RENDERED: APRIL 10, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0124-MR
BRANDEN SPRATT APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT v. HONORABLE BRUCE T. BUTLER, JUDGE ACTION NO. 21-CI-00018
EMILY GORDON APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, MCNEILL, AND MOYNAHAN, JUDGES.
CALDWELL, JUDGE: Branden Spratt appeals from an order granting Emily
Gordon sole custody of their two minor children and awarding her child support.
We affirm.
FACTS
Branden Spratt (“Father”) and Emily Gordon (“Mother”) have two
young children. The parties’ marriage was dissolved by the Grayson Circuit Court in late 2021. The divorce decree incorporated their separation agreement, which
provided for joint custody.
The separation agreement also stated the parents agreed not to
vaccinate the children or obtain social security numbers for them until the children
reached the age of majority and could decide for themselves. It also required that
both parties’ consent was necessary before the children could be enrolled in any
formal schooling program. Mother later filed motions to allow her to get the
children vaccinated and to obtain social security numbers for them. She also filed
motions requesting that she be awarded sole custody and child support.
In late 2024, the Grayson Circuit Court entered a final and appealable
order adopting the recommendations of the Domestic Relations Commissioner
(“DRC”) that Mother be awarded sole custody and child support.
The court’s order adopting the DRC’s recommendations discussed the
court’s reasoning for concluding that decision-making authority must be vested in
one parent rather than both parents. The court noted the children were facing
major turning points in their lives. The court found that the parties had different
beliefs about what was best for their children, and it had become increasingly
difficult for them to engage in joint decision-making over the past few years. The
court also found that due to the parties’ disagreements: “The result has been that
their girls are probably missing out on major educational and recreational
-2- opportunities, and when they do get the opportunity to participate in some activity,
it is often over [Father’s] objection, putting [Mother] at risk of being found in
contempt.” (Pages 2-3 of Order entered 12/30/2024 attached at Tab 1 to Appendix
to Appellant red brief; also Record on Appeal, (“R”), p. 523-24).
After concluding it was necessary for one party to be awarded sole
custody, the circuit court further noted the children had been primarily living with
Mother since the divorce. It also found that other than the disagreements with
Father over custodial decisions, there had been no serious issues with Mother’s
home. The court concluded it would be in the children’s best interests to continue
their current living arrangement. It granted sole custody to Mother.
Father filed a timely appeal from the award of sole custody to
Mother. He argues the circuit court failed to consider material testimony from his
witnesses, rewarded contemptuous conduct by Mother, and failed to make
statutorily required findings for modifying child custody. Moreover, Father’s brief
contends: “If this Court reverses the custody modification, the support order must
also be vacated and remanded for recalculation consistent with the custody
arrangement and the statutory guidelines in KRS[1] 403.212.”
Further facts will be provided as needed in our analysis.
1 Kentucky Revised Statutes.
-3- ANALYSIS
Standard of Review
Generally, we review questions of law, including statutory
interpretation de novo, meaning without deference. Seeger v. Lanham, 542 S.W.3d
286, 290 (Ky. 2018). However, we review the circuit court’s findings of fact for
clear error, meaning we will not set aside factual findings which are supported by
substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).
We review the circuit court’s decision to modify custody for abuse of
discretion. Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008).
CUSTODY MODIFICATION AND RELATED TIMESHARING ISSUES
Father contends the circuit court failed to make sufficiently specific
findings to explain how it resolved material conflicts in the evidence. He asserts
the court did not enter credibility findings. Father also argues the court failed to
“acknowledge or account for unrebutted, favorable testimony” from witnesses
including Kent Board, Dale Simpson, and Sheila Brown. (Father describes Kent
Board as a close family friend, Dale Simpson as essentially his stepparent, and
Sheila Brown as his mother).
Despite Father’s assertion that testimony from his witnesses was not
acknowledged, Mother points out that the DRC’s recommended findings noted
Father’s presentation of testimony from a close friend, his mother’s boyfriend, and
-4- his mother who all said they regularly spend time with the children while Father
exercises his parenting time. She also contends that factual findings and
conclusions of law regarding custody modification were based on the evidence
which the factfinder considered to be credible and relevant.
