RENDERED: NOVEMBER 13, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1198-MR
CURTIS DAVIS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE LAUREN ADAMS OGDEN, JUDGE ACTION NO. 08-CI-501769
BRYNN WARNOCK APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
DIXON, JUDGE: Curtis Davis appeals from orders entered by the Jefferson
Circuit Court on July 22, 2019, and August 7, 2019, modifying an agreed order
concerning allocation of child tax exemptions. Following review of the record,
briefs, and law, we affirm. FACTS AND PROCEDURAL BACKGROUND
This action concerns the allocation of dependency exemptions
between the parties, Curtis Davis and Brynn Warnock, as part of their divorce
action. Two daughters were born during the parties’ marriage. On November 18,
2008, the trial court entered an agreed order as to property, custody, and support,
the relevant portion of which stated:
Dependency Exemptions. In 2008 and until Brynn no longer derives any benefit from the earned income credit, Curtis shall claim both children as dependents for the purpose of all federal and state income tax returns. After that point, each party shall claim a child.
The parties agree that if either party is unable to use an exemption, the parties may negotiate a transfer of the dependency exemption which maximizes tax benefits.
Each party shall promptly furnish to the other any form required by the Internal Revenue Service for the purpose of assuring to the other party the dependency exemption as herein agreed.
On July 16, 2019—after substantial changes in the relevant tax law—
Brynn moved the trial court to equitably allocate the child-related tax benefits. A
hearing was held on July 22, 2019, at which neither Curtis nor his counsel was
present. The trial court entered an order granting Brynn’s motion that same date.
On July 25, 2019, Curtis filed an objection, stating that he did not receive Brynn’s
motion until after the court’s ruling. The objection was heard on August 5, 2019,
-2- and on August 7, 2019, the court ruled that its July 22, 2019, order shall remain in
full force and effect. This appeal followed.
NONCOMPLIANCE WITH RULES OF APPELLATE PROCEDURE
Another panel of our Court has recently addressed the growing
problem of noncompliance with the rules of appellate practice.
This Court is weary of the need to render opinions such as this one, necessitated as they are by the failure of appellate advocates to follow rules of appellate advocacy. In just the last two years, at least one hundred and one (101) Kentucky appellate opinions were rendered in which an attorney’s carelessness made appellate rule violations an issue in his or her client’s case. The prodigious number of attorneys appearing in Kentucky’s appellate courts lacking the skill, will, or interest in following procedural rules is growing. In 2005, only two (2) Kentucky opinions addressed appellate rules violations. In 2010, the number jumped to eleven (11). In 2015, the number rose slightly to fourteen (14). The average for the last two years is more than three times that. If this is not a crisis yet, it soon will be if trends do not reverse.
We will not reiterate all that has been said too many times before on this subject. If a lawyer is curious about the importance of these procedural rules or the practical reasons for following them, we recommend reading these opinions in chronological order: Commonwealth v. Roth, 567 S.W.3d 591 (Ky. 2019); Koester v. Koester, 569 S.W.3d 412 (Ky. App. 2019); Hallis v. Hallis, 328 S.W.3d 694 (Ky. App. 2010); Elwell v. Stone, 799 S.W.2d 46 (Ky. App. 1990).
. . . Some rule violations are alone sufficient to justify applying a manifest injustice standard of review
-3- or, worse, striking the brief. CR[1] 76.12(8); see also Roth, 567 S.W.3d at 593; Mullins v. Ashland Oil, Inc., 389 S.W.3d 149, 154 (Ky. App. 2012). Other violations are less profound; however, “there is an important purpose behind each of these rules.” Hallis, 328 S.W.3d at 696 (referring by footnote to the purpose underlying some of the more mundane rules).
Clark v. Workman, 604 S.W.3d 616, 616-18 (Ky. App. 2020) (footnotes omitted).
Curtis’s brief violates CR 76.12(4)(c)(v), requiring “at the beginning
of the argument a statement with reference to the record showing whether the issue
was properly preserved for review and, if so, in what manner.” Curtis provided no
statement of preservation for any of his arguments. Notwithstanding these errors,
this Court will not strike the brief and dismiss the appeal.
