RENDERED: AUGUST 19, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0531-ME
JASON BENFIELD APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT v. HONORABLE ELISE GIVHAN SPAINHOUR, JUDGE ACTION NO. 12-CI-00882
MELISSA BENFIELD APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
ACREE, JUDGE: Jason Benfield appeals the Bullitt Family Court’s order denying
his motion to modify his timesharing schedule with his children. We affirm.
BACKGROUND
In October 2012, Jason and Melissa Benfield divorced but remained
joint custodians of their two children with an agreement that timesharing be equal.
However, for the month of March 2021, Jason had his children for approximately 39% of the month while Melissa had them for the balance of the month. Jason
moved the family court to amend the timesharing schedule to a week-on/week-off
schedule, as he believed this would be more equitable, convenient, and beneficial
for all involved.
In response, Melissa filed a motion to allow Dr. Kelli Marvin to
conduct a custodial evaluation. Jason objected and expressed his belief that an
evaluation was unnecessary and not required by statute when the issue is merely
whether to change the timesharing schedule; no changes were to be made to the
custody agreement itself. The family court granted Melissa’s motion, and Dr.
Marvin initiated the evaluations. However, Dr. Marvin never completed Melissa’s
evaluation because she withdrew herself from participating. Melissa argues in her
brief that Dr. Marvin chose not to evaluate her because Jason threatened to sue her
and file a complaint with the appropriate licensing board. Melissa claims Jason did
not like Dr. Marvin’s conclusion that Jason was a major source of the parties’
contentious relationship. (Appellee’s Brief, p. 1.) This was not the first time the
parties had difficulty with a psychologist.
During co-parenting therapy sessions, Jason had a strained
relationship with a different psychologist, Dr. Kathryn Berla. Jason disliked Dr.
Berla’s conclusions about his role in the strained relationship between him and his
ex-wife. He again threatened legal action against Dr. Berla and threatened to
-2- report her to the appropriate licensing board. Jason’s main objection to Dr. Berla,
it appears from the record, was his belief that Dr. Berla made misandrist remarks
toward him and held misandrist views.
On March 19, 2021, the family court held a hearing on Jason’s motion
to modify the timesharing schedule. The court heard testimony from Dr. Berla
regarding Jason’s behavior in therapy and his threats of reporting her. She also
testified about the parties’ inability to make meaningful progress and laid blame at
Jason’s feet. During her testimony, she also expressly stated she did not harbor
any biases toward men. Jason wanted to impeach Dr. Berla on this statement by
questioning her about her own contentious divorce. Jason argued Dr. Berla’s own
experience with divorce could show she harbored misandrist views toward men.
The family court sustained Melissa’s objection to this line of questioning.
Relevant to the family court’s ultimate findings, Dr. Berla also
testified how Jason viewed the world as transactional and believed he was entitled
to more timesharing because he participated in co-parenting therapy. The family
court stated Jason viewed “other people [as] exist[ing] to serve [his] ends or are
otherwise obstacles to be overcome.” (Family Court April 8, 2021 Order, p. 4.)
The family court concluded Jason was immature and lacked good
judgment, impeding the progress of the post-divorce effort to co-parent. The court
denied Jason’s motion to amend the timesharing schedule and added completion of
-3- co-parenting therapy as a prerequisite to modifying the timesharing schedule in the
future. This appeal follows.
ANALYSIS
Jason contends the family court erred in three instances. First, he
says, the family court erred when it denied him cross-examination of Dr. Berla for
potential bias or prejudice. He next argues the court abused its discretion in
requiring him to complete co-parenting therapy as a condition to timeshare
modification. Finally, he says the family court abused its discretion when it
reduced his timesharing with his children from the previous schedule; however,
Jason advances no legal argument in support of, and does not address, this
argument in his brief. Therefore, we consider it waived. We will address his first
two arguments in turn.