In response, Father more specifically asserts in his reply brief that the
testimony of Kent Board, Dale Simpson, and Sheila Brown described his
parenting, his bond with the children, and the children’s “positive adjustment in his
care.” He again contends the court omitted findings about these witnesses’
testimony.
We note the circuit court adopted the DRC’s recommended findings,
which identified these witnesses by their relationships with Father though not by
name. And, further, summarized the basic nature of their testimony as describing
spending time with Father and the children while Father exercised his parenting
time.
We agree with Mother that the record reflects consideration of
Father’s witnesses’ testimony by the DRC and the circuit court. Moreover, we are
not aware of any authority requiring a court to discuss the testimony of every
witness in detail or to expressly state whether it deemed each witness’s testimony
to be credible. Most importantly, the factual findings recommended by the DRC
and adopted by the circuit court were supported by substantial evidence and not
-5- clearly erroneous. And despite the lack of express statements about the perceived
credibility of these witnesses, the adopted findings implicitly reflect the
factfinder’s determinations about the weight and credibility of the evidence.
In sum, we discern no reversible error in the lack of detailed
description of these witnesses’ testimony in the DRC’s recommended findings and
in the circuit court’s order adopting the DRC’s recommendations.
Next, we address Father’s argument that the court rewarded Mother’s
contemptuous behavior by modifying custody for Mother to have sole custody of
the children. The circuit court had previously found Mother to be in contempt for
not properly facilitating Father’s phone calls with the children and for signing the
children up for activities during Father’s scheduled phone time. It also found
Mother in contempt for signing the children up for an online schooling program
without consulting Father.
Mother suggests the circuit court order adopting the DRC’s
recommendations reflects an awareness of the prior contempt findings, as the court
discussed how the children’s activities put her at risk of being held in contempt.
Mother also disputes Father’s assertion that prior contempt findings against her
indicate she cannot properly be awarded sole custody.
Father argues: “Courts must not reward a parent’s violations of
custody orders—particularly where they interfere with joint custody rights.”
-6- Appellant red brief, page 9 (citing Gullion v. Gullion, 163 S.W.3d 888, 893 (Ky.
2005)). Mother points out that the main point of contention in Gullion was
whether one is required to file two affidavits along with a CR2 59.05 motion to
alter, amend, or vacate a child custody decision. See Gullion, 163 S.W.3d at 889-
90.
In Gullion, our Supreme Court did discuss indications that a parent
had violated a court order by failing to return the child to the other parent after a
scheduled visit, along with noting evidence that the parent violated the order due to
concerns about the child’s safety in the other parent’s home. Id. at 890. Our
Supreme Court also noted the trial court’s finding that: “the father has difficulty in
allowing contact between the mother and the child and difficulty in communicating
with the mother regarding the child.” Id. at 893. But our Supreme Court’s opinion
in Gullion contains no discussion of any contempt finding or the effect it should
have on a decision to modify custody.
Furthermore, we are unaware of any authority which requires that any
parent previously found to be in contempt of a custody or timesharing order is
therefore forever ineligible from being awarded sole custody. We also note the
circuit court adopted the DRC’s recommendations, which included an
acknowledgement that Mother had been held in contempt of court on two prior
2 Kentucky Rules of Civil Procedure.
-7- occasions. The adopted findings also included a statement that both parties had not
always fully adhered to court orders, expressly noting that Father failed to use the
court-ordered parenting application, although Mother had not filed a motion for
contempt on this issue.
Furthermore, the circuit court’s order adopting the DRC’s
recommendations expresses sound reasoning in explaining why vesting sole
custody (especially decision-making authority) in Mother was in the children’s
best interests despite Mother’s prior history of being found in contempt.
We find no abuse of discretion in the court’s concluding that Mother’s
having sole custody (especially in terms of decision-making authority) was in the
children’s best interests despite Mother’s prior history of being found in contempt
based on the record before us. The record reflects that both parties had sought
contempt findings against one another and that the parties had been to court several
times in the three-year period between their divorce and the court’s decision to
modify custody. Most importantly, ample evidence showed the parties were
simply unable to agree on many key parenting decisions, especially concerning the
children’s medical care and education.
