RENDERED: JULY 12, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0644-MR

SUSAN CARTER; MIKE NICHOLS; 

AND STEVE NICHOLS APPELLANTS 

v. 

APPEAL FROM OLDHAM CIRCUIT COURT

HONORABLE JERRY CROSBY, II, JUDGE

ACTION NO. 22-CI-00578

SEAN PARIS, PUBLIC 

ADMINISTRATOR FOR THE 

ESTATE OF JOHN WARREN 

NICHOLS III; AND RITA RUNAE 

HERZOG APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND L. JONES, JUDGES.

JONES, L., JUDGE: Susan Carter, Mike Nichols, and Steve Nichols (collectively 

“the Siblings”) appeal an order of the Oldham Circuit Court dismissing the 

underlying action seeking invalidation of their deceased brother’s marriage to Rita 
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Herzog, which occurred just days before his death in December 2021. After 

careful review of the record, briefs, and applicable law, we affirm.

I. Factual and Procedural Background

John Warren Nichols III died on December 24, 2021. Two days 

before his death, he remarried his former spouse, Rita Herzog, in a small civil 

ceremony. In the months leading up to the wedding, John was in the hospital and 

then a rehabilitation facility due to what appears from the record to be cardiac 

issues and health concerns related to alcohol use. However, once he left the 

rehabilitation facility towards the end of November 2021, he stayed for periods of 

time at Rita’s home, or she stayed with him at his home. Rita is a nurse and cared 

for John’s needs, including taking him to various appointments. The couple were 

divorced in 2014, but according to Rita’s deposition testimony, they maintained 

their relationship, including going on vacations together. 

Sometime after John’s death and upon learning of his marriage to 

Rita, the Siblings hired a private investigator (“PI”). According to the PI’s

investigation, Rita’s son, Brandon Herzog, may not have been present at the 

wedding as a witness, based on statements he made to two of his friends. At that 

point, John’s estate was in probate and, because he died intestate, Sean Paris was 

appointed as the public administrator by the district court. Upon informing Paris 

of the PI’s investigation, Paris filed the underlying action to declare Rita and 
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John’s marriage invalid due to not having the required number of witnesses present 

at the ceremony. 

The Siblings filed a motion to intervene, in which they argued they 

have a present, substantial interest in the lawsuit because, if the circuit court 

determined the marriage was invalid, the Siblings would receive the entirety of 

John’s estate. On the other hand, if the circuit court determined the marriage was 

valid, the Siblings would receive only half of John’s estate minus an additional 

$30,000.00 for Rita’s spousal exemption in personal property. The circuit court 

granted the Siblings’ motion to intervene by an agreed order. Discovery ensued, 

and after taking the depositions of Brandon Herzog and the Justice of the Peace 

who performed the ceremony, Paris moved for dismissal of the action. The circuit 

court granted Paris’ motion over the objection of the Siblings. This appeal 

followed.

II. Standard of Review

 Kentucky Rule of Civil Procedure (“CR”) 41.01(2) provides, in 

relevant part, that an action may be dismissed by an order of the court upon a 

plaintiff’s insistence and “upon such terms and conditions as the court deems 

proper.” We review a circuit court’s dismissal of an action pursuant to CR 

41.01(2) under an abuse of discretion standard. Sublett v. Hall, 589 S.W.2d 888, 

893 (Ky. 1979). “The test for abuse of discretion is whether the trial judge’s 
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decision was arbitrary, unreasonable, unfair, or unsupported by sound legal 

principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations 

omitted).

III. Analysis

 On appeal, the Siblings argue the circuit court dismissed the action 

prematurely, which was prejudicial to them and was essentially an adjudication on 

the merits. We disagree. 

 We begin by noting that, although the Siblings filed a motion to 

intervene pursuant to CR 24,1they failed to file a pleading setting out their claims 

pursuant to CR 24.03. The rule provides, in relevant part, that when filing a 

motion to intervene, “[t]he motion shall state the grounds therefor and shall be 

accompanied by a pleading setting forth the claim or defense for which 

intervention is sought. The same procedure shall be followed when a statute gives 

a right to intervene.” Further, “[a]n application to intervene must be accompanied 

by a pleading setting forth the claim or defense for which the intervention is 

sought.” Mulligan v. First Nat. Bank & Tr. Co. of Lexington, 351 S.W.2d 59, 62 

(Ky. 1961) (emphasis added). Although Rita and Paris signed an agreed order 

allowing the Siblings to intervene, without claims of their own specified in a 

1 The Siblings cited both CR 24.01 and 24.02 in their motion. CR 24.01 permits intervention of 

a party as a matter of right and CR 24.02 relates to permissive intervention.
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pleading, the Siblings fail to persuade us that they are prejudiced by dismissal of 

the action. This is because the Siblings do not have standing to bring the 

underlying claim for declaration of the invalidity of the marriage of John and Rita.

