PETER GRITTON APPELLANT v. DIVISION OF INCOME SUPPORT EX REL TRACY GRITTON APPELLEE

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Court of Appeals of Kentucky.

PETER T. GRITTON APPELLANT v. COMMONWEALTH OF KENTUCKY , DIVISION OF INCOME SUPPORT, EX REL., TRACY L. GRITTON APPELLEE

NO. 2011–CA–001099–ME

Decided: March 09, 2012

BEFORE:  LAMBERT, THOMPSON AND VANMETER, JUDGES. BRIEF FOR APPELLANT:  Robert L. Bertram Jamestown, Kentucky NO BRIEF FOR APPELLEES

NOT TO BE PUBLISHED

OPINIONVACATING AND REMANDING

Peter Gritton appeals from the Russell Circuit Court's default judgment entered against him regarding a claim of child support brought by the Commonwealth of Kentucky, Division of Income Support (“the Division”) on behalf of his ex-wife, Tracy Gritton.   Since the record supports, and the parties agree, that the default judgment should be set aside, we vacate the judgment and remand the case.

The Division filed a complaint on behalf of Tracy in the circuit court seeking child support from Peter.   Peter did not appear and a default judgment was entered against him.   Peter appealed the judgment to this court.   Upon discovering that a similar case between Tracy and Peter was pending in Indiana, the Division filed a motion to dismiss the default judgment pursuant to CR  Double 60.02.   The circuit court held the motion in abeyance pending resolution of this appeal.

The Division then moved to dismiss this appeal, on the basis that all parties agree the default judgment should be dismissed.   Peter opposes dismissal of the appeal, and instead requests this court to order the circuit court to set aside the default judgment and find that he was not properly served.

Seeing as the parties are in agreement, and the record supports a finding that the default judgment should be set aside, we see no reason to dismiss this appeal.   Accordingly, we remand this matter to the circuit court with instructions to enter an order setting aside the default judgment.   Furthermore, since the default judgment will be set aside, we decline to address whether Peter was properly served.

The motion to dismiss this appeal is denied, and the default judgment entered against Peter is vacated.

all concur.

VANMETER, JUDGE: