Timeliness of appeal of grandparent visitation issue - published opinion from Ky Court of Appeals

NUNLEY, ET AL. V. NEULING

Grandparents filed a petition for grandparent visitation on June 27, 2012. They entered into an agreed order in the matter on July 24, 2012, which was set aside by order entered December 20, 2013. Grandparents filed a notice of appeal, but while that appeal was pending entered into two additional agreed orders resolving the grandparent visitation issues. By agreed order entered November 17, 2014, the family court adopted by reference the September 3, 2014, and the

November 4, 2014, mediation agreements. Grandparents did not file any appeal of the November 17, 2014 Order. Subsequently, the original appeal was dismissed as the grandparent issues were still pending at the time of the December 20, 2013 Order. Grandparents then requested the court enter a final and appealable order, which the court did on October 30, 2015 stating “an order has been entered on the outstanding issue of grandparent visitation. No other issues are pending before this Court for adjudication.” Grandparents appealed the October 30, 2015 Order on November 10, 2015.

The Court of Appeals dismissed the current appeal as it was filed untimely holding that because the case involved one claim for grandparent visitation, and did not include multiple parties, CR 54.02 did not apply. Pursuant to CR 54.01, the November 2014 Order resolving grandparent visitation was the final order, even without language of finality required by CR 54.02. Therefore, the November 2015 appeal was too late. Although the parties attempted to preserve their right to appeal by agreement, agreement of parties is not sufficient grounds to confer jurisdiction to an appellant court. “Upon resolution of the grandparent visitation issue in November 2014, there was nothing left to adjudicate on the claim.”

Digested by Elizabeth M. Howell