DWIGHT HOLDER APPELLANT v. ERIKA PUGH APPELLEE

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Court of Appeals of Kentucky.

DWIGHT HOLDER APPELLANT v. ERIKA PUGH APPELLEE

NO. 2012–CA–001082–ME AND NO.2012–CA–001216–ME

Decided: May 31, 2013

BEFORE:  CAPERTON, COMBS, AND DIXON, JUDGES. BRIEFS FOR APPELLANT:  Nancy Oliver Roberts Bowling Green, Kentucky BRIEF FOR APPELLEE:  Joy D. Denton Bowling Green, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING IN PART, REVERSING IN PART,AND REMANDING

Dwight Holder appeals from the trial court's findings of fact, conclusions of law and judgment of May 18, 2012, awarding sole custody to Erika Pugh and the following order of June 19, 2012, permitting Pugh to relocate to Florida and modification of visitation.   After a thorough review of the parties' arguments, record, and the applicable law, we affirm the award of sole custody to Pugh and reverse and remand the modification of visitation and relocation for further consideration.

The parties had a four-month relationship which resulted in one child.   The parties were never married but with the aid of genetic testing, Holder was adjudged to be the father of the minor child.   On May 18, 2012, the family court entered its findings of fact, conclusions of law and judgment concerning the issue of custody. Double Pugh asserted that Holder had refused to communicate with her regarding the minor child.   The trial court, after considering the testimony and the relevant jurisprudence, determined that Holder has shown that he is incapable or simply refuses to rationally participate in co-parenting decisions with Pugh and that he does not sufficiently understand nor is he mature enough to cooperate in a joint custody arrangement with Pugh.

Prior to entering its judgment, the trial court entered a temporary joint custody order in early February regarding the hearing on January 25, 2012, and the accompanying oral orders, to give Holder the opportunity to show the court that he could cooperate with Pugh and properly communicate with her regarding decisions involving the minor child.   Based on the testimony offered, Holder had not cooperated with Pugh prior to this directive.   In so making this order, the court outlined a specific procedure for the exchange of the minor child.   The court ordered Holder to provide written documentation of the child's activities—what he ate, etc.—in a format similar to that which Pugh provided Holder.   The court ordered Holder to communicate with Pugh and not be demeaning or condescending in communicating.

Two hours after the January 25, 2012, hearing and the court's instructions concerning specific procedures for the exchange of the minor child, Holder completely disregarded the court's procedure and again refused to communicate with Pugh. At the April 4, 2012, hearing Holder's notes were introduced.   The court found the notes to be vague and to contain minimal relevant information.

At the April 20, 2012, hearing Holder testified as to what he specifically gave his son to eat when they went to Chick–fil–A and Guadalajara restaurants.   Holder admitted that despite having been directed twice to provide this information to Pugh, he had never done so.   Instead, Holder asserted that Pugh could assume or guess what the child had eaten based on the menu at these restaurants.   The court found such defiance of its orders to show that Holder would not cooperate with Pugh in making joint decisions regarding their son.   Pugh testified that Holder continued to not communicate with her and instead she is forced to communicate with his wife about the minor child.   Further, Holder testified that he was tired of bending over backwards and jumping through hoops for Pugh. The court, after considering all the relevant factors set forth in Kentucky Revised Statutes (KRS) 403.270 and the evidence, found that it was in the best interest of the child that sole custody be awarded to Pugh.

Thereafter, Pugh brought a motion to modify visitation and move to Florida, which the court granted on June 19, 2012.   The court found that relocation was not based on a whim by Pugh but instead upon considerable thought and planning in order for her to obtain stable employment.   The court further found that Holder will be entitled to reasonable visitation with the minor child.   Holder now appeals the award of sole custody and the grant of Pugh's motion to modify visitation and to move to Florida.

