Burchell v. Burchell, Nos. 83-CA-2760-M

CourtCourt of Appeals of Kentucky
Writing for the CourtMcDONALD; MILLER; GUDGEL; GUDGEL
Citation684 S.W.2d 296
Docket Number84-CA-1810-OA,Nos. 83-CA-2760-M
Decision Date21 September 1984
PartiesBurchell v. Lape Susan H. BURCHELL, Appellant, v. Delbert A. BURCHELL, Appellee. and Susan H. BURCHELL, Petitioner, v. Honorable Raymond E. LAPE, Jr., Circuit Judge, Respondent.

Page 296

684 S.W.2d 296
Burchell v. Lape
Susan H. BURCHELL, Appellant,
v.
Delbert A. BURCHELL, Appellee.
and
Susan H. BURCHELL, Petitioner,
v.
Honorable Raymond E. LAPE, Jr., Circuit Judge, Respondent.
Nos. 83-CA-2760-MR, 84-CA-1810-OA
Court of Appeals of Kentucky.
September 21, 1984.
Reconsideration Denied Oct. 1, 1984.

Page 298

A. Neal Herrington, Pedley, Ross, Zielke & Gardner, Miles H. Franklin, Gary D. Phillips, Greenbaum, Young, Treitz & Maggiolo, Louisville, for appellant.

James Rowland, Ron Parry, Covington, for appellee.

Before GUDGEL, McDONALD and MILLER, JJ.

OPINION AND ORDER

McDONALD, Judge.

This is an appeal from the judgment of the Kenton Circuit Court, entered after a postdissolution proceeding, and an original action brought by the appellant seeking a writ of prohibition enjoining the circuit judge from proceeding to enforce the order from which the appeal is taken. Because of the similarity of the parties and the subject matter, we have consolidated these matters before this court.

The marriage of the appellant, Susan H. Burchell, and the appellee, Delbert A. Burchell, was dissolved on August 9, 1983. The property settlement agreement entered into by the parties, found by the court not to be unconscionable, was incorporated into the decree of dissolution. The portion of the agreement pertinent to the appeal is as follows:

Custody and Visitation 1. The parties hereto shall have joint custody of the three infant children of the marriage as follows:

* * *

d. Petitioner and Respondent shall consult with one another regarding elementary and secondary schooling for the infant children, and regarding any elective medical or dental or surgical procedure. Petitioner will make the decision as to the above matters based on his thoughts about the children's well being and will not unreasonably withhold such decision. If Respondent objects to petitioner's decisions in the matters, and if after consultation they are unable to reach an agreement, then the matter will be submitted to a mutually agreeable third party, or if no third party can be agreed upon, then the matter submitted to the Court.

When the oldest of the parties' three children, Tad, reached the age to attend first grade, the Burchells were unable to agree where Tad should attend school or on who would arbitrate the issue. Thus, pursuant to the agreement, they submitted the matter to the court for a decision. They met with the judge, without their respective counsel, and apparently without a court reporter as we have not been presented with a transcript of the hearing.

On August 26, 1983, the court entered its order that Tad should be enrolled in St. Pius X, the parochial school desired by the appellee. According to the record no action was taken until October 5, 1983, when the parties jointly moved the court to amend the order. The amended order, also entered October 5, is identical to the August 26th order with the addition of language of finality. The appellant alleges that she asked the court to make findings pursuant to CR 52.04 by letter addressed to the court, dated September 1, 1983, although such request is not included in the court's record. She filed her notice of appeal on October 12, 1983.

Pursuant to the court's order of August 26, 1983, Tad attended St. Pius X for the 1983-84 school year. Prior to the start of his second year, and while her appeal was pending, the appellant attempted to enroll Tad in a public school. The appellee moved the trial court to again hear the parties and determine where the child should attend school. He also moved the court to issue a rule requiring the appellant to show cause why she should not be held in contempt and

Page 299

for a restraining order. In turn the appellant filed her petition for a writ of prohibition and for intermediate relief. On August 22, 1984, this court temporarily enjoined the Kenton Circuit Court from taking further action in the matter until a decision on the merits of the petition could be addressed by a panel of this court. The appellee has moved to intervene in this action, and having received no objection, we GRANT his motion and ORDER that his tendered response be FILED as of the date of the entry of this opinion and order.

