Benjamin G. Dusing v. Jill Bakker ( 2023 )

RENDERED: JUNE 16, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NOS. 2021-CA-0539-MR & 2021-CA-0854-MR
BENJAMIN G. DUSING APPELLANT
APPEAL FROM KENTON FAMILY COURT
v. HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 19-CI-00560
JILL BAKKER APPELLEE
AND
NO. 2022-CA-0315-MR
BENJAMIN G. DUSING APPELLANT
APPEAL FROM KENTON FAMILY COURT
v. HONORABLE DENISE DEBERRY BROWN, SPECIAL JUDGE1
ACTION NO. 19-CI-00560
JILL BAKKER APPELLEE
1
Judge Brown was assigned to this case after Judge Mehling recused by Order dated November
4, 2021. The recusal was necessitated by the Appellant’s profanity-laced threat on social media
to “blow up” the opposing attorney and Judge Mehling’s staff attorney, which we will discuss
further herein.
OPINION AND ORDER
AFFIRMING
** ** ** ** **
BEFORE: EASTON, GOODWINE, AND TAYLOR, JUDGES.
EASTON, JUDGE: The underlying family court case is about a child (“L.D.”).
The dispute over L.D.’s custody began even before L.D. was born. Appellant
father, Benjamin G. Dusing (“Ben”), and the Appellee mother, Jill Bakker (“Jill”),
were never married. Ben and Jill were engaged in 2018. The engagement ended
before L.D. was born on April 12, 2019.
Ben is an attorney licensed in Kentucky and Ohio. His Kentucky law
license was suspended on February 24, 2022. His Ohio law license was suspended
shortly thereafter. Throughout the underlying proceedings, Ben has represented
himself pro se but also with the assistance of multiple co-counsels.
Ben has filed numerous appeals from this case, but only three are
remaining. They will all be addressed in this Opinion. Case Nos. 2021-CA-0539-
MR and 2021-CA-0854-MR involve the Order entered on April 5, 2021, and have
been previously consolidated. This Order followed a five-day hearing and decided
both custody and child support. We will address these appeals jointly before
moving to the last of the three appeals, which we now order consolidated for a
single Opinion.
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The last appeal involves an Order dated March 14, 2022, which
decreased Ben’s parenting time with L.D. and requires his visitation to be
supervised. This action was in response to a motion filed by Jill, in which she
claimed she feared for L.D.’s safety due to Ben’s ongoing behavior. Ben argues
this restriction of his parenting time was an abuse of discretion.
Our decision to address all three appeals together will include some
repetition of the applicable standards of review, but the overall requirement for
Ben to show factual findings to be clearly erroneous is worth repeating. This Court
should not substitute its judgment but rather reviews the family court’s decisions
for clear error or abuse of discretion.
This case has a long history and has been exhaustively litigated. The
record contains many thousands of pages. Mindful of Ben’s criticisms of the
family court, this Court has not taken days to review this case but instead engaged
in months of work. We will discuss at some length the evidence in this Opinion.
Ultimately, and for the detailed reasons which follow, we conclude the
family court had jurisdiction, the factual findings material to the custody (including
the parenting time adjustment) and child support decisions of the family court are
not clearly erroneous, and there was no abuse of discretion. We affirm the rulings
of the Kenton Family Court.
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2021-CA-0539-MR/2021-CA-0854-MR: ORDER OF APRIL 5, 2021
Ben claims the family court made multiple errors in its Order of April
5, 2021. These allegations of error include 1) the family court lacked subject
matter jurisdiction; 2) the family court abused its discretion in deciding custody
and child support because it relied upon clearly erroneous factual findings; 3)
procedural defects in the proceedings constitute reversible error; and 4) the family
court committed reversible error by denying post-trial motions without a further
hearing.
FACTUAL AND PROCEDURAL HISTORY
Ben and Jill were in a relationship from mid-2017 until approximately
a month before L.D. was born. Jill filed her Petition to Establish Custody and
Paternity on April 8, 2019, prior to L.D.’s birth. This Petition was assigned Case
No. 19-CI-00950. In the Petition, Jill states, “A minor child will be born of the
parties in April 2019 and paternity has not been established.” L.D. was born four
days after the filing of the Petition. It is unclear on what date Ben was served with
the summons for this case, but he filed his Response on May 2, 2019. In the
meantime, on the day after L.D. was born, Ben filed a paternity action in the
Kenton District Court. The district court case was assigned a “J” number by the
clerk. Jill was served with Ben’s district court paternity petition while she was still
in the hospital recovering from L.D.’s birth.
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On April 16, 2019, Jill filed a motion for a restraining order, a
psychological evaluation, and a custodial evaluation. She asked the court for Ben
to have no contact with her or L.D. until he had submitted to the psychological
examination and custodial evaluations. In her affidavit, Jill alleged concerns about
Ben’s psychological health. Both parties were ordered to undergo
custodial/parental evaluations, each with the professional of their choosing. They
were then ordered to submit those reports to the court and to provide them to the
other party.
For the next two years, a bewildering array of motions was filed by
both parties in the family court case. At one point, the “J” paternity case and the
“CI” custody action were consolidated, and pleadings and motions were filed with
both case numbers. An order entered on December 30, 2019, directed that all
future filings should be made in the custody “CI” case only. The parties were
allowed an opportunity to request any documents in the “J” case to be sealed.
A temporary custody order had been entered in Ben’s “J” case on May
23, 2019, granting Jill temporary sole custody of L.D. In an order dated April 25,
2019, Ben was granted supervised visitation only. On October 21, 2019, a
temporary child support order was entered, in which Ben was obligated to pay
$985.00 per month. On June 9, 2020, after a hearing on June 2, 2020, the family
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court increased Ben’s parenting time to include every other weekend, as well as
one overnight during the week and one additional weeknight from 5:00-8:00 p.m.
For a variety of reasons, including the delays necessitated by the
COVID-19 pandemic, the parties did not have a final hearing in this matter until
February 2021. From the filing of the “CI” Petition to the final hearing, both
parties filed multiple motions for contempt and sanctions against the other. Ben
filed numerous motions to disqualify the presiding family court judge (all of which
were denied). The final hearing was delayed several times, once due to one of the
disqualification motions. The family court had to wait until the Chief Justice of the
Kentucky Supreme Court ruled on the disqualification request, which was denied.
Both parties filed motions to have the other party’s counsel disqualified. Both
parties filed motions to alter, amend, or vacate temporary orders. There were
several “emergency” motions filed by both parties.
The final hearing was scheduled for February 22, 2021. Despite
Ben’s motions to continue this hearing filed on January 19, 2021, and February 19,
2021 (both were overruled), the family court held a hearing on February 22, 23, 25,
and 26. For completion, the family court had to add another day. The fifth day of
the hearing was on March 11, 2021.
Jill put on her case first. She called Dr. Jean Deters, Joanne
Forsthoefel, LPCC (Licensed Professional Clinical Counselor), Dr. David
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Feinburg, Dr. Ed Connor, Detective Jill Stulz, Andrew Dusing, Julie Tapke, and
Tina DeAngelis as witnesses. Jill also testified. We will summarize the testimony.
Dr. Jean Deters was Jill’s first witness. Dr. Deters is a psychologist.
Jill was referred to her for a psychological evaluation, and her report was
completed in October 2019. Dr. Deters diagnosed Jill with post-traumatic stress
disorder (“PTSD”). She further identified the source of Jill’s PTSD as her
relationship with Ben, which she categorized as coercive and abusive in nature. In
making that determination, Dr. Deters spoke with Jill at length. She also reviewed
many of the text messages, emails, and voicemails Ben sent to Jill throughout the
relationship and after the relationship ended. Dr. Deters opined Jill will not be able
to fully recover from her PTSD if she must continue to interact with Ben.
Jill’s second witness was Joanne Forsthoefel. She provided
counseling to Jill. Like Dr. Deters, Ms. Forsthoefel diagnosed Jill with PTSD. She
categorized Jill’s PTSD as “severe.” She also believes the source of Jill’s PTSD
was her relationship with Ben. Forsthoefel observed Jill’s high levels of anxiety.
Jill had trouble eating and sleeping, possesses an exaggerated stress response, and
has intrusive thoughts, nightmares, and flashbacks. These symptoms occur any
time Jill is reminded of her past trauma, which occurs with anything connected
with Ben. Forsthoefel acknowledged on cross-examination she has never met Ben
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and all her information used to form the basis of her opinions was obtained from
Jill’s subjective reports.
Dr. David Feinburg testified next for Jill. Dr. Feinburg is a
psychologist who performed several psychological tests on both parties. He
testified he spent approximately 9 to 9.5 hours with each party. He reviewed some
records provided by the parties, and he interviewed Jill’s two older children as well
as Jill’s boyfriend at the time of the evaluations. Dr. Feinburg testified he was
unable to interview Ben’s children because Ben’s ex-wife, Julie, would not consent
to the interviews.
