Opinion
NO. 2019-CA-000662-ME
06-05-2020
FRANCES BARGO APPELLANT v. MILDRED SMITH and RANDY WAYNE SMITH APPELLEES
BRIEF FOR APPELLANT: Laura A. Phillips Barbourville, Kentucky BRIEF FOR APPELLEES: No brief filed.
NOT TO BE PUBLISHED APPEAL FROM KNOX CIRCUIT COURT
HONORABLE STEPHEN M. JONES, JUDGE
ACTION NO. 17-CI-00344 OPINION
DISMISSING
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BEFORE: ACREE, CALDWELL, AND K. THOMPSON, JUDGES. CALDWELL, JUDGE: Frances Bargo (Bargo) seeks review of a de facto custodianship order entered by the Knox Family Court adjudging Mildred Smith (Mildred) to be a de facto custodian of the two minor children born to Bargo and Randy Wayne Smith (Randy) She asserts that the trial court improperly denied her requests to present certain evidence and erred in declaring Mildred to have de facto custodian status under controlling law. Without reaching the merits of these arguments, we must dismiss her appeal as the de facto custodianship order was not a final and appealable judgment.
While the pleadings denominate Bargo as "Francis Bargo," the notice of appeal identifies her as "Frances Bargo." Since Bargo verified her answer as "Frances," we have used that correct spelling of her name in this opinion.
Randy is listed as an Appellee on the Appellant's brief and it appears that his interests are somewhat aligned with those of his mother, Mildred, as he filed pleadings with the trial court stating that he agreed that his mother should be considered a de facto custodian. Both Randy and Bargo were named Respondents in Mildred's Petition for Declaration of De facto Custodianship and Custody. Neither Randy nor Mildred filed a brief with this court concerning this appeal.
We note that an earlier appeal from the same trial court case was dismissed for similar reasons by unpublished opinion in Bargo v. Smith, No. 2018-CA-000141-ME, 2018 WL 5310262 (Ky. App. Oct. 26, 2018). Like the earlier appeal, this appeal was ordered expedited and arose out of proceedings stemming from Mildred's Petition for Declaration of De Facto Custodian and Custody. After our dismissal of the earlier appeal, the trial court adjudged Mildred to be a de facto custodian under Kentucky Revised Statute (KRS) 403.270(1) following a hearing, but it has not made a determination of custody under KRS 403.270(2) based on our review of the record.
A trial court order which does not determine custody but merely determines that a party has standing to seek custody is interlocutory and not appealable because it does not determine all the rights of the parties. Druen v. Miller, 357 S.W.3d 547, 549 (Ky. App. 2011) (dismissing appeal of order denying motion to dismiss petition for custody based on alleged lack of standing). Thus, a trial court's determination that a party has standing to seek custody as a de facto custodian, by itself, is interlocutory and not appealable. See Cherry v. Carroll, 507 S.W.3d 23, 27 (Ky. App. 2016) (rejecting argument that trial court's determination of de facto custodian status should have been immediately appealed, rather than waiting to appeal on de facto custodian issues until after rendition of final custody judgment). Rather, the merits of a de facto custodian determination can generally be appealed only after the trial court has made a final judgment concerning custody:
Had Cherry attempted to challenge Carroll's de facto custodian status as soon as it was entered, as was the scenario in Druen, the appeal would have been dismissed for lack of appellate jurisdiction. This case is properly before us because it challenges a final judgment determining custody. It just happens the primary basis of Cherry's challenge is whether Carroll had standing to seek—and ultimately obtain—custody. Furthermore, the judgment deciding custody contained finality language; the judgment designating Carroll a de facto custodian did not.Id.
In her notice of appeal (though not in her brief), Bargo claims that the trial court not only declared Mildred to be the de facto custodian but "granted" Mildred custody in its de facto custodianship order. However, there is no grant of custody in the de facto custodianship order; the order is clearly limited to a determination of whether Mildred qualified as de facto custodian. It begins with explicit recitations that the matter had come before the court at a hearing on de facto custodianship only and that all parties acknowledged that the hearing was limited and for the sole purpose of determining whether or not the Petitioner/Grandmother, Mildred Smith, qualifies and meets the definition of de facto custodian of the minor children pursuant to KRS 403.270(1)(a)-(b).
The de facto custodianship order concludes with a "Judgment" declaring Mildred to be a de facto custodian of the children and stating that she has the same standing to seek custody as a biological parent under KRS 403.270. This is a judgment but not a final and appealable judgment. As defined in Kentucky Rule of Civil Procedure (CR) 54.01, "[a] judgment is a written order of a court adjudicating a claim or claims in an action or proceeding. 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." The trial court's de facto custodianship order does not adjudicate all the rights of the parties as it does not resolve the question of custody; it simply states that Mildred has standing to seek custody as a de facto custodian. Not only does the order not adjudicate all the rights of the parties, it does not contain any language which purports to make it a final judgment under CR 54.02—for example, it does not state that it is final or that "there is no just reason for delay." Thus, the order is not a final and appealable judgment under CR 54.01.
CR 54.02(1) provides that: "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, 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. The judgment shall recite such determination and shall recite that the judgment is final. In the absence of such recital, any order or other form of decision, however designated, which adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is interlocutory and subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."
Where an underlying order appears to lack finality, we must raise the issue sua sponte. Since we have concluded that the court's order is not final and appealable, the appeal must be, and is hereby, dismissed.
ALL CONCUR. BRIEF FOR APPELLANT: Laura A. Phillips
Barbourville, Kentucky BRIEF FOR APPELLEES: No brief filed.