michael E. Roper Hazard, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 03-CI-00558
OPINION
DISMISSING APPEAL
BEFORE: DIXON, MOORE, AND TAYLOR, JUDGES. DIXON, JUDGE: Appellant, Linda Blevins, appeals from a custody order rendered by the Harlan Circuit Court on January 17, 2007. Because it was untimely filed, we must dismiss this appeal.
In July 2003, the Appellee, Geraldine Bryant, filed a petition for custody of Child, whom she believed to be her paternal grandchild. Appellant, the maternal grandmother of Child, filed an intervening counter-petition seeking custody of Child. DNA testing subsequently excluded Appellee's son as the father of Child, and he was dismissed as a party. Child primarily resided with Appellant and, pursuant to a temporary order, Appellee exercised visitation with Child every other weekend. The Harlan Circuit Court held a final custody hearing in November 2006, and heard testimony from several witnesses. On January 17, 2007, the court rendered findings of fact and conclusions of law, addressing the factors set forth in KRS 403.270(2). Based on its findings, the court awarded sole permanent custody of Child to Appellant and awarded standard visitation to Appellee. The court's order did not recite that it was "final and appealable." Neither party filed a post-judgment motion to alter, amend, or vacate or for additional findings.
Appellee filed her petition against Child's biological mother and the presumed biological father. Child was approximately twenty-one months old when Appellee filed the petition.
In August 2011, Appellee filed a motion to hold Appellant in contempt for refusing to allow Appellee's visitation with Child. The court held a contempt hearing on May 7, 2012, and held Appellant in contempt for violating the January 2007 visitation order. The court's contempt order concluded with the statement,
IT IS FURTHER ORDERED, that the Findings of Fact, Conclusion of Law and Decree of Custody, entered on January 17, 2007, is a final and appealable judgment.
Thereafter, Appellant filed this appeal of the January 2007 order. Appellant alleges that the trial court erroneously deemed Appellee a de facto custodian and improperly granted Appellee standard visitation. On the other hand, Appellee argues the custody order was a final and appealable judgment after it was entered despite the omission of the finality language; accordingly, Appellee asks this Court to dismiss the appeal as untimely pursuant to CR 73.02(2).
We agree with Appellee that the notice of appeal was untimely filed. Although the January 2007 custody order did not state it was "final and appealable," it was rendered after the court held a "final" custody hearing. The court issued thorough findings and conclusions, which awarded "sole permanent custody" to Appellant and otherwise adjudicated all the rights of all the parties involved in the custody proceeding. CR 54.01. The parties had abided by the order for nearly five years when Appellee moved the court to find Appellant in contempt for failing to comply with visitation pursuant to the January 2007 order.
In Frances v. Frances, 266 S.W.3d 754, 757 (Ky. 2008), the Kentucky Supreme Court explained:
The trial judge's 'final' decision about custody is the custody decree. Finality in this context is different than in most others, however, as the decision, while immediately appealable, is subject to modification at a later time under KRS 403.340.In N.B. v. C.H., 351 S.W.3d 214 (Ky. App. 2011), this Court determined, "[w]hen, by the exercise of its continuing jurisdiction, the family court enters an order regarding a minor child's care and custody, that order 'is an appealable order and this Court may review it.'" Id. at 219, quoting Gates v. Gates, 412 S.W.2d 223, 224 (Ky. 1967).
Consequently, in the case at bar, we must conclude that the order of January 17, 2007, establishing permanent custody of Child was an appealable judgment, despite the lack of recitation of "final and appealable" language. Thus, Appellant clearly failed to timely appeal the custody order, as her notice of appeal was filed more than five years after the judgment was rendered. "Filing a notice of appeal within the prescribed time frame is still mandatory and failure to do so is fatal to an appeal." Fox v. House, 912 S.W.2d 450, 451 (Ky. App. 1995). Thus, we must dismiss this appeal as untimely.
For the reasons stated herein, this appeal is dismissed.
ALL CONCUR. BRIEF FOR APPELLANT: Robert M. Melvin
Harlan, Kentucky
BRIEF FOR APPELLEE: Michael E. Roper
Hazard, Kentucky