DR. MARK ANDREW NUNLEY AND MICHELLE ANNE NUNLEY APPELLANTS
BETH NEULING APPELLEE
FROM JEFFERSON CIRCUIT COURT FAMILY COURT DIVISION HONORABLE
A. CHRISTINE WARD, JUDGE ACTION NO. 12-CI-502188
FOR APPELLANT: Allen McKee Dodd
BEFORE: ACREE, DIXON, AND TAYLOR, JUDGES.
OPINION A ND ORDER DISMISSING
S. Taylor, JUDGE
Mark Andrew Nunley and Michelle Anne Nunley (collectively
referred to as the Nunleys) bring this appeal from an October
30, 2015, order of the Jefferson Circuit Court, Family Court
Division. For the reasons stated, we dismiss this appeal as
having been untimely filed pursuant to Kentucky Rules of
Civil Procedure (CR) 73.02.
Anne Nunley is the biological mother of Beth Nueling. Beth
was born on March 29, 1984. Michelle subsequently married Dr.
Mark Andrew Nunley, and in November 2000, Mark adopted Beth.
Beth subsequently had two biological children, J.M.N. on
August 15, 2003, and A.M.N. on September 11, 2008. J.M.N.
resided with the Nunleys for over six years after his birth
and A.M.N. resided with the Nunleys for approximately nine
in 2006, the relationship between the Nunleys and Beth
apparently deteriorated. Relevant to this appeal, on June 27,
2012, the Nunleys filed a petition for grandparent visitation
in the Jefferson Circuit Court, Family Court Division,
(Action No. 12-CI-502188). In the petition, the Nunleys
alleged that Beth's minor children, J.M.N. and A.M.N.,
had lived with them continuously from the time of their
respective births until 2009. On July 12, 2012, a mediation
conference was conducted. The Nunleys were present with
counsel, but Beth proceeded pro se. The Nunleys and
Beth eventually reached a mediation agreement regarding
visitation, and on July 24, 2012, an agreed order was entered
setting forth the provisions of the agreement. Pursuant to
the July 24, 2012, agreed order, the Nunleys were granted
visitation with the children two weekends per month and one
evening per week.
Shortly after entry of the July 24, 2012, agreed order, Beth
filed a timely motion pursuant to CR 59.05 to set aside said
order claiming it was procured by overreaching and duress. By
order entered December 20, 2013, the family court granted
Beth's motion and set aside the July 24, 2012, agreed
order. The Nunleys filed a notice of appeal (Appeal No.
2014-CA-000241-ME) from the December 20, 2013, order.
Appeal No. 2014-CA-000241-ME was pending, the Nunleys filed a
motion in the family court to set a case management
conference. Soon thereafter, a mediation conference was
conducted, and the parties once again reached an agreement.
Pursuant to a September 3, 2014, mediation agreement, it was
again agreed that the Nunleys would have visitation with the
children. The September 3, 2014, mediation agreement,
however, provided that its provisions would "be reviewed
in . . . [another] mediation within two months if needed,
prior to any additional litigation."
conformance with the September 3, 2014, mediation agreement,
the parties conducted another mediation conference within two
months. This conference also produced a mediation agreement
dated November 4, 2014. Under the November 4, 2014, mediation
agreement, the Nunleys were to continue with visitation one
weekend per month and two or three weeknights per month. The
November 4, 2014, mediation agreement also included a
provision allowing the Nunleys two weeks of annual vacation
time with the children. Particularly relevant to this appeal,
the November 4, 2014, mediation agreement provided: "The
parties agree this agreement resolves the visitation hearing
scheduled 2/3/15 which shall be remanded but does not dismiss
the appeal." By agreed order entered November 17, 2014,
the family court adopted by reference the September 3, 2014,
and the November 4, 2014, mediation agreements. No appeal was
taken from the November 17, 2014, agreed order.
the November 17, 2014, agreed order was entered, the Court of
Appeals rendered an Opinion in the Nunleys' first appeal.
By Opinion rendered February 27, 2015, the Court of Appeals
dismissed Appeal No. 2014-CA-000241-ME. Therein, this Court
reasoned the December 20, 2013, order appealed from was
interlocutory and nonfinal. The Court particularly stated:
[T]he grandparent visitation action has not been resolved.
Because its outcome is pending, we may not examine other
issues that have arisen during litigation. ...