Dr. Feinburg was previously involved in Ben’s other custody action
with his ex-wife, Julie. Dr. Feinburg completed a parenting evaluation on Ben in
2016. He performed a second parenting evaluation in 2020. Dr. Feinburg saw
greater disturbances in Ben’s thinking in 2020 than in 2016. Ben demonstrated
anger, paranoia, difficulty with authority, mistrust, suspicion, and a lack of
empathy. Dr. Feinburg recommended that Jill be granted sole custody of L.D.,
with Ben having supervised visitation only until there is a record that L.D. would
be safe in his sole custody.
Jill’s fourth witness was Dr. Ed Connor. Dr. Connor was initially
hired by Ben to do his custodial evaluation. Dr. Connor testified that his report
was completed around May 20, 2020, with an addendum being completed on July
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15, 2020. Dr. Connor conducted testing on both parties, as well as reviewed
documents provided by the parties, and performed several interviews. Dr. Connor
observed indications of PTSD with Jill. He additionally gave his opinion that Ben
showed a personality style that was self-centered, turbulent, histrionic, and
narcissistic. His recommendation was like Dr. Feinburg’s in that he believed Jill
should be granted sole custody and be the primary residential parent, with Ben to
receive visitation.
Dr. Connor additionally testified that Jeff Otis, one of Ben’s co-
counsels, came to his office and offered him $5,000.00 to state that his report was
not complete. After he sent his report to Ben’s counsel, he received a letter from
Mr. Otis stating they were “pulling the plug” on his evaluation. Despite this letter,
Dr. Connor was given additional information, which led to his addendum.
Jill called Detective Jill Stulz as her next witness. Detective Stulz is a
detective with the Fort Mitchell Police Department. She testified she is familiar
with Jill and Ben. Ben first reported in May 2019 he wanted to file a report
regarding extortion. Ben explained Jill was attempting to extort money from him.
Ben initially did not want to pursue an investigation, but he later returned and did
want to pursue charges. Detective Stulz said she gave the information to the
Commonwealth’s Attorney, who declined to prosecute.
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Detective Stulz additionally testified that Jill spoke with her about
pursuing charges for harassing communications.2 Jill provided her with emails and
text messages she received from Ben. This information was given to the Boone
County Attorney. Detective Stulz testified that no charges were brought because
this information was already being addressed in this civil matter.
Jill’s sixth witness was Andrew Dusing. Andrew is Ben’s brother.
Andrew talked about Ben’s turbulent relationship with his family. Andrew
additionally explained he does not allow his children to be around Ben without
another adult being present. Andrew testified he does not communicate much with
Ben, because Ben is generally unkind and unpredictable, and conversations with
him are not productive.
Jill’s next witness was Julie Tapke, Ben’s ex-wife. Julie and Ben
have three minor children, with joint custody, although Julie currently has sole
decision-making authority regarding the children’s medical, educational, and other
activities. Julie testified co-parenting with Ben is very challenging and difficult.
She explained that prior to her having sole decision-making authority, Ben would
use the children’s activities as a negotiating tool. This led to the children being
anxious about whether Ben would agree to allow them to participate in activities.
Julie said that since she was awarded sole decision-making authority over those
2
Kentucky Revised Statutes (“KRS”) 525.080, a Class B Misdemeanor.
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areas, the children have shown a decrease in anxiety; now there is consistency and
reliability.
Jill testified as her final witness in her case in chief. Jill said she has a
healthy co-parenting relationship with her ex-husband, and they have joint custody
of her older children with close to equal timesharing. Jill recounted she and Ben
began dating in July 2017. She stated the relationship moved quickly, and they
became engaged in March 2018. In mid-August 2018, she discovered she was
pregnant with L.D.
Jill said her relationship with Ben was very abusive, although it didn’t
start that way. In the beginning, Ben would send very flattering messages, stating
how great she was and how lucky he was. He messaged her constantly, and as
time went on, those messages became longer and more frequent, and she felt
pressured to respond in the same manner. Their arguments in the beginning were
superficial, but Jill explained they got worse over time. Jill believed Ben blamed
her for everything, and she began to change the way she reacted to him to give him
what he said he needed.
Jill testified they got engaged in March 2018. Ben wanted to do
everything together. Ben complained Jill wasn’t doing enough for him or giving
him enough attention. She thought nothing she ever did was enough, and she
began to cancel time with family and friends to spend all her time with Ben.
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Jill talked about the communications Ben sent her becoming
increasingly longer and more hostile. She told about a time she went on vacation
with her older daughter. Ben constantly messaged her while she was there. Jill’s
daughter sent him a picture of Jill playing volleyball on the beach in a bikini. Ben
responded by calling Jill names such as “slut” and “whore” and stating how
embarrassing the pictures were. Ben demanded Jill delete them.
Jill recalled they started to move in together around April to May
2018. She testified Ben would kick her out of the house when he got angry with
her. She described Ben conducting “white board sessions” with her in his office.
On one occasion, Ben wrote on this white board specifics of how Jill was to treat
him or speak to him after they had a fight. Ben told her to take a picture of the
board to remember what to say when Ben was upset with her. This picture was
admitted into evidence on the third day of their hearing. At the top of the white
board the words “Shut Up Jill” were written.
Jill testified that after she and her children began staying with Ben
more often at his house, he began to pressure her to sell her house. She also said
he wanted to combine all their bank accounts into a joint account. Jill hesitated to
do this because of how tumultuous the relationship was by that time. Jill now
believes Ben wanted access to her funds as another way to control her.
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Jill told about an incident on August 2, 2018, which was the reason
for her and her children to move out for good. Jill explained she and Ben fought
throughout the day. That evening, after the children went to bed, Ben threw a mug
across the yard and shattered it. Ben poured water over her head. Jill testified Ben
was yelling for her to leave, and Jill begged to let them stay the night so she
wouldn’t have to wake up the children.
Jill said the fight continued upstairs. Ben grabbed her and pushed her.
She then went into the closet in the bedroom. Ben followed her and slammed her
head into the wall. Jill and the children left the next morning. A few weeks later,
Jill discovered she was pregnant with L.D.
Jill received a handwritten letter from Ben in mid-August, where he
apologized for the August 2 incident. Jill said the emotional and psychological
abuse continued throughout her pregnancy. Ben would leave long insulting
voicemails on her phone. She blocked him several times, but that just intensified
the verbal abuse. Jill played several of these voicemails to the family court. Some
of the voicemails were directed to the unborn baby. Ben called them “baby
sermons.” These sermons included name-calling, telling the baby he’s sorry her
mother is “total garbage,” telling her to “get out of that serpent belly,” and “get the
hell out of that demon.”
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Jill described how she had high blood pressure throughout the
pregnancy, especially toward the end. At one point she ended up in the emergency
room. Ben came to the hospital to see her while she was in the hospital. Ben sent
her a very long email after that incident in which he stated how ungrateful she was
that he came to the hospital to check on her and the baby.
Jill went into labor on April 12. Jill stated she notified Ben via text
message. Ben came to the hospital, and she allowed him into the room about an
hour after L.D. was born. Jill asked the nurse to remain in the room while Ben was
there, which she did.
Jill testified abusive messages from Ben continued after L.D. was
born. She talked about multiple messages to her reading “I could kill you,” or “I
want to kill you.” Jill entered a summary into evidence of all the times Ben made
references to killing her.
Jill worries about L.D. when she is with Ben. Jill said L.D. has come
back from Ben’s on multiple occasions in a dirty diaper, in a wet swim diaper, and
with severe diaper rash. L.D. once returned with a severe sunburn. Ben has denied
this, and he claimed that Jill altered the photograph to make it look like L.D. was
sunburned when she was not. Throughout this case, Ben accuses Jill of “altering”
evidence with no substantial evidence to support the accusation.
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Jill asked the family court to grant her sole custody of L.D. with Ben
to have only supervised visits and no overnights. Jill also asked the court to
require Ben to do a medication review and go to therapy. At the end of Jill’s
testimony, Ben advised the family court he did not wish to subject Jill to cross-
examination, and he did not.
The hearing then shifted to Ben’s case. Ben called Adam Basinger,
Adam Davey, JoAnne Roth, Robert Bryson, Darlene Taylor, Steve Epplen,
Zachary Peterson, K.J. Jhaveri, Dr. Andrew Klafner, and Dr. Stuart Bassman as
witnesses. Ben also testified.
