*1 296 proceeds of eleven
to receive the BURCHELL, Appellant, involved. checks here H. Susan Notwithstanding Fidelity Casualty Co. & Trust York v. Hellenic Bank & New
of
BURCHELL, Appellee.
Delbert A.
Co.,
(City
Ct.
Misc.
N.Y.S.2d
N.Y.1943)
I
con
contrary,
would
of
given
appar
Young
BURCHELL, Petitioner,
had been
clude that
Susan H.
principles
authority
apply
thus
ent
Cooperative Exchange
embodied Cairo
Jr.,
Raymond
LAPE,
Honorable
E.
Cunningham,
Bank
v. First National
of
Judge, Respondent.
Circuit
(1980), and
Kan.App.2d
ble signa-
enough, no of a there is alteration precise concepts forgery in those
ture
in the I would extend KRS case at bar. Young to include such an act as
355.4-406 beyond the because this extends
committed for it is an
alteration of an instrument by depletion. account The
alteration
Kentucky Commentary following the stat- principle that the
ute cited above indicates (5) extended might at least subsection of customers types
“to claims other claims, these
against banks and defenses to mer- elaborating, I think there is
Without plea of laches. appellant’s
it point is to purpose my comments
out, our court event resort, of the law the inconsistencies
last ulti- the need
pertinent hereto and
mate solution. reasons, respectfully foregoing
For the
dissent. *2 surgical pro- or dental or
elective medical will make the decision cedure. Petitioner matters based on his as to the above being the children’s well thoughts about unreasonably withhold such and will not *3 objects peti- to Respondent If decision. matters, if the and tioner’s decisions they are unable to after consultation the agreement, then matter will reach an mutually agreeable a to be submitted Ross, Pedley, Herrington, A. Neal Zielke party, party if no third can third or Franklin, Gardner, Gary H. & Miles D. agreed upon, the matter then submitted Greenbaum, Phillips, Mag- Young, Treitz & to the Court. Louisville, appellant. giolo, parties’ the oldest of the three When Rowland, Parry, Covington, James Ron children, Tad, age the reached attend grade, first the Burchells were unable to Tad should attend school on where GUDGEL, MIL- Before and McDONALD Thus, pur- who the issue. would arbitrate LER, JJ. agreement, they the the suant to submitted They matter to the court for a decision. AND OPINION ORDER respec- judge, met with the without counsel, apparently tive and a McDonald, judge. reporter present- court as we not been appeal judgment This from the of transcript hearing. ed of with a the Court, after the Kenton Circuit entered a 26,1983, August On the court entered its original postdissolution proceeding, and an order that Tad should be enrolled St. brought seeking by appellant the a action X, by parochial Pius the the school desired prohibition enjoining of writ the circuit appellee. According no ac- to the record proceeding judge from to enforce the order 5, 1983, when tion was taken until October which the taken. Because from jointly the the court parties moved parties and the similarity of the of order, The also amend the order. amended matter, subject these we have consolidated 5, Au- entered October is identical to the matters before this court. gust 26th order with the addition lan- marriage H. appellant, The Susan guage finality. appellant alleges The Burc- Burchell, appellee, Delbert A. and findings that she asked the court make 9,1983. hell, August on The was dissolved pursuant to CR 52.04 letter addressed to agreement entered property settlement September al- dated parties, found the court not into though request such is not included unconscionable, incorporated into to be ap- filed her notice of court’s record. She portion The decree of dissolution. peal 1983. on October agreement pertinent is as August court’s order of Pursuant follows: 26, 1983, Tad X for the attended St. Pius Custody and Visitation start of year. school Prior 1983-84 joint custody of the hereto shall have year, her his second and while marriage infant children of the three attempted to enroll pending, follows: appellee public Tad in a school. The moved again and the trial court to hear should attend Respondent shall determine where child d. and Petitioner to issue a He moved the court regarding ele- school. also consult with one another appellant to cause requiring the show secondary schooling for the rule mentary and contempt and children, any why should not be held regarding she infant entry 73.02(l)(d), restraining appel- judgment,” for a order. In turn of the CR petition prohibi- indirectly filed her for a and it cannot extend the time lant writ repetition tion and for relief. Au- intermediate On a renewal of otherwise gust 22, 1984, temporarily final this court en- order.
