Commonwealth of Kentucky Court of Appeals - Justia

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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 -2-
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 -3-
Page 1: RENDERED: APRIL 24, 2009; 10:00 A.M
Page 5: Although the record reflects a fact

Commonwealth of Kentucky Court of Appeals - Justia

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