Ben’s first witness was Zachary Peterson. He is an attorney who has
worked with Ben for several years. He stated he was involved in a multiweek trial
with Ben in November-December 2018. He said Jill was texting Ben a lot during
this trial, and he was concerned Ben was getting distracted. Peterson explained he
has been to Ben’s home, and he has been around Ben and his children. He also
told the court he has seen Ben with L.D., and he said the two had a very strong
bond. On cross-examination, Peterson stated he did not know the content of the
text messages between Jill and Ben. He also stated he did not have any concerns
about Ben’s mental health during the trial in 2018.
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Ben’s next witness was Steve Epplen. He has known Ben since high
school. He has also coached several of the children’s teams with Ben. Ben was
very positive when coaching the children. Ben was always great with the children.
Ben next called Robert Bryson. Their sons are very good friends, and
they have coached children’s sports together. He testified Ben creates a good
environment for the children they coach, and Ben is very supportive and very
generous with his time. He has always known Ben as a good, involved, attentive
father. He has witnessed Ben with L.D., and he saw him as a caring, attentive
father with her.
Ben’s next witness was K.J. Jhaveri. They are very close friends.
Their children are the same age. He believes Ben is a loving father who goes out
of his way to make sure his children are cared for. Ben is the godfather of
Jhaveri’s son. He chose Ben for this role because he wanted someone who was a
good role model. He has no concerns about Ben as a dad, and his son regularly
stays over at Ben’s house. He and his wife hosted a baby shower for Ben and Jill.
Ben’s fifth witness was Adam Davey, who is Ben’s accountant. He
testified he prepared Ben’s 2019 tax return. This included the year Ben left his
previous law firm and went back to his own firm, named BGD Law. Davey stated
Ben’s 2019 adjusted gross income for that year was $201,957. He also stated that
$77,697 of that amount was a return of capital from the previous firm. Ben did not
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receive the full amount in 2019 because the payments were to be spread out over
three years; however, he had to claim it all in one year. Davey explained Ben’s
income after deductions and adjustments in 2019 was $111,385.
On cross-examination, Davey testified the return of capital amount
was how Ben and the firm characterized it; he has no independent verification of
this. Davey also admitted that in 2018, Ben’s total adjusted gross income was
$442,158. In 2017, it was $733,985. Davey said Ben’s income varies greatly from
year to year, especially when working on his own.
Ben’s sixth witness was Adam Basinger. He is an employee of Ben’s,
both at the former law firm and now at Ben’s firm. He is employed as a law clerk
at the firm, and he also works for Ben personally, as a general assistant. He
testified he has been around Ben with his children, and that he’s “the best dad he
can be.” Basinger assists Ben with his accounting at the law firm, and he testified
Ben’s net income for 2020 was “somewhere in the 70’s.” This information had not
yet been given to the accountant.
Basinger informed Ben he was concerned about some large purchases
Jill was making when they were living together. On cross-examination, he recalled
Ben asking him to get Jill a BGD Law credit card. He also testified he was
involved in picking up and dropping off L.D. and recording those interactions. He
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was unaware of any court order regarding exchanges. He testified Ben wrote him a
recommendation letter for admission to law school.
Ben’s next witness was JoAnne Marie Roth. Roth is Ben’s maternal
aunt. She testified Ben is a good dad, who is attentive, fun, and loving. She has
never had any concerns about the safety or well-being of the children with him.
Ben’s eighth witness was Darlene Taylor. She is a friend of Ben’s
who has witnessed him with his children. She testified Ben is a fun dad who is
very bonded with his children. She stated she has never met L.D. or seen Ben with
her.
Ben testified next. He stated he and Jill met through their children’s
sporting events. While the relationship moved quickly, Ben did not believe it was
too quick, because they discussed everything thoroughly. He believed the
relationship was healthy at first. He stated one of the reasons they agreed to move
in together was so her children could start a new school at the beginning of the
year, and he lived in a good school district. Ben believed Jill would cut down to
working three days a week and become the “house CEO” so he could be the main
breadwinner. According to Ben, they made that decision together.
Ben explained his house needed renovating due to adding three more
people to the home. He initially intended to pay for everything, but a large tax bill
came unexpectedly. The plan was to accelerate the timeline of Jill selling her
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house to help pay for that. This created a problem because Jill didn’t want to do
that. Ben said daily life together was an adjustment, and Jill didn’t want to follow
through on that commitment.
Summer of 2018 became difficult because Ben felt spending was
getting “out of control.” Ben stated his and Jill’s parenting and spending styles
were very different, and it was causing problems. They were not a common unit,
and this worried him because there was disparity between how the sets of children
were treated. Ben didn’t feel Jill was living up to the commitments they made.
Their arguments became more intense.
Regarding the August 2 incident Jill testified about, Ben stated there
was conflict that night, and he wishes things had gone differently. Ben testified he
recorded the conversation on his phone, yet he did not play that recording or
introduce it into evidence. Ben said Jill got physical with him at some point, and
he felt she was trying to provoke an incident. He stated they both acted “in the
heat of the moment.” The next day, they all went together to a concert with the
children. Ben did not deny writing the letter apologizing for the incident, but he
denied that it was an admission of physical violence.
Ben ended the engagement at some point, but Jill would still
sometimes wear the ring for things to appear normal and to keep people from
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asking questions. On one occasion, Jill threw her engagement ring across the
driveway, and they then had to dig it out of the grass.
Ben testified to an incident where Jill drove to his home with her
children, and she appeared intoxicated. Ben said this was concerning to him, both
because her children were in the car with her, and because she had told him she
thought she may be pregnant. At this point Jill had not had a positive pregnancy
test. Ben agrees there was a lot of communication between them during this time.
Ben remembered that two days after he ended the engagement, Jill
called him to say she had a positive pregnancy test. They decided they needed to
tell their children at the same time. Ben later discovered Jill’s children were made
aware of it before he had the opportunity to tell his children. Ben was very upset
with Jill for this.
Ben said he went to almost all of Jill’s doctor’s appointments, up until
the eighth month of her pregnancy. He was continually trying to communicate
with Jill. Ben admitted some of his messages to her were not how you should
speak to someone, but he was very upset because he wanted to determine how they
were going to move forward. Ben wanted Jill to sit down and talk with him, and
he testified she wouldn’t do that. He felt like Jill was using the pregnancy as a
weapon.
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Ben told Jill he wanted to be totally involved in the baby’s life. He
was surprised when Jill took that as bad news, and “everything changed
overnight.” He wouldn’t hear from her for days, and she blocked his texts. Jill
suggested he waive his parental rights, which he knew was not the right thing to
do. Ben felt like he was being extorted. He believed Jill wanted money and for
him to stay out of their lives.
Ben testified that on March 7, 2019, he received a message from Jill
that she was not going to speak with him any longer. He said he was “a wreck.”
He did not hear from her again until the afternoon of April 12, when L.D. was
born. Ben filed a paternity action, not knowing Jill had already filed a custody
case.
Ben initially had been granted only supervised visitation. After a
prior hearing, Ben had been given unsupervised visitation. Jill was granted
temporary sole custody. In June 2020, Ben testified he was granted additional
parenting time. Ben asked the court for joint custody and equally shared parenting
time. He proposes a week on, week off schedule.
Ben feels every communication with Jill is a trap. He believes it’s to
get him to do something to violate a court order. It became clear to Ben that Jill
and his ex-wife began coordinating with one another. Ben described Jill as very
jealous. She would become jealous over his friendships with other women. Jill
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would run hot and cold with him. Ben also was concerned about Jill’s use of
alcohol.
Ben testified Jill would make $91,000 annually if she worked full
time. He also believes he’s been overpaying child support since the beginning. He
entered a work sheet showing what he believes is the correct amount of child
support. At this point in the testimony, the family court was informed Ben had not
turned over his tax returns to Jill’s counsel in discovery.
After Ben completed his testimony, he called Dr. Andrew Klafner.
Dr. Klafner has been Ben’s psychiatrist since 2014. He writes Ben his Adderall
prescription for ADHD. Dr. Klafner has met with Ben about every other week for
the past three years. In March 2019, he wrote a letter advising Ben to reduce his
workload for his mental and physical health. Dr. Klafner has not seen Ben with his
children. He has never met Jill. He has not reviewed any of the other expert
reports submitted to the court.
Ben’s final witness was Dr. Stuart Bassman. Ben was sent to Dr.
Bassman for a psychological evaluation in the custody case with his ex-wife. The
purpose of that evaluation was to determine if there was any personality disorder,
psychosis, mental health issues, or anything that would impair Ben’s functioning.
Dr. Bassman testified he found no evidence of a psychological disorder. Dr.
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Bassman explained his role had nothing to do with a parental evaluation, and so he
did not speak with any of the children.
Jill called Tina DeAngelis as a rebuttal witness. Ben continually
denied in his testimony that Ben and Tina DeAngelis had been in a romantic
relationship. Ben also denied DeAngelis ever took care of L.D. DeAngelis
testified she had previously been in a relationship with Ben. They ended the
relationship because Ben began a relationship with his attorney at the time of the
hearing (a relationship they both denied). DeAngelis also stated while she and Ben
were dating, she acted in a caretaking role for L.D. She also recalled overhearing a
conversation between Ben and Jeff Otis, where Ben discussed sending Jeff to
“manage Dr. Connor.” This provided some level of confirmation for the alleged
offer of $5,000 made by Jeff Otis to Dr. Connor.
At the conclusion of the hearing, the family court advised the parties
to file final memos by March 29 by 3:00 p.m. The resulting Order is the subject of
the first two appeals. We will next address the overarching claim about subject
matter jurisdiction as to all appeals.
SUBJECT MATTER JURISDICTION OF THE FAMILY COURT
STANDARD OF REVIEW
Subject matter jurisdiction is a question of law, and therefore the
appellate standard of review is de novo. Basin Energy Co. v. Howard, 447 S.W.3d
179, 184 (Ky. App. 2014).
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ANALYSIS
Ben claims all the family court’s orders in this action are void ab
initio because the family court lacked subject matter jurisdiction. He argues
because Jill filed her Petition to Establish Custody and Paternity prior to the birth
of the child, the family court did not have jurisdiction to hear the “CI” case.
Ben is correct that a court’s decision cannot stand if it does not have
subject matter jurisdiction to hear a case. “If an administrative body or court acts
outside its general authority, any action it takes is considered void ab initio. It has
no effect because a court or administrative body only has the power to act within
its general jurisdiction. The parties cannot confer jurisdiction by waiver where
none existed in the first instance.” Id. at 187.
Ben conflates personal jurisdiction with subject matter jurisdiction.
Ben does not contend that the family court did not have general jurisdiction over
this type of case, that is, child custody. The type of case which may be heard is the
measure of subject matter jurisdiction. See Masters v. Masters, 415 S.W.3d 621(Ky. 2013). The jurisdictional basis of child custody is governed by KRS 403.822,
which states:
(1) Except as otherwise provided in KRS 403.828, a court of
this state shall have jurisdiction to make an initial child
custody determination only if:
(a) This state is the home state of the child on the date
of the commencement of the proceeding, or was
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the home state of the child within six (6) months
before the commencement of the proceeding . . . or
(b) A court of another state does not have jurisdiction
under paragraph (a) of this subjection . . . .
Ben insists because there was no child born when Jill’s petition was
filed there was no subject matter jurisdiction. The absence of a child for which to
decide custody would be a lack of personal jurisdiction, but this does not equate
with a lack of subject matter jurisdiction. Despite Jill’s early filing of her petition,
the family court had subject matter jurisdiction when it acted in this case.
KRS 403.150(1) states that all proceedings under the KRS Chapter
governing child custody are commenced in the manner provided by the Kentucky
Rules of Civil Procedure. CR3 3.01 states, “A civil action is commenced by the
filing of a complaint with the court and the issuance of a summons or warning
order thereon in good faith.” (Emphasis added.)
While Jill may have filed the custody petition four days prior to L.D.’s
birth, the record confirms a summons was not issued until April 15, 2019, three
days after L.D.’s birth. Thus, the action was not commenced until the summons
was issued after L.D. was born. See Wooten v. Begley, 305 S.W.2d 270, 271 (Ky.
1957). “In construing these provisions respecting the commencement of a suit
against a known resident, we have held that merely filing a petition with the clerk
3
Kentucky Rules of Civil Procedure.
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of the court is not sufficient, but the summons must have been caused to issue in
good faith.” Louisville & N.R. Co. v. Little, 95 S.W.2d 253, 254 (Ky. 1936).
Ben’s jurisdiction argument fails for another reason. He argues in his
brief that “there is no authority in this (or any other) jurisdiction for the proposition
that a court has subject matter jurisdiction over paternity actions commenced
before there is a ‘paternity.’”4 However, this Court disagreed with that contention
in Gullett v. Gullett, 992 S.W.2d 866 (Ky. App. 1999). In Gullett, this Court
allowed Kentucky to retain jurisdiction over child custody when a petition for
dissolution of marriage was filed two weeks prior to the child’s birth, when the
mother moved to Ohio prior to giving birth to the child. Id. at 871.
While Ben argues that a court cannot have jurisdiction over a child
who has not yet been born, Ben himself filed a paternity action immediately after
L.D. was born recognizing the authority of the courts then to decide custody. The
“CI” and “J” cases were even consolidated for a time. In any event, the family
court here did not issue any orders regarding custody or paternity of the child prior
to the child being born. The petition was merely filed before the child was born.
The Kenton Family Court had both subject matter and personal
jurisdiction to decide the custody of and child support for L.D. Both parents reside
4
Appellant Brief, Page 4.
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in Kentucky, and L.D. has always resided in Kentucky. We next consider the
custody determination made by the family court.
AWARD OF SOLE CUSTODY
STANDARD OF REVIEW
Appellate review of custody awards is for abuse of discretion. Gertler
v. Gertler, 303 S.W.3d 131, 133 (Ky. App. 2010). “The test for an abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound reasonable principles.” Penner v. Penner, 411 S.W.3d
775, 779-80 (Ky. App. 2013). We are allowed to set aside the trial court’s factual
findings only if they are clearly erroneous. Moore v. Asente, 110 S.W.3d 336, 354
(Ky. 2003). Findings of fact are clearly erroneous when they are not supported by
substantial evidence. Id. “Substantial evidence is evidence that a reasonable mind
would accept as adequate to support a conclusion and evidence that, when taken
alone or in the light of all the evidence, has sufficient probative value to induce
conviction in the minds of reasonable men.” Id. (internal quotation marks and
citations omitted). Due regard must be given when the trial court assesses witness
credibility. CR 52.01.
ANALYSIS
Ben alleges the family court abused its discretion in its award of sole
custody of L.D. to Jill. Ben claims the family court’s ruling was error because it
was based solely on its finding that Ben domestically abused Jill. He alleges first
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that the court’s finding of domestic abuse was erroneous, and second, the family
court failed to consider the remaining factors outlined in KRS 403.270.
Ben first argues the family court’s finding that domestic abuse
occurred was erroneous. Domestic abuse is defined in KRS 403.720(2) as
“[p]hysical injury, serious physical injury, stalking, sexual abuse, strangulation,
assault, or the infliction of fear of imminent physical injury, serious physical
injury, sexual abuse, strangulation, or assault between family members or members
of an unmarried couple[.]”
The family court made several findings that Ben subjected Jill to
domestic violence. It found “Respondent has perpetrated violence on Petitioner
when they were still in a relationship. These incidents included biting her face,
spitting on her, barricading her in a closet, hitting her head on a wall, pinching, and
throwing food, water, and other objects at Petitioner. In a letter dated August 7,
2018, Respondent admitted that he was physical with her. P. Ex. 32 at 853. He
also sent thousands of written messages via text and email that are emotionally
abusive. He also left multiple voice mails with petitioner with the same effect.”5
As to this fact finding, Ben insists: “Incorrect. Respondent’s
correspondence makes no such admission and speaks for itself. Also directly
5
Findings of Fact, Conclusions of Law, Orders and Judgment of Custody, April 5, 2021,
Paragraph 7.
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contradicts only record testimony regarding the correspondence.”6 This Court is in
possession of Jill’s Exhibit 32, Ben’s handwritten letter, entered as evidence at the
hearing. Jill testified to this letter in the hearing. This letter does, in fact, state, “I
f*cked up, my love. The pressure of creating this life, and this family, got to me.
There is no excuse. None. For showing/saying hostility in front of the kids. For
being physical with you when you asked me not too. For sending you a message
that was, in a word, simply unacceptable.”7 Despite Ben’s testimony that this letter
didn’t say what it appears to say, it was not clearly erroneous for the family court
to believe Jill’s version of the events.
Another example of a pertinent finding of fact is in Paragraph 13 of
the Order which states, “Respondent also intimidated in other ways. He threatened
petitioner that he would tell her daughter that her marriage ended because she had
an affair. He threatened to email her parents (which he did).”8 In Ben’s later filed
“chart” of his factual error claims, Ben states about this finding: “Incorrect.
Respondent has never one single time emailed Petitioner’s parents. Petitioner
never contended that he did. There is no evidence in the 4500-page documentary
6
Exhibit A, Paragraph 7, attached to Motion for Relief from Judgment on Grounds of Fraud
Affecting the Proceedings Pursuant to KRCP 60.02(d), filed 6/18/2021.
7
Petitioner’s Exhibit 32, Page 4.