joined the Kenton tak- Circuit Court from Although compelled we are to dis ing further action until matter note, appeal, miss the we for the benefit merits petition on the could parties, appellant’s arguments that by panel be addressed of this court. The argues without merit. She that as under appellee has in this moved intervene separation agreement the terms of the she action, having objection, received no physical possession of the children on we GRANT his motion and ORDER days throughout year, all school K.R.S. response his tendered be FILED as *4 403.330(1) mandates she be de allowed to entry opinion date the of this and order. termine where the children should attend dismissing 403.330(1)
We are appeal provides the on school. K.R.S. as fol our appellant own motion as the failed has lows: 73.02(l)(a) comply with CR which re (1) Except agreed by as otherwise the quires that a notice of appeal filed with be parties writing in at the time days in judgment 30 from the date of decree, custody may custodians de-
order judg from which it is taken. A final upbringing, including termine the child’s ment was in rendered this matter Au on education, care, his health religious and 26, gust 1983. The order on was noted training, hearing, unless court after clerk’s day. docket sheet finds, that same upon by motion the noncustodial order, court’s adding amended words of parent, specific absence a finality, superfluous legal and of no authority, limitation the custodian’s significancé. As this is not a matter con physical the child’s health would be en- cerning multiple multiple claims parties dangered development or his emotional language no additional necessary significantly impaired. [Emphasis add- August render the 26th order final and ed.] appealable. Furthermore, the record does Clearly applicable this is not statute to this not contain “timely motion” which parties agreed they matter as the would would running terminate the time joint custody spe- have of the children and pursuant for the appeal 73.02(l)(e). to CR cifically agreed jointly those make deci-
Even if September the letter of involving sions their children’s education requesting findings, the court to make had and health care needs. That the record, been filed of a request pursu made physical possession of the children does ant to stop running CR 52.04 does not superior authority not accord her to deter- of time appeal. Id. mine Al- how the children will be raised. though responsible day-to- she their is Filing appeal of the notice of day possession, care while her prescribed by within the CR time 73.02 is affecting major must decisions the children jurisdictional. mandatory and Cobb v. Car parent, be made concert with their other (1977). penter, Ky.App., 290 553 S.W.2d requisite jurisdic court This thus lacks the custody arrangement appeal tion to entertain an unless the notice Joint is an seasonably may parents whereby is filed. Jurisdiction both share the decision concerning by making major be consent of areas their conferred on this court traditionally v. en upbringing, or waiver. Moore Lee child’s role See parents marriage, Ky. joyed by during 240 43 both Realty Company, Court (1931). may usually reposed solely ex which in one S.W.2d 45 The trial court but is taking parent following ten Petril- tend the time for dissolution. See R. § (1969 li, 26.8(b) days only “upon showing Family excusable Law Kentucky gained neglect party Supp.1983). on a failure of a to learn of The benefits 300 parents, prohibition only suance of a writ of ap children of divorced themselves, general,
parents
society
propriate
when the trial court is acting
par
jurisdiction,
proceeding
of both
or is
the continued involvement
erro
peti
neously
jurisdiction
in the vital decisions to be made
within its
and the
ents
as
popular
adequate remedy
extolled in the
media well
tioner has no
at law.
been
See
Bratt,
Cox, Ky.,
legal
Joint
481
Lexington
as
treatises. See C.
Cus
S.W.2d 645
(1972).
