Clark v. Com., Cabinet for Health and Family Services, 170 SW3d 426 (Ky.App., 2005)

Clark v. Com., Cabinet for Health and Family Services,
170 SW3d 426 (Ky.App., 2005)
Premature notice of appeal from an intermediate order may
proceed even though a second notice of appeal was not filed
from the final order.

Clark v. Com., Cabinet for Health and Family Services,
170 SW3d 426 (Ky.App., 2005)
Premature notice of appeal from an intermediate order may
proceed even though a second notice of appeal was not filed
from the final order.

At a hearing on February 3, 2005 the trial court determined that acts of domestic violence had occurred in the presence of the parties’ children, placing them at risk under KRS 600.020, and set a number of conditions pending disposition to be made at a later date.

Clark assumed this to be a final order and appealed. The Cabinet moved the Court of Appeals to dismiss on the basis the order from which Clark appeals is not a final and appealable order, as a notice of appeal was not filed from the dispositional order entered March 9, 2005, and the earlier appeal was premature.

Held – motion to dismiss overruled. Citing Johnson v. Smith, 885 SW2d 944 (Ky., 1994) the Court of Appeals applies the “relation forward” concept, which allows what is a premature notice of appeal from an intermediate order to proceed even though a second notice of appeal was not filed from the final order entered against him to be a final judgment. This rule permits a premature notice of appeal to be effective to invoke the jurisdiction of the appellate court upon final judgment where the circumstances suggest filing a notice of appeal would not be unreasonable.

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