STANDARD OF REVIEW
The standard of an appellate court’s review of a trial court’s findings
of fact is well-settled:
[F]indings of fact . . . may be set aside only if clearly erroneous. Hall v. Hall, [386 S.W.2d 448 (Ky. 1964)]; CR 52.01, 7 Kentucky Practice, Clay 103. We do not find that they are. They are not ‘manifestly against the weight of evidence.’ Ingram v. Ingram, [385 S.W.2d 69 (Ky. 1964)]; Craddock v. Kaiser, 280 Ky. 577, 133 S.W.2d 916 [(1939)]. A reversal may not be predicated on mere doubt as to the correctness of the decision. Buckner v. Buckner, 295 Ky. 410, 174 S.W.2d 695 [(1943)]. When the evidence is conflicting, as here, we cannot and will not substitute our decision for the
1 Kentucky Rules of Civil Procedure.
-4- judgment of the chancellor. Gates v. Gates, [412 S.W.2d 223 (Ky. 1967)]; Renfro v. Renfro, [291 S.W.2d 46 (Ky. 1956)].
Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967) (emphasis added). A trial court’s
findings of fact must be supported by substantial evidence. Substantial evidence is
evidence that, when taken alone or in light of all the evidence, has sufficient
probative value to induce conviction in the minds of reasonable men. Moore v.
Asente, 110 S.W.3d 336, 354 (Ky. 2003). After careful review, we hold that the
trial court’s findings of fact were not clearly erroneous, nor did the trial court abuse
its discretion; therefore, we must affirm.
MODIFICATION OF CHILD TAX DEDUCTIONS
On appeal, Curtis contends the trial court erred by modifying the
allocation of child tax deductions, contrary to Adams-Smyrichinsky v.
Smyrichinsky, 467 S.W.3d 767 (Ky. 2015). In Smyrichinsky, the action originated
in Indiana where the court issued several orders awarding dependency tax
exemptions. After the case transferred to Kentucky, the issue became what action
was appropriate for the Kentucky court to take in assigning a dependency tax
exemption when modifying the Indiana child support order. Id.
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RENDERED: NOVEMBER 13, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1198-MR
CURTIS DAVIS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE LAUREN ADAMS OGDEN, JUDGE ACTION NO. 08-CI-501769
BRYNN WARNOCK APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
DIXON, JUDGE: Curtis Davis appeals from orders entered by the Jefferson
Circuit Court on July 22, 2019, and August 7, 2019, modifying an agreed order
concerning allocation of child tax exemptions. Following review of the record,
briefs, and law, we affirm. FACTS AND PROCEDURAL BACKGROUND
This action concerns the allocation of dependency exemptions
between the parties, Curtis Davis and Brynn Warnock, as part of their divorce
action. Two daughters were born during the parties’ marriage. On November 18,
2008, the trial court entered an agreed order as to property, custody, and support,
the relevant portion of which stated:
Dependency Exemptions. In 2008 and until Brynn no longer derives any benefit from the earned income credit, Curtis shall claim both children as dependents for the purpose of all federal and state income tax returns. After that point, each party shall claim a child.
The parties agree that if either party is unable to use an exemption, the parties may negotiate a transfer of the dependency exemption which maximizes tax benefits.
Each party shall promptly furnish to the other any form required by the Internal Revenue Service for the purpose of assuring to the other party the dependency exemption as herein agreed.
On July 16, 2019—after substantial changes in the relevant tax law—
Brynn moved the trial court to equitably allocate the child-related tax benefits. A
hearing was held on July 22, 2019, at which neither Curtis nor his counsel was
present. The trial court entered an order granting Brynn’s motion that same date.
On July 25, 2019, Curtis filed an objection, stating that he did not receive Brynn’s
motion until after the court’s ruling. The objection was heard on August 5, 2019,
-2- and on August 7, 2019, the court ruled that its July 22, 2019, order shall remain in
full force and effect. This appeal followed.
NONCOMPLIANCE WITH RULES OF APPELLATE PROCEDURE
Another panel of our Court has recently addressed the growing
problem of noncompliance with the rules of appellate practice.
This Court is weary of the need to render opinions such as this one, necessitated as they are by the failure of appellate advocates to follow rules of appellate advocacy. In just the last two years, at least one hundred and one (101) Kentucky appellate opinions were rendered in which an attorney’s carelessness made appellate rule violations an issue in his or her client’s case. The prodigious number of attorneys appearing in Kentucky’s appellate courts lacking the skill, will, or interest in following procedural rules is growing. In 2005, only two (2) Kentucky opinions addressed appellate rules violations. In 2010, the number jumped to eleven (11). In 2015, the number rose slightly to fourteen (14). The average for the last two years is more than three times that. If this is not a crisis yet, it soon will be if trends do not reverse.
