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Nunley v. Neuling

Court of Appeals of Kentucky

September 1, 2017

DR. MARK ANDREW NUNLEY AND MICHELLE ANNE NUNLEY APPELLANTS
v.
BETH NEULING APPELLEE

         APPEAL FROM JEFFERSON CIRCUIT COURT FAMILY COURT DIVISION HONORABLE A. CHRISTINE WARD, JUDGE ACTION NO. 12-CI-502188

          BRIEF FOR APPELLANT: Allen McKee Dodd

          NO APPELLEE BRIEF.

          BEFORE: ACREE, DIXON, AND TAYLOR, JUDGES.

          OPINION A ND ORDER DISMISSING

          Jeff S. Taylor, JUDGE

          Dr. 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.

         Michelle 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 months.

         Beginning 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.

         While 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."

         In 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.[1] No appeal was taken from the November 17, 2014, agreed order.[2]

         After 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. ...

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