 Kentucky Revised Statute (“KRS”) 403.120 provides, 

(1) The Circuit Court shall enter its decree declaring the 

invalidity of a marriage entered into under the 

following circumstances:

(a) A party lacked capacity to consent to the 

marriage at the time the marriage was 

solemnized, either because of mental 

incapacity or deformity or because of the 

influence of alcohol, drugs, or other 

incapacitating substances, or a party was 

induced to enter into a marriage by force 

or duress, or by fraud involving the 

essentials of marriage;

(b) A party lacks the physical capacity to 

consummate the marriage by sexual 

intercourse, and the other party did not at 

the time the marriage was solemnized 

know of the incapacity;

(c) The marriage is prohibited.

(2) A declaration of invalidity under paragraph (a), (b) or 

(c) of subsection (1) may be sought by any of the 

following persons and must be commenced within the 

times specified, but only for the causes set out in 

paragraph (a) may a declaration of invalidity be sought 

after the death of either party to the marriage:

(a) For a reason set forth in paragraphs (a) 

and (b) of subsection (1), by party or by 

the legal representative of the party who 
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lacked capacity to consent, who was the 

offended party or did not know of the 

incapacity, no later than 90 days after the 

petitioner obtained knowledge of the 

described condition;

(b) For the reason set forth in paragraph (c) 

of subsection (1), by either party, no later 

than one (1) year after the petitioner 

obtained knowledge of the described 

condition.

 Accordingly, pursuant to KRS 403.120(2)(a), only the legal 

representative of John’s estate (i.e., Paris) has standing to bring an action to declare 

the marriage invalid. We agree with Paris that the Siblings cannot be prejudiced 

by dismissal of a claim they had no standing to bring.

 The decision to continue to pursue the action or to seek dismissal is 

also at Paris’ discretion. KRS 395.195 provides, in relevant part, 

[e]xcept as restricted or otherwise provided by the will, 

or by KRS 395.200, a personal representative, acting 

reasonably for the benefit of the interested persons, may 

properly:

. . . .

(19) Prosecute or defend claims, or 

proceedings in any jurisdiction for the 

protection of the estate and of the personal 

representative in the performance of his 

duties[.]

 The depositions of Brandon Herzog and the Justice of the Peace, Gary 

Fields, satisfied Paris’ question regarding whether the wedding had been properly 
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witnessed by two people as required by KRS 402.050(2). Brandon admitted to 

telling two friends he was not actually present, but stated that this was because, in a 

nutshell, he did not want anyone to “gossip” about the wedding and because he 

knew that at least one of the friends he told did not approve of the marriage. 

Further, Fields testified that he had an extensive conversation with Rita and John 

prior the ceremony and was convinced John was of sound mind and truly desired 

to marry Rita. Particularly telling is one answer Fields gave when testifying to 

what he discussed with Rita and John prior to the ceremony:

I asked them, you know, so tell me about – tell me about, 

you know, why you’re getting married, and he said that 

they’d been married before and that – he mentioned that 

he’d been in a home and [Rita] had came and taken care 

of – out of the place, that apparently through his 

conversation his and his words wasn’t – he was not fond 

of his family, his siblings, and that he had no contact with 

them, and that – he said that, you know, he was truly in 

love with her and that he wanted to – he knew that she 

was going to take care of him and – you know, the rest of 

his life and that he felt comfortable, you know, being 

with her and he wanted to take care of her.

 Fields also confirmed that Brandon and Rebecca, Rita’s sister, 

attended the ceremony and signed the marriage license.

 The circuit court dismissed the action without prejudice so that the 

Siblings can potentially bring any claims that they have standing to bring on their 

own. However, they do not have standing to continue to pursue invalidation of the 
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marriage of Rita and John; nor have they have cited any persuasive law that would 

force Paris to continue to pursue the claim at their behest. 

IV. Conclusion

 For the foregoing reasons, the judgment of the Oldham Circuit Court 

is affirmed.

ALL CONCUR.

BRIEFS FOR APPELLANTS:

Michael A. Valenti

Dylan V. Valenti

Louisville, Kentucky

BRIEF FOR APPELLEE SEAN 

PARIS, PUBLIC ADMINISTRATOR 

OF THE ESTATE OF JOHN 

WARREN NICHOLS III:

Sean P. Paris

LaGrange, Kentucky