Kristopher Sutherland v. Kayla Hager ( 2021 )

RENDERED: APRIL 2, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1745-MR
KRISTOPHER SUTHERLAND APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 16-CI-01584
KAYLA HAGER APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.
KRAMER, JUDGE: Kristopher Sutherland (“Father”) appeals from an order of
the Hardin Circuit Court, Family Division IV, which reduced his parenting time
with his minor child (“Child”) as a result of a motion by Child’s mother, Kayla
Hager (“Mother”).1 Upon review, we affirm.
1
The family court also found that Father was in contempt for violation of a restraining order
preventing contact between Child and Father’s paramour. The court also extended said
restraining order until August 22, 2021. Father does not appeal those portions of the order.
Father and Mother exercised shared parenting time with Child.
However, in December 2018, Mother filed a motion seeking to reduce Father’s
parenting time, asserting that (1) he was seldom with Child during his parenting
time, instead leaving Child with her paternal grandmother; and (2) despite a
restraining order preventing contact between Child and Father’s paramour due to
domestic violence, Father allowed contact to occur. Child was three years old at
the time.
The family court held a hearing and thereafter granted Mother’s
motion, reducing Father’s parenting time to every other Saturday from 10:00 a.m.
to 5:00 p.m. and granting him three non-consecutive weeks of parenting time
during the summer months. The family court found credible the testimony that
Father exercised very little of the parenting time that had been allotted to him and
that “his mother had been exercising [Father’s] parenting time” due to his work
schedule. Father saw Child “on average for a few hours two (2) or three (3) times
during his week.” Moreover, the family court “believe[d] that at this time [Father]
should have no overnight visitation with [C]hild as [the family] [c]ourt is not
convinced that the relationship between [Father and his paramour] is over and also
lacks confidence that [Father] would not allow [his paramour to be] around
[Child].”
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We first note that, in contravention of CR2 76.12(4)(c)(v), Father does
not have a preservation statement at the beginning of his argument. Rather, he
contends that, “[a]s this assignment of error alleges abuse of discretion, [Father]
was not required to take additional steps to preserve it for appellate review.”
Father cites no authority for this assertion, and this Court is unaware of any reason
to disregard the requirements of CR 76.12(4)(c)(v) simply because Father asserts
an abuse of discretion. Nor does Father cite to the record in his argument.
Although he cites to the record in his statement of the case, CR 76.12(4)(c)(iv) and
(v) require ample references to the record and citation to authority supporting each
argument. It is not the responsibility of this Court to search the record to find
support for Father’s arguments or where they are preserved, assuming such exists.
Smith v. Smith, 235 S.W.3d 1 (Ky. App. 2006).
We further note that Father’s counsel has been previously warned on
at least one occasion about failure to follow CR 76.12(4)(c)(v). In Pettingill v.
Pettingill, No. 2016-CA-000589-ME, 2017 WL 651990 (Ky. App. Feb. 17, 2017),
Father’s counsel represented the appellant therein, and this Court noted
[Appellant] has failed to comply with CR 76.12(4)(c)(v).
That rule requires the brief for [A]ppellant to:
contain at the beginning of the argument a
statement with reference to the record
showing whether the issue was properly
2
Kentucky Rule of Civil Procedure.
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preserved for review, and, if so, in what
manner.
The Argument portion of [Appellant’s] brief contains no
statement of preservation and, furthermore, does not cite
the record at all.
Id. at *1.
For years, the Court has been pointing out deficiencies in briefs and
the rationale and importance of adherence to the rules. Nearly eleven years ago,
this Court pointed out:
Compliance with [CR 76.12] 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.
The parties, when acting pro se, or their attorneys who
appear before us have typically spent considerable time,
sometimes even years, creating and studying the record
of their case. On the other hand, the record that arrives
on the desk of the judges of the reviewing court is
entirely unknown to them. To do justice, the reviewing
court must become familiar with that record. To that end,
appellate advocates must separate the chaff from the
wheat and direct the court to those portions of the record
which matter to their argument. When appellate
advocates perform that role effectively, the quality of the
opinion in their case is improved, Kentucky
jurisprudence evolves more confidently, and the
millstones of justice, while still grinding exceedingly
fine, can grind a little faster.
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But the rules are not only a matter of judicial
convenience. They help assure the reviewing court that
the arguments are intellectually and ethically honest.
Adherence to those rules reduces the likelihood that the
advocates will rely on red herrings and straw-men
arguments—typically unsuccessful strategies. Adherence
enables opposing counsel to respond in a meaningfully
way to the arguments so that dispute about the issues on
appeal is honed to a finer point.
Hallis v. Hallis, 328 S.W.3d 694, 696-97 (Ky. App. 2010) (internal footnote
omitted).
