Amanda Allen v. Cory Steven-Michael Allen

RENDERED: MAY 21, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0531-MR
AMANDA ALLEN APPELLANT
APPEAL FROM LEWIS FAMILY COURT
v. HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 15-CI-00011
CORY STEVEN-MICHAEL ALLEN APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, CALDWELL, AND K. THOMPSON, JUDGES.
ACREE, JUDGE: Amanda Allen appeals the Lewis Family Court’s February 28,
2020 order modifying the timesharing arrangement for the children she had with
Cory Steven-Michael Allen. We affirm.
BACKGROUND
The parties were married for five years and had two children before
they divorced. The decree, entered April 27, 2015, granted joint custody and
ordered that Cory would have the children every other weekend and one three-hour
period each week. Approximately two years after the divorce, Amanda relocated
with the children to Rowan County, Kentucky.
In 2018, Cory sought increased timesharing. Although the family
court did not order the equal timesharing Cory sought, it did increase his
timesharing somewhat.
Later that same year, Cory again sought equal timesharing. Failed
mediation attempts and continuances delayed the hearing on Cory’s motion until
February 2020. The family court heard testimony from the parties, the children’s
counselors, and the children,1 and then issued its order on February 28, 2020.
The court noted that the children appeared to be “coached” to say they
wanted either to live with Cory full-time or to have their time with their parents
divided equally. Nevertheless, it found the best interests of the children would be
served by ordering equal timesharing, based on Cory’s change of employment and
relocation, the psychological needs of the children, and other relevant factors
enumerated in the order. (Record (R.) at 330-34).
1
The family court interviewed the children in chambers.
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Nearly a month later, Amanda filed a “Motion to Reconsider and
Motion to Amend Findings.” Two days after that, Amanda filed a timely notice of
appeal. According to the certified record, Amanda’s motions remain pending
before the family court.
ANALYSIS
Amanda makes three arguments. She claims the family court erred
by: (1) applying KRS2 403.270 instead of KRS 403.320 to modify custody; (2)
modifying custody despite having found the children were coached; and (3)
modifying custody contrary to public policy. Cory says Amanda never preserved
these issues. Amanda contends she did so by filing her motion to dismiss and her
motion to reconsider. We first consider the preservation question.
“It is well-settled that a trial court must be given the opportunity to
rule in order for an issue to be considered on appeal, and the failure of a litigant to
bring [a matter] to the trial court’s attention is fatal to that argument on appeal.”
Martin v. Pack’s Inc., 358 S.W.3d 481, 487 (Ky. App. 2011) (citation and internal
quotation marks omitted). We have carefully examined Amanda’s motion to
dismiss, filed a year before entry of the order which she appeals, and find none of
the three arguments she makes to this Court.
2
Kentucky Revised Statutes.
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Furthermore, the order for equal timesharing was a final and
appealable order pursuant to CR3 54.02 and, therefore, could only be modified by
the family court upon a timely motion pursuant to CR 59.05. The motion Amanda
filed twenty-eight (28) days after entry of the equal timesharing order, and
captioned “Motion to Reconsider and Motion to Amend Findings,” was not a
timely motion under CR 59.05.
Notwithstanding the lack of preservation, we briefly address
Amanda’s arguments. Citing Layman v. Bohanon, she argues the family court
erred by applying the presumption of equal timesharing found in KRS 403.270 and
KRS 403.340 because the proper and applicable statute for modifying timesharing,
KRS 403.320, does not include such presumption. 599 S.W.3d 423, 429-31 (Ky.
2020). However, Amanda fails to note that the Supreme Court in Layman still
upheld the modification.
In pertinent part, the Court in Layman said:
Having clarified the correct application of KRS
403.320(3) and KRS 403.270(2), we next consider
whether the family court erred in modifying the parties’
timesharing schedule. On this point, we note that the
family court has broad discretion in modifying
timesharing. Pennington [v. Marcum, 266 S.W.3d 759,
765 (Ky. 2008)]. Accordingly, we “will only reverse a
circuit court’s determinations as to visitation if they
constitute a manifest abuse of discretion, or were clearly
erroneous in light of the facts and circumstances of the
3
Kentucky Rules of Civil Procedure.
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case.” Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App.
2000). Furthermore, “[d]ue regard shall be given to the
opportunity of the trial court to judge the credibility of the
witnesses.” Humphrey v. Humphrey, 326 S.W.3d 460,
463 (Ky. App. 2010) (citing Murphy v. Murphy, 272
S.W.3d 864 (Ky. App. 2008)).
As noted above, the modification of the timesharing
schedule was governed by KRS 403.320(3). Accordingly,
the family court could either (1) order a reasonable
timesharing schedule if it found that it would be in the best
interests of the children to do so or (2) order a “less than
reasonable” timesharing arrangement if it first found that
the children’s health was seriously endangered.
Id. at 431-32. There is no suggestion the children’s health was seriously
endangered or that the family court ordered a “less than reasonable” timesharing
arrangement. So, we move to the Supreme Court’s analysis whether the order of
equal timesharing was in the best interests of the children.
The reviewing court must “consider whether the family court properly
found that the arrangement was in the best interests of the children.” Id. at 432.
Just as in Layman, in the case under review here, “the family court’s . . . amended
[timesharing] order discussed relevant factors that support the modification.” Id. at
433. And, just as in Layman, “[w]e believe that, in this case, the factors listed in
the family court’s order[] are sufficient to satisfy the best interests of the children
standard. Accordingly, we hold that the family court did not err in modifying the
timesharing schedule[.]” Id.-5-
We also find no error, and no necessary incompatibility, in the family
court’s assessment of the children’s veracity on the one hand, and its best-interests
analysis of Cory’s motion for equal timesharing on the other. We cannot accept
Amanda’s implied argument for a rule that anytime a family court believes one
parent (or both) tried to influence a child’s testimony, the influencer must lose the
issue. Now that would be opening the proverbial can of worms.
Similarly, we reject Amanda’s argument that the family “court’s order
is so flawed that it violates public policy.” (Appellant’s brief, p. 11). The
argument is not so much that the family court violated an existing and defined
public policy as it is a request that this Court create one. We decline to do so.
CONCLUSION
For the foregoing reasons, we affirm the Lewis Family Court’s
February 28, 2020 order modifying the timesharing.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Marsha (Megan Hughes) Richmond Alison Marie Sparks
Morehead, Kentucky London, Kentucky
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