Moore v. Moore
| Decision Date | 02 November 2018 |
| Docket Number | NO. 2017-CA-000474-ME,2017-CA-000474-ME |
| Parties | RODGER W. MOORE APPELLANT v. LAURA M. MOORE APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM CAMPBELL CIRCUIT COURT
The historical facts and procedural history underlying this action are lengthy and convoluted. However, a protracted recitation is unwarranted for purposes of this appeal as much would be irrelevant to the issues presented. Thus, we provide only a truncated summary.
Father and Mother were married in 2002 and divorced by decree of dissolution on July 3, 2014. The union produced four minor children. Incorporated into the decree was an Agreed Final Judgment on Parenting Issues entered on November 26, 2013, granting sole custody of the children to Mother, providing for supervised visitation with Father, and including a remediation plan for Father to complete prior to any expansion of visitation rights. Father failed to complete multiple portions of his remediation plan and exhibited poor judgment and parenting skills during his supervised visitation periods, placing the children in unsafe situations, and subjecting them to potential harm. Following entry of a forensic custodial evaluation report from a court-ordered professional evaluator, Father moved to modify visitation, seeking to modify custody or, alternatively, to remove restrictions placed on him by the Agreed Final Judgment on Parenting Issues. After this initial motion was filed, multiple others followed by both parents. Mother moved to hold Father in contempt for his alleged failure toprovide proper car restraints for the children. She also moved the court to require Father to reimburse her for payments she made to a parenting coordinator incurred due to Father's unilateral decision to terminate parental coordination sessions. Father moved to hold Mother in contempt for her alleged failure to produce the children for a scheduled visitation.
On June 3, 2016, the trial court convened a final hearing to address all outstanding motions.1 Following exhaustion of the allotted time, the trial court re-docketed the matter for September 30, when the allotted time was again exhausted prior to complete presentation of the case. The hearing was ultimately concluded on November 15, 2016. A thorough seventeen-page written order setting forth the trial court's factual findings, conclusions of law and orders was entered on February 20, 2017. Pertinent to this appeal, the trial court reaffirmed Mother would retain sole custody of the children; slightly expanded Father's parenting time, but his visitation was to remain restricted and presence of a "nanny" was required during "waking hours" when the children were in his care; and ordered Father to reimburse Mother for her expenses related to the parenting coordinator.2 No post-judgment motions were filed. This appeal followed.
Before this Court, Father raises eight allegations of error in seeking reversal. He first argues the trial court erred in entering a temporary order on January 7, 2013, restricting his visitation without specifically finding visitation would seriously endanger the children's physical, moral, mental or emotional well-being. Second, Father contends the January 7, 2013, order was improperly based on allegations rather than factual findings. Next, he contends the January 7, 2013, order was improperly based on inadmissible evidence or was contrary to the overwhelming weight of the evidence. Fourth, Father alleges the Agreed Final Judgment on Parenting Issues is unenforceable as it contains "an unethical clause." Fifth, he claims the February 20, 2017, order restricted his visitation without making required findings. Next, Father believes even if required findings were made in the February 20, 2017, order, the restrictions placed on his parenting time were unreasonable. Seventh, Father posits all the trial court's orders must be overturned as arbitrary and capricious. Finally, he alleges he should not be required to reimburse Mother for payments made to the parenting coordinator. For the following reasons, we are unconvinced Father is entitled to the relief sought.
Initially, in contravention of CR3 76.12(4)(c)(iv) and (v) which require ample references to the specific pages of the trial court record supporting each argument, Father's brief contains no such references. Father also failed tospecifically reference the tape and digital counter number in relation to the videotaped proceedings he generally relies on in his brief. As required by CR 76.12(4)(c)(vii), Father did not append the judgment being appealed to his brief. The record in this matter is voluminous, containing more than 2,000 pages and numerous lengthy deposition transcripts and binders of exhibits. The failure to include the required citations clearly hampers this Court's ability to review the issues presented.
CR 76.12(4)(c)(v) further requires citation to authority pertinent to each legal issue raised. Father's twenty-three-page brief alleging eight errors cites two published cases, one statute, and three unpublished cases. In contravention of CR 76.28(4)(c), Father's brief does not certify the absence of published opinions on the matters for which the unpublished decisions were cited, identify the opinions as unpublished, nor append copies of such decisions to his brief. This Court generally declines to consider arguments with no supporting authority, Reinle v. Commonwealth, 170 S.W.3d 417, 419 (Ky. App. 2005), because "[i]t is not our function as an appellate court to research and construct a party's legal arguments[.]" Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005).
Additionally, in contravention of CR 76.12(4)(c)(v), Father does not state how he preserved any of his arguments in the trial court.
CR 76.12(4)(c)[(v)] in providing that an appellate brief's contents must contain at the beginning of each argument a reference to the record showing whether the issue was preserved for review and in what manner emphasizes the importance of the firmly established rule that the trial court should first be given the opportunity to rule on questions before they are available for appellate review. It is only to avert a manifest injustice that this court will entertain an argument not presented to the trial court. (citations omitted).
Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990) (quoting Massie v. Persson, 729 S.W.2d 448, 452 (Ky. App. 1987)). We require a statement of preservation:
so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration. It also has a bearing on whether we employ the recognized standard of review, or in the case of an unpreserved error, whether palpable error review is being requested and may be granted.
Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). Father has not requested palpable error review.
Failing to comply with the civil rules is an unnecessary risk the appellate advocate should not chance. Compliance with CR 76.12 is mandatory. See Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).
It is a dangerous precedent to permit appellate advocates to ignore procedural rules. Procedural rules
Id. (quoting Louisville and Jefferson County Metropolitan Sewer Dist. v. Bischoff 248 S.W.3d 533, 536 (Ky. 2007)).
In these situations, the Court of Appeals has three options: "(1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions; or (3) to review the issues raised in the brief for manifest injustice only." Id. (citing Elwell, 799 S.W.2d at 47). In considering these options, we cannot disregard the serious and fundamental procedural deficiencies contained in Father's brief. "While pro se litigants are sometimes held to less stringent standards than lawyers in drafting formal pleadings, see Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), Kentucky courts still require pro se litigants to follow the Kentucky Rules of Civil Procedure." Watkins v. Fannin, 278 S.W.3d 637, 643 (Ky. App. 2009)....
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