Next, we address Father’s assertions that the court failed to make
statutorily required findings for modifying custody. Based on the parties’ appellate
briefs, neither party disputes that KRS 403.340 applies to the modification of
-8- custody here (going from the parties’ having joint custody to Mother’s having sole
custody).3 But Father contends that the circuit court failed to make the findings
required by KRS 403.340 and by KRS 403.270(2).
KRS 403.340 (Modification of custody decree) states in pertinent part:
(1) As used in this section, “custody” means sole or joint custody, whether ordered by a court or agreed to by the parties.
(2) No motion to modify a custody decree shall be made earlier than two (2) years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe that:
(a) The child’s present environment may endanger seriously his physical, mental, moral, or emotional health; or
(b) The custodian appointed under the prior decree has placed the child with a de facto custodian.
3 Based on our review of the record, Father had previously argued to the circuit court that KRS 403.320(3) rather than KRS 403.340 established the standard for modification here. KRS 403.320(3) 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.” Our Supreme Court has held that modification of timesharing is governed by KRS 403.320(3) and that: “under KRS 403.320(3), a court can modify timesharing if it is in the best interests of the child, but it can only order a ‘less than reasonable’ timesharing arrangement if the child’s health is seriously endangered.” Layman v. Bohanon, 599 S.W.3d 423, 429 (Ky. 2020). Despite Father’s having argued to the circuit court that KRS 403.320(3) applied, Father’s appellate briefs focus on arguing that the circuit court failed to make the findings required by KRS 403.340 and KRS 403.270(2). Father had also argued to the circuit court in his exceptions to the DRC’s recommendations that required KRS 403.340 and KRS 403.270(2) findings had not been made.
-9- (3) If a court of this state has jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act, the court shall not modify a prior custody decree unless after hearing it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian, and that the modification is necessary to serve the best interests of the child. When determining if a change has occurred and whether a modification of custody is in the best interests of the child, the court shall consider the following:
(a) Whether the custodian agrees to the modification;
(b) Whether the child has been integrated into the family of the petitioner with consent of the custodian;
(c) The factors set forth in KRS 403.270(2) to determine the best interests of the child;
(d) Whether the child’s present environment endangers seriously his physical, mental, moral, or emotional health;
(e) Whether the harm likely to be caused by a change of environment is outweighed by its advantages to him[.]
...
(4) In determining whether a child’s present environment may endanger seriously his physical, mental, moral, or emotional health, the court shall consider all relevant factors, including, but not limited to:
(a) The interaction and interrelationship of the child with his parent or parents, his de facto custodian, his siblings, and any other person who may significantly affect the child’s best interests;
-10- (b) The mental and physical health of all individuals involved;
(c) Repeated or substantial failure, without good cause as specified in KRS 403.240, of either parent to observe visitation, child support, or other provisions of the decree which affect the child, except that modification of custody orders shall not be made solely on the basis of failure to comply with visitation or child support provisions, or on the basis of which parent is more likely to allow visitation or pay child support;
(5) Subject to KRS 403.315, if the court orders a modification of a child custody decree, there shall be a presumption, rebuttable by a preponderance of evidence, that it is in the best interest of the child for the parents to have joint custody and share equally in parenting time. 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.
KRS 403.270(2)4 provides in pertinent part that in determining a
child’s best interests:
The court shall consider all relevant factors including:
(a) The wishes of the child’s parent or parents, and any de facto custodian, 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
4 Like KRS 403.340, KRS 403.270(2) also contains some provisions not relevant here regarding domestic violence and de facto custodians. See generally KRS 403.270(2)(g)-(j).
-11- or de facto custodian 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;
(f) The mental and physical health of all individuals involved; [and]
(k) The likelihood a party will allow the child frequent, meaningful, and continuing contact with the other parent or de facto custodian[.]
Father contends that, pursuant to KRS 403.340(3), a court must first
find “a substantial and continuing change in circumstances” by clear and
convincing evidence. We note KRS 403.340(3) does not expressly require a
substantial and continuing change in circumstances nor a finding by clear and
convincing evidence. However, before modifying custody, KRS 403.340(3) does
require a finding that:
upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian, and that
-12- the modification is necessary to serve the best interests of the child.
Father’s brief asserts that the only change in circumstances found by
the circuit court was that Mother “no longer agreed with the custody terms the
parties had previously negotiated.” Father also asserts Mother sought sole custody
to avoid having to frequently go to court to resolve conflicts about decision-
making. He contends the circuit court’s findings about the impracticality of the
parties’ being unable to agree on decisions is insufficient to show a change of
circumstances as defined by KRS 403.340(3).
In response, Mother contends that the circuit court made a proper
finding of a change in circumstances, noting the adopted finding that Mother had
changed her opinions on vaccinating the children based on her nursing career. She
also emphasizes the court found a decline in the co-parenting relationship resulting
in the parties’ being unable to make decisions together for the children’s benefit
and points to the adopted finding that Father would not even use the court-ordered
parenting application. Mother also alludes to the DRC’s recommended finding
(adopted by the circuit court) that the children’s educational and health needs were
not being met due to their parents’ inability to agree on matters such as vaccination
and enrollment in structured school programs. We also note the DRC’s
recommended and adopted finding about the children’s reaching school age
-13- necessitating certain decisions which Mother’s being awarded sole custody would
allow her to make so the children would not have to miss out on school.
While perhaps it would have been preferable to use more of the
specific language set forth in KRS 403.340(3) in making its findings, we agree
with Mother that the court essentially found a change in the circumstances of both
children and their parents since the custody decree.
We now address Father’s contention that the court failed to make
statutorily required findings about the children’s best interests. Having determined
that a change in circumstances had occurred, the circuit court was then faced with
determining whether a change in custody was in the children’s best interests
considering the factors listed in KRS 403.340(3) and KRS 403.270(2). The KRS
403.340(3) best interest factors include whether the custodian agrees to
modification, whether the child has been integrated into the family of the party
seeking modification, and whether the advantages of modification outweigh the
potential harm of modification.
Father points out he did not agree to Mother receiving sole custody
and had filed a motion to increase his parenting time. Father also asserts both
parties agreed the children would be integrated into their respective households and
he notes the testimony of others that the children were comfortable in his home.
-14- He contends the court failed to make any findings about KRS 403.340(3) factors,
including weighing the advantages and disadvantages of modifying custody.
Mother points out, however, that the DRC’s recommendations
(adopted by the circuit court) expressly stated that custody was not to be modified
lightly and that the advantages and disadvantages of modification must be carefully
weighed. She also notes the adopted DRC finding to the effect that if custody were
not modified, decisions about the children’s education and medical care would not
be made resulting in harm to the children. She also emphasizes the finding that the
children should be attending kindergarten and second grade but that neither child
was currently enrolled in an educational program.
We conclude the court properly considered whether the parties agreed
to modification, evidence of the children’s integration into both parents’
households, and the advantages and disadvantages of modification. See KRS
403.340(3)(a); KRS 403.340(3)(b); KRS 403.340(3)(e).
Next, we address the parties’ arguments about the application of KRS
403.340(3)(d). Father argues that KRS 403.340(3)(d) requires that before altering
a custody decree in place less than two years, a court must make a finding by clear
and convincing evidence that the children’s present environment seriously
endangers the children’s physical, mental, moral, or emotional health. We
-15- disagree. KRS 403.340(2), not KRS 403.340(3)(d), pertains to motions to modify
custody within two years.
Moreover, KRS 403.340(3)(d) does not expressly require a finding by
clear and convincing evidence that the children’s health is seriously endangered to
modify custody. Instead, KRS 403.340(3)(d) simply states that in determining the
children’s best interests, a court shall consider: “Whether the child’s present
environment endangers seriously his physical, mental, moral, or emotional
health[.]” In other words, the court must consider if there is serious endangerment
as part of its best interest analysis, but it is not required to find serious
endangerment to modify custody decrees which have been in place for more than
two years.