Jason’s Attempted Impeachment of Dr. Berla
When a family court conducts a hearing pursuant to KRS1 403.320(3)
the Kentucky Rules of Evidence apply. See FCRPP2 1; Lamberson v. Mulrooney,
No. 2017-CA-001708-ME, 2018 WL 4682474, at *1 (Ky. App. Sep. 28, 2018);
Lee v. Smith, No. 2017-CA-000820-ME, 2018 WL 2386027, at *1 (Ky. App. May
25, 2018). Consequently, the family court’s evidentiary rulings are reviewed for
1 Kentucky Revised Statutes. 2 Kentucky Family Court Rules of Procedure and Practice.
-4- abuse of discretion. Gonzalez v. Dooley, 614 S.W.3d 515, 519 (Ky. App. 2020).
Under this standard, we do not disturb the family court’s evidentiary rulings unless
they were “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
In the criminal context, a trial judge may “impose reasonable limits on
defense counsel’s inquiry into the potential bias of a prosecution witness, to take
account of such factors as ‘harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that [would be] repetitive or only marginally
relevant[.]” Olden v. Kentucky, 488 U.S. 227, 232, 109 S. Ct. 480, 483, 102 L. Ed.
2d 513 (1988) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct.
1431, 1435, 89 L. Ed. 2d 674 (1986)); see Romero-Perez v. Commonwealth, 492
S.W.3d 902, 905 (Ky. App. 2016). “So long as a reasonably complete picture of
the witness’ veracity, bias and motivation is developed, the judge enjoys power
and discretion to set appropriate boundaries.” Commonwealth v. Maddox, 955
S.W.2d 718, 721 (Ky. 1997). Congruent with this caselaw, we note, “[a] family
court operating as finder of fact has extremely broad discretion with respect to
testimony presented . . . .” Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky. App. 2007);
see Mullins v. Commonwealth, 956 S.W.2d 210, 213 (Ky. 1997) (“Whether to
admit or exclude evidence to ensure the fairness of a trial is within the discretion of
-5- the trial court, and its determination will not be overturned on appeal in the
absence of a showing of an abuse of such discretion.”).
Thus, pursuant to KRE3 611, “[t]he court shall exercise reasonable
control over the mode and order of interrogating witnesses and presenting evidence
so as to: . . . [p]rotect witnesses from harassment or undue embarrassment.” KRE
611(a)(3). Here, we find no abuse of discretion.
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RENDERED: AUGUST 19, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0531-ME
JASON BENFIELD APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT v. HONORABLE ELISE GIVHAN SPAINHOUR, JUDGE ACTION NO. 12-CI-00882
MELISSA BENFIELD APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
ACREE, JUDGE: Jason Benfield appeals the Bullitt Family Court’s order denying
his motion to modify his timesharing schedule with his children. We affirm.
BACKGROUND
In October 2012, Jason and Melissa Benfield divorced but remained
joint custodians of their two children with an agreement that timesharing be equal.
However, for the month of March 2021, Jason had his children for approximately 39% of the month while Melissa had them for the balance of the month. Jason
moved the family court to amend the timesharing schedule to a week-on/week-off
schedule, as he believed this would be more equitable, convenient, and beneficial
for all involved.
In response, Melissa filed a motion to allow Dr. Kelli Marvin to
conduct a custodial evaluation. Jason objected and expressed his belief that an
evaluation was unnecessary and not required by statute when the issue is merely
whether to change the timesharing schedule; no changes were to be made to the
custody agreement itself. The family court granted Melissa’s motion, and Dr.
Marvin initiated the evaluations. However, Dr. Marvin never completed Melissa’s
evaluation because she withdrew herself from participating. Melissa argues in her
brief that Dr. Marvin chose not to evaluate her because Jason threatened to sue her
and file a complaint with the appropriate licensing board. Melissa claims Jason did
not like Dr. Marvin’s conclusion that Jason was a major source of the parties’
contentious relationship. (Appellee’s Brief, p. 1.) This was not the first time the
parties had difficulty with a psychologist.
During co-parenting therapy sessions, Jason had a strained
relationship with a different psychologist, Dr. Kathryn Berla. Jason disliked Dr.
Berla’s conclusions about his role in the strained relationship between him and his
ex-wife. He again threatened legal action against Dr. Berla and threatened to
-2- report her to the appropriate licensing board. Jason’s main objection to Dr. Berla,
it appears from the record, was his belief that Dr. Berla made misandrist remarks
toward him and held misandrist views.