We are dismissing the appeal on our own motion as the appellant has failed to comply with CR 73.02(1)(a) which requires that a notice of appeal be filed within 30 days from the date of judgment or order from which it is taken. A final judgment was rendered in this matter on August 26, 1983. The order was noted on the clerk's docket sheet that same day. The court's amended order, adding words of finality, was superfluous and of no legal significance. As this is not a matter concerning multiple claims or multiple parties no additional language was necessary to render the August 26th order final and appealable. Furthermore, the record does not contain any "timely motion" which would terminate the...

To continue reading

Request your trial
45 practice notes
  • Evans v. Hess, NO. 2013-CA-002072-ME
    • United States
    • Court of Appeals of Kentucky
    • April 8, 2016
    ...of the "best interests of the child." Young v. Holmes, 295 S.W.3d 144, 146 (Ky.App. 2009) (citing Burchell v. Burchell, 684 S.W.2d 296, 300 (Ky.App. 1984)). Determining the best interests of the child is left to the trial court's discretion. Pennington v. Marcum, 266 S.W.3d 759 (K......
  • Page v. Page, NO. 2018-CA-001634-ME
    • United States
    • Court of Appeals of Kentucky
    • May 31, 2019
    ...how the child will be raised, and major decisions concerning the child's upbringing must be made by both parents. Burchell v. Burchell, [684 S.W.2d 296, 299 (Ky. App. 1984)]. A visitation schedule should be crafted to allow both parents as much involvement in their children's lives as is po......
  • Johnson V. Com., No. 1998-SC-0180-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • March 23, 2000
    ...or to extend the time for filing an appeal for ten days under certain circumstances, CR 73.02(1)(d), Burchell v. Burchell, Ky.App., 684 S.W.2d 296 (1984), there is no provision permitting a trial judge to stay an appeal after it has been filed. RCr 10.06(2) clearly anticipates that only an ......
  • CUNNINGHAM v. ABBOTT, NO. 2007-CA-001971-MR
    • United States
    • Court of Appeals of Kentucky
    • February 4, 2011
    ...450, 451 (Ky. App. 1995). The failure to timely file a notice of appeal deprives appellate courts of jurisdiction. Burchell v. Burchell, 684 S.W.2d 296, 299 (Ky. App. 1984). Such a defect is fatal and cannot be cured. Fox, 912 S.W.2d at Because KFHL did not appeal from the adverse ruling se......
  • Request a trial to view additional results
45 cases
  • Evans v. Hess, NO. 2013-CA-002072-ME
    • United States
    • Court of Appeals of Kentucky
    • April 8, 2016
    ...of the "best interests of the child." Young v. Holmes, 295 S.W.3d 144, 146 (Ky.App. 2009) (citing Burchell v. Burchell, 684 S.W.2d 296, 300 (Ky.App. 1984)). Determining the best interests of the child is left to the trial court's discretion. Pennington v. Marcum, 266 S.W.3d 759 (K......
  • Page v. Page, NO. 2018-CA-001634-ME
    • United States
    • Court of Appeals of Kentucky
    • May 31, 2019
    ...how the child will be raised, and major decisions concerning the child's upbringing must be made by both parents. Burchell v. Burchell, [684 S.W.2d 296, 299 (Ky. App. 1984)]. A visitation schedule should be crafted to allow both parents as much involvement in their children's lives as is po......
  • Johnson V. Com., No. 1998-SC-0180-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • March 23, 2000
    ...or to extend the time for filing an appeal for ten days under certain circumstances, CR 73.02(1)(d), Burchell v. Burchell, Ky.App., 684 S.W.2d 296 (1984), there is no provision permitting a trial judge to stay an appeal after it has been filed. RCr 10.06(2) clearly anticipates that only an ......
  • CUNNINGHAM v. ABBOTT, NO. 2007-CA-001971-MR
    • United States
    • Court of Appeals of Kentucky
    • February 4, 2011
    ...450, 451 (Ky. App. 1995). The failure to timely file a notice of appeal deprives appellate courts of jurisdiction. Burchell v. Burchell, 684 S.W.2d 296, 299 (Ky. App. 1984). Such a defect is fatal and cannot be cured. Fox, 912 S.W.2d at Because KFHL did not appeal from the adverse ruling se......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT