Commonwealth of Kentucky Court of Appeals - Justia

RENDERED: APRIL 24, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000632-MR
BENJAMIN JARED ABNEY APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
v. HONORABLE JOAN L. BYER, JUDGE
ACTION NO. 06-CI-503434
TRACY LYNN ABNEY APPELLEE
OPINION
AFFIRMING
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BEFORE: NICKELL AND VANMETER, JUDGES; GRAVES, 1 SENIOR
JUDGE.
GRAVES, SENIOR JUDGE: Benjamin Abney appeals from a Jefferson Family
Court order granting him and his former wife, Tracy Abney, joint custody of their
minor child. The order further granted Tracy additional decision making authority
and unevenly divided the parenting schedule. Benjamin claims that the trial court
1 Senior Judge John W. Graves sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.

abused its discretion by awarding Tracy four days in the weekly parenting schedule
and only awarding him three days. Having concluded that Benjamin failed to
properly preserve the issue for appeal, we affirm the decision of the Jefferson
Family Court.
Benjamin and Tracy were married on October 25, 2003. The couple
lived in Louisville with their minor child and Tracy’s two children from a previous
marriage. Tracy filed a Petition for Dissolution of Marriage with the Jefferson
Family Court on September 1, 2006. On May 14, 2007, the family court entered a
bifurcated Decree of Dissolution, leaving several contested issues to be resolved.
The family court ordered the parties to enter mediation to resolve the remaining
issues, including custody of their minor child. After mediation was unsuccessful,
the family court appointed Dr. Paula Berry, a child psychologist, to perform a
custody evaluation.
At trial, Dr. Berry recommended that Benjamin and Tracy share joint
custody of their child. Dr. Berry recommended that the parenting schedule remain
equally divided, as it had been during their period of separation, and noted that the
couple agreed that the schedule worked well. Dr. Berry also recommended that
Tracy be given additional decision making abilities based on Benjamin’s history of
uncooperative behavior and his excessive punishments of Tracy’s older children.
On January 18, 2008, the family court entered its findings of fact,
conclusions of law and judgment, in which it found that joint custody would be in
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the best interest of the child. As recommended by Dr. Berry, Tracy was given the
final decision making authority in the event of an impasse concerning issues of
healthcare, education, and religion. In addition, the family court split the custodial
time by giving Tracy four days per week and Benjamin three days per week.
Benjamin filed a Kentucky Rules of Civil Procedure (CR) Rule 59 motion asking
the family court to reconsider its custody award. The motion was not timely filed
and was thus denied. This appeal follows.
In his prehearing statement, Benjamin indicated the only issue to be
raised on appeal was the award of joint custody without joint decision-making
authority. CR 76.03(4)(h) requires an appellant to file “[a] brief statement of the
facts and issues proposed to be raised on appeal . . . .” within twenty days of filing
the notice of appeal. See Sallee v. Sallee, 142 S.W.3d 697, 698 (Ky. App. 2004).
CR 76.03(8) states, “[a] party shall be limited on appeal to issues in the prehearing
statement except when good cause is shown the appellate court may permit
additional issues to be submitted upon timely motion.” In this case, Benjamin did
not submit a request to present additional issues.
Benjamin claims that the order must be reversed because the court
awarded joint custody without joint decision-making authority. However, a review
of Benjamin’s brief reveals that the only issue raised was the unequal division of
parenting time. Benjamin claims that the division constituted an abuse of
discretion because the family court had no factual basis for its decision. The
division of parenting time was neither raised in the prehearing statement nor by a
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timely motion to submit additional issues. Therefore, we conclude that the matter
was not properly preserved for our review.
In any event, a review of the record indicates that Benjamin would not
have prevailed on the issue submitted in the prehearing statement or the issue
presented in his brief. In Fenwick v. Fenwick, 114 S.W.3d 767 (Ky. 2003),
overruled on other grounds by Frances v. Frances, 266 S.W.3d 754 (Ky. 2008),
and Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008), the Supreme Court of
Kentucky concluded that joint custody and equal decision making power are not
the same. The Court stated, “equal decision-making power is not required for joint
custody, and parties or trial courts are free to vest greater authority in one parent
even under a joint custody arrangement.” Id. at 776. Benjamin claims that the trial
court did not have a factual basis for the award. We disagree. Dr. Berry
recommended that Tracy receive certain decision-making authority. Dr. Berry
expressed concerns about Benjamin’s uncooperative nature as well as his history of
excessive punishment. Based upon Dr. Berry’s testimony, we hold that the trial
court did not abuse its discretion.
Further, we hold there is no merit in Benjamin’s claim that the trial
court erred by awarding Tracy more visitation time than he received. While Dr.
Berry recommended that the family continue the current parenting schedule,
Benjamin’s history of excessive punishment and uncooperative nature certainly
provide the trial court with a reasonable basis for its award of parenting time.
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Although the record reflects a factual basis for the trial court’s
findings, we must base our decision on Benjamin’s failure to properly preserve his
issue for appeal. Accordingly, we affirm the decision of the Jefferson Family
Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
Louis I. Waterman
Louisville, Kentucky
BRIEF FOR APPELLEE:
Mark W. Dobbins
Sandra F. Keene
Louisville, Kentucky
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