The Court has continued to attempt to educate parties and attorneys on
the importance of the rules and the pitfalls of failure to comply with them. The
Court addressed noncompliant briefing again in detail in Curty v. Norton
Healthcare, Inc., 561 S.W.3d 374, 377-78 (Ky. App. 2018). Given the length at
which the Court in Curty urged compliance with CR 76.12(4)(c), we quote the
rationale for the rule and the Court’s warnings that leniency should not be
presumed.
CR 76.12(4)(c)[(v)] in providing that an
appellate brief’s contents must contain at the
beginning of each argument a reference to the
record showing whether the issue was
preserved for review and in what manner
emphasizes the importance of the firmly
established rule that the trial court should first
be given the opportunity to rule on questions
before they are available for appellate review.
It is only to avert a manifest injustice that this
court will entertain an argument not presented
to the trial court. (citations omitted).
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Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990)
(quoting Massie v. Persson, 729 S.W.2d 448, 452 (Ky.
App. 1987)). We require a statement of preservation:
so that we, the reviewing Court, can be
confident the issue was properly presented
to the trial court and therefore, is appropriate
for our consideration. It also has a bearing
on whether we employ the recognized
standard of review, or in the case of an
unpreserved error, whether palpable error
review is being requested and may be
granted.
Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012).
...
Failing to comply with the civil rules is an
unnecessary risk the appellate advocate should not
chance. Compliance with CR 76.12 is mandatory. See
Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).
Although noncompliance with CR 76.12 is not
automatically fatal, we would be well within our
discretion to strike Curty’s brief or dismiss her appeal for
her attorney’s failure to comply. Elwell. While we have
chosen not to impose such a harsh sanction, we strongly
suggest counsel familiarize himself with the rules of
appellate practice and caution counsel such latitude may
not be extended in the future.
Curty, 561 S.W.3d at 377-78 (emphasis added).
Three years have passed since the Curty opinion, and the brief
deficiencies have increased. In June 2020, this Court again commented on the
volume of noncompliant briefs and wrote as follows:
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This Court is weary of the need to render opinions such
as this one, necessitated as they are by the failure of
appellate advocates to follow rules of appellate advocacy.
In just the last two years, at least one hundred and one
(101) Kentucky appellate opinions were rendered in
which an attorney’s carelessness made appellate rule
violations an issue in his or her client’s case. The
prodigious number of attorneys appearing in Kentucky’s
appellate courts lacking the skill, will, or interest in
following procedural rules is growing. In 2005, only two
(2) Kentucky opinions addressed appellate rules
violations. In 2010, the number jumped to eleven (11).
In 2015, the number rose slightly to fourteen (14). The
average for the last two years is more than three times
that. If this is not a crisis yet, it soon will be if trends do
not reverse.
We will not reiterate all that has been said too many
times before on this subject. If a lawyer is curious about
the importance of these procedural rules or the practical
reasons for following them, we recommend reading these
opinions in chronological order: Commonwealth v. Roth,
567 S.W.3d 591 (Ky. 2019); Koester v. Koester, 569
S.W.3d 412 (Ky. App. 2019); Hallis v. Hallis, 328
S.W.3d 694 (Ky. App. 2010); Elwell v. Stone, 799
S.W.2d 46 (Ky. App. 1990).
Clark v. Workman, 604 S.W.3d 616, 618 (Ky. App. 2020).
Our options when an appellate advocate fails to abide by the rules are:
(1) to ignore the deficiencies 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. Hallis, 328 S.W.3d at 696. Given only because the
record before us is not voluminous and because the matter involves a minor child,
we review for manifest injustice only and, accordingly, find none.
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Our review of the record convinces us that the family court’s decision
to reduce Father’s parenting time was well founded. The record supports the
findings of fact and conclusions of law based on his failure to utilize the prior
shared parenting schedule, but also due to domestic violence between Father and
his paramour and Father’s disregard for court orders pertaining to such,
particularly as they relate to Child.
Finally, we note that Father’s argument lies primarily with his
contentions that the family court’s findings were not adequate.3 We disagree; the
order entered in this matter fully sets out the rationale and the evidence supporting
the family court’s decision. Moreover, if the family court failed to make adequate
findings of fact (which is not the case based on our review of the record), Father
waived that argument because he failed to bring it to the attention of the family
court pursuant to CR 52.02 and 52.04.4 See Cherry v. Cherry, 634 S.W.2d 423,
425 (Ky. 1982).
Accordingly, the order of the Hardin Circuit Court, Family Division
IV, is affirmed.
3
Findings of fact are reviewed for clear error, not abuse of discretion, which renders even less
credence to Father’s assertion that he was “not required” to preserve his argument for appellate
review. See CR 52.01.
4
CR 52.04 provides: “A final judgment shall not be reversed or remanded because of the failure
of the trial court to make a finding of fact on an issue essential to the judgment unless such
failure is brought to the attention of the trial court by a written request for a finding on that issue
or by a motion pursuant to Rule 52.02.”
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GOODWINE, JUDGE, CONCURS.
MAZE, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
William D. Tingley Caleb T. Bland
Louisville, Kentucky Elizabethtown, Kentucky
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