8
Findings of Fact, Conclusions of Law, Orders and Judgment of Custody, April 5, 2021,
Paragraph 13, Page 4.
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record in this case that he did.”9 On the contrary, Petitioner’s Exhibit 31 is a series
of texts Ben sent to Jill’s family, which supports Jill’s testimony that Ben both
threatened and did send messages to her parents.10
The family court committed no error on relying on Jill’s evidence
when documentary evidence supported Jill’s version of events and contradicted
Ben’s assertions. “[W]hen the testimony is conflicting we may not substitute our
decision for the judgment of the trial court.” R. C. R. v. Commonwealth Cabinet for
Hum. Res., 988 S.W.2d 36, 39 (Ky. App. 1998). Regardless of how Ben
characterized his letter of August 7, 2018, the letter does in fact make an admission
that he was “physical with her.”11 Additionally, the family court found on at least
six occasions, Ben made written references to killing Jill.12 The family court’s
findings are not clearly erroneous.
Ben also argues the family court abused its discretion in determining
the presumption of joint custody and equally shared parenting time had been
rebutted by its finding of domestic abuse when all factors of KRS 403.270 must be
considered. KRS 403.270 is the controlling statute in determining child custody.
9
Exhibit A, Page 5, Record on Appeal 2843.
10
Hearing, 2/25/2021 at 4:14:17 and 5:01:38.
11
Petitioner’s Exhibit 32, Page 4.
12
Findings of Fact, Conclusions of Law, Orders and Judgment of Custody, April 5, 2021,
Paragraph 11.
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“The statutory guidelines of KRS 403.270 do not include a definition of the best
interests of the child standard; however, KRS 403.270(2) requires the trial court to
consider all relevant factors and provides a list of non-exclusive, demonstrative
factors to be considered in custodial determinations.” Frances v. Frances, 266
S.W.3d 754, 756 (Ky. 2008).
KRS 403.270(2) states as follows:
The court shall determine custody in accordance with the best
interests of the child and equal consideration shall be given to
each parent . . . there shall be a presumption, rebuttable by a
preponderance of the evidence, that joint custody and equally
shared parenting time is in the best interest of the child. If a
deviation from equal parenting time is warranted, the court shall
construct a parenting time schedule which maximizes the time
each parent or de facto custodian has with the child and is
consistent with ensuring the child’s welfare. The court shall
consider all relevant factors including:
(a) The wishes of the child’s parent or parents as to his or her
custody;
(b) The wishes of the child as to his or her custodian, with due
consideration given to the influence a parent may have over
the child’s wishes;
(c) The interaction and interrelationship of the child with his or
her parent or parents, his or her siblings, and any other
person who may significantly affect the child’s best
interests;
(d) The motivation of the adults participating in the custody
proceeding;
(e) The child’s adjustment and continuing proximity to his or
her home, school, and community;
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(f) The mental and physical health of all individuals involved;
(g) A finding by the court that domestic violence and abuse . . .
has been committed by one (1) of the parties against a child
of the parties or against another party. The court shall
determine the extent to which the domestic violence and
abuse has affected the child and the child’s relationship to
each party, with due consideration given to efforts made by
a party toward the completion of any domestic violence
treatment, counseling, or program;
(k) The likelihood a party will allow the child frequent,
meaningful, and continuing contact with the other parent . . .
except that the court shall not consider this likelihood if
there a finding that the other parent . . . engaged in domestic
violence or abuse . . . against the party or a child and that a
continuing relationship with the other parent will endanger
the health or safety of either that party or the child.
In addition to its finding of domestic violence against Jill, the family
court found that other family members have witnessed or been the subject of Ben’s
hostility, including his ex-wife and his brother. Ben’s ex-wife, Julie, testified that
Ben’s actions cause anxiety in his three older children, and cited multiple examples
of this occurring. Both Dr. Feinburg and Dr. Connor recommended to the court
that Jill be granted sole custody of L.D., as they do not believe Ben can
successfully co-parent with Jill. The family court found Dr. Feinburg to be a
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credible witness and accepted his testimony that “as this child gets older and seeks
some form of independence; she will clash with respondent’s parenting style.”13
The family court made a total of 111 findings of fact. While not
specifically attaching each finding to one factor in KRS 403.270, we conclude the
family court took all relevant factors of the statute into account when making its
ruling. The factual findings of the family court are more than adequate to show the
family court considered all the statutory factors, and the facts considered support
the exercise of the family court’s discretion to award Jill sole custody of L.D.
We find some of the circumstances of this case analogous to those of
Gertler, supra, in which we upheld the circuit court’s award of sole custody. In
Gertler, the circuit court found the father would be unable to cooperate with the
mother in reaching decisions affecting the children’s educational, religious, and
medical needs. 303 S.W.3d at 137.
“While joint custody should not be automatically rejected where
parents cannot cooperate at present, especially if they are in the midst of a divorce,
joint custody can be appropriate if it appears that with time parents will be able to
achieve an acceptable level of cooperation. An award of sole custody is proper
when a parent cannot cooperate in making joint decisions affecting the children
13
Findings of Fact, Conclusions of Law, Orders and Judgment of Custody, April 5, 2021,
Paragraph 59.
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with the other parent and seeks to control the other parent’s behavior.” Barnett v.
White, 584 S.W.3d 755, 761 (Ky. App. 2019) (citing Squires v. Squires, 854
S.W.2d 765, 768-69 (Ky. 1993)).
This case’s lengthy history clearly shows the parties are unable to
work together to successfully co-parent this child. The family court did not abuse
its discretion in awarding Jill sole custody.
CHILD SUPPORT CALCULATION
STANDARD OF REVIEW
Appellate review of a child support award is governed by the abuse of
discretion standard. Holland v. Holland, 290 S.W.3d 671, 674 (Ky. App. 2009).
“The test for an abuse of discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound reasonable principles.”
Penner, 411 S.W.3d at 779-80. Appellate review of a trial court’s factual findings
is governed by the clearly erroneous standard; factual determinations supported by
substantial evidence will not be disturbed. Truman v. Lillard, 404 S.W.3d 863,
868 (Ky. App. 2012). In evaluating abuse of discretion, this Court reviews legal
conclusions applied by the trial court de novo. Ehret v. Ehret, 601 S.W.3d 508,
511 (Ky. App. 2020).
ANALYSIS
Ben alleges the family court erred in its award of child support, both
on a temporary basis and the amount going forward post-trial. Ben’s first
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contention is the family court erred in calculating temporary child support in its
October 21, 2019, Order. While Ben attached the Findings of Fact, Conclusions of
Law and Orders dated October 21, 2019, to his brief, he did not designate the
record to include the October 8, 2019, hearing in which the family court heard the
evidence to form the basis of this temporary order.
There is very little in the record before us surrounding this timeframe,
as it appears that filings were still being filed in the “J” case. No filings with the
“J” case number were included in the record. “Consequently, if consideration of
the transcript of evidence is necessary to the determination of the issue raised by
appeal, and the transcript of evidence is not designated for inclusion in the record,
the appellate court finds itself unable to resolve the issue because the record is
insufficient, and the appeal must be dismissed.” Oldfield v. Oldfield, 663 S.W.2d
211, 212 (Ky. 1983).
We are unable to determine from the record if an error was committed
as to the temporary decision, so this initial ruling will not be reviewed. If the
record is incomplete, the reviewing court must assume the omitted portions support
the trial court’s decision. Commonwealth, Dep’t of Highways v. Richardson, 424
S.W.2d 601, 603 (Ky. 1967). This was a temporary order, and we must still review
the eventual final child support decision for which we have the record.
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Ben argues he was entitled to the “shared parenting” credit after the
family court’s June 9, 2020, Order which granted him additional parenting time.
Ben believes he was entitled to a modification of his child support at that time.
The family court’s order of June 9, 2020, increased Ben’s parenting time of L.D. to
where he has visitation every other weekend, one weeknight overnight, and one
evening during the week. Even so, this order did not change the award of sole
custody to Jill.
“[A] modification of support is wholly within the discretion of the
trial court.” Holland, 290 S.W.3d at 675. While the order of June 9, 2020, did
increase Ben’s parenting time of L.D., it did not make the timesharing equal. Ben
cites no authority to indicate he is entitled to the “shared parenting” credit
regarding child support when the timesharing is not equal. Further, a family
court’s failure to consider the amount of time a parent spent with their children
when determining child support has been found not to be an abuse of discretion.
McFelia v. McFelia, 406 S.W.3d 838, 841 (Ky. 2013). We do not find the family
court abused its discretion in declining to decrease Ben’s child support obligation
when the amount of parenting time was altered (temporarily) in his favor.
Then Ben argues the family court erred in calculating his child
support obligation in its final April 5, 2021, Order. He alleges the family court
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used incorrect income information for both him and Jill, and subsequently, that it
erred in not employing the child support guidelines.
