Welch v. Velten, 185 S.W.3d 163 (Ky. 2006)
Issue and Holding:
Whether a party’s motion to dismiss her opponent’s appeal pursuant to Kentucky Rules of Civil Procedure (CR) 76.34(6) suspends the running of time within which that party may file a notice of cross-appeal, pending a ruling on the motion to dismiss. The Court held yes, the filing of a motion to dismiss suspends the running of time in which that party may file a cross-appeal.
The family court entered its final judgment in the divorce proceeding on August 1, 2002. Both parties filed timely motions to alter, amend of vacate the judgment under CR 59.05. The court then entered an opinion on December 3, 2002 addressing the arguments and modifying the original judgment. Velten then filed a motion pursuant to CR 59 to amend the December 3rd order. The court denied this motion on June 27, 2003, and Velten filed his notice of appeal on July 18, 2003.
On July 28, 2003 Welch filed a motion to dismiss the appeal as untimely filed in the Court of Appeals. The Court of Appeals denied the motion on September 10, 2003. Welch filed her notice of cross-appeal on September 19, 2003. The Court of Appeals dismissed the cross-appeal as untimely filed. The Supreme Court granted discretionary review.
The Court held that any ambiguity in CR 76.34(6) is best resolved in favor of having appeals and cross-appeals decided on their merits. Therefore, the timely filing of a motion to dismiss an appeal will suspend the running of time within which a party may file a notice of cross-appeal.