Opinion
NO. 2017-CA-000474-ME
11-02-2018
RODGER W. MOORE APPELLANT v. LAURA M. MOORE APPELLEE
BRIEFS FOR APPELLANT: Rodger W. Moore, pro se Alexandria, Kentucky BRIEF FOR APPELLEE: Ruth B. Jackson Crestview Hills, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE RICHARD A. WOESTE, JUDGE
ACTION NO. 12-CI-00765 OPINION
AFFIRMING
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BEFORE: KRAMER, J. LAMBERT, AND NICKELL, JUDGES. NICKELL, JUDGE: Rodger W. Moore ("Father"), pro se, appeals from a post-dissolution final order of the Campbell Circuit Court, Family Division. Pertinent to this appeal, the order modified some terms of an Agreed Final Judgment on Parenting Issues related to his four minor children but maintained sole custody in his ex-wife, Laura M. Moore ("Mother"), retained restrictions on his visitation rights, and ordered him to reimburse Mother for expenses she paid to a parenting coordinator. 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 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 to provide 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. 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. No post-judgment motions were filed. This appeal followed.
Prior to the hearing, it was determined modification of custody would not be addressed and issues would be limited to matters related to modification of parenting time.
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 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 CR 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 to specifically 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.
Kentucky Rules of Civil Procedure. --------
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 "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."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). Father is not the typical pro se litigant. He has identified himself as a lawyer. As such, he should be familiar with court rules. Father being a lawyer, we are not inclined to grant him leniency. However, we are mindful of the sensitive and important subject-matter of parental visitation presented in this case and have therefore chosen not to dismiss the appeal or strike the brief. Nevertheless, even were we to completely disregard the substantial and egregious procedural missteps in Father's brief, a more fundamental issue precludes us from awarding Father the relief he seeks.
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. 1955); 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 Campbell Circuit Court, Family Division, is AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: Rodger W. Moore, pro se
Alexandria, Kentucky BRIEF FOR APPELLEE: Ruth B. Jackson
Crestview Hills, Kentucky