Indeed, construing KRS 403.340 as amended in 2001, our Supreme
Court held that for custody decrees in place for more than two years, a finding of
serious endangerment is not required for modification, and a court may modify
custody if in the children’s best interests considering KRS 403.270(2) factors.
Coffman, 260 S.W.3d at 769. Although KRS 403.340 has been amended again
following the rendition of Coffman in 2008, the current version of the statute
similarly does not require a finding of serious endangerment for custody orders in
place more than two years. See KRS 403.340(3)(d). Compare KRS 403.340(2).
-16- Mother asserts in the appellee brief that the custody provisions of the
late 2021 divorce decree remained in place for over two years before she filed her
motion for modification in early 2024. She also states no other motions to modify
custody had been previously filed. Father does not dispute these assertions about
the prior custody decree remaining in place over two years and the lack of other
motions to modify custody in his reply brief.
In any event, regardless of whether a finding of serious endangerment
was required, such a finding was made. The circuit court adopted the DRC’s
recommended finding of serious endangerment which stated: “The minor
children’s present environment seriously endangers their physical, mental, moral
and emotional health because there are basic needs that are not being met due to
decisions not being reached.” (R, p. 431). The court further adopted the DRC’s
finding that: “The minor children do not have a primary care doctor, do not have
health insurance and are not vaccinated.” (R, p. 431).
Nonetheless, Father contends in his reply brief that the serious
endangerment findings made here “lacked any factual basis and relied on vague
references to ‘limbo’ and ‘conflict,’ despite uncontroverted testimony that both
children are healthy, thriving, and well-adjusted.”
We disagree with Father’s characterization of the serious
endangerment findings made here. Certainly, no one disputed that the children
-17- were generally healthy and well-adjusted at the time of the modification
proceedings. Nonetheless, the court adopted the DRC’s recommended finding that
the children’s physical and mental health was seriously endangered5 while the
parents had joint decision-making power because the parents could not agree on
key decisions resulting in the children’s lacking a primary care doctor, health
insurance, vaccinations, and access to structured education. And this finding is
supported by substantial evidence.
Moreover, we reject Father’s arguments that the circuit court violated
his constitutional rights in its resolution of issues about serious endangerment.
Father’s brief argues: “As the U.S. Supreme Court recognized in Troxel v.
Granville, 530 U.S. 57 (2000), a parent’s right to direct their child’s upbringing is
a fundamental liberty interest, and judicial second-guessing of those decisions is
improper absent demonstrable harm.” He further asserts: “By replacing the
statutory requirement of . . . serious endangerment with its own unevidenced
misgivings, the trial court exceeded its authority and violated the constitutional
principles articulated in Troxel.”
5 As our Supreme Court recognized in Pennington, the term serious endangerment “is not defined”—see Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008)—at least not in any relevant Kentucky statute. Nonetheless, one can be endangered—placed at risk of harm— without presently being sick or injured. See, e.g., Endangerment, BLACK’S LAW DICTIONARY (12th ed. 2024) (defining endangerment as “The act or an instance of putting someone or something in danger; exposure to peril or harm[.]”).
-18- Troxel is distinguishable, however, because it addressed a dispute
between a parent and non-parents (grandparents) over visitation. See Troxel v.
Granville, 530 U.S. 57, 61, 120 S. Ct. 2054, 2057, 147 L. Ed. 2d 49 (2000).
Unlike the present case, Troxel did not address a dispute between parents over
custody, timesharing, or visitation. Thus, Troxel does not apply here. And again,
the circuit court made a finding that the parties’ having joint custody was seriously
endangering the children which was supported by substantial evidence despite such
a finding not being strictly required as we discussed previously.
In sum, the court’s factual findings related to KRS 403.340(3) best
interest factors are supported by substantial evidence and we discern no abuse of
discretion in its KRS 403.340 findings regarding best interests. Next, we address
Father’s assertion that the court also failed to make required KRS 403.270(2)
findings about best interests.
KRS 403.340(3)(c) states that, in ruling on requests to modify
custody, a court must also consider the best interests factors set forth in KRS
403.270(2). These factors include: the wishes of the parents and the children and
the influence a parent may have on the children’s wishes; the interactions and
interrelationships between the children, their parents, and other people who
significantly affect the children’s best interests; the motivation of adults involved
in the custody proceeding; the children’s adjustment and proximity to their home,
-19- school, and community; the physical and mental health of the parents and children;
and the likelihood that each parent will afford the other a meaningful opportunity
to remain involved in their children’s lives.
