Fields v. Fields

346 S.W.2d 41, 1961 Ky. LEXIS 292

Opinion

WILLIAMS, Judge.

Edward Fields appeals from a judgment of the Letcher Circuit Court in a divorce action awarding custody of his two-year-old son to Mattie Jane Fields.

On this appeal appellee advised her attorney that she did not desire to file a brief or have one filed in her behalf.

Appellant has had custody of his child since this action was filed and now has him in his custody in the State of Indiana. Ap-pellee has made no move to obtain custody of the child.

Since appellee has failed to file a brief, we are regarding the failure to comply with RCA 1.230 as a confession of error and are therefore invoking the penalty provided by RCA 1.260(c) (3), and reversing the judgment without considering the merits of the case. Strahan v. Prater, Ky., 339 S.W.2d 173.

Wherefore, the judgment is reversed and .remanded to the lower court, with directions to enter a judgment awarding custody of ,tlie child to appellant, Edward Fields.