Ben alleges the family court used incorrect income information for
both parties. The family court found Ben had an earning capacity of $200,000 per
year. Ben argues the family court should have used the $95,951.00 figure that was
reported on his 2020 tax return. The 2020 tax return was not provided as evidence
during the hearing. Ben attempted to introduce it later in his Motion to Alter,
Amend, or Vacate, filed on April 15, 2021, and he attached it as an exhibit. The
family court struck this from the record by an order dated May 6, 2021. “[A] party
cannot invoke CR 59.05 to raise arguments and to introduce evidence that should
have been presented during the proceedings before the entry of the judgment.”
Gullion v. Gullion, 163 S.W.3d 888, 893 (Ky. 2005).
The family court based its finding on Ben’s 2019 tax return, which
showed income of $201,957. Ben claims $80,000 of that total was a return of
capital from his separation from the law firm where he was previously employed.
Ben’s CPA testified on his behalf, and he testified $77,697 was return of capital.
The CPA also testified that this information came directly from Ben and the other
law partners. The CPA testified he had not seen any type of document that showed
proof of that. Ben did not introduce any additional evidence illustrating what that
amount was during the hearing.
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The family court was determining earning capacity based on evidence
of past documented income. Regardless of the argument over the basis of the 2019
tax return numbers, the family court was not required to ignore the evidence of
income much greater than $200,000 per year in recent prior years. It was not
clearly erroneous for the family court to have found this amount as Ben’s income
for the child support determination.
Ben additionally argues the family court erred in finding Jill’s annual
income to be $72,641. He claims because Jill did not work full-time, the court
should use the amount she would earn if she worked full-time. KRS
403.212(3)(e)1. states, “If there is a finding that a parent is voluntarily unemployed
or underemployed, child support shall be calculated based on a determination of
potential income, except that a finding of voluntary unemployment or
underemployment and a determination of potential income shall not be made for a
parent who . . . is caring for a very young child, age three (3) or younger, for whom
the parents owe a joint legal responsibility.” L.D. was less than two (2) years of
age at the time of the hearing. Therefore, the family court did not err in finding
Jill’s income to be accurate, even if she only worked part-time at the time of the
hearing.
Based on those income amounts, the parties’ monthly income
exceeded the child support guidelines that existed at the time of the hearing. “The
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family court may use its judicial discretion to set child support outside the
guidelines in circumstances where combined adjusted parental gross income
exceeds the uppermost level of the guidelines.” Ciampa v. Ciampa, 415 S.W.3d
97, 99 (Ky. App. 2013). The family court used the budget introduced into
evidence by Jill, since Ben did not tender any evidence regarding L.D.’s needs.
“Having determined that the parental income of the parties was outside
the child support guidelines, the family court may use its discretion to set the child
support amount outside the guidelines as long as it justifies the deviation in
writing.” Id. at 99-100. The family court in this instance made detailed written
findings of its reasoning for how it reached the child support amount it did. We do
not find the family court’s findings clearly erroneous, or that the family court
abused its discretion in determining the proper child support amount.
We recognize Ben’s earning capacity presently may have been
impaired because of his actions and current licensure status. Jill’s earning capacity
may also have changed. As indicated by the family court judge at the motion hour
on May 18, 2021, Ben is welcome to file a motion to modify child support and
attach his most recent tax returns and other evidence of his actual earning capacity
if Ben feels the current amount to be incorrect. But that is a matter for the Kenton
Family Court, not this Court, to determine anew.
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ALLEGATION OF PROCEDURAL DEFECTS
STANDARD OF REVIEW
A trial court’s procedural and evidentiary rulings are reviewed for
abuse of discretion. Woodard v. Commonwealth, 147 S.W.3d 63, 67 (Ky. 2004).
“The test for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair or unsupported by sound legal principles.” Id.ANALYSIS
Ben takes issue with the family court using many of Jill’s proposed
findings of fact in its order. There is no prohibition for this practice. Bingham v.
Bingham, 628 S.W.2d 628 (Ky. 1982). “[T]he delegation of the clerical task of
drafting proposed findings of fact and conclusions of law under the proper
circumstances does not violate the trial court’s responsibility.” Id. at 629. While
the court did accept many of Jill’s proposed findings of fact, it did not adopt them
entirely. We find the family court properly exercised its fact-finding duty outlined
in CR 52.01.
Ben makes two other claims of “procedural defects in the
proceedings” that he argues constitute reversible error. The first alleged error is
that the family court failed to hear motions relevant to the hearing prior to the start
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of the hearing. The second alleged error is that the family court committed
reversible error in admitting summary evidence under KRE14 1006.
Ben alleges several motions were pending on the date of the hearing
that were not addressed prior to the start of the hearing on February 22, 2021. We
find no merit in this argument. Prior to the start of the hearing, the family court
heard nine motions in limine filed by Ben. The family court heard and ruled on
Ben’s pretrial motions for one hour prior to beginning the case. After the final
motion was heard, the family court judge inquired as to whether all preliminary
matters had been heard, and both sides responded they had.
Ben references two motions in his brief upon which the family court
supposedly failed to rule prior to the hearing. The first is a Motion for Sanctions
for Violations of the Rules of Professional Conduct, filed December 31, 2020. It
was put on the motion docket for January 12, 2021. This motion asked the family
court to prohibit Jill and her counsel from misrepresenting his mental health,
sanction them for making misrepresentations to the court regarding his mental
health, and for an award of attorney’s fees.
A review of the proceedings on that court date shows multiple motions
were heard, but Ben’s counsel did not bring up this particular motion. The court
did take up a similar motion prior to the start of the hearing. Ben filed a motion in
14
Kentucky Rules of Evidence.
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limine to exclude any evidence regarding his mental health. The court overruled
this motion, as mental health of the parents is a crucial element in every custody
case. The court thus had ruled on the relevant portion of Ben’s motion prior to the
hearing. Whether the court was going to sanction Jill and/or her counsel for any
statements made is not relevant to the actual substance of the hearing. Therefore,
we conclude the family court committed no error in this regard or any error in not
ruling on this overlapping motion had to be harmless error.
“An error is harmless where, considering the entire case, the
substantial rights of the defendant are not affected or there appears to be no likely
possibility that the result would have been different had the error not occurred.”
Greene v. Commonwealth, 197 S.W.3d 76, 84 (Ky. 2006).
The second motion Ben references in his brief is a Motion to Correct
the Record and to Alter, Amend or Vacate the Court’s July 10, 2020 order, in part,
Pursuant to CR 59.05 and CR 60.02, on Grounds of Factual Impossibility. The
body of this motion is asking the court to vacate its order to produce Dr. Connor’s
report. This motion was essentially moot by the time the hearing occurred, as the
report had been produced.
Additionally, while the motion is titled “Motion to Correct the
Record,” there is no reference in the motion as to what exactly in the record Ben is
moving to correct. The motion noticed it to be heard on July 28, 2020. This
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motion hour was not included in our record for review, so it cannot be determined
if this motion was argued or ruled upon at that time. In any event, there was no
error in ordering the production of Dr. Connor’s report. In effect, the family court
sub silentio denied Ben’s motion to reverse its course as to the report with the
testimony of Dr. Connor being considered during the hearing with each side having
the opportunity to question him about his conclusions. We again find this to be
harmless error, if in fact it was an error at all.
During the video record cited in his brief, Ben stated the family
court had multiple motions pending for a long period of time. He specifically
referenced a motion regarding his allegations that evidence had been altered. The
judge addressed Ben’s concerns and stated if Ben had any evidence of tampered
evidence being entered for admission, he should make those objections when the
allegedly altered evidence is presented. Ben brought up another motion regarding
a proposed order, and the family court judge advised Ben that the motion had
already been overruled. We conclude there were no motions not ruled upon which
would justify reversal.
Ben’s next allegation of error is that the family court erred in allowing
summary evidence under KRE 1006. KRE 1006 states:
The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in
court may be presented in the form of a chart, summary,
or calculation. A party intending to use such a summary
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must give timely written notice of his intention to use the
summary, proof of which shall be filed with the court.
The originals, or duplicates, shall be made available for
examination or copying, or both, by other parties at
reasonable time and place. The court may order that they
be produced in court.
Ben alleges the summaries introduced by Jill at the hearing were
inadmissible hearsay. Ben does not identify any specific summary that should be
considered inadmissible hearsay but indicates in his brief that all of Jill’s
summaries should have been excluded. The summaries and admitted exhibits
consist of text messages, emails, and voicemails between the parties. Ben never
claimed he did not write or send these emails or messages. These statements would
qualify as a statement of a party offered against that party and thus outside the
hearsay rule.
