Benjamin G. Dusing v. Jill Bakker

• Court: Court of Appeals of Kentucky
• Decided: June 15, 2023
• Docket: 2021 CA 000539
• Status: Unknown

Opinion

RENDERED: JUNE 16, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NOS. 2021-CA-0539-MR & 2021-CA-0854-MR

BENJAMIN G. DUSING APPELLANT

APPEAL FROM KENTON FAMILY COURT v. HONORABLE CHRISTOPHER J. MEHLING, JUDGE ACTION NO. 19-CI-00560

JILL BAKKER APPELLEE

AND

NO. 2022-CA-0315-MR

APPEAL FROM KENTON FAMILY COURT v. HONORABLE DENISE DEBERRY BROWN, SPECIAL JUDGE1 ACTION NO. 19-CI-00560

1 Judge Brown was assigned to this case after Judge Mehling recused by Order dated November 4, 2021. The recusal was necessitated by the Appellant’s profanity-laced threat on social media to “blow up” the opposing attorney and Judge Mehling’s staff attorney, which we will discuss further herein. OPINION AND ORDER AFFIRMING

** ** ** ** **

BEFORE: EASTON, GOODWINE, AND TAYLOR, JUDGES.

EASTON, JUDGE: The underlying family court case is about a child (“L.D.”).

The dispute over L.D.’s custody began even before L.D. was born. Appellant

father, Benjamin G. Dusing (“Ben”), and the Appellee mother, Jill Bakker (“Jill”),

were never married. Ben and Jill were engaged in 2018. The engagement ended

before L.D. was born on April 12, 2019.

Ben is an attorney licensed in Kentucky and Ohio. His Kentucky law

license was suspended on February 24, 2022. His Ohio law license was suspended

shortly thereafter. Throughout the underlying proceedings, Ben has represented

himself pro se but also with the assistance of multiple co-counsels.

Ben has filed numerous appeals from this case, but only three are

remaining. They will all be addressed in this Opinion. Case Nos. 2021-CA-0539-

MR and 2021-CA-0854-MR involve the Order entered on April 5, 2021, and have

been previously consolidated. This Order followed a five-day hearing and decided

both custody and child support. We will address these appeals jointly before

moving to the last of the three appeals, which we now order consolidated for a

single Opinion.

-2- The last appeal involves an Order dated March 14, 2022, which

decreased Ben’s parenting time with L.D. and requires his visitation to be

supervised. This action was in response to a motion filed by Jill, in which she

claimed she feared for L.D.’s safety due to Ben’s ongoing behavior. Ben argues

this restriction of his parenting time was an abuse of discretion.

Our decision to address all three appeals together will include some

repetition of the applicable standards of review, but the overall requirement for

Ben to show factual findings to be clearly erroneous is worth repeating. This Court

should not substitute its judgment but rather reviews the family court’s decisions

for clear error or abuse of discretion.

This case has a long history and has been exhaustively litigated. The

record contains many thousands of pages. Mindful of Ben’s criticisms of the

family court, this Court has not taken days to review this case but instead engaged

in months of work. We will discuss at some length the evidence in this Opinion.

Ultimately, and for the detailed reasons which follow, we conclude the

family court had jurisdiction, the factual findings material to the custody (including

the parenting time adjustment) and child support decisions of the family court are

not clearly erroneous, and there was no abuse of discretion. We affirm the rulings

of the Kenton Family Court.

-3- 2021-CA-0539-MR/2021-CA-0854-MR: ORDER OF APRIL 5, 2021

Ben claims the family court made multiple errors in its Order of April

5, 2021. These allegations of error include 1) the family court lacked subject

matter jurisdiction; 2) the family court abused its discretion in deciding custody

and child support because it relied upon clearly erroneous factual findings; 3)

procedural defects in the proceedings constitute reversible error; and 4) the family

court committed reversible error by denying post-trial motions without a further

hearing.

FACTUAL AND PROCEDURAL HISTORY

Ben and Jill were in a relationship from mid-2017 until approximately

a month before L.D. was born. Jill filed her Petition to Establish Custody and

Paternity on April 8, 2019, prior to L.D.’s birth. This Petition was assigned Case

No. 19-CI-00950. In the Petition, Jill states, “A minor child will be born of the

parties in April 2019 and paternity has not been established.” L.D. was born four

days after the filing of the Petition. It is unclear on what date Ben was served with

the summons for this case, but he filed his Response on May 2, 2019. In the

meantime, on the day after L.D. was born, Ben filed a paternity action in the

Kenton District Court. The district court case was assigned a “J” number by the

clerk. Jill was served with Ben’s district court paternity petition while she was still

in the hospital recovering from L.D.’s birth.

-4- On April 16, 2019, Jill filed a motion for a restraining order, a

psychological evaluation, and a custodial evaluation. She asked the court for Ben

to have no contact with her or L.D. until he had submitted to the psychological

examination and custodial evaluations. In her affidavit, Jill alleged concerns about

Ben’s psychological health. Both parties were ordered to undergo

custodial/parental evaluations, each with the professional of their choosing. They

were then ordered to submit those reports to the court and to provide them to the

other party.

For the next two years, a bewildering array of motions was filed by

both parties in the family court case. At one point, the “J” paternity case and the

“CI” custody action were consolidated, and pleadings and motions were filed with

both case numbers. An order entered on December 30, 2019, directed that all

future filings should be made in the custody “CI” case only. The parties were

allowed an opportunity to request any documents in the “J” case to be sealed.

A temporary custody order had been entered in Ben’s “J” case on May

23, 2019, granting Jill temporary sole custody of L.D. In an order dated April 25,

2019, Ben was granted supervised visitation only. On October 21, 2019, a

temporary child support order was entered, in which Ben was obligated to pay

$985.00 per month. On June 9, 2020, after a hearing on June 2, 2020, the family

-5- court increased Ben’s parenting time to include every other weekend, as well as

one overnight during the week and one additional weeknight from 5:00-8:00 p.m.

For a variety of reasons, including the delays necessitated by the

COVID-19 pandemic, the parties did not have a final hearing in this matter until

February 2021. From the filing of the “CI” Petition to the final hearing, both

parties filed multiple motions for contempt and sanctions against the other. Ben

filed numerous motions to disqualify the presiding family court judge (all of which

were denied). The final hearing was delayed several times, once due to one of the

disqualification motions. The family court had to wait until the Chief Justice of the

Kentucky Supreme Court ruled on the disqualification request, which was denied.

Both parties filed motions to have the other party’s counsel disqualified. Both

parties filed motions to alter, amend, or vacate temporary orders. There were

several “emergency” motions filed by both parties.

The final hearing was scheduled for February 22, 2021. Despite

Ben’s motions to continue this hearing filed on January 19, 2021, and February 19,

2021 (both were overruled), the family court held a hearing on February 22, 23, 25,

and 26. For completion, the family court had to add another day. The fifth day of

the hearing was on March 11, 2021.

Jill put on her case first. She called Dr. Jean Deters, Joanne

Forsthoefel, LPCC (Licensed Professional Clinical Counselor), Dr. David

-6- Feinburg, Dr. Ed Connor, Detective Jill Stulz, Andrew Dusing, Julie Tapke, and

Tina DeAngelis as witnesses. Jill also testified. We will summarize the testimony.

Dr. Jean Deters was Jill’s first witness. Dr. Deters is a psychologist.

Jill was referred to her for a psychological evaluation, and her report was

completed in October 2019. Dr. Deters diagnosed Jill with post-traumatic stress

disorder (“PTSD”). She further identified the source of Jill’s PTSD as her

relationship with Ben, which she categorized as coercive and abusive in nature. In

making that determination, Dr. Deters spoke with Jill at length. She also reviewed

many of the text messages, emails, and voicemails Ben sent to Jill throughout the

relationship and after the relationship ended. Dr. Deters opined Jill will not be able

to fully recover from her PTSD if she must continue to interact with Ben.

Jill’s second witness was Joanne Forsthoefel. She provided

counseling to Jill. Like Dr. Deters, Ms. Forsthoefel diagnosed Jill with PTSD. She

categorized Jill’s PTSD as “severe.” She also believes the source of Jill’s PTSD

was her relationship with Ben. Forsthoefel observed Jill’s high levels of anxiety.

Jill had trouble eating and sleeping, possesses an exaggerated stress response, and

has intrusive thoughts, nightmares, and flashbacks. These symptoms occur any

time Jill is reminded of her past trauma, which occurs with anything connected

with Ben. Forsthoefel acknowledged on cross-examination she has never met Ben

-7- and all her information used to form the basis of her opinions was obtained from

Jill’s subjective reports.

Dr. David Feinburg testified next for Jill. Dr. Feinburg is a

psychologist who performed several psychological tests on both parties. He

testified he spent approximately 9 to 9.5 hours with each party. He reviewed some

records provided by the parties, and he interviewed Jill’s two older children as well

as Jill’s boyfriend at the time of the evaluations. Dr. Feinburg testified he was

unable to interview Ben’s children because Ben’s ex-wife, Julie, would not consent

to the interviews.

Dr. Feinburg was previously involved in Ben’s other custody action

with his ex-wife, Julie. Dr. Feinburg completed a parenting evaluation on Ben in

2016. He performed a second parenting evaluation in 2020. Dr. Feinburg saw

greater disturbances in Ben’s thinking in 2020 than in 2016. Ben demonstrated

anger, paranoia, difficulty with authority, mistrust, suspicion, and a lack of

empathy. Dr. Feinburg recommended that Jill be granted sole custody of L.D.,

with Ben having supervised visitation only until there is a record that L.D. would

be safe in his sole custody.

Jill’s fourth witness was Dr. Ed Connor. Dr. Connor was initially

hired by Ben to do his custodial evaluation. Dr. Connor testified that his report

was completed around May 20, 2020, with an addendum being completed on July

-8- 15, 2020. Dr. Connor conducted testing on both parties, as well as reviewed

documents provided by the parties, and performed several interviews. Dr. Connor

observed indications of PTSD with Jill. He additionally gave his opinion that Ben

showed a personality style that was self-centered, turbulent, histrionic, and

narcissistic. His recommendation was like Dr. Feinburg’s in that he believed Jill

should be granted sole custody and be the primary residential parent, with Ben to

receive visitation.

Dr. Connor additionally testified that Jeff Otis, one of Ben’s co-

counsels, came to his office and offered him $5,000.00 to state that his report was

not complete. After he sent his report to Ben’s counsel, he received a letter from

Mr. Otis stating they were “pulling the plug” on his evaluation. Despite this letter,

Dr. Connor was given additional information, which led to his addendum.

Jill called Detective Jill Stulz as her next witness. Detective Stulz is a

detective with the Fort Mitchell Police Department. She testified she is familiar

with Jill and Ben. Ben first reported in May 2019 he wanted to file a report

regarding extortion. Ben explained Jill was attempting to extort money from him.

Ben initially did not want to pursue an investigation, but he later returned and did

want to pursue charges. Detective Stulz said she gave the information to the

Commonwealth’s Attorney, who declined to prosecute.

-9- Detective Stulz additionally testified that Jill spoke with her about

pursuing charges for harassing communications.2 Jill provided her with emails and

text messages she received from Ben. This information was given to the Boone

County Attorney. Detective Stulz testified that no charges were brought because

this information was already being addressed in this civil matter.

Jill’s sixth witness was Andrew Dusing. Andrew is Ben’s brother.

Andrew talked about Ben’s turbulent relationship with his family. Andrew

additionally explained he does not allow his children to be around Ben without

another adult being present. Andrew testified he does not communicate much with

Ben, because Ben is generally unkind and unpredictable, and conversations with

him are not productive.

Jill’s next witness was Julie Tapke, Ben’s ex-wife. Julie and Ben

have three minor children, with joint custody, although Julie currently has sole

decision-making authority regarding the children’s medical, educational, and other

activities. Julie testified co-parenting with Ben is very challenging and difficult.

She explained that prior to her having sole decision-making authority, Ben would

use the children’s activities as a negotiating tool. This led to the children being

anxious about whether Ben would agree to allow them to participate in activities.

Julie said that since she was awarded sole decision-making authority over those

2 Kentucky Revised Statutes (“KRS”) 525.080, a Class B Misdemeanor. -10- areas, the children have shown a decrease in anxiety; now there is consistency and

reliability.

Jill testified as her final witness in her case in chief. Jill said she has a

healthy co-parenting relationship with her ex-husband, and they have joint custody

of her older children with close to equal timesharing. Jill recounted she and Ben

began dating in July 2017. She stated the relationship moved quickly, and they

became engaged in March 2018. In mid-August 2018, she discovered she was

pregnant with L.D.

Jill said her relationship with Ben was very abusive, although it didn’t

start that way. In the beginning, Ben would send very flattering messages, stating

how great she was and how lucky he was. He messaged her constantly, and as

time went on, those messages became longer and more frequent, and she felt

pressured to respond in the same manner. Their arguments in the beginning were

superficial, but Jill explained they got worse over time. Jill believed Ben blamed

her for everything, and she began to change the way she reacted to him to give him

what he said he needed.

Jill testified they got engaged in March 2018. Ben wanted to do

everything together. Ben complained Jill wasn’t doing enough for him or giving

him enough attention. She thought nothing she ever did was enough, and she

began to cancel time with family and friends to spend all her time with Ben.

-11- Jill talked about the communications Ben sent her becoming

increasingly longer and more hostile. She told about a time she went on vacation

with her older daughter. Ben constantly messaged her while she was there. Jill’s

daughter sent him a picture of Jill playing volleyball on the beach in a bikini. Ben

responded by calling Jill names such as “slut” and “whore” and stating how

embarrassing the pictures were. Ben demanded Jill delete them.

Jill recalled they started to move in together around April to May

2018. She testified Ben would kick her out of the house when he got angry with

her. She described Ben conducting “white board sessions” with her in his office.

On one occasion, Ben wrote on this white board specifics of how Jill was to treat

him or speak to him after they had a fight. Ben told her to take a picture of the

board to remember what to say when Ben was upset with her. This picture was

admitted into evidence on the third day of their hearing. At the top of the white

board the words “Shut Up Jill” were written.

Jill testified that after she and her children began staying with Ben

more often at his house, he began to pressure her to sell her house. She also said

he wanted to combine all their bank accounts into a joint account. Jill hesitated to

do this because of how tumultuous the relationship was by that time. Jill now

believes Ben wanted access to her funds as another way to control her.

-12- Jill told about an incident on August 2, 2018, which was the reason

for her and her children to move out for good. Jill explained she and Ben fought

throughout the day. That evening, after the children went to bed, Ben threw a mug

across the yard and shattered it. Ben poured water over her head. Jill testified Ben

was yelling for her to leave, and Jill begged to let them stay the night so she

wouldn’t have to wake up the children.

Jill said the fight continued upstairs. Ben grabbed her and pushed her.

She then went into the closet in the bedroom. Ben followed her and slammed her

head into the wall. Jill and the children left the next morning. A few weeks later,

Jill discovered she was pregnant with L.D.

Jill received a handwritten letter from Ben in mid-August, where he

apologized for the August 2 incident. Jill said the emotional and psychological

abuse continued throughout her pregnancy. Ben would leave long insulting

voicemails on her phone. She blocked him several times, but that just intensified

the verbal abuse. Jill played several of these voicemails to the family court. Some

of the voicemails were directed to the unborn baby. Ben called them “baby

sermons.” These sermons included name-calling, telling the baby he’s sorry her

mother is “total garbage,” telling her to “get out of that serpent belly,” and “get the

hell out of that demon.”

-13- Jill described how she had high blood pressure throughout the

pregnancy, especially toward the end. At one point she ended up in the emergency

room. Ben came to the hospital to see her while she was in the hospital. Ben sent

her a very long email after that incident in which he stated how ungrateful she was

that he came to the hospital to check on her and the baby.

Jill went into labor on April 12. Jill stated she notified Ben via text

message. Ben came to the hospital, and she allowed him into the room about an

hour after L.D. was born. Jill asked the nurse to remain in the room while Ben was

there, which she did.

Jill testified abusive messages from Ben continued after L.D. was

born. She talked about multiple messages to her reading “I could kill you,” or “I

want to kill you.” Jill entered a summary into evidence of all the times Ben made

references to killing her.

Jill worries about L.D. when she is with Ben. Jill said L.D. has come

back from Ben’s on multiple occasions in a dirty diaper, in a wet swim diaper, and

with severe diaper rash. L.D. once returned with a severe sunburn. Ben has denied

this, and he claimed that Jill altered the photograph to make it look like L.D. was

sunburned when she was not. Throughout this case, Ben accuses Jill of “altering”

evidence with no substantial evidence to support the accusation.

-14- Jill asked the family court to grant her sole custody of L.D. with Ben

to have only supervised visits and no overnights. Jill also asked the court to

require Ben to do a medication review and go to therapy. At the end of Jill’s

testimony, Ben advised the family court he did not wish to subject Jill to cross-

examination, and he did not.

The hearing then shifted to Ben’s case. Ben called Adam Basinger,

Adam Davey, JoAnne Roth, Robert Bryson, Darlene Taylor, Steve Epplen,

Zachary Peterson, K.J. Jhaveri, Dr. Andrew Klafner, and Dr. Stuart Bassman as

witnesses. Ben also testified.