Father contends the circuit court failed to properly consider the older
child’s stated wish to spend more time with him, Mother’s testimony suggesting
that her opinion mattered more than his, testimony from various witnesses about
the children’s close and loving relationship with Father and his extended family,
and evidence that Mother’s current husband used corporal punishment on the
children without consulting Father.
Father also points out that he testified to living in the same house he
shared with Mother during their marriage and to evidence the children are well-
adjusted to his home and could be involved in similar extracurricular activities in
his community to those available in Mother’s community. He also points to
evidence of Mother becoming frustrated or overwhelmed by interacting with him
and asserts Mother has repeatedly impeded his parenting rights, pointing to the
court’s contempt findings. Father insists that the record favors him on key KRS
403.270(2) factors and that Mother failed to rebut evidence favorable to him.
Mother points out, however, that the adopted DRC recommendations
included a finding that the older child wished to spend more time with Father. She
also notes the finding that the older child talked to both parents about wanting
-20- more time with Father, and that the older child said Father told her Mother lies.
She also points out the court’s order specifically notes Father has a bond with the
children and is a caring parent. Mother also emphasizes findings that the children
had adjusted to moving to Georgia, where Mother lives.
In response to Father’s assertion that the court failed to make the
necessary or statutorily required findings for modifying custody, Mother points out
that the court made written findings of fact—unlike the trial court in Anderson v.
Johnson, 350 S.W.3d 453 (Ky. 2011), which Father cited to argue for reversal
based on lack of sufficient findings. Mother’s brief also asserts the circuit court
“specifically stated the applicable statutes, made specific findings of facts from the
testimony and evidence” and “used those facts to apply to the factors the court
found relevant, all of which was reduced to writing.” Mother also points out KRS
403.270(2) directs courts to “consider all relevant factors”—but does not expressly
require that courts consider all listed factors.
We agree with Mother. The court made sufficient findings of relevant
KRS 403.270(2) factors.
Lastly, we leniently address a custody-related argument made solely
in Father’s reply brief—namely, his contention that the circuit court ignored the
statutory presumption favoring joint custody and equal parenting time set forth in
-21- KRS 403.340(5).6 Father contends that the court failed to cite or apply KRS
403.340(5)7 and failed to maximize the children’s time with him since it granted
him “only a modest summer increase” in parenting time and otherwise left “the
regular [timesharing] schedule unchanged[.]”
Father points out that Mother’s appellee brief cites KRS 403.270 in
referring to the acknowledgment that the court must construct a parenting time
schedule maximizing his parenting time in the DRC’s recommendations,8 which
were adopted by the circuit court. But Father contends this reference does not
satisfy “the separate requirement to address the presumption in KRS
403.340(5)”—which he argues compounded its errors in failing, in his view, to
make findings required by KRS 403.340(3)(d)-(e).
6 “The reply brief is not a device for raising new issues which are essential to the success of the appeal.” Milby v. Mears, 580 S.W.2d 724, 728 (Ky. App. 1979). However, we leniently consider this custodial/timesharing argument raised in Father’s reply brief since it appears to generally respond to Mother’s brief’s noting the DRC’s discussion of the statutory presumption in KRS 403.270 and the fact that the court ultimately awarded Father four weeks’ uninterrupted parenting time in the summer, which he had previously not received. See Milby, 580 S.W.2d at 728 (noting appellee suffered no prejudice from appellant discussing an issue in a reply brief which was not raised in the initial appellant brief since appellee brief also discussed same issue). 7 However, the DRC’s report (which was adopted by the circuit court) quoted KRS 403.340 in its entirety—including KRS 403.340(5). 8 As Father’s brief points out, Mother cites KRS 403.270 in discussing the DRC’s acknowledgement that the court must maximize each parent’s time with the children when equal timesharing is not possible. But after quoting both KRS 403.270 and KRS 403.340 at the beginning of her recommended conclusions of law, the DRC did not specifically cite to either statute when she later stated the court must maximize Father’s time with the children due to the change in custody, although equal timesharing was not in the children’s best interest.
