Druen v. Miller, Ky COA, Interlocutory Nature of Decial of Motion to Dismiss

Melissa Ann Druen v. Paula Jean Miller

No. 2011-CA-000278-ME

Published: Opinion Dismissing

County: Jefferson 

Appellant, Melissa Ann Druen, appealed from an order denying her motion to dismiss Paula Jean Miller’s petition for custody of Druen’s biological minor child.

Druen and Miller were involved in a romantic relationship and bought a home together in 1998.  Druen became pregnant in 2002 after artificial insemination from an unknown donor and later gave birth.  The parties separated in 2007.  In 2010, Miller filed a petition for custody of the child based on her allegation that she was the defacto custodian since the child had lived with her since the separation and that Druen only exercised visitation rights.

Druen filed a motion to dismiss stating that Miller lacked standing to pursue custody.  Before the hearing on that issue, the trial court permitted Miller to amend her petition to include an alternative claim that Druen waived her parental rights.  In July, 2010, Druen’s motion to dismiss was denied, finding that Miller had standing to pursue custody under a claim of waiver of parental rights.  The Order was designated final and appealable only in regard to standing.

Druen then filed this appeal, seeking reversal of the trial court’s order holding that Miller has standing to pursue custody.  The Court of Appeals found the order to be interlocutory and not appealable.

CR 54.01 provides that “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 says that if more than one claim for relief is sought, “the court may grant a final judgment upon one or more but less than all of the claims or parties only upon a determination that there is no just reason for delay.”  Recital of the finality language will not render appealable an order which is interlocutory by its very nature.

Druen seeks appeal of an order denying her motion to dismiss Miller’s petition on the basis that Miller lacked standing to seek custody.  The order, however, does not determine the custody issue and is not final because it did not adjudicate all the rights of the parties.  The order granted Miller temporary joint custody and temporary child support but these are also interlocutory and non-appealable.

The Court of Appeals held that this appeal is from an interlocutory order and not properly before the court.  The appeal is dismissed.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.