Opinion
NO. 2017-CA-000821-ME
03-16-2018
DONALD KEITH JONES APPELLANT v. SARA CHRISTINE JONES APPELLEE
BRIEF FOR APPELLANT: Heather L. Jones Paducah, Kentucky BRIEF FOR APPELLEE: Catherine S. Fuller Paducah, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE DEANNA WISE HENSCHEL, JUDGE
ACTION NO 15-CI-00743 OPINION
AFFIRMING
** ** ** ** **
BEFORE: J. LAMBERT, NICKELL, AND TAYLOR, JUDGES. NICKELL, JUDGE: Donald Keith Jones ("Father") appeals from a post-dissolution final order of the McCracken Circuit Court, Family Division. Pertinent to this appeal, the order awarded sole custody of his three minor children to Sara Christine Jones ("Mother"), established child support based on imputed income, and ordered Father to pay Mother temporary maintenance. We affirm.
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 interlocutory decree on March 22, 2016. The union produced three minor children. Following entry of a Domestic Violence Order ("DVO") in 2015, mother was awarded temporary custody of the children, child support was imposed, and a visitation schedule was established. Around the time the DVO was entered, Mother and the children moved to Missouri. Father subsequently filed for divorce and included a request for a change in custody. A substantial period of motion practice and contentious hearings followed. It became increasingly clear the parties could not agree on even the most benign and simple aspects of raising the children, making co-parenting an impossibility.
On March 20 and 22, 2017, the trial court convened a final hearing to address all outstanding issues in the dissolution action. A thorough twelve-page written order setting forth the trial court's factual findings, conclusions of law and orders was entered on April 27, 2017. Pertinent to this appeal, the trial court awarded Mother sole custody of the children, ordered Father to pay temporary maintenance, and, after concluding Father was voluntarily underemployed, set child support based on Father's imputed income. No post-judgment motions were filed. This appeal followed.
Numerous other issues were presented to the trial court for decision. However, because no challenge is raised related to those issues, we have omitted any discussion related thereto.
Before this Court, Father raises three allegations of error in seeking reversal. He first argues the trial court erred in concluding it was in the children's best interests for Mother to have sole custody. Second, Father contends the trial court erroneously awarded Mother maintenance. Finally, he alleges the trial court improperly found he was voluntarily underemployed for purposes of calculating child support. For the following reasons, we are unconvinced Father is entitled to the relief sought.
In contravention of CR 76.12(4)(c)(v), Father does not state how he preserved any of his arguments in the trial court.
Kentucky Rules of Civil Procedure. --------
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)). 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). 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.
We have reviewed the record and find no mention by Father of any of the grounds presented to us. This failure is fatal to his arguments on appeal.
It has long been this Court's view that specific grounds not raised before the trial court, but raised for the first time on appeal will not support a favorable ruling on appeal. Most simply put, "[a] new theory of error cannot be raised for the first time on appeal." Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999) (discussing specifically a directed verdict issue); see, e.g., Harrison v. Leach, 323 S.W.3d 702, 708-09 (Ky. 2010); Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009) ("More importantly, this precise argument was never made in the trial court. An appellate court 'is without authority to review issues not raised in or decided by the trial court.'") (quoting Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989)); Combs v. Knott County Fiscal Court, 283 Ky. 456, 141 S.W.2d 859, 860 (1940) ("[A]ppellant is precluded from raising that question on appeal because it was not raised or relied upon in the court below. It is an unvarying rule that a question not raised or adjudicated in the court below cannot be considered when raised for the first time in this court.").Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011). "The appellate court reviews for errors, and a nonruling is not reviewable when the issue has not been presented to the trial court for decision." Turner v. Commonwealth, 460 S.W.2d 345, 346 (Ky. 1970); see also Hatton v. Commonwealth, 409 S.W.2d 818, 819-20 (Ky. 1966). "[I]t is the accepted rule that a question of law which is not presented to or passed upon by the trial court cannot be raised here for the first time." Hutchings v. Louisville Trust Co., 276 S.W.2d 461, 466 (Ky. 1954); Benefit Ass'n of Ry. Employees v. Secrest, 239 Ky. 400, 39 S.W.2d 682, 687 (1931). "The underlying principle of the rule is to afford an opportunity to the trial court, before or during the trial or hearing, to rule upon the question raised." Hartsock v. Commonwealth, 382 S.W.2d 861, 864 (Ky. 1964).
Because none of the allegations raised were properly preserved in the trial court, they cannot serve as the basis of reversal on appeal. Further, even if the issues were properly before us, there is no indication in the record any manifest injustice exists. Therefore, the judgment of the McCracken Circuit Court, Family Division, is AFFIRMED.
LAMBERT, J., JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Heather L. Jones
Paducah, Kentucky BRIEF FOR APPELLEE: Catherine S. Fuller
Paducah, Kentucky