Holder v. Pugh

• Decision Date: 31 May 2013
• Docket Number: NO. 2012-CA-001082-ME,NO. 2012-CA-001216-ME,2012-CA-001082-ME,2012-CA-001216-ME
• Parties: DWIGHT HOLDER APPELLANT v. ERIKA PUGH APPELLEE
• Court: Kentucky Court of Appeals

DWIGHT HOLDER APPELLANT

v.ERIKA PUGH APPELLEE

NO. 2012-CA-001082-ME

NO. 2012-CA-001216-ME

Commonwealth of Kentucky Court of Appeals

RENDERED: MAY 31, 2013

NOT TO BE PUBLISHED

APPEALS FROM WARREN CIRCUIT COURT

HONORABLE MARGARET RYAN HUDDLESTON, JUDGE

ACTION NO. 11-CI-00747

OPINION

AFFIRMING IN PART, REVERSING

IN PART, AND REMANDING

BEFORE: CAPERTON, COMBS, AND DIXON, JUDGES.

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

The parties had a four-month relationship which resulted in one child. The parties were never married but with the aid of genetic testing, Holder was adjudged to be the father of the minor child. On May 18, 2012, the family court entered its findings of fact, conclusions of law and judgment concerning the issue of custody.¹ Pugh asserted that Holder had refused to communicate with her regarding the minor child. The trial court, after considering the testimony and the relevant jurisprudence, determined that Holder has shown that he is incapable or simply refuses to rationally participate in co-parenting decisions with Pugh and that he does not sufficiently understand nor is he mature enough to cooperate in a joint custody arrangement with Pugh.

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

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

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

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

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

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

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

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

(Emphasis added).

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

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

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

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

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

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

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

Hallis...