On appeal, Holder argues that the trial court's judgment and order should be reversed for two reasons:  (1) that the award of sole custody was an abuse of discretion;  and (2) the court abused its discretion by granting Pugh's request to move to Florida.   In further support Holder presents an additional fifteen arguments, namely:  (1) whether the parents consulted regarding the child for months before the court's decision;  (2) whether the parties were sufficiently communicating for joint custody to be awarded;  (3) whether Holder followed or defied the court's order;  (4) whether Holder refused to communicate with Pugh on January 25, 2012, and followed the court's recommendations;  (5) whether Holder communicated with clear notes;  (6) whether Pugh was a credible witness;  (7) whether Holder could bring his wife and stepson to the visitation pickups and delivery;  (8) whether Holder was discriminated against in the sole custody decision and award based on race;  (9) whether Holder received due process when Pugh had a pattern of requesting child support, sole custody, and moving away;  (10) whether Holder's fundamental rights were violated and the award of sole custody was an abuse of discretion;  (11) whether it is in the best interest of the child to award sole custody to Pugh;  (12) whether Holder's equal protection or fundamental rights to parent and raise his child were violated by the order allowing Pugh to move to Florida;  (13) whether Holder's constitutional rights were violated by the granting of Pugh's motion to move to Florida;  (14) whether the granting of Pugh's motion to move to Florida was an abuse of discretion of the parties' agreed order regarding visitation;  and (15) whether Holder's fundamental right to parent is not being given equal protection under the Kentucky Constitution and the United States Constitution, Amendments V and XIV.Double

Pugh argues that the trial court did not abuse its discretion in either the award of sole custody to Pugh or in permitting her to relocate to Florida.   She additionally argues that Holder has failed to meet crucial procedural requirements to preserve any issue for appellate review, i.e., a failure of Holder to state where his arguments were preserved below, and his brief should be stricken in its entirety and the appeal dismissed.

At issue, Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v) requires:

(v) An “ARGUMENT” conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.

(Emphasis added).

We agree with Pugh that Holder has failed to provide this Court with a statement with reference to the record showing whether the issue was properly preserved for our review and, if so, in what manner at the beginning of each of his arguments.   As recently discussed in Hallis v. Hallis, infra such a failure to abide by our procedural rules provides this Court with multiple options:

Our options when an appellate advocate fails to abide by the rules are:  (1) to ignore the deficiency and proceed with the review;  (2) to strike the brief or its offending portions, CR 76.12(8)(a);  or (3) to review the issues raised in the brief for manifest injustice only, Elwell v. Stone, 799 S.W.2d 46, 47 (Ky.App.1990).

It is a dangerous precedent to permit appellate advocates to ignore procedural rules.   Procedural rules “do not exist for the mere sake of form and style.   They are lights and buoys to mark the channels of safe passage and assure an expeditious voyage to the right destination.   Their importance simply cannot be disdained or denigrated.”  Louisville and Jefferson County Metropolitan Sewer Dist. v. Bischoff, 248 S.W.3d 533, 536 (Ky.2007)(quoting Brown v. Commonwealth, 551 S.W.2d 557, 559 (Ky.1977)).   Enforcement of procedural rules is a judicial responsibility of the highest order because without such rules “[s]ubstantive rights, even of constitutional magnitude, ․ would smother in chaos and could not survive.”  Id. Therefore, we are not inclined to disregard Vaughn's procedural deficiencies.

The second option is available to us because CR 76.12(8)(a) says:  “A brief may be stricken for failure to comply with any substantial requirement of this Rule 76.12.”   All of the rules for preparing a brief before this Court are contained in CR 76.12 or rules cited therein.   Lack of a legal education is not an impediment to following these rules.   This case presents an opportunity to emphasize that there is an important purpose behind each of these rules.

Failure to comply with CR 76.12(4)(c)(v), Vaughn's most troublesome shortcoming, creates particular problems.  CR 76.12(4)(c)(v) requires that a brief contain:

An “ARGUMENT” conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.

Compliance with this rule permits a meaningful and efficient review by directing the reviewing court to the most important aspects of the appeal:  what facts are important and where they can be found in the record;  what legal reasoning supports the argument and where it can be found in jurisprudence;  and where in the record the preceding court had an opportunity to correct its own error before the reviewing court considers the error itself.