We will not reiterate all that has been said too many times before on this subject. If a lawyer is curious about the importance of these procedural rules or the practical reasons for following them, we recommend reading these opinions in chronological order: Commonwealth v. Roth, 567 S.W.3d 591 (Ky. 2019); Koester v. Koester, 569 S.W.3d 412 (Ky. App. 2019); Hallis v. Hallis, 328 S.W.3d 694 (Ky. App. 2010); Elwell v. Stone, 799 S.W.2d 46 (Ky. App. 1990).
. . . Some rule violations are alone sufficient to justify applying a manifest injustice standard of review
-3- or, worse, striking the brief. CR[1] 76.12(8); see also Roth, 567 S.W.3d at 593; Mullins v. Ashland Oil, Inc., 389 S.W.3d 149, 154 (Ky. App. 2012). Other violations are less profound; however, “there is an important purpose behind each of these rules.” Hallis, 328 S.W.3d at 696 (referring by footnote to the purpose underlying some of the more mundane rules).
Clark v. Workman, 604 S.W.3d 616, 616-18 (Ky. App. 2020) (footnotes omitted).
Curtis’s brief violates CR 76.12(4)(c)(v), requiring “at the beginning
of the argument a statement with reference to the record showing whether the issue
was properly preserved for review and, if so, in what manner.” Curtis provided no
statement of preservation for any of his arguments. Notwithstanding these errors,
this Court will not strike the brief and dismiss the appeal.
STANDARD OF REVIEW
The standard of an appellate court’s review of a trial court’s findings
of fact is well-settled:
[F]indings of fact . . . may be set aside only if clearly erroneous. Hall v. Hall, [386 S.W.2d 448 (Ky. 1964)]; CR 52.01, 7 Kentucky Practice, Clay 103. We do not find that they are. They are not ‘manifestly against the weight of evidence.’ Ingram v. Ingram, [385 S.W.2d 69 (Ky. 1964)]; Craddock v. Kaiser, 280 Ky. 577, 133 S.W.2d 916 [(1939)]. A reversal may not be predicated on mere doubt as to the correctness of the decision. Buckner v. Buckner, 295 Ky. 410, 174 S.W.2d 695 [(1943)]. When the evidence is conflicting, as here, we cannot and will not substitute our decision for the
1 Kentucky Rules of Civil Procedure.
-4- judgment of the chancellor. Gates v. Gates, [412 S.W.2d 223 (Ky. 1967)]; Renfro v. Renfro, [291 S.W.2d 46 (Ky. 1956)].
Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967) (emphasis added). A trial court’s
findings of fact must be supported by substantial evidence. Substantial evidence is
evidence that, when taken alone or in light of all the evidence, has sufficient
probative value to induce conviction in the minds of reasonable men. Moore v.
Asente, 110 S.W.3d 336, 354 (Ky. 2003). After careful review, we hold that the
trial court’s findings of fact were not clearly erroneous, nor did the trial court abuse
its discretion; therefore, we must affirm.
MODIFICATION OF CHILD TAX DEDUCTIONS
On appeal, Curtis contends the trial court erred by modifying the
allocation of child tax deductions, contrary to Adams-Smyrichinsky v.
Smyrichinsky, 467 S.W.3d 767 (Ky. 2015). In Smyrichinsky, the action originated
in Indiana where the court issued several orders awarding dependency tax
exemptions. After the case transferred to Kentucky, the issue became what action
was appropriate for the Kentucky court to take in assigning a dependency tax
exemption when modifying the Indiana child support order. Id. at 772. To award
a tax exemption as part of a support order to a party who does not qualify under the
Internal Revenue Code, a trial court is required to articulate sound reasoning as to
how the exemption benefits the child. Id. at 784. We find Smyrichinsky to be
-5- inapplicable to this case for the simple fact that—due to the joint custody
arrangement—both parties qualify under the Internal Revenue Code as custodial
parents.2
In cases of joint custody, both parents are “custodial” parents, though
one will be the “primary residential parent.” Pennington v. Marcum, 266 S.W.3d
759, 765 (Ky. 2008). In Kentucky, a trial court may enter an order requiring the
“custodial” parent to sign a written waiver declining to claim the dependency tax
exemption, as a matter of equity. See 26 U.S.C.3 § 152(e); Hart v. Hart, 774
S.W.2d 455, 457 (Ky. App. 1989). In making such a determination, “a trial court
has the authority to allocate the tax exemption between the parties.” Marksberry v.