Ben’s first witness was Zachary Peterson. He is an attorney who has

worked with Ben for several years. He stated he was involved in a multiweek trial

with Ben in November-December 2018. He said Jill was texting Ben a lot during

this trial, and he was concerned Ben was getting distracted. Peterson explained he

has been to Ben’s home, and he has been around Ben and his children. He also

told the court he has seen Ben with L.D., and he said the two had a very strong

bond. On cross-examination, Peterson stated he did not know the content of the

text messages between Jill and Ben. He also stated he did not have any concerns

about Ben’s mental health during the trial in 2018.

-15- Ben’s next witness was Steve Epplen. He has known Ben since high

school. He has also coached several of the children’s teams with Ben. Ben was

very positive when coaching the children. Ben was always great with the children.

Ben next called Robert Bryson. Their sons are very good friends, and

they have coached children’s sports together. He testified Ben creates a good

environment for the children they coach, and Ben is very supportive and very

generous with his time. He has always known Ben as a good, involved, attentive

father. He has witnessed Ben with L.D., and he saw him as a caring, attentive

father with her.

Ben’s next witness was K.J. Jhaveri. They are very close friends.

Their children are the same age. He believes Ben is a loving father who goes out

of his way to make sure his children are cared for. Ben is the godfather of

Jhaveri’s son. He chose Ben for this role because he wanted someone who was a

good role model. He has no concerns about Ben as a dad, and his son regularly

stays over at Ben’s house. He and his wife hosted a baby shower for Ben and Jill.

Ben’s fifth witness was Adam Davey, who is Ben’s accountant. He

testified he prepared Ben’s 2019 tax return. This included the year Ben left his

previous law firm and went back to his own firm, named BGD Law. Davey stated

Ben’s 2019 adjusted gross income for that year was $201,957. He also stated that

$77,697 of that amount was a return of capital from the previous firm. Ben did not

-16- receive the full amount in 2019 because the payments were to be spread out over

three years; however, he had to claim it all in one year. Davey explained Ben’s

income after deductions and adjustments in 2019 was $111,385.

On cross-examination, Davey testified the return of capital amount

was how Ben and the firm characterized it; he has no independent verification of

this. Davey also admitted that in 2018, Ben’s total adjusted gross income was

$442,158. In 2017, it was $733,985. Davey said Ben’s income varies greatly from

year to year, especially when working on his own.

Ben’s sixth witness was Adam Basinger. He is an employee of Ben’s,

both at the former law firm and now at Ben’s firm. He is employed as a law clerk

at the firm, and he also works for Ben personally, as a general assistant. He

testified he has been around Ben with his children, and that he’s “the best dad he

can be.” Basinger assists Ben with his accounting at the law firm, and he testified

Ben’s net income for 2020 was “somewhere in the 70’s.” This information had not

yet been given to the accountant.

Basinger informed Ben he was concerned about some large purchases

Jill was making when they were living together. On cross-examination, he recalled

Ben asking him to get Jill a BGD Law credit card. He also testified he was

involved in picking up and dropping off L.D. and recording those interactions. He

-17- was unaware of any court order regarding exchanges. He testified Ben wrote him a

recommendation letter for admission to law school.

Ben’s next witness was JoAnne Marie Roth. Roth is Ben’s maternal

aunt. She testified Ben is a good dad, who is attentive, fun, and loving. She has

never had any concerns about the safety or well-being of the children with him.

Ben’s eighth witness was Darlene Taylor. She is a friend of Ben’s

who has witnessed him with his children. She testified Ben is a fun dad who is

very bonded with his children. She stated she has never met L.D. or seen Ben with

her.

Ben testified next. He stated he and Jill met through their children’s

sporting events. While the relationship moved quickly, Ben did not believe it was

too quick, because they discussed everything thoroughly. He believed the

relationship was healthy at first. He stated one of the reasons they agreed to move

in together was so her children could start a new school at the beginning of the

year, and he lived in a good school district. Ben believed Jill would cut down to

working three days a week and become the “house CEO” so he could be the main

breadwinner. According to Ben, they made that decision together.

Ben explained his house needed renovating due to adding three more

people to the home. He initially intended to pay for everything, but a large tax bill

came unexpectedly. The plan was to accelerate the timeline of Jill selling her

-18- house to help pay for that. This created a problem because Jill didn’t want to do

that. Ben said daily life together was an adjustment, and Jill didn’t want to follow

through on that commitment.

Summer of 2018 became difficult because Ben felt spending was

getting “out of control.” Ben stated his and Jill’s parenting and spending styles

were very different, and it was causing problems. They were not a common unit,

and this worried him because there was disparity between how the sets of children

were treated. Ben didn’t feel Jill was living up to the commitments they made.

Their arguments became more intense.

Regarding the August 2 incident Jill testified about, Ben stated there

was conflict that night, and he wishes things had gone differently. Ben testified he

recorded the conversation on his phone, yet he did not play that recording or

introduce it into evidence. Ben said Jill got physical with him at some point, and

he felt she was trying to provoke an incident. He stated they both acted “in the

heat of the moment.” The next day, they all went together to a concert with the

children. Ben did not deny writing the letter apologizing for the incident, but he

denied that it was an admission of physical violence.

Ben ended the engagement at some point, but Jill would still

sometimes wear the ring for things to appear normal and to keep people from

-19- asking questions. On one occasion, Jill threw her engagement ring across the

driveway, and they then had to dig it out of the grass.

Ben testified to an incident where Jill drove to his home with her

children, and she appeared intoxicated. Ben said this was concerning to him, both

because her children were in the car with her, and because she had told him she

thought she may be pregnant. At this point Jill had not had a positive pregnancy

test. Ben agrees there was a lot of communication between them during this time.

Ben remembered that two days after he ended the engagement, Jill

called him to say she had a positive pregnancy test. They decided they needed to

tell their children at the same time. Ben later discovered Jill’s children were made

aware of it before he had the opportunity to tell his children. Ben was very upset

with Jill for this.

Ben said he went to almost all of Jill’s doctor’s appointments, up until

the eighth month of her pregnancy. He was continually trying to communicate

with Jill. Ben admitted some of his messages to her were not how you should

speak to someone, but he was very upset because he wanted to determine how they

were going to move forward. Ben wanted Jill to sit down and talk with him, and

he testified she wouldn’t do that. He felt like Jill was using the pregnancy as a

weapon.

-20- Ben told Jill he wanted to be totally involved in the baby’s life. He

was surprised when Jill took that as bad news, and “everything changed

overnight.” He wouldn’t hear from her for days, and she blocked his texts. Jill

suggested he waive his parental rights, which he knew was not the right thing to

do. Ben felt like he was being extorted. He believed Jill wanted money and for

him to stay out of their lives.

Ben testified that on March 7, 2019, he received a message from Jill

that she was not going to speak with him any longer. He said he was “a wreck.”

He did not hear from her again until the afternoon of April 12, when L.D. was

born. Ben filed a paternity action, not knowing Jill had already filed a custody

case.

Ben initially had been granted only supervised visitation. After a

prior hearing, Ben had been given unsupervised visitation. Jill was granted

temporary sole custody. In June 2020, Ben testified he was granted additional

parenting time. Ben asked the court for joint custody and equally shared parenting

time. He proposes a week on, week off schedule.

Ben feels every communication with Jill is a trap. He believes it’s to

get him to do something to violate a court order. It became clear to Ben that Jill

and his ex-wife began coordinating with one another. Ben described Jill as very

jealous. She would become jealous over his friendships with other women. Jill

-21- would run hot and cold with him. Ben also was concerned about Jill’s use of

alcohol.

Ben testified Jill would make $91,000 annually if she worked full

time. He also believes he’s been overpaying child support since the beginning. He

entered a work sheet showing what he believes is the correct amount of child

support. At this point in the testimony, the family court was informed Ben had not

turned over his tax returns to Jill’s counsel in discovery.

After Ben completed his testimony, he called Dr. Andrew Klafner.

Dr. Klafner has been Ben’s psychiatrist since 2014. He writes Ben his Adderall

prescription for ADHD. Dr. Klafner has met with Ben about every other week for

the past three years. In March 2019, he wrote a letter advising Ben to reduce his

workload for his mental and physical health. Dr. Klafner has not seen Ben with his

children. He has never met Jill. He has not reviewed any of the other expert

reports submitted to the court.

Ben’s final witness was Dr. Stuart Bassman. Ben was sent to Dr.

Bassman for a psychological evaluation in the custody case with his ex-wife. The

purpose of that evaluation was to determine if there was any personality disorder,

psychosis, mental health issues, or anything that would impair Ben’s functioning.

Dr. Bassman testified he found no evidence of a psychological disorder. Dr.

-22- Bassman explained his role had nothing to do with a parental evaluation, and so he

did not speak with any of the children.

Jill called Tina DeAngelis as a rebuttal witness. Ben continually

denied in his testimony that Ben and Tina DeAngelis had been in a romantic

relationship. Ben also denied DeAngelis ever took care of L.D. DeAngelis

testified she had previously been in a relationship with Ben. They ended the

relationship because Ben began a relationship with his attorney at the time of the

hearing (a relationship they both denied). DeAngelis also stated while she and Ben

were dating, she acted in a caretaking role for L.D. She also recalled overhearing a

conversation between Ben and Jeff Otis, where Ben discussed sending Jeff to

“manage Dr. Connor.” This provided some level of confirmation for the alleged

offer of $5,000 made by Jeff Otis to Dr. Connor.

At the conclusion of the hearing, the family court advised the parties

to file final memos by March 29 by 3:00 p.m. The resulting Order is the subject of

the first two appeals. We will next address the overarching claim about subject

matter jurisdiction as to all appeals.

SUBJECT MATTER JURISDICTION OF THE FAMILY COURT STANDARD OF REVIEW

Subject matter jurisdiction is a question of law, and therefore the

appellate standard of review is de novo. Basin Energy Co. v. Howard, 447 S.W.3d

179, 184 (Ky. App. 2014). -23- ANALYSIS

Ben claims all the family court’s orders in this action are void ab

initio because the family court lacked subject matter jurisdiction. He argues

because Jill filed her Petition to Establish Custody and Paternity prior to the birth

of the child, the family court did not have jurisdiction to hear the “CI” case.

Ben is correct that a court’s decision cannot stand if it does not have

subject matter jurisdiction to hear a case. “If an administrative body or court acts

outside its general authority, any action it takes is considered void ab initio. It has

no effect because a court or administrative body only has the power to act within

its general jurisdiction. The parties cannot confer jurisdiction by waiver where

none existed in the first instance.” Id. at 187.

Ben conflates personal jurisdiction with subject matter jurisdiction.

Ben does not contend that the family court did not have general jurisdiction over

this type of case, that is, child custody. The type of case which may be heard is the

measure of subject matter jurisdiction. See Masters v. Masters, 415 S.W.3d 621

(Ky. 2013). The jurisdictional basis of child custody is governed by KRS 403.822,

which states:

(1) Except as otherwise provided in KRS 403.828, a court of this state shall have jurisdiction to make an initial child custody determination only if:

(a) This state is the home state of the child on the date of the commencement of the proceeding, or was -24- the home state of the child within six (6) months before the commencement of the proceeding . . . or

(b) A court of another state does not have jurisdiction under paragraph (a) of this subjection . . . .

Ben insists because there was no child born when Jill’s petition was

filed there was no subject matter jurisdiction. The absence of a child for which to

decide custody would be a lack of personal jurisdiction, but this does not equate

with a lack of subject matter jurisdiction. Despite Jill’s early filing of her petition,

the family court had subject matter jurisdiction when it acted in this case.

KRS 403.150(1) states that all proceedings under the KRS Chapter

governing child custody are commenced in the manner provided by the Kentucky

Rules of Civil Procedure. CR3 3.01 states, “A civil action is commenced by the

filing of a complaint with the court and the issuance of a summons or warning

order thereon in good faith.” (Emphasis added.)

While Jill may have filed the custody petition four days prior to L.D.’s

birth, the record confirms a summons was not issued until April 15, 2019, three

days after L.D.’s birth. Thus, the action was not commenced until the summons

was issued after L.D. was born. See Wooten v. Begley, 305 S.W.2d 270, 271 (Ky.

1957). “In construing these provisions respecting the commencement of a suit

against a known resident, we have held that merely filing a petition with the clerk

3 Kentucky Rules of Civil Procedure. -25- of the court is not sufficient, but the summons must have been caused to issue in

good faith.” Louisville & N.R. Co. v. Little, 95 S.W.2d 253, 254 (Ky. 1936).

Ben’s jurisdiction argument fails for another reason. He argues in his

brief that “there is no authority in this (or any other) jurisdiction for the proposition

that a court has subject matter jurisdiction over paternity actions commenced

before there is a ‘paternity.’”4 However, this Court disagreed with that contention

in Gullett v. Gullett, 992 S.W.2d 866 (Ky. App. 1999). In Gullett, this Court

allowed Kentucky to retain jurisdiction over child custody when a petition for

dissolution of marriage was filed two weeks prior to the child’s birth, when the

mother moved to Ohio prior to giving birth to the child. Id. at 871.

While Ben argues that a court cannot have jurisdiction over a child

who has not yet been born, Ben himself filed a paternity action immediately after

L.D. was born recognizing the authority of the courts then to decide custody. The

“CI” and “J” cases were even consolidated for a time. In any event, the family

court here did not issue any orders regarding custody or paternity of the child prior

to the child being born. The petition was merely filed before the child was born.

The Kenton Family Court had both subject matter and personal

jurisdiction to decide the custody of and child support for L.D. Both parents reside

4 Appellant Brief, Page 4. -26- in Kentucky, and L.D. has always resided in Kentucky. We next consider the

custody determination made by the family court.

AWARD OF SOLE CUSTODY STANDARD OF REVIEW

Appellate review of custody awards is for abuse of discretion. Gertler

v. Gertler, 303 S.W.3d 131, 133 (Ky. App. 2010). “The test for an abuse of

discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,

or unsupported by sound reasonable principles.” Penner v. Penner, 411 S.W.3d

775, 779-80 (Ky. App. 2013). We are allowed to set aside the trial court’s factual

findings only if they are clearly erroneous. Moore v. Asente, 110 S.W.3d 336, 354

(Ky. 2003). Findings of fact are clearly erroneous when they are not supported by

substantial evidence. Id. “Substantial evidence is evidence that a reasonable mind

would accept as adequate to support a conclusion and evidence that, when taken

alone or in the light of all the evidence, has sufficient probative value to induce

conviction in the minds of reasonable men.” Id. (internal quotation marks and

citations omitted). Due regard must be given when the trial court assesses witness

credibility. CR 52.01.

ANALYSIS

Ben alleges the family court abused its discretion in its award of sole

custody of L.D. to Jill. Ben claims the family court’s ruling was error because it

was based solely on its finding that Ben domestically abused Jill. He alleges first -27- that the court’s finding of domestic abuse was erroneous, and second, the family

court failed to consider the remaining factors outlined in KRS 403.270.

Ben first argues the family court’s finding that domestic abuse

occurred was erroneous. Domestic abuse is defined in KRS 403.720(2) as

“[p]hysical injury, serious physical injury, stalking, sexual abuse, strangulation,

assault, or the infliction of fear of imminent physical injury, serious physical

injury, sexual abuse, strangulation, or assault between family members or members

of an unmarried couple[.]”

The family court made several findings that Ben subjected Jill to

domestic violence. It found “Respondent has perpetrated violence on Petitioner

when they were still in a relationship. These incidents included biting her face,

spitting on her, barricading her in a closet, hitting her head on a wall, pinching, and

throwing food, water, and other objects at Petitioner. In a letter dated August 7,

2018, Respondent admitted that he was physical with her. P. Ex. 32 at 853. He

also sent thousands of written messages via text and email that are emotionally

abusive. He also left multiple voice mails with petitioner with the same effect.”5

As to this fact finding, Ben insists: “Incorrect. Respondent’s

correspondence makes no such admission and speaks for itself. Also directly

5 Findings of Fact, Conclusions of Law, Orders and Judgment of Custody, April 5, 2021, Paragraph 7. -28- contradicts only record testimony regarding the correspondence.”6 This Court is in

possession of Jill’s Exhibit 32, Ben’s handwritten letter, entered as evidence at the

hearing. Jill testified to this letter in the hearing. This letter does, in fact, state, “I

f*cked up, my love. The pressure of creating this life, and this family, got to me.

There is no excuse. None. For showing/saying hostility in front of the kids. For

being physical with you when you asked me not too. For sending you a message

that was, in a word, simply unacceptable.”7 Despite Ben’s testimony that this letter

didn’t say what it appears to say, it was not clearly erroneous for the family court

to believe Jill’s version of the events.

Another example of a pertinent finding of fact is in Paragraph 13 of

the Order which states, “Respondent also intimidated in other ways. He threatened

petitioner that he would tell her daughter that her marriage ended because she had

an affair. He threatened to email her parents (which he did).”8 In Ben’s later filed

“chart” of his factual error claims, Ben states about this finding: “Incorrect.

Respondent has never one single time emailed Petitioner’s parents. Petitioner

never contended that he did. There is no evidence in the 4500-page documentary

6 Exhibit A, Paragraph 7, attached to Motion for Relief from Judgment on Grounds of Fraud Affecting the Proceedings Pursuant to KRCP 60.02(d), filed 6/18/2021. 7 Petitioner’s Exhibit 32, Page 4. 8 Findings of Fact, Conclusions of Law, Orders and Judgment of Custody, April 5, 2021, Paragraph 13, Page 4.

-29- record in this case that he did.”9 On the contrary, Petitioner’s Exhibit 31 is a series

of texts Ben sent to Jill’s family, which supports Jill’s testimony that Ben both

threatened and did send messages to her parents.10

The family court committed no error on relying on Jill’s evidence

when documentary evidence supported Jill’s version of events and contradicted

Ben’s assertions. “[W]hen the testimony is conflicting we may not substitute our

decision for the judgment of the trial court.” R. C. R. v. Commonwealth Cabinet for

Hum. Res., 988 S.W.2d 36, 39 (Ky. App. 1998). Regardless of how Ben

characterized his letter of August 7, 2018, the letter does in fact make an admission

that he was “physical with her.”11 Additionally, the family court found on at least

six occasions, Ben made written references to killing Jill.12 The family court’s

findings are not clearly erroneous.

Ben also argues the family court abused its discretion in determining

the presumption of joint custody and equally shared parenting time had been

rebutted by its finding of domestic abuse when all factors of KRS 403.270 must be

considered. KRS 403.270 is the controlling statute in determining child custody.

9 Exhibit A, Page 5, Record on Appeal 2843. 10 Hearing, 2/25/2021 at 4:14:17 and 5:01:38. 11 Petitioner’s Exhibit 32, Page 4. 12 Findings of Fact, Conclusions of Law, Orders and Judgment of Custody, April 5, 2021, Paragraph 11. -30- “The statutory guidelines of KRS 403.270 do not include a definition of the best

interests of the child standard; however, KRS 403.270(2) requires the trial court to

consider all relevant factors and provides a list of non-exclusive, demonstrative

factors to be considered in custodial determinations.” Frances v. Frances, 266

S.W.3d 754, 756 (Ky. 2008).

KRS 403.270(2) states as follows:

The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent . . . there shall be a presumption, rebuttable by a preponderance of the evidence, that joint custody and equally shared parenting time is in the best interest of the child. If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child’s welfare. The court shall consider all relevant factors including:

(a) The wishes of the child’s parent or parents as to his or her custody;

(b) The wishes of the child as to his or her custodian, with due consideration given to the influence a parent may have over the child’s wishes;

(c) The interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may significantly affect the child’s best interests;

(d) The motivation of the adults participating in the custody proceeding;

(e) The child’s adjustment and continuing proximity to his or her home, school, and community; -31- (f) The mental and physical health of all individuals involved;

(g) A finding by the court that domestic violence and abuse . . . has been committed by one (1) of the parties against a child of the parties or against another party. The court shall determine the extent to which the domestic violence and abuse has affected the child and the child’s relationship to each party, with due consideration given to efforts made by a party toward the completion of any domestic violence treatment, counseling, or program;

(k) The likelihood a party will allow the child frequent, meaningful, and continuing contact with the other parent . . . except that the court shall not consider this likelihood if there a finding that the other parent . . . engaged in domestic violence or abuse . . . against the party or a child and that a continuing relationship with the other parent will endanger the health or safety of either that party or the child.

In addition to its finding of domestic violence against Jill, the family

court found that other family members have witnessed or been the subject of Ben’s

hostility, including his ex-wife and his brother. Ben’s ex-wife, Julie, testified that

Ben’s actions cause anxiety in his three older children, and cited multiple examples

of this occurring. Both Dr. Feinburg and Dr. Connor recommended to the court

that Jill be granted sole custody of L.D., as they do not believe Ben can

successfully co-parent with Jill. The family court found Dr. Feinburg to be a

-32- credible witness and accepted his testimony that “as this child gets older and seeks

some form of independence; she will clash with respondent’s parenting style.”13

The family court made a total of 111 findings of fact. While not

specifically attaching each finding to one factor in KRS 403.270, we conclude the

family court took all relevant factors of the statute into account when making its

ruling. The factual findings of the family court are more than adequate to show the

family court considered all the statutory factors, and the facts considered support

the exercise of the family court’s discretion to award Jill sole custody of L.D.

We find some of the circumstances of this case analogous to those of

Gertler, supra, in which we upheld the circuit court’s award of sole custody. In

Gertler, the circuit court found the father would be unable to cooperate with the

mother in reaching decisions affecting the children’s educational, religious, and

medical needs. 303 S.W.3d at 137.

“While joint custody should not be automatically rejected where

parents cannot cooperate at present, especially if they are in the midst of a divorce,

joint custody can be appropriate if it appears that with time parents will be able to

achieve an acceptable level of cooperation. An award of sole custody is proper

when a parent cannot cooperate in making joint decisions affecting the children

13 Findings of Fact, Conclusions of Law, Orders and Judgment of Custody, April 5, 2021, Paragraph 59. -33- with the other parent and seeks to control the other parent’s behavior.” Barnett v.

White, 584 S.W.3d 755, 761 (Ky. App. 2019) (citing Squires v. Squires, 854

S.W.2d 765, 768-69 (Ky. 1993)).

This case’s lengthy history clearly shows the parties are unable to

work together to successfully co-parent this child. The family court did not abuse

its discretion in awarding Jill sole custody.

CHILD SUPPORT CALCULATION STANDARD OF REVIEW

Appellate review of a child support award is governed by the abuse of

discretion standard. Holland v. Holland, 290 S.W.3d 671, 674 (Ky. App. 2009).

“The test for an abuse of discretion is whether the trial judge’s decision was

arbitrary, unreasonable, unfair, or unsupported by sound reasonable principles.”

Penner, 411 S.W.3d at 779-80. Appellate review of a trial court’s factual findings

is governed by the clearly erroneous standard; factual determinations supported by

substantial evidence will not be disturbed. Truman v. Lillard, 404 S.W.3d 863,

868 (Ky. App. 2012). In evaluating abuse of discretion, this Court reviews legal

conclusions applied by the trial court de novo. Ehret v. Ehret, 601 S.W.3d 508,

511 (Ky. App. 2020).

Ben alleges the family court erred in its award of child support, both

on a temporary basis and the amount going forward post-trial. Ben’s first -34- contention is the family court erred in calculating temporary child support in its

October 21, 2019, Order. While Ben attached the Findings of Fact, Conclusions of

Law and Orders dated October 21, 2019, to his brief, he did not designate the

record to include the October 8, 2019, hearing in which the family court heard the

evidence to form the basis of this temporary order.

There is very little in the record before us surrounding this timeframe,

as it appears that filings were still being filed in the “J” case. No filings with the

“J” case number were included in the record. “Consequently, if consideration of

the transcript of evidence is necessary to the determination of the issue raised by

appeal, and the transcript of evidence is not designated for inclusion in the record,

the appellate court finds itself unable to resolve the issue because the record is

insufficient, and the appeal must be dismissed.” Oldfield v. Oldfield, 663 S.W.2d

211, 212 (Ky. 1983).

We are unable to determine from the record if an error was committed

as to the temporary decision, so this initial ruling will not be reviewed. If the

record is incomplete, the reviewing court must assume the omitted portions support

the trial court’s decision. Commonwealth, Dep’t of Highways v. Richardson, 424

S.W.2d 601, 603 (Ky. 1967). This was a temporary order, and we must still review

the eventual final child support decision for which we have the record.

-35- Ben argues he was entitled to the “shared parenting” credit after the

family court’s June 9, 2020, Order which granted him additional parenting time.

Ben believes he was entitled to a modification of his child support at that time.

The family court’s order of June 9, 2020, increased Ben’s parenting time of L.D. to

where he has visitation every other weekend, one weeknight overnight, and one

evening during the week. Even so, this order did not change the award of sole

custody to Jill.

“[A] modification of support is wholly within the discretion of the

trial court.” Holland, 290 S.W.3d at 675. While the order of June 9, 2020, did

increase Ben’s parenting time of L.D., it did not make the timesharing equal. Ben

cites no authority to indicate he is entitled to the “shared parenting” credit

regarding child support when the timesharing is not equal. Further, a family

court’s failure to consider the amount of time a parent spent with their children

when determining child support has been found not to be an abuse of discretion.

McFelia v. McFelia, 406 S.W.3d 838, 841 (Ky. 2013). We do not find the family

court abused its discretion in declining to decrease Ben’s child support obligation

when the amount of parenting time was altered (temporarily) in his favor.

Then Ben argues the family court erred in calculating his child

support obligation in its final April 5, 2021, Order. He alleges the family court

-36- used incorrect income information for both him and Jill, and subsequently, that it

erred in not employing the child support guidelines.

Ben alleges the family court used incorrect income information for

both parties. The family court found Ben had an earning capacity of $200,000 per

year. Ben argues the family court should have used the $95,951.00 figure that was

reported on his 2020 tax return. The 2020 tax return was not provided as evidence

during the hearing. Ben attempted to introduce it later in his Motion to Alter,

Amend, or Vacate, filed on April 15, 2021, and he attached it as an exhibit. The

family court struck this from the record by an order dated May 6, 2021. “[A] party

cannot invoke CR 59.05 to raise arguments and to introduce evidence that should

have been presented during the proceedings before the entry of the judgment.”

Gullion v. Gullion, 163 S.W.3d 888, 893 (Ky. 2005).

The family court based its finding on Ben’s 2019 tax return, which

showed income of $201,957. Ben claims $80,000 of that total was a return of

capital from his separation from the law firm where he was previously employed.

Ben’s CPA testified on his behalf, and he testified $77,697 was return of capital.

The CPA also testified that this information came directly from Ben and the other

law partners. The CPA testified he had not seen any type of document that showed

proof of that. Ben did not introduce any additional evidence illustrating what that

amount was during the hearing.

-37- The family court was determining earning capacity based on evidence

of past documented income. Regardless of the argument over the basis of the 2019

tax return numbers, the family court was not required to ignore the evidence of

income much greater than $200,000 per year in recent prior years. It was not

clearly erroneous for the family court to have found this amount as Ben’s income

for the child support determination.

Ben additionally argues the family court erred in finding Jill’s annual

income to be $72,641. He claims because Jill did not work full-time, the court

should use the amount she would earn if she worked full-time. KRS

403.212(3)(e)1. states, “If there is a finding that a parent is voluntarily unemployed

or underemployed, child support shall be calculated based on a determination of

potential income, except that a finding of voluntary unemployment or

underemployment and a determination of potential income shall not be made for a

parent who . . . is caring for a very young child, age three (3) or younger, for whom

the parents owe a joint legal responsibility.” L.D. was less than two (2) years of

age at the time of the hearing. Therefore, the family court did not err in finding

Jill’s income to be accurate, even if she only worked part-time at the time of the

Based on those income amounts, the parties’ monthly income

exceeded the child support guidelines that existed at the time of the hearing. “The

-38- family court may use its judicial discretion to set child support outside the

guidelines in circumstances where combined adjusted parental gross income

exceeds the uppermost level of the guidelines.” Ciampa v. Ciampa, 415 S.W.3d

97, 99 (Ky. App. 2013). The family court used the budget introduced into

evidence by Jill, since Ben did not tender any evidence regarding L.D.’s needs.

“Having determined that the parental income of the parties was outside

the child support guidelines, the family court may use its discretion to set the child

support amount outside the guidelines as long as it justifies the deviation in

writing.” Id. at 99-100. The family court in this instance made detailed written

findings of its reasoning for how it reached the child support amount it did. We do

not find the family court’s findings clearly erroneous, or that the family court

abused its discretion in determining the proper child support amount.

We recognize Ben’s earning capacity presently may have been

impaired because of his actions and current licensure status. Jill’s earning capacity

may also have changed. As indicated by the family court judge at the motion hour

on May 18, 2021, Ben is welcome to file a motion to modify child support and

attach his most recent tax returns and other evidence of his actual earning capacity

if Ben feels the current amount to be incorrect. But that is a matter for the Kenton

Family Court, not this Court, to determine anew.

-39- ALLEGATION OF PROCEDURAL DEFECTS STANDARD OF REVIEW

A trial court’s procedural and evidentiary rulings are reviewed for

abuse of discretion. Woodard v. Commonwealth, 147 S.W.3d 63, 67 (Ky. 2004).

“The test for abuse of discretion is whether the trial judge’s decision was arbitrary,

unreasonable, unfair or unsupported by sound legal principles.” Id.

Ben takes issue with the family court using many of Jill’s proposed

findings of fact in its order. There is no prohibition for this practice. Bingham v.

Bingham, 628 S.W.2d 628 (Ky. 1982). “[T]he delegation of the clerical task of

drafting proposed findings of fact and conclusions of law under the proper

circumstances does not violate the trial court’s responsibility.” Id. at 629. While

the court did accept many of Jill’s proposed findings of fact, it did not adopt them

entirely. We find the family court properly exercised its fact-finding duty outlined

in CR 52.01.

Ben makes two other claims of “procedural defects in the

proceedings” that he argues constitute reversible error. The first alleged error is

that the family court failed to hear motions relevant to the hearing prior to the start

-40- of the hearing. The second alleged error is that the family court committed

reversible error in admitting summary evidence under KRE14 1006.

Ben alleges several motions were pending on the date of the hearing

that were not addressed prior to the start of the hearing on February 22, 2021. We

find no merit in this argument. Prior to the start of the hearing, the family court

heard nine motions in limine filed by Ben. The family court heard and ruled on

Ben’s pretrial motions for one hour prior to beginning the case. After the final

motion was heard, the family court judge inquired as to whether all preliminary

matters had been heard, and both sides responded they had.

Ben references two motions in his brief upon which the family court

supposedly failed to rule prior to the hearing. The first is a Motion for Sanctions

for Violations of the Rules of Professional Conduct, filed December 31, 2020. It

was put on the motion docket for January 12, 2021. This motion asked the family

court to prohibit Jill and her counsel from misrepresenting his mental health,

sanction them for making misrepresentations to the court regarding his mental

health, and for an award of attorney’s fees.

A review of the proceedings on that court date shows multiple motions

were heard, but Ben’s counsel did not bring up this particular motion. The court

did take up a similar motion prior to the start of the hearing. Ben filed a motion in

14 Kentucky Rules of Evidence. -41- limine to exclude any evidence regarding his mental health. The court overruled

this motion, as mental health of the parents is a crucial element in every custody

case. The court thus had ruled on the relevant portion of Ben’s motion prior to the

hearing. Whether the court was going to sanction Jill and/or her counsel for any

statements made is not relevant to the actual substance of the hearing. Therefore,

we conclude the family court committed no error in this regard or any error in not

ruling on this overlapping motion had to be harmless error.

“An error is harmless where, considering the entire case, the

substantial rights of the defendant are not affected or there appears to be no likely

possibility that the result would have been different had the error not occurred.”

Greene v. Commonwealth, 197 S.W.3d 76, 84 (Ky. 2006).

The second motion Ben references in his brief is a Motion to Correct

the Record and to Alter, Amend or Vacate the Court’s July 10, 2020 order, in part,

Pursuant to CR 59.05 and CR 60.02, on Grounds of Factual Impossibility. The

body of this motion is asking the court to vacate its order to produce Dr. Connor’s

report. This motion was essentially moot by the time the hearing occurred, as the

report had been produced.

Additionally, while the motion is titled “Motion to Correct the

Record,” there is no reference in the motion as to what exactly in the record Ben is

moving to correct. The motion noticed it to be heard on July 28, 2020. This

-42- motion hour was not included in our record for review, so it cannot be determined

if this motion was argued or ruled upon at that time. In any event, there was no

error in ordering the production of Dr. Connor’s report. In effect, the family court

sub silentio denied Ben’s motion to reverse its course as to the report with the

testimony of Dr. Connor being considered during the hearing with each side having

the opportunity to question him about his conclusions. We again find this to be

harmless error, if in fact it was an error at all.

During the video record cited in his brief, Ben stated the family

court had multiple motions pending for a long period of time. He specifically

referenced a motion regarding his allegations that evidence had been altered. The

judge addressed Ben’s concerns and stated if Ben had any evidence of tampered

evidence being entered for admission, he should make those objections when the

allegedly altered evidence is presented. Ben brought up another motion regarding

a proposed order, and the family court judge advised Ben that the motion had

already been overruled. We conclude there were no motions not ruled upon which

would justify reversal.

Ben’s next allegation of error is that the family court erred in allowing

summary evidence under KRE 1006. KRE 1006 states:

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. A party intending to use such a summary -43- must give timely written notice of his intention to use the summary, proof of which shall be filed with the court. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

Ben alleges the summaries introduced by Jill at the hearing were

inadmissible hearsay. Ben does not identify any specific summary that should be

considered inadmissible hearsay but indicates in his brief that all of Jill’s

summaries should have been excluded. The summaries and admitted exhibits

consist of text messages, emails, and voicemails between the parties. Ben never

claimed he did not write or send these emails or messages. These statements would

qualify as a statement of a party offered against that party and thus outside the

hearsay rule.

KRE 801A(b) states, “Admissions of parties. A statement is not

excluded by the hearsay rule, even though the declarant is available as a witness, if

the statement is offered against a party and is: (1) The party’s own statement, in

either an individual or a representative capacity[.]”

Ben does not allege Jill and her counsel did not follow the procedural

requirements of KRE 1006. They gave Ben timely written notice of their intention

to use summaries and the entirety of the summarized evidence was provided to Ben.

Further, Ben complained these summaries were incomplete and painted an unfair

picture. However, there was no ruling to prevent Ben from entering the entirety of -44- the written communications between the parties. In fact, Ben did enter very large

portions of the parties’ written communications. We rule the family court did not

abuse its discretion in admitting Jill’s summary evidence.

DENIAL OF POST-TRIAL MOTIONS WITHOUT A HEARING STANDARD OF REVIEW

“The standard of review of an appeal involving a CR 60.02 motion is

whether the trial court abused its discretion.” White v. Commonwealth, 32 S.W.3d

83, 86 (Ky. App. 2000).

Ben alleges fraud affected these proceedings. “The type of fraud

affecting the proceedings necessary to justify reopening under CR 60.02(d)

generally relates to extrinsic fraud . . . . Extrinsic fraud covers ‘fraudulent conduct

outside of the trial which is practiced upon the court, or upon the defeated party, in

such a manner that he is prevented from appearing or presenting fully and fairly his

side of the case.’” McMurry v. McMurry, 957 S.W.2d 731, 733 (Ky. App. 1997)

(citation omitted).

Ben makes several claims of fraud regarding this hearing. First, he

claims the timing of the family court’s order infers that the family court judge did

not have time to fully read the post-trial briefs and review the evidence before

rendering a decision and drafting the order. The hearing took place over five days

-45- and concluded on March 11, 2021. The parties were to file their final memoranda

on March 29, 2021, at 3:00 p.m. The final Order was issued on April 5, 2021.

We find no merit to this argument. While it is certainly possible the

family court had drafted portions of the final order prior to reading the parties’

final memoranda, there is no indication that he did not fully review the evidence.

The timing of the order is no indication of fraud. “Whether the trial judge had

prepared a tentative draft of a final judgment prior to the formal sentencing did not

affect the fact that he heard and considered the evidence and the arguments before

entering a final sentencing judgment.” Bussell v. Commonwealth, 882 S.W.2d 111,

114-115 (Ky. 1994).

Ben further claims the family court’s April 5 Order recycles findings

of fact from a different case. Again, we find no evidence of fraud, even assuming

this assertion to be true. This case and the matter between Ben and his ex-wife

involve several of the same actors. Obviously, Ben is a party in both cases.

Several of the same witnesses appeared and testified in both cases. Both cases are

custody cases in which the same issues are addressed. It is not unexpected to have

similar findings of fact when this many similarities between the cases exist.

Ben also points to the fact the order was signed by the judge and

entered by the Circuit Clerk’s office on the same day as evidence of fraud. He

alleges this has never occurred before during the life of this litigation. The fact of

-46- a clerk entering an order when signed by the judge is nothing more than prompt

attention to the clerk’s duty. Ben does not explain how the prompt entry somehow

changed anything by some fraudulent device.

Ben also alleges Jill and her counsel have perpetuated fraud because

of a statement to the effect some of the issues were “already decided.” Ben points

to a police report he filed with the Ft. Mitchell Police Department in May 2019.

This issue was addressed in the hearing, and Detective Stulz testified neither she

nor the Commonwealth’s Attorney determined there was an actionable case in

these allegations. Ben’s then counsel, Katy Lawrence, filed an affidavit stating

that Jill’s counsel said to her, “It has already been set that my client will get sole

custody.”15 Ben’s motion to alter, amend, or vacate regarding this issue was heard

on May 18, 2021. The family court judge referenced the affidavit of Ms.

Lawrence. Ms. Lawrence appeared on Ben’s behalf. She asked the family court

for an evidentiary hearing, but when pressed by the family court judge as to what

the new evidence is she references in her affidavit, Ms. Lawrence declined to

explain any further.

First, there is no right to an evidentiary hearing on a CR 60.02 motion.

Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). “The burden of proof

15 Exhibit H, Paragraph 6 of Respondent’s Motion to Alter, Amend, or Vacate this Court’s Order of April 5, 2021, Pursuant to CR 59.05, filed 4/15/2021. -47- in a CR 60.02 proceeding falls squarely on the movant to ‘affirmatively allege

facts which, if true, justify vacating the judgment and further allege special

circumstances that justify CR 60.02 relief.’” Foley v. Commonwealth, 425 S.W.3d

880, 885 (Ky. 2014) (citation omitted). “It is well established that evidentiary

inferences are required to be based upon reasonable deductions . . . . Indeed, mere

speculation or conjecture has never been a sufficient basis to support an

evidentiary inference.” Id. at 887.

We do not believe the family court abused its discretion in denying an

evidentiary hearing on Ben’s motions. Most of his assertions, even if true, do not

rise to the level of fraud. The pleadings with assertions that could possibly involve

fraud do not contain any admissible evidence, merely vague assertions, and

hearsay that Jill’s counsel gets special treatment by the court. The only evidence

presented is Ms. Lawrence’s affidavit, which the family court reviewed. The

alleged circumstances in the affidavit had been referenced in evidence during the

initial hearing. The family court did not find the allegation credible, or that it rose

to the level of necessitating an evidentiary hearing.

2022-CA-00315-MR: ORDER OF MARCH 14, 2022

Ben additionally appeals from an Order dated March 14, 2022, issued

by Special Judge Brown. Ben first argues the family court abused its discretion in

-48- its modification of his visitation with L.D. The family court decreased his

visitation to four hours per week and required the visitation to be supervised.

On November 2, 2021, Ben posted a video to Facebook which led to

the Kentucky Supreme Court Inquiry Commission filing a Petition for Temporary

Suspension of his law license. This video contained threats to Jill’s attorney and

the family court staff attorney, who Ben mentions by name. The video alleged the

court was corrupt. It contained a litany of profanity. The Petition by the Inquiry

Commissioner was filed on November 12, 2021, and a supplement was filed on

December 29, 2021.

On November 4, 2021, after viewing the video, Judge Mehling issued

an Order of Recusal in the circuit court action. Based on the video, the findings of

fact contained in the order issued by Judge Mehling on April 5, 2021, statements

by Jill’s counsel, a bar complaint filed by one of Ben’s former clients, and Ben’s

offered rationalization for making the video, the Inquiry Commission found

probable cause to believe that Ben is a threat to his clients or the public and/or he is

mentally disabled and lacks the mental fitness to continue to practice law. The

Kentucky Supreme Court suspended Ben’s law license on February 24, 2022. In

the Order, Ben was required to submit to a full psychological exam within 90 days.

On February 24, 2022, Jill filed an emergency motion. In this motion,

-49- Jill asked the family court to suspend Ben’s parenting time with L.D. or in the

alternative, to require his parenting time to be supervised until such time as he

completed the psychological evaluation required by the Kentucky Supreme Court’s

order.

Special Judge Brown was assigned to the family court circuit case on

December 15, 2021, after Judge Mehling recused himself. The family court first

heard the motion on February 25, 2022. From what we can tell, no video recording

of this initial hearing was made, so we were unable to review it. The family court

temporarily granted Jill’s motion to modify. The family court’s temporary order

required Ben’s parenting time to be supervised, pending a full hearing on the issue

on March 3, 2022, less than one week later.

On March 3, 2022, the family court held a full evidentiary hearing,

which is in the record before us. Jill again called Dr. Connor as a witness. He

testified he reviewed eleven videos Ben posted on his Facebook page, including

the video of November 2 which was partially the basis of the Supreme Court’s

suspension order. Dr. Connor also testified he reviewed the Supreme Court’s

suspension order, the family court’s April 5, 2021, Order, Judge Mehling’s Recusal

Order, and a video taken by Ben’s oldest daughter, which shows him texting with

both hands while driving for approximately three minutes with the children in the

vehicle. Dr. Connor testified all this together, along with his former evaluations of

-50- Ben, indicates that Ben may be deteriorating mentally. He stated these actions

illustrate Ben’s reactionary and impulsive behaviors, which could be a cause for

concern of L.D.’s safety. Dr. Connor testified he does not believe that Ben’s

parenting time with L.D. should be suspended, but it should be supervised to

ensure L.D. is safe.

Jill testified next. She stated the videos concern her because they

show that Ben is surrounded by conflict and that he lacks impulse control. She is

worried about L.D. becoming the target of Ben’s behavior. She was especially

concerned based on L.D.’s young age, which at the time of the hearing, was a

month shy of three years old. Jill stated that Ben had two sides, the one he usually

showed publicly, and the private side, which she knew could be angry and abusive.

She testified these videos show how he acted in private, and she was afraid he was

spiraling out of control because he didn’t usually let that side show publicly.

Ben called Joanne Roth-Schumate and Adrienne Hundemer as

witnesses. Ms. Roth-Schumate is Ben’s aunt, and Ms. Hundemer is the mother of

a friend of his daughter. Both testified Ben is a great dad, and that neither have

any concerns about him as a parent or a caretaker.

Ben testified next. He stated he has been seeing his psychiatrist for

years, and he has never been diagnosed with a mental health disorder, other than

ADHD, for which he is prescribed Adderall. He testified there had never been any

-51- issues with his parenting time, and neither mother had expressed any concerns to

him. He stated nothing had occurred recently, other than the Supreme Court

suspending his license. He argues the events concerning the suspension happened

a while ago.

Ben further stated that because he has his other kids, making his time

with L.D. supervised would not be workable. He claimed his other children would

not be able to see L.D. if his time was supervised. He stated he was concerned

about disruption in L.D.’s schedule. He testified he regrets that the videos were

“misconstrued,” and that he has learned a lot about campaigning from this

experience. He stated several times during his testimony that he was running for

family court judge, and these videos were part of his message to the public. He

claimed he never intended for anyone in the court system to see these videos.

The family court issued a written order on March 14, 2022. This

order contained 48 findings of fact. The family court granted Jill’s motion to

modify the parenting schedule. The family court stated: “The court concludes

Respondent’s pattern of behavior would seriously endanger the child’s mental and

emotional health if his parenting time were to remain unsupervised.”16 The family

court ordered Ben to have parenting time two days per week, for a period of two

16 March 14, 2022 Order, page 14. -52- hours per visit, to be supervised at Holly Hill.17 The order stated, “This order shall

remain in effect until modified by subsequent order.”18 The order additionally

required Ben to enroll in therapy immediately with a licensed provider who has

experience treating narcissistic personality disorders. On March 18, 2022, Ben

filed an emergency motion to stay enforcement or to alter, amend, or vacate the

March 14 Order. He filed a supplemental motion on March 22, 2022. All these

motions were denied. Ben then filed this appeal.

STANDARD OF REVIEW

A trial court’s determinations as to visitation are reviewed for abuse

of discretion. Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000). “The test is

not whether we as an appellate court would have decided the matter differently, but

whether the trial court’s rulings were clearly erroneous or constituted an abuse of

discretion.” Moore v. Moore, 626 S.W.3d 535, 539 (Ky. 2021). “The test for

abuse of discretion is whether the trial judge’s decision was arbitrary,

unreasonable, unfair or unsupported by sound legal principles.” Woodard, 147

S.W.3d at 67. A finding of fact is clearly erroneous if not supported by substantial

evidence, which is evidence sufficient to induce conviction in the mind of a

reasonable person. Asente, 110 S.W.3d at 354. We review a family court’s legal

17 A residential facility that offers supervised visitation for nonresidential parents. 18 March 14, 2022 Order, page 15. -53- conclusions under the de novo standard. Brewick v. Brewick, 121 S.W.3d 524, 526

(Ky. App. 2003).

Ben argues the family court abused its discretion in modifying his

visitation with L.D. A motion to modify timesharing is governed by KRS

403.320(3). Pennington v. Marcum, 266 S.W.3d 759, 765 (Ky. 2008). This statute

states: “The court may modify an order granting or denying visitation rights

whenever modification would serve the best interests of the child; but the court

shall not restrict a parent’s visitation rights unless it finds that the visitation would

endanger seriously the child’s physical, mental, moral or emotional health.” KRS

403.320(3).

Ben argues the family court erred in both its temporary restriction,

ordered February 25, and in its indefinite restriction, ordered March 14. He argues

the temporary restriction was an abuse of discretion because he was not granted a

hearing and an opportunity to be heard prior to having his visitation restricted.

While we are unable to view the court hearing that occurred on February 25, this

was a temporary, interlocutory order and thus not subject to review as a separate

appeal. See Hook v. Hook, 563 S.W.2d 716, 717 (Ky. 1978). At any rate, the

family court set a full hearing date for a week later, on March 3, in order to give

-54- Ben the hearing to which he was entitled. See McNeeley v. McNeeley, 45 S.W.3d

876, 877 (Ky. App. 2001).

Ben further argues the family court’s order is erroneous as a matter of

law because the court’s consideration of his mental health is a violation of his due

process rights. This argument has no merit. A parent’s mental health is always a

factor in custody determinations regarding the best interests of a child. KRS

403.270(2)(f). Ben argues the record regarding his mental health is incorrect, and

specifically points to a court order of October 21, 2019, stating that Ben had been

diagnosed with bipolar disorder. That previous order is largely irrelevant to the

current order. The order of March 14 does not reference this alleged prior

diagnosis in any way. Whether Ben is or has been diagnosed with bipolar disorder

is not controlling, as it is not required for the family court to confirm a specific

diagnosis to find Ben has mental health issues impacting custody or visitation.

While the order does go into some of the history of the case, it ties Ben’s current

behavior to testimony and evidence that had previously been entered into the

record to make the finding that Ben’s actions present an existing high risk of

seriously endangering the child’s mental and emotional health.

Ben argues the family court erred because his experts came to

different conclusions than Jill’s experts regarding his mental health, and the family

court accepted the testimony and reports of Jill’s experts over his. “A family court

-55- operating as finder of fact has extremely broad discretion with respect to testimony

presented and may choose to believe or disbelieve any part of it. A family court is

entitled to make its own decisions regarding the demeanor and truthfulness of

witnesses, and a reviewing court is not permitted to substitute its judgment for that

of the family court, unless its findings are clearly erroneous.” Bailey v. Bailey, 231

S.W.3d 793, 796 (Ky. App. 2007). “As the factfinder, it is the trial court’s

prerogative to make findings of fact according to its own weighing of the

evidence.” Cabinet for Health & Fam. Servs. v. L.G., 653 S.W.3d 93, 101 (Ky.

2022). It is the factfinder’s “prerogative to weigh the credibility of the various

experts and decide whose opinions to accept and whose to reject.” Miller ex rel.

Monticello Banking Co. v. Marymount Med. Ctr., 125 S.W.3d 274, 278 (Ky.

2004).

Ben additionally asserts he was not granted an adequate hearing, and

relies on Deleo v. Deleo, 533 S.W.3d 211 (Ky. App. 2017). Ben is correct in that

to restrict a parent’s visitation with their minor child, a hearing is required. Smith

v. Smith, 869 S.W.2d 55, 56 (Ky. App. 1994). However, Deleo is distinguishable

from this case. In Deleo, the children’s mother was denied the continuance she

requested to obtain counsel, which led to her being unrepresented at her hearing.

This Court found the trial court’s denial of the continuance to be an abuse of

discretion. Ben was represented by counsel at his hearing, and he also represented

-56- himself pro se, himself being an attorney, albeit one with a suspended law license

at the time of the hearing. There is no evidence in the record that Ben requested a

continuance. Additionally, in Deleo, the trial court failed to include a finding in its

order that unsupervised visitation with mother would endanger the child. That

finding is not missing in this case.

Ben is also correct in his assertion that the burden was Jill’s to show

that visitation with Ben would endanger L.D. Smith, 869 S.W.2d at 56. He is

again correct that, per KRS 403.320(3), to support restricting a parent’s visitation,

any endangerment must be serious. He argues the family court did not hear

evidence to support its finding on this. We disagree.

Ben cites Ryan v. Ryan, 473 S.W.3d 637 (Ky. App. 2015), in his brief.

We conclude Ryan is again distinguishable from the case at hand because the trial

court in Ryan made no determination that visitation would endanger seriously the

child’s physical, mental, moral, or emotional health. Id. at 640. The family court

in this action did make the requisite finding that unsupervised visitation would

seriously endanger L.D.’s mental and emotional health. “[A] family court’s factual

findings are reviewed for clear error. CR 52.01. A finding supported by

substantial evidence is not clearly erroneous.” Id. at 641. We do not believe the

family court’s findings here were clearly erroneous. There was sufficient evidence

presented to find that Ben’s ongoing behavior would seriously endanger L.D.

-57- CONCLUSION

The Kenton Family Court had jurisdiction in this case. The family

court’s findings of fact are supported by the evidence and are not clearly

erroneous. The family court committed no error of law and properly acted within

its discretion. The Kenton Family Court is AFFIRMED on all three appeals.

ALL CONCUR.

ENTERED: _June 16, 2023_____ JUDGE, COURT OF APPEALS

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Benjamin G. Dusing, pro se Stephanie Dietz Fort Wright, Kentucky Edgewood, Kentucky

Brandy K. Lawrence Fort Wright, Kentucky

-58-