On March 19, 2021, the family court held a hearing on Jason’s motion
to modify the timesharing schedule. The court heard testimony from Dr. Berla
regarding Jason’s behavior in therapy and his threats of reporting her. She also
testified about the parties’ inability to make meaningful progress and laid blame at
Jason’s feet. During her testimony, she also expressly stated she did not harbor
any biases toward men. Jason wanted to impeach Dr. Berla on this statement by
questioning her about her own contentious divorce. Jason argued Dr. Berla’s own
experience with divorce could show she harbored misandrist views toward men.
The family court sustained Melissa’s objection to this line of questioning.
Relevant to the family court’s ultimate findings, Dr. Berla also
testified how Jason viewed the world as transactional and believed he was entitled
to more timesharing because he participated in co-parenting therapy. The family
court stated Jason viewed “other people [as] exist[ing] to serve [his] ends or are
otherwise obstacles to be overcome.” (Family Court April 8, 2021 Order, p. 4.)
The family court concluded Jason was immature and lacked good
judgment, impeding the progress of the post-divorce effort to co-parent. The court
denied Jason’s motion to amend the timesharing schedule and added completion of
-3- co-parenting therapy as a prerequisite to modifying the timesharing schedule in the
future. This appeal follows.
ANALYSIS
Jason contends the family court erred in three instances. First, he
says, the family court erred when it denied him cross-examination of Dr. Berla for
potential bias or prejudice. He next argues the court abused its discretion in
requiring him to complete co-parenting therapy as a condition to timeshare
modification. Finally, he says the family court abused its discretion when it
reduced his timesharing with his children from the previous schedule; however,
Jason advances no legal argument in support of, and does not address, this
argument in his brief. Therefore, we consider it waived. We will address his first
two arguments in turn.
Jason’s Attempted Impeachment of Dr. Berla
When a family court conducts a hearing pursuant to KRS1 403.320(3)
the Kentucky Rules of Evidence apply. See FCRPP2 1; Lamberson v. Mulrooney,
No. 2017-CA-001708-ME, 2018 WL 4682474, at *1 (Ky. App. Sep. 28, 2018);
Lee v. Smith, No. 2017-CA-000820-ME, 2018 WL 2386027, at *1 (Ky. App. May
25, 2018). Consequently, the family court’s evidentiary rulings are reviewed for
1 Kentucky Revised Statutes. 2 Kentucky Family Court Rules of Procedure and Practice.
-4- abuse of discretion. Gonzalez v. Dooley, 614 S.W.3d 515, 519 (Ky. App. 2020).
Under this standard, we do not disturb the family court’s evidentiary rulings unless
they were “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
In the criminal context, a trial judge may “impose reasonable limits on
defense counsel’s inquiry into the potential bias of a prosecution witness, to take
account of such factors as ‘harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that [would be] repetitive or only marginally
relevant[.]” Olden v. Kentucky, 488 U.S. 227, 232, 109 S. Ct. 480, 483, 102 L. Ed.
2d 513 (1988) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct.
1431, 1435, 89 L. Ed. 2d 674 (1986)); see Romero-Perez v. Commonwealth, 492
S.W.3d 902, 905 (Ky. App. 2016). “So long as a reasonably complete picture of
the witness’ veracity, bias and motivation is developed, the judge enjoys power
and discretion to set appropriate boundaries.” Commonwealth v. Maddox, 955
S.W.2d 718, 721 (Ky. 1997). Congruent with this caselaw, we note, “[a] family
court operating as finder of fact has extremely broad discretion with respect to
testimony presented . . . .” Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky. App. 2007);
see Mullins v. Commonwealth, 956 S.W.2d 210, 213 (Ky. 1997) (“Whether to
admit or exclude evidence to ensure the fairness of a trial is within the discretion of
-5- the trial court, and its determination will not be overturned on appeal in the
absence of a showing of an abuse of such discretion.”).
Thus, pursuant to KRE3 611, “[t]he court shall exercise reasonable
control over the mode and order of interrogating witnesses and presenting evidence
so as to: . . . [p]rotect witnesses from harassment or undue embarrassment.” KRE
611(a)(3). Here, we find no abuse of discretion. Under KRE 401, all evidence
admitted must be relevant evidence. We find nothing relevant about Dr. Berla’s
divorce which tends to make the existence of misandry more probable and,
therefore, the family court did not err in classifying this line of questioning as
harassment. See KRE 401; KRE 611. No abuse occurred in the court’s exclusion
of Jason’s attempt to leverage Dr. Berla’s personal history so as to scuttle her
professional conclusions. We do not find improper the family court’s conclusion
that this attempted line of questioning was harassing, given these circumstances.
We find no abuse of discretion.
Family Court’s Order Denying Modification of the Timesharing Schedule
A family court’s authority to modify a timesharing schedule is
statutory. KRS 403.320(3). Under this statute, “The court may modify an order
granting or denying visitation rights whenever modification would serve the best
3 Kentucky Rules of Evidence.
-6- 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.” Id. The Kentucky Supreme Court noted the
terms “visitation” and “timesharing” are interchangeable and carry the same
meaning. Layman v. Bohanon, 599 S.W.3d 423, 429 (Ky. 2020) (citing Anderson
v. Johnson, 350 S.W.3d 453, 455 n.1 (Ky. 2011) (citing Pennington v. Marcum,
266 S.W.3d 759, 765 (Ky. 2008))).
A family court enjoys broad discretion when considering whether and
to what extent to modify a timesharing schedule. Pennington, 266 S.W.3d at 769.
Consequently, appellate courts “only reverse a [family] court’s determinations as
to visitation if they constitute a manifest abuse of discretion, or were clearly
erroneous in light of the facts and circumstances of the case.” Drury v. Drury, 32
S.W.3d 521, 525 (Ky. App. 2000). “Due regard shall be given to the opportunity
of the [family] court to judge the credibility of the witnesses.” Humphrey v.
Humphrey, 326 S.W.3d 460, 463 (Ky. App. 2010) (citing Murphy v. Murphy, 272
S.W.3d 864 (Ky. App. 2008)).
There is no suggestion the children’s health was ever in serious
danger; therefore, the applicable standard requires “reasonable timesharing . . . in
the best interests of the children . . . .” Layman, 599 S.W.3d at 431-32.
-7- On review, we “consider whether the family court properly found that
the arrangement was in the best interests of the children.” Id. at 432. That is, the
family court’s ruling will be affirmed as properly finding the current schedule is in
the children’s best interests unless Jason can direct us to evidence sufficiently
compelling to convince this reviewing Court of the contrary. We considered
Jason’s arguments and reviewed to record where he has directed this Court and
conclude the family court’s order denying modification is proper.
In Layman, the Supreme Court concluded “the family court’s . . .
amended [timesharing] order discussed relevant factors that support the
modification . . . .” Id. at 433. Here, too, the family court’s order denying
modification appropriately discussed the relevant factors. The family court’s order
addressed the parties’ lack of progress in co-parenting therapy, Jason’s unseemly
behavior, and his lack of appropriate cooperation. When the family court reached
conclusions about Jason that did not support his motion, it was not abusing
discretion but simply carrying out the charge imposed upon family courts by KRS
403.320(3) to weigh the evidence and make conclusions on the credibility of
witnesses. See KRS 403.320(3); Humphrey, 326 S.W.3d at 463.
Furthermore, the family court’s requirement that Jason and Melissa
complete co-parenting therapy sessions easily falls within the court’s discretion.
Its conclusion that co-parenting therapy is in the best interest of the children cannot
-8- be classified as an abuse of discretion. Thus, just as in Layman, “[w]e believe that,
in this case, the factors listed in the family court’s order[] are sufficient to satisfy
the best interests of the children standard.” Layman, 599 S.W.3d at 433.
CONCLUSION
For the foregoing reasons, we affirm the Bullitt Family Court’s April
8, 2021 order denying Appellant’s motion to modify his timesharing schedule.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Wallace N. Rogers Tammy R. Baker Louisville, Kentucky Shepherdsville, Kentucky
-9-