KRE 801A(b) states, “Admissions of parties. A statement is not
excluded by the hearsay rule, even though the declarant is available as a witness, if
the statement is offered against a party and is: (1) The party’s own statement, in
either an individual or a representative capacity[.]”
Ben does not allege Jill and her counsel did not follow the procedural
requirements of KRE 1006. They gave Ben timely written notice of their intention
to use summaries and the entirety of the summarized evidence was provided to Ben.
Further, Ben complained these summaries were incomplete and painted an unfair
picture. However, there was no ruling to prevent Ben from entering the entirety of
-44-
the written communications between the parties. In fact, Ben did enter very large
portions of the parties’ written communications. We rule the family court did not
abuse its discretion in admitting Jill’s summary evidence.
DENIAL OF POST-TRIAL MOTIONS WITHOUT A HEARING
STANDARD OF REVIEW
“The standard of review of an appeal involving a CR 60.02 motion is
whether the trial court abused its discretion.” White v. Commonwealth, 32 S.W.3d
83, 86 (Ky. App. 2000).
ANALYSIS
Ben alleges fraud affected these proceedings. “The type of fraud
affecting the proceedings necessary to justify reopening under CR 60.02(d)
generally relates to extrinsic fraud . . . . Extrinsic fraud covers ‘fraudulent conduct
outside of the trial which is practiced upon the court, or upon the defeated party, in
such a manner that he is prevented from appearing or presenting fully and fairly his
side of the case.’” McMurry v. McMurry, 957 S.W.2d 731, 733 (Ky. App. 1997)
(citation omitted).
Ben makes several claims of fraud regarding this hearing. First, he
claims the timing of the family court’s order infers that the family court judge did
not have time to fully read the post-trial briefs and review the evidence before
rendering a decision and drafting the order. The hearing took place over five days
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and concluded on March 11, 2021. The parties were to file their final memoranda
on March 29, 2021, at 3:00 p.m. The final Order was issued on April 5, 2021.
We find no merit to this argument. While it is certainly possible the
family court had drafted portions of the final order prior to reading the parties’
final memoranda, there is no indication that he did not fully review the evidence.
The timing of the order is no indication of fraud. “Whether the trial judge had
prepared a tentative draft of a final judgment prior to the formal sentencing did not
affect the fact that he heard and considered the evidence and the arguments before
entering a final sentencing judgment.” Bussell v. Commonwealth, 882 S.W.2d 111,
114-115 (Ky. 1994).
Ben further claims the family court’s April 5 Order recycles findings
of fact from a different case. Again, we find no evidence of fraud, even assuming
this assertion to be true. This case and the matter between Ben and his ex-wife
involve several of the same actors. Obviously, Ben is a party in both cases.
Several of the same witnesses appeared and testified in both cases. Both cases are
custody cases in which the same issues are addressed. It is not unexpected to have
similar findings of fact when this many similarities between the cases exist.
Ben also points to the fact the order was signed by the judge and
entered by the Circuit Clerk’s office on the same day as evidence of fraud. He
alleges this has never occurred before during the life of this litigation. The fact of
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a clerk entering an order when signed by the judge is nothing more than prompt
attention to the clerk’s duty. Ben does not explain how the prompt entry somehow
changed anything by some fraudulent device.
Ben also alleges Jill and her counsel have perpetuated fraud because
of a statement to the effect some of the issues were “already decided.” Ben points
to a police report he filed with the Ft. Mitchell Police Department in May 2019.
This issue was addressed in the hearing, and Detective Stulz testified neither she
nor the Commonwealth’s Attorney determined there was an actionable case in
these allegations. Ben’s then counsel, Katy Lawrence, filed an affidavit stating
that Jill’s counsel said to her, “It has already been set that my client will get sole
custody.”15 Ben’s motion to alter, amend, or vacate regarding this issue was heard
on May 18, 2021. The family court judge referenced the affidavit of Ms.
Lawrence. Ms. Lawrence appeared on Ben’s behalf. She asked the family court
for an evidentiary hearing, but when pressed by the family court judge as to what
the new evidence is she references in her affidavit, Ms. Lawrence declined to
explain any further.
First, there is no right to an evidentiary hearing on a CR 60.02 motion.
Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). “The burden of proof
15
Exhibit H, Paragraph 6 of Respondent’s Motion to Alter, Amend, or Vacate this Court’s Order
of April 5, 2021, Pursuant to CR 59.05, filed 4/15/2021.
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in a CR 60.02 proceeding falls squarely on the movant to ‘affirmatively allege
facts which, if true, justify vacating the judgment and further allege special
circumstances that justify CR 60.02 relief.’” Foley v. Commonwealth, 425 S.W.3d
880, 885 (Ky. 2014) (citation omitted). “It is well established that evidentiary
inferences are required to be based upon reasonable deductions . . . . Indeed, mere
speculation or conjecture has never been a sufficient basis to support an
evidentiary inference.” Id. at 887.
We do not believe the family court abused its discretion in denying an
evidentiary hearing on Ben’s motions. Most of his assertions, even if true, do not
rise to the level of fraud. The pleadings with assertions that could possibly involve
fraud do not contain any admissible evidence, merely vague assertions, and
hearsay that Jill’s counsel gets special treatment by the court. The only evidence
presented is Ms. Lawrence’s affidavit, which the family court reviewed. The
alleged circumstances in the affidavit had been referenced in evidence during the
initial hearing. The family court did not find the allegation credible, or that it rose
to the level of necessitating an evidentiary hearing.
2022-CA-00315-MR: ORDER OF MARCH 14, 2022
Ben additionally appeals from an Order dated March 14, 2022, issued
by Special Judge Brown. Ben first argues the family court abused its discretion in
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its modification of his visitation with L.D. The family court decreased his
visitation to four hours per week and required the visitation to be supervised.
FACTUAL AND PROCEDURAL HISTORY
On November 2, 2021, Ben posted a video to Facebook which led to
the Kentucky Supreme Court Inquiry Commission filing a Petition for Temporary
Suspension of his law license. This video contained threats to Jill’s attorney and
the family court staff attorney, who Ben mentions by name. The video alleged the
court was corrupt. It contained a litany of profanity. The Petition by the Inquiry
Commissioner was filed on November 12, 2021, and a supplement was filed on
December 29, 2021.
On November 4, 2021, after viewing the video, Judge Mehling issued
an Order of Recusal in the circuit court action. Based on the video, the findings of
fact contained in the order issued by Judge Mehling on April 5, 2021, statements
by Jill’s counsel, a bar complaint filed by one of Ben’s former clients, and Ben’s
offered rationalization for making the video, the Inquiry Commission found
probable cause to believe that Ben is a threat to his clients or the public and/or he is
mentally disabled and lacks the mental fitness to continue to practice law. The
Kentucky Supreme Court suspended Ben’s law license on February 24, 2022. In
the Order, Ben was required to submit to a full psychological exam within 90 days.
On February 24, 2022, Jill filed an emergency motion. In this motion,
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Jill asked the family court to suspend Ben’s parenting time with L.D. or in the
alternative, to require his parenting time to be supervised until such time as he
completed the psychological evaluation required by the Kentucky Supreme Court’s
order.
Special Judge Brown was assigned to the family court circuit case on
December 15, 2021, after Judge Mehling recused himself. The family court first
heard the motion on February 25, 2022. From what we can tell, no video recording
of this initial hearing was made, so we were unable to review it. The family court
temporarily granted Jill’s motion to modify. The family court’s temporary order
required Ben’s parenting time to be supervised, pending a full hearing on the issue
on March 3, 2022, less than one week later.
On March 3, 2022, the family court held a full evidentiary hearing,
which is in the record before us. Jill again called Dr. Connor as a witness. He
testified he reviewed eleven videos Ben posted on his Facebook page, including
the video of November 2 which was partially the basis of the Supreme Court’s
suspension order. Dr. Connor also testified he reviewed the Supreme Court’s
suspension order, the family court’s April 5, 2021, Order, Judge Mehling’s Recusal
Order, and a video taken by Ben’s oldest daughter, which shows him texting with
both hands while driving for approximately three minutes with the children in the
vehicle. Dr. Connor testified all this together, along with his former evaluations of
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Ben, indicates that Ben may be deteriorating mentally. He stated these actions
illustrate Ben’s reactionary and impulsive behaviors, which could be a cause for
concern of L.D.’s safety. Dr. Connor testified he does not believe that Ben’s
parenting time with L.D. should be suspended, but it should be supervised to
ensure L.D. is safe.
Jill testified next. She stated the videos concern her because they
show that Ben is surrounded by conflict and that he lacks impulse control. She is
worried about L.D. becoming the target of Ben’s behavior. She was especially
concerned based on L.D.’s young age, which at the time of the hearing, was a
month shy of three years old. Jill stated that Ben had two sides, the one he usually
showed publicly, and the private side, which she knew could be angry and abusive.
