Opinion
NO. 2013-CA-000219-MR
03-07-2014
JENNIFER SIZEMORE APPELLANT v. DARIN SIZEMORE APPELLEE
BRIEF FOR APPELLANT: Douglas G. Benge Cessna Benge London, Kentucky BRIEF FOR APPELLEE: Mary-Ann Smyth Corbin, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LAUREL FAMILY COURT
HONORABLE DURENDA LUNDY LAWSON, JUDGE
ACTION NO. 11-CI-01171
OPINION
DISMISSING AND REMANDING
BEFORE: DIXON, LAMBERT AND NICKELL, JUDGES. DIXON, JUDGE: Appellant, Jennifer Sizemore, appeals from an order of the Laurel Family Court granting Appellee's, Darin Sizemore's, motion for a protective order and limiting her discovery request in this post-decree domestic action.
The parties herein were divorced on May 15, 2012, by a decree of dissolution entered in the Laurel Family Court. On August 1, 2012, Jennifer moved to set aside the decree on the grounds that the amount of child support calculated therein was inaccurately computed by Darin's trial counsel. In addition, Jennifer sought to modify prospective child support, arguing that at the time the parties entered into their separation agreement and subsequent decree, they had not completed their 2011 federal and state income tax returns and that the child support worksheets were based upon their 2010 tax returns.
The parties had three children during the marriage.
Questioning the validity of Darin's income as stated on the 2010 and 2011 returns, and attempting to calculate his 2012 income, Jennifer propounded a discovery request upon Cumberland Valley National Bank seeking Darin's bank records for 2010, 2011, and 2012. In response, Darin sought a protective order limiting the bank's disclosure of his confidential bank records. Following a hearing on August 13, 2012, the family court entered an order limiting Jennifer's discovery to only those bank records dated after the May 15, 2012 divorce decree. Rather than conducting a hearing without sufficient evidence, the parties believed that an interlocutory appeal to this Court would be appropriate and filed a motion with the family court to amend its order to make such "final and appealable." The family court did so on January 15, 2013, and this appeal ensued.
Although not raised by the parties or referred to in the briefs, this Court must first determine whether we are authorized to review the order appealed from. Hubbard v. Hubbard, 303 Ky. 411, 197 S.W.2d 923 (1946). CR 54.01 provides in relevant part: "A final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02." CR 54.02 is confined to actions involving multiple claims or multiple parties, and permits an interlocutory judgment or order to be made appealable under specified circumstances. As the action before the family court herein involved neither multiple claims nor multiple parties, CR 54.02 did not apply. In any event, where an order is by its very nature interlocutory, even the inclusion of the recitals provided for in CR 54.02 will not make it appealable. Hook v. Hook, 563 S.W.2d 716 (Ky. 1978); Hale v. Deaton, 528 S.W.2d 719, 722 (Ky. 1975).
In Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 376 (Ky. 1985), our Supreme Court observed:
The test for determining the appealable character of an order of the trial court is whether "... the order grants or denies the ultimate relief sought in the action or requires further steps to be taken in order that parties' rights may be finally determined." Evans Elkhorn Coal Co. v. Ousley, Ky., 388 S.W.2d 130, 130-131 (1965).
In Claussner Hosiery Co. v. City of Paducah, 275 Ky. 149, 120 S.W.2d 1039 (1938), we held that the trial court's order granting a subpoena duces tecum requiring the witness to produce the books and records of a corporation was "purely interlocutory" and therefore, not appealable. 120 S.W.2d at 1040. In Crook v. Schumann,
292 Ky. 750, 167 S.W.2d 836 (1942), a stockholder's action for mismanagement, we reaffirmed that such an order is "clearly interlocutory and not appealable." 167 S.W.2d at 839.
We are of the opinion that the discovery order herein was plainly an interlocutory determination despite the family court's recitals that it was final and appealable. See Hook, 563 S.W.2d at 717. If the family court erred in exercising its discretion, Jennifer has a remedy by appeal of the final judgment. See Futrell v. Shadoan, 828 S.W.2d 649, 651 (Ky. 1992). We wholeheartedly agree with our Supreme Court that "[a]s a general proposition to permit appeals from discovery orders would create intolerable delay and unmitigated chaos in the progress of the litigation." Lexington Herald-Leader Co., 690 S.W.2d at 376.
For the foregoing reasons, this appeal is dismissed and the matter remanded to the Laurel Family Court for further proceedings.
ALL CONCUR. BRIEF FOR APPELLANT: Douglas G. Benge
Cessna Benge
London, Kentucky
BRIEF FOR APPELLEE: Mary-Ann Smyth
Corbin, Kentucky