Hallis v. Hallis, 328 S.W.3d 694, 696–97 (Ky.App.2010).

Additionally, we are not required to consider portions of the appellant's brief not in conformity with CR 76.12, and may summarily affirm the trial court on the issues contained therein.  Skaggs v. Assad, By and Through Assad, 712 S.W.2d 947, 950 (Ky.1986)(“It goes without saying that errors to be considered for appellate review must be precisely preserved and identified in the lower court.”)(internal citations omitted);  Pierson v. Coffey, 706 S.W.2d 409, 413 (Ky.App.1985)(“Rather than ordering appellants' brief stricken, however, we have elected not to consider appellants' remaining three contentions as an appropriate penalty to impose for their failure to comply with CR 76.12.”)(citing Milby v. Mears, Ky.App., 580 S.W.2d 724 (1979)).

The mandatory statement of preservation saves “the appellate court the time of canvassing the record in order to determine if the claimed error was properly preserved for appeal.”  Elwell v. Stone, 799 S.W.2d 46, 47–8 (Ky.App.1990) (citing 7 Bertelsman and Phillips [sic], Kentucky Practice, CR 76.12(4)(c)(iv) [now (v) ], Comment 4 (4th ed.   1989 PP).  When review of an unpreserved issue is desired, counsel may request palpable error review under CR 61.02.   When an appellant fails to specify how and where an issue was preserved, this Court may strike the brief or review the case only for manifest injustice.  Id.

Sub judice, Holder had the ability to rectify the lack of a preservation statement regarding his arguments in his reply brief, but chose not to do so.   Instead, Holder asserted that his brief should not be stricken as he complied with CR 76.12(4)(c)(v) by providing citation to the record within his arguments. Double Holder is correct that CR 76.12(4)(c)(v) requires ample supportive references to the record and his arguments do contain such references.   However, Holder has not complied with the requirement of CR 76.12(4)(c)(v) to provide this court with a statement regarding where his arguments were preserved for our review.

The issue thus becomes one of whether there was a proper preservation of error.   As a general matter, “[t]he Court of Appeals is without authority to review issues not raised in or decided by the trial court.”  Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky.1989) (citing Matthews v. Ward, 350 S.W.2d 500 (Ky.1961);  Combs v. Knott Co. Fiscal Cour t, 283 Ky. 456, 141 S.W.2d 859 (1940);  Tipton v. Brown, 273 Ky. 496, 117 S.W.2d 217 (1938)).   We determine which issues were raised in or decided by the trial court by reviewing the record of the trial court's proceedings.   Thus, “[i]t goes without saying that errors to be considered for appellate review must be precisely preserved and identified in the lower court.”  Skaggs at 950 citing Combs at 141 and CR 76.12(4)(c)(iv) (now CR 76.12(4)(c)(v)).

Without a proper statement concerning the preservation of the issues below, this Court is faced with scouring the record to determine if Holder's seventeen alleged errors were preserved.   We have reviewed Holder's arguments, the record, and must conclude that a portion of his arguments are not properly before this Court;  there is no indication where in the record they were presented to the trial court for consideration.   Therefore, we shall only address those arguments which we believe to be properly preserved.   See Hallis, supra.

Holder first argues that the award of sole custody was an abuse of discretion, and in support thereof, argues that there was evidence before the trial court that the parents consulted regarding the child for months prior to the court's decision, that the parties sufficiently communicated for joint custody, that Holder followed the court's orders, that he communicated with clear notes and that Pugh was not a credible witness.