-22- Unfortunately for Father, we have already rejected his assertions that
the circuit court erred in failing to make KRS 403.340(3)(d)-(e) findings.
Moreover, any error in failing to specifically cite KRS 403.340(5) is harmless
pursuant to CR 61.02. Regardless of whether the court specifically cited this
statutory subsection, it adopted the DRC’s recommended findings and conclusions,
including the DRC’s quotation of KRS 403.340(5)’s presumption and the DRC’s
recognition that Father’s parenting time must be maximized to the extent consistent
with the children’s welfare.
The court also adopted the DRC’s recommended findings that equal
timesharing was not in the children’s best interests; It would interfere with the
children’s activities and that Father’s time with the children should be modified not
to interfere with any school in which the children enrolled. Yet the court also
adopted the recommendation for Father to be granted four weeks’ uninterrupted
parenting time in the summer, which was an increase in his summer parenting
time. We also note the DRC recommended, and the court adopted, requirements
for Mother to inform Father of medical and educational decisions and for the
parties to coordinate his summer parenting time several weeks in advance. We
discern no reversible error in the court’s adoption of the DRC’s recommendations
on timesharing.
-23- CHILD SUPPORT
Father’s appellant brief notes that the circuit court awarded Mother
child support based on the assumption Mother would have sole custody and
argues: “That flawed premise led the court to impute income to [Father] beyond
what the record supports, to accept unverified child care expenses and to disregard
direct payments and in-kind support he had already provided.” Father does not
support any arguments about imputed income, unverified childcare expenses, or
his allegedly being entitled to credits for direct payments or in-kind support with
citations to supporting legal authority, however. So, we need not reach such
specific arguments. See Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759
(Ky. App. 2005) (citations omitted) (“[A]n alleged error may be deemed waived
where an appellant fails to cite any authority in support of the issues and arguments
advanced on appeal. . . . It is not our function as an appellate court to research and
construct a party’s legal arguments[.]”).
We note Father’s sole request for relief regarding child support is that
if the child custody modification is disturbed on appeal, the child support order
must also be vacated and child support recalculated on remand based on the new
custody arrangement and KRS 403.212 requirements.9 Since we affirm the
9 Father’s reply brief raises an issue about child support which was not raised in his initial appellant brief. The reply brief asserts that the child support amount awarded was “calculated without the shared-parenting credit provided by KRS 403.2122[.]” (Reply brief, page 4). The
-24- custody modification decision, we also affirm the child support provisions in the
judgment—especially since Father has not requested any specific relief regarding
child support in the event the custody modification is affirmed.
Further arguments made by the parties which are not discussed herein
have been determined to lack merit or relevancy to our resolution of this appeal.
CONCLUSION
For the foregoing reasons, we AFFIRM.
ALL CONCUR.
initial appellant brief did not cite KRS 403.2122 nor make any arguments about the shared- parenting credit. Again, it is improper to raise issues for the first time in a reply brief which could have been raised in the appellant brief. Milby, 580 S.W.2d at 728. Moreover, Father’s new reply brief argument about child support does not appear to be in response to any appellee brief argument and Mother lacks an opportunity to respond to the reply brief. See id. See also Kentucky Rules of Appellate Procedure (“RAP”) 32(C)(2). Also, Father does not provide specific citations to the record regarding this issue first raised in his reply brief. He further does not state if or how he raised the KRS 403.2122 shared- parenting credit issue to the circuit court to preserve this issue for our review. See RAP 32(A)(4); RAP 32(C)(1). Nor does Father request palpable error review. Thus, we decline to reach this issue. See generally Gasaway v. Commonwealth, 671 S.W.3d 298, 314 (Ky. 2023); Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). Although Oakley was decided prior to the adoption of the Rules of Appellate Procedure, its reasoning remains sound.
-25- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Haley S. Cooper Earlene Whitaker Wilson Matthew E. Durham Leitchfield, Kentucky Elizabethtown, Kentucky
-26-