Thomas v. Thomas

497 S.W.2d 717, 1973 Ky. LEXIS 365

• Court: Court of Appeals of Kentucky
• Decided: June 29, 1973
• Status: Published

Opinion

STEPHENSON, Justice.

James filed a petition for dissolution of marriage in Christian Circuit Court. Trisha filed a verified response. James’ deposition was taken “pursuant to oral agreement with Trisha’s attorney.” The deposition was filed, and judgment was entered decreeing the dissolution of the marriage, providing maintenance for the children, and adjudging certain property rights. Six days later, Trisha’s attorney filed motion to set aside the judgment on the ground that he had not received notice of taking James’ deposition and had not entered into an oral agreement waiving notice. James’ attorney responded by affidavit stating there was an oral agreement that Trisha’s attorney did not desire to be present at the deposition and waived any notice.

After hearing the attorneys, the trial court overruled the motion to set aside the judgment.

Trisha appeals from the order and judgment overruling her motion to the extent it finally adjudicated child support, property rights, and attorney fees.

Civil Rule 30.01 specifically provides for reasonable notice in writing of the taking of any deposition. Realizing the prevalence of the practice of oral agreements dispensing with the requirement of a written notice and the practical benefits therefrom, nevertheless we conclude that if the existence of an oral agreement as to notice is disputed, the trial court should not be placed in the position of having to resolve the dispute and should apply the requirement of CR 30.01 as to notice.

Save that portion which decrees dissolution of the marriage, the judgment is set aside for further proceedings upon proper notice.

PALMORE, C. J., and MILLIKEN, REED, STEINFELD and STEPHENSON, JJ., sitting.

All concur.

OSBORNE, J., not sitting.