Riley, 889 S.W.2d 47, 48 (Ky. App. 1994). Nevertheless, a trial court should “be
guided in the exercise of its discretion by making an allocation which will best
maximize the benefit of the exemption and ‘the amount available for the care of
2 Additionally,
[t]urning to the present case, we recognize that the circuit court did not originally award the dependent-child tax exemptions. Rather, the parties fashioned this allocation as part of their settlement agreement. The Supreme Court in Adams-Smyrichinsky specifically stated it was not addressing situations where the parties had reached an agreement as to the exemptions. 467 S.W.3d at 784.
Hillard v. Keating, 546 S.W.3d 569, 575 (Ky. App. 2018). 3 United States Code.
-6- the child[.]’” Pegler v. Pegler, 895 S.W.2d 580, 581 (Ky. App. 1995) (citation
omitted).
Herein, we can neither say the trial court allocated the child tax
exemptions in a manner unreasonable under the circumstances nor that it failed to
articulate a sound reason for modifying the prior arrangement. In its August 7,
2019, order, the trial court set out that Brynn provides private school education for
the children at her sole cost, along with their primary residence, while Curtis pays
child support ($1,213.41 monthly). The trial court further found the prior
agreement unconscionable pursuant to KRS4 403.180(2) due to recent changes in
the federal tax laws which reduced the value of the earned income credit in
comparison to the significant increase in the tax deduction. Each parent can now
use an exemption for the benefit of a child as generally contemplated by the parties
in the prior agreement. Accordingly, we discern no abuse of discretion by the trial
court in allocating an exemption to each party to be followed by an alternating
child tax exemption when only one child remains eligible to be claimed as a
dependent for tax purposes.
MODIFICATION OF AN AGREED ORDER
Curtis further argues that the trial court erred in modifying the agreed
order, claiming the court exceeded its authority by doing so. However, this
4 Kentucky Revised Statutes.
-7- argument was never presented to the trial court. Only issues fairly brought to the
attention of the trial court are adequately preserved for appellate review. Elery v.
Commonwealth, 368 S.W.3d 78, 97 (Ky. 2012). An appellate court “is without
authority to review issues not raised in or decided by the trial court.” Ten Broeck
Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009) (citations omitted).
Consequently, we decline to discuss this issue.
CONCLUSION
Therefore, for the foregoing reasons, the orders entered by the
Jefferson Circuit Court are AFFIRMED.
ACREE, JUDGE, CONCURS.
THOMPSON, K., JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
THOMPSON, K., JUDGE, DISSENTING: I respectfully dissent.
Given the lack of appropriate service of the motion, I believe a full hearing needed
to be held after the lack of service was brought to the Jefferson Family Court’s
attention.
As the majority Opinion notes, Curtis Davis objected to the family
court’s order granting Brynn Warnock’s motion, explaining that he did not timely
receive Brynn’s motion to reallocate the child-related tax benefits from what
existed in the parties’ agreed order and, thus, was unable to appear at the hearing
-8- on this issue. Curtis was served by regular mail and explained he did not receive
the motion until after the family court had already ruled. Curtis properly objected
to this lack of service and the entry of the order granting Brynn’s motion where he
had no opportunity to appear at the hearing.
Today, it is well-known that the United States mail is unreliable and
has delays in delivery. It is entirely probable that Mr. Davis’s allegation of failure
of notice of this hearing is valid. To set aside and alter an agreement between the
parties should require a due process hearing with testimony and examination by
each party. Service by regular mail in a post-judgment motion requires yet another
analysis as to whether regular mail is authorized for notice. If the parties have
established a routine and if no prior post-judgment motions have been filed for a
substantial period of time, then I would suggest that certified mail would be more
appropriate to notify a party of a motion to completely reverse an agreement
between the parties.
The family court should have conducted a de novo hearing on Brynn’s
reallocation motion rather than a summary process when it was informed of the
lack of proper service on Curtis. Such a hearing should have included thoroughly
exploring whether it had the authority to modify the agreed order.
Accordingly, I dissent.
-9- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Michael R. Slaughter Courtney L. Baird Westport, Kentucky Marcia L. Sparks Louisville, Kentucky
-10-