(1978),
and H. Robin
As
Ky.L.J.
appellant’s
271
notice of
tody,
son,
jurisdiction,
discussed,
Custody:
untimely,
An Idea Whose Time was
as
Joint
Come,
(1983).
upon
this
J.Fam.L.
was never conferred
court and
Has
remained in
circuit court. Further
If,
case,
as in
instant
more,
properly
even if an
had been
joint custody
are unable
before us it is well settled that the trial
concerning
major
on a
issue
authority
compli
court has the
to enforce
upbringing, the trial
with its
child’s
ance
its
in domestic relations
with
orders
continuing jurisdiction
over
mat
during
pendency
appeal.
matters
ters,
hearing to
must conduct a
evaluate
Penrod, Ky.,
S.W.2d 524
Penrod
the circumstances and resolve
issue
(1972). Although the Penrod case was de
according
interest. Once
to the child’s best
changes in
cided
our di
before
vast
role
parents
have abdicated their
vorce law
the 1972 General As
enacted
court, its
custodians to the trial
*5
holding therein
sembly, the
was reaffirmed
binding on the
until it is shown that
Supreme
in
v. Peni
our
Court Peniston
the decision is detrimental
to the child
(1974).
ston,
Fi
Ky.,
S.W.2d
emotionally,
longer
no
in
physically or
or is
irreparable
experi
nally,
alleged
harm
his best interest.
petitioner because
her ina
enced
Finally,
regard
appeal,
to
in
chil
bility
solely
where her
to
determine
in-depth find
court’s error below to make
school, is not the result of
dren will attend
ings
preserved for
of fact
not
our
petitioner
any
the trial court the
action of
findings
request
as the
for such
is
review
voluntary
prohibit,
to
but of her
desires
anywhere
not
in the court’s
contained
agreement
joint custody
to have
with
Furthermore, had the court made
record.
findings
specific
we would be unable to
petition
writ
It ORDERED that the
for
is
as
clearly
determine them to be
erroneous
DENIED,
regret
prohibition
be
and we
stated,
presented
appellant,
neither
any
may
caused the
inconvenience we
evidence,
transcript
nor a
us
with
granting
petition for in-
trial court
Clay
Clay,
v.
narrative statement. See
relief.
termediate
(1968).
Ky.,
statutory restrictions and limitations with
respect agreements joint custody. many
Like so theories which have a noble
purpose they prove often to be unworkable practical Although
when tested world. in the agreed instant action joint custody,
share and their approved by the trial it did not long the agreement take to become LEXINGTON-FAYETTE URBAN COUN Presently unworkable. Burchells GOVERNMENT, al., Appellants, TY et to agree unable on the basic issue of their whether child should attend a church Joseph Murray Dr. HAYSE public school or a school. Pursuant Lexington Board Trustees of the agreement a judge circuit has under- Library, Appellees. Public taken that to make decision for them. simply proposition cannot accede to the Joseph Murray HAYSE, Dr. joint custody agreement in the Cross-Appellant, instant action is being sustainable as effect, child’s best interests. In under *6 agreement, terms of the judge the circuit LEXINGTON-FAYETTE URBAN agreed to assume par- a role as Tad’s GOVERNMENT, al., COUNTY et ent. believe that it anis abuse of discre- Cross-Appellees.
tion judge circuit voluntarily as- parental BOARD OF making sume a TRUSTEES OF the LEX function LIBRARY, joint himself under the terms of a INGTON PUBLIC cus- tody Further, Cross-Appellant, agreement. I believe that such is unenforceable against parent having physical LEXINGTON-FAYETTE URBAN right child. KRS 403.330 confers a GOVERNMENT, al., COUNTY et to determine a child’s education on the Cross-Appellees. parent child’s parents custodial unless the agree Here, in writing. otherwise par- Appeals of Kentucky. Court agreement. They ties did not have such an Sept. 28, 1984. only if agreed could Rehearing Denied Nov. 1984. the child’s education the court would agree- determine issue for them. The Discretionary Review Denied contemplated by statute, ment how- Feb. ever, is one which parent the custodial unconditionally agrees permit the non- parent
custodial to determine issues as Thus,
the child’s education. contrary to conclusion, majority’s opin- am of the applicable
ion that KRS 403.330 this statutory Appellant right
case. has a ab- finding physical
sent a that Tad’s health