She testified these videos show how he acted in private, and she was afraid he was
spiraling out of control because he didn’t usually let that side show publicly.
Ben called Joanne Roth-Schumate and Adrienne Hundemer as
witnesses. Ms. Roth-Schumate is Ben’s aunt, and Ms. Hundemer is the mother of
a friend of his daughter. Both testified Ben is a great dad, and that neither have
any concerns about him as a parent or a caretaker.
Ben testified next. He stated he has been seeing his psychiatrist for
years, and he has never been diagnosed with a mental health disorder, other than
ADHD, for which he is prescribed Adderall. He testified there had never been any
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issues with his parenting time, and neither mother had expressed any concerns to
him. He stated nothing had occurred recently, other than the Supreme Court
suspending his license. He argues the events concerning the suspension happened
a while ago.
Ben further stated that because he has his other kids, making his time
with L.D. supervised would not be workable. He claimed his other children would
not be able to see L.D. if his time was supervised. He stated he was concerned
about disruption in L.D.’s schedule. He testified he regrets that the videos were
“misconstrued,” and that he has learned a lot about campaigning from this
experience. He stated several times during his testimony that he was running for
family court judge, and these videos were part of his message to the public. He
claimed he never intended for anyone in the court system to see these videos.
The family court issued a written order on March 14, 2022. This
order contained 48 findings of fact. The family court granted Jill’s motion to
modify the parenting schedule. The family court stated: “The court concludes
Respondent’s pattern of behavior would seriously endanger the child’s mental and
emotional health if his parenting time were to remain unsupervised.”16 The family
court ordered Ben to have parenting time two days per week, for a period of two
16
March 14, 2022 Order, page 14.
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hours per visit, to be supervised at Holly Hill.17 The order stated, “This order shall
remain in effect until modified by subsequent order.”18 The order additionally
required Ben to enroll in therapy immediately with a licensed provider who has
experience treating narcissistic personality disorders. On March 18, 2022, Ben
filed an emergency motion to stay enforcement or to alter, amend, or vacate the
March 14 Order. He filed a supplemental motion on March 22, 2022. All these
motions were denied. Ben then filed this appeal.
STANDARD OF REVIEW
A trial court’s determinations as to visitation are reviewed for abuse
of discretion. Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000). “The test is
not whether we as an appellate court would have decided the matter differently, but
whether the trial court’s rulings were clearly erroneous or constituted an abuse of
discretion.” Moore v. Moore, 626 S.W.3d 535, 539 (Ky. 2021). “The test for
abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair or unsupported by sound legal principles.” Woodard, 147
S.W.3d at 67. A finding of fact is clearly erroneous if not supported by substantial
evidence, which is evidence sufficient to induce conviction in the mind of a
reasonable person. Asente, 110 S.W.3d at 354. We review a family court’s legal
17
A residential facility that offers supervised visitation for nonresidential parents.
18
March 14, 2022 Order, page 15.
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conclusions under the de novo standard. Brewick v. Brewick, 121 S.W.3d 524, 526
(Ky. App. 2003).
ANALYSIS
Ben argues the family court abused its discretion in modifying his
visitation with L.D. A motion to modify timesharing is governed by KRS
403.320(3). Pennington v. Marcum, 266 S.W.3d 759, 765 (Ky. 2008). This statute
states: “The court may modify an order granting or denying visitation rights
whenever modification would serve the best interests of the child; but the court
shall not restrict a parent’s visitation rights unless it finds that the visitation would
endanger seriously the child’s physical, mental, moral or emotional health.” KRS
403.320(3).
Ben argues the family court erred in both its temporary restriction,
ordered February 25, and in its indefinite restriction, ordered March 14. He argues
the temporary restriction was an abuse of discretion because he was not granted a
hearing and an opportunity to be heard prior to having his visitation restricted.
While we are unable to view the court hearing that occurred on February 25, this
was a temporary, interlocutory order and thus not subject to review as a separate
appeal. See Hook v. Hook, 563 S.W.2d 716, 717 (Ky. 1978). At any rate, the
family court set a full hearing date for a week later, on March 3, in order to give
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Ben the hearing to which he was entitled. See McNeeley v. McNeeley, 45 S.W.3d
876, 877 (Ky. App. 2001).
Ben further argues the family court’s order is erroneous as a matter of
law because the court’s consideration of his mental health is a violation of his due
process rights. This argument has no merit. A parent’s mental health is always a
factor in custody determinations regarding the best interests of a child. KRS
403.270(2)(f). Ben argues the record regarding his mental health is incorrect, and
specifically points to a court order of October 21, 2019, stating that Ben had been
diagnosed with bipolar disorder. That previous order is largely irrelevant to the
current order. The order of March 14 does not reference this alleged prior
diagnosis in any way. Whether Ben is or has been diagnosed with bipolar disorder
is not controlling, as it is not required for the family court to confirm a specific
diagnosis to find Ben has mental health issues impacting custody or visitation.
While the order does go into some of the history of the case, it ties Ben’s current
behavior to testimony and evidence that had previously been entered into the
record to make the finding that Ben’s actions present an existing high risk of
seriously endangering the child’s mental and emotional health.
Ben argues the family court erred because his experts came to
different conclusions than Jill’s experts regarding his mental health, and the family
court accepted the testimony and reports of Jill’s experts over his. “A family court
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operating as finder of fact has extremely broad discretion with respect to testimony
presented and may choose to believe or disbelieve any part of it. A family court is
entitled to make its own decisions regarding the demeanor and truthfulness of
witnesses, and a reviewing court is not permitted to substitute its judgment for that
of the family court, unless its findings are clearly erroneous.” Bailey v. Bailey, 231
S.W.3d 793, 796 (Ky. App. 2007). “As the factfinder, it is the trial court’s
prerogative to make findings of fact according to its own weighing of the
evidence.” Cabinet for Health & Fam. Servs. v. L.G., 653 S.W.3d 93, 101 (Ky.
2022). It is the factfinder’s “prerogative to weigh the credibility of the various
experts and decide whose opinions to accept and whose to reject.” Miller ex rel.
Monticello Banking Co. v. Marymount Med. Ctr., 125 S.W.3d 274, 278 (Ky.
2004).
Ben additionally asserts he was not granted an adequate hearing, and
relies on Deleo v. Deleo, 533 S.W.3d 211 (Ky. App. 2017). Ben is correct in that
to restrict a parent’s visitation with their minor child, a hearing is required. Smith
v. Smith, 869 S.W.2d 55, 56 (Ky. App. 1994). However, Deleo is distinguishable
from this case. In Deleo, the children’s mother was denied the continuance she
requested to obtain counsel, which led to her being unrepresented at her hearing.
This Court found the trial court’s denial of the continuance to be an abuse of
discretion. Ben was represented by counsel at his hearing, and he also represented
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himself pro se, himself being an attorney, albeit one with a suspended law license
at the time of the hearing. There is no evidence in the record that Ben requested a
continuance. Additionally, in Deleo, the trial court failed to include a finding in its
order that unsupervised visitation with mother would endanger the child. That
finding is not missing in this case.
Ben is also correct in his assertion that the burden was Jill’s to show
that visitation with Ben would endanger L.D. Smith, 869 S.W.2d at 56. He is
again correct that, per KRS 403.320(3), to support restricting a parent’s visitation,
any endangerment must be serious. He argues the family court did not hear
evidence to support its finding on this. We disagree.
Ben cites Ryan v. Ryan, 473 S.W.3d 637 (Ky. App. 2015), in his brief.
We conclude Ryan is again distinguishable from the case at hand because the trial
court in Ryan made no determination that visitation would endanger seriously the
child’s physical, mental, moral, or emotional health. Id. at 640. The family court
in this action did make the requisite finding that unsupervised visitation would
seriously endanger L.D.’s mental and emotional health. “[A] family court’s factual
findings are reviewed for clear error. CR 52.01. A finding supported by
substantial evidence is not clearly erroneous.” Id. at 641. We do not believe the
family court’s findings here were clearly erroneous. There was sufficient evidence
presented to find that Ben’s ongoing behavior would seriously endanger L.D.
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CONCLUSION
The Kenton Family Court had jurisdiction in this case. The family
court’s findings of fact are supported by the evidence and are not clearly
erroneous. The family court committed no error of law and properly acted within
its discretion. The Kenton Family Court is AFFIRMED on all three appeals.
ALL CONCUR.
ENTERED: _June 16, 2023_____
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Benjamin G. Dusing, pro se Stephanie Dietz
Fort Wright, Kentucky Edgewood, Kentucky
Brandy K. Lawrence
Fort Wright, Kentucky
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