When determining an award of child custody, KRS 403.270(2) directs the circuit court to give equal consideration to both parents and to award custody in accordance with the best interests of the child.   The standard of review regarding child custody issues is whether the trial court's decision was clearly erroneous and constituted an abuse of discretion.  Eviston v. Eviston, 507 S.W.2d 153 (Ky.1974).   The appellate court will only reverse a circuit court's child custody decision if the findings of fact are clearly erroneous or the decision reflects a clear abuse of the considerable discretion granted to trial courts in custody matters.  CR 52.01 and Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky.1986).  “A finding of fact is clearly erroneous if it is not supported by substantial evidence, which is evidence sufficient to induce conviction in the mind of a reasonable person.”  B.C. v. B.T., 182 S.W.3d 213 (Ky.App.2005).  “Abuse of discretion in relation to the exercise of judicial power implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision.”   Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky.1994) (citations omitted).   Additionally, under the clearly established law of this Commonwealth, it is the trial court, and not the appellate court, that has the sole authority to determine the credibility of the witnesses, to draw reasonable inferences from the evidence, and to weigh conflicting evidence.   See Whittaker v. Rowland, 998 S.W.2d 479 (Ky.1999).

KRS 403.270 sets forth the factors that a trial court shall consider in determining custody in accordance with the best interests of the child, and provides, in pertinent part, as follows:

(2) The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian.   The court shall consider all relevant factors including:

(a) The wishes of the child's parent or parents, and any de facto custodian, as to his custody;

(b) The wishes of the child as to his custodian;

(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;

(d) The child's adjustment to his home, school, and community;

(e) The mental and physical health of all individuals involved;

(f) Information, records, and evidence of domestic violence as defined in KRS 403.720;

(g) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;

(h) The intent of the parent or parents in placing the child with a de facto custodian;  and

(i) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence as defined in KRS 403.720 and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.

We conclude that the trial court properly considered the factors set forth by KRS 403.270 based upon review of the trial court's May 18, 2012, findings of fact, conclusions of law and judgment concerning the issue of custody.

It is well established that the trial court has broad discretion in determining what is in the best interests of a child in making a custody decision.  Krug v. Krug, Ky., 647 S.W.2d 790 (1983);  KRS 403.270.   KRS 403.270(5) provides that “[t]he court may grant joint custody to the child's parents, or to the child's parents and a de facto custodian, if it is in the best interest of the child.”   The trial court shall give equal consideration to joint custody and sole custody and ultimately determine which form serves the best interests of the child.  Squires v. Squires, 854 S.W.2d 765 (Ky.1993).

While a cooperative spirit between the parents is not a condition precedent to an award of joint custody, if there is evidence that cooperation between the parties in the future is unlikely, an award of sole custody would be proper.   Id. at 768–769.   The trial court possesses broad discretion in determining whether sole custody or joint custody is in the child's best interests.  Id. at 770.   Sub judice, the trial court believed that sole custody was in the child's best interest given the lack of cooperation between the parties and particularly with Holder.   We find no error in such a determination and, accordingly, affirm.

Second and last, we address Holder's argument that the court abused its discretion by granting Pugh's request to move to Florida.  Pennington v. Marcum, is controlling in this matter:

[I]f the only interest of the opposing party is to object to relocating the child, but not to alter joint decision-making, then he is seeking to have the existing visitation/timesharing arrangement changed, and need only establish that it is in the child's best interests not to relocate, which would thereby change the existing visitation/timesharing situation.   While this may appear to undercut the purpose of the two-year limitation in KRS 403.340 on modification of the custody decree, when only visitation/timesharing modification is sought, the specific language of KRS 403.320(3) controls, which allows modification of visitation/timesharing “whenever modification would serve the best interests of the child,” and specifically directs that a court “shall not restrict a parent's visitation rights” unless allowing visitation would seriously endanger the child.

Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky.2008).

Sub judice, the trial court found that Holder would be entitled to reasonable visitation with the minor child in the June 19, 2012, order permitting Pugh to relocate to Florida and modifying visitation.   We find no error in such a determination.   However, the trial court failed to specify whether said relocation was in the best interest of the child.   For this, we must reverse and remand this matter to the trial court for consideration of this standard. Double

In light of the aforementioned we affirm the court's award of sole custody to Pugh and reverse and remand the modification of visitation and relocation for further consideration.

DIXON, JUDGE, CONCURS.

COMBS, JUDGE, CONCURS IN RESULT ONLY.

CAPERTON, JUDGE: