RENDERED: SEPTEMBER 25, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1802-ME
JOSHUA ESTERLINE APPELLANT
APPEAL FROM CARTER CIRCUIT COURT v. HONORABLE DAVID D. FLATT, JUDGE ACTION NO. 18-CI-00153
KELI ESTERLINE APPELLEE
OPINION REVERSING
** ** ** ** **
BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.
KRAMER, JUDGE: Joshua Esterline appeals from a final order of the Carter
Family Court that determined custody and timesharing of the parties’ minor child,
as well as distribution of real and personal property in their divorce proceedings.
After careful review, we reverse the Carter Family Court.
The parties married in 2010, and Keli Esterline filed a petition for
dissolution of marriage in May 2018. The parties have one minor child. A decree of dissolution was entered pursuant to Putnam v. Fanning, 495 S.W.2d 175 (Ky.
1973) in July 2018, and the family court reserved on issues of custody,
timesharing, and distribution of property. A temporary order was entered granting
joint custody of the minor child and giving Joshua timesharing every Sunday at
8:00 a.m. until Tuesday at 8:00 p.m. The final hearing was divided into two dates,
the first in October 2018, and the final date on January 31, 2019. At the outset of
the second hearing and upon Joshua’s motion, the family court entered a directed
verdict giving Joshua equal timesharing with the parties’ minor child, ruling from
the bench that
[t]he court is of the opinion that the presumption [of equal timesharing] is one that is to be taken quite seriously by the court. I have heard no evidence that shared custody would not be in the best interest of the child and that presumption has not been overcome. I will sustain the motion [for directed verdict].
Approximately one week after the final hearing date, Keli’s counsel
made a motion to withdraw. The family court entered an order on February 20,
2019, giving Keli thirty (30) days to obtain new counsel and “an additional twenty
(20) days from the date of the last hearing to submit proposed orders and findings
of fact.” Nevertheless, the family court entered its findings of fact, conclusions of
law, and order on February 21, 2019. On February 27, 2019, Keli’s new counsel
filed an entry of appearance and a motion to alter, amend, or vacate the family
court’s February 21, 2019 order. The motion stated only that “[i]n support of this
-2- motion, [Keli] states that the Court entered an order on February 20 th, 2019
allowing [Keli] 30 days to obtain new counsel.” The family court heard the motion
on March 12, 2019. The hearing was brief, and Keli’s new counsel’s argument, in
its entirety, was
[t]hat was my motion, your honor. [Keli’s former counsel] withdrew and the court had given some time to submit proposed findings and they were not submitted before his withdrawal. We just ask for an opportunity to submit proposed findings.[1]
Keli did not specify what in particular she wished to alter, amend, or
vacate in the family court’s February 21, 2019 order. Joshua’s counsel objected,
and the family court stated, “The matter will be submitted, you can submit
whatever you want.”
The record before us is unclear as to if or when Keli’s counsel
submitted proposed findings to the family court. However, on October 10, 2019,
the family court entered an order granting Keli’s motion to alter, amend, or vacate.
The new order greatly altered the February 21, 2019 order regarding timesharing
and property distribution. Joshua filed a motion to alter, amend, or vacate the
October 10, 2019 order, which was denied without explanation by the family court.
This appeal followed.
1 The family court announced that the parties had twenty (20) days to submit proposed findings at the conclusion of the final hearing on January 31, 2019.
-3- Joshua makes four arguments on appeal. He asserts that the family
court abused its discretion by 1) failing to award him equal timesharing; 2)
granting his directed verdict regarding equal timesharing, but then failing to
provide for same in its October 10, 2019 order; 3) awarding Keli $20,000.00 as her
non-marital interest in the mobile home and $5,000.00 for her marital interest; and
4) ordering Joshua to pay Keli for any non-marital interest in the Kia Sorento.
We first note that Keli failed to file an appellee brief. CR2
76.12(8)(c) provides a range of penalties that may be levied against an appellee for
failing to file a timely brief. St. Joseph Catholic Orphan Society v. Edwards, 449
S.W.3d 727, 732 (Ky. 2014). The Court may “(i) accept the appellant’s statement
of the facts and issues as correct; (ii) reverse the judgment if appellant’s brief
reasonably appears to sustain such action; or (iii) regard the appellee’s failure as a
confession of error and reverse the judgment without considering the merits of the
case.” CR 76.12(8)(c). While a party’s failure to file a brief may be taken as a
confession of error, such a sanction is usually inappropriate in appeals involving
child custody, support, or visitation. Ellis v. Ellis, 420 S.W.3d 528, 529 (Ky. App.
2014). We do not take Keli’s failure to file a brief as a confession of error related
to the issues of timesharing only, although we do accept Joshua’s statement of the
facts and issues as correct. CR 76.12(8)(c)(i). However, pursuant to CR
2 Kentucky Rule of Civil Procedure.
-4- 76.12(8)(c)(iii), we do consider Keli’s failure to file a brief as a confession of error
regarding the distribution of property and reverse the family court’s judgment
without considering the merits of those issues.
We review Joshua’s arguments regarding timesharing of the minor
child for an abuse of discretion by the family court. “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Sexton v. Sexton, 125 S.W.3d 258, 272
(Ky. 2004). We are mindful that, “unless absolute abuse [of discretion] is shown,
the appellate court must maintain confidence in the trial court and not disturb the
findings of the trial judge.” Clark v. Clark, 782 S.W.2d 56, 60 (Ky. App. 1990).
The family court’s drastic change regarding timesharing from its February 21,
2019 order to its October 10, 2019 order, without hearing any further evidence, is
not only perplexing to this Court, but is also an abuse of discretion.
We examine Joshua’s first and second arguments together. Keli was
seeking to restrict Joshua’s timesharing with the minor child to every other
weekend at the time of the final hearing. However, after Keli concluded her case
in chief, Joshua moved for a directed verdict, arguing that Keli had presented no
evidence to overcome the presumption of equal timesharing,3 and asked that his
temporary timesharing schedule be expanded to begin Saturday at 8:00 a.m. and
3 See Kentucky Revised Statute (KRS) 403.270(2).
-5- conclude Tuesday at 8:00 p.m. every week. The family court agreed and granted
the motion. Because of that, Joshua did not present any evidence to the family
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RENDERED: SEPTEMBER 25, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1802-ME
JOSHUA ESTERLINE APPELLANT
APPEAL FROM CARTER CIRCUIT COURT v. HONORABLE DAVID D. FLATT, JUDGE ACTION NO. 18-CI-00153
KELI ESTERLINE APPELLEE
OPINION REVERSING
** ** ** ** **
BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.
KRAMER, JUDGE: Joshua Esterline appeals from a final order of the Carter
Family Court that determined custody and timesharing of the parties’ minor child,
as well as distribution of real and personal property in their divorce proceedings.
After careful review, we reverse the Carter Family Court.
The parties married in 2010, and Keli Esterline filed a petition for
dissolution of marriage in May 2018. The parties have one minor child. A decree of dissolution was entered pursuant to Putnam v. Fanning, 495 S.W.2d 175 (Ky.
1973) in July 2018, and the family court reserved on issues of custody,
timesharing, and distribution of property. A temporary order was entered granting
joint custody of the minor child and giving Joshua timesharing every Sunday at
8:00 a.m. until Tuesday at 8:00 p.m. The final hearing was divided into two dates,
the first in October 2018, and the final date on January 31, 2019. At the outset of
the second hearing and upon Joshua’s motion, the family court entered a directed
verdict giving Joshua equal timesharing with the parties’ minor child, ruling from
the bench that
[t]he court is of the opinion that the presumption [of equal timesharing] is one that is to be taken quite seriously by the court. I have heard no evidence that shared custody would not be in the best interest of the child and that presumption has not been overcome. I will sustain the motion [for directed verdict].
Approximately one week after the final hearing date, Keli’s counsel
made a motion to withdraw. The family court entered an order on February 20,
2019, giving Keli thirty (30) days to obtain new counsel and “an additional twenty
(20) days from the date of the last hearing to submit proposed orders and findings
of fact.” Nevertheless, the family court entered its findings of fact, conclusions of
law, and order on February 21, 2019. On February 27, 2019, Keli’s new counsel
filed an entry of appearance and a motion to alter, amend, or vacate the family
court’s February 21, 2019 order. The motion stated only that “[i]n support of this
-2- motion, [Keli] states that the Court entered an order on February 20 th, 2019
allowing [Keli] 30 days to obtain new counsel.” The family court heard the motion
on March 12, 2019. The hearing was brief, and Keli’s new counsel’s argument, in
its entirety, was
[t]hat was my motion, your honor. [Keli’s former counsel] withdrew and the court had given some time to submit proposed findings and they were not submitted before his withdrawal. We just ask for an opportunity to submit proposed findings.[1]
Keli did not specify what in particular she wished to alter, amend, or
vacate in the family court’s February 21, 2019 order. Joshua’s counsel objected,
and the family court stated, “The matter will be submitted, you can submit
whatever you want.”
The record before us is unclear as to if or when Keli’s counsel
submitted proposed findings to the family court. However, on October 10, 2019,
the family court entered an order granting Keli’s motion to alter, amend, or vacate.
The new order greatly altered the February 21, 2019 order regarding timesharing
and property distribution. Joshua filed a motion to alter, amend, or vacate the
October 10, 2019 order, which was denied without explanation by the family court.
This appeal followed.
1 The family court announced that the parties had twenty (20) days to submit proposed findings at the conclusion of the final hearing on January 31, 2019.
-3- Joshua makes four arguments on appeal. He asserts that the family
court abused its discretion by 1) failing to award him equal timesharing; 2)
granting his directed verdict regarding equal timesharing, but then failing to
provide for same in its October 10, 2019 order; 3) awarding Keli $20,000.00 as her
non-marital interest in the mobile home and $5,000.00 for her marital interest; and
4) ordering Joshua to pay Keli for any non-marital interest in the Kia Sorento.
We first note that Keli failed to file an appellee brief. CR2
76.12(8)(c) provides a range of penalties that may be levied against an appellee for
failing to file a timely brief. St. Joseph Catholic Orphan Society v. Edwards, 449
S.W.3d 727, 732 (Ky. 2014). The Court may “(i) accept the appellant’s statement
of the facts and issues as correct; (ii) reverse the judgment if appellant’s brief
reasonably appears to sustain such action; or (iii) regard the appellee’s failure as a
confession of error and reverse the judgment without considering the merits of the
case.” CR 76.12(8)(c). While a party’s failure to file a brief may be taken as a
confession of error, such a sanction is usually inappropriate in appeals involving
child custody, support, or visitation. Ellis v. Ellis, 420 S.W.3d 528, 529 (Ky. App.
2014). We do not take Keli’s failure to file a brief as a confession of error related
to the issues of timesharing only, although we do accept Joshua’s statement of the
facts and issues as correct. CR 76.12(8)(c)(i). However, pursuant to CR
2 Kentucky Rule of Civil Procedure.
-4- 76.12(8)(c)(iii), we do consider Keli’s failure to file a brief as a confession of error
regarding the distribution of property and reverse the family court’s judgment
without considering the merits of those issues.
We review Joshua’s arguments regarding timesharing of the minor
child for an abuse of discretion by the family court. “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Sexton v. Sexton, 125 S.W.3d 258, 272
(Ky. 2004). We are mindful that, “unless absolute abuse [of discretion] is shown,
the appellate court must maintain confidence in the trial court and not disturb the
findings of the trial judge.” Clark v. Clark, 782 S.W.2d 56, 60 (Ky. App. 1990).
The family court’s drastic change regarding timesharing from its February 21,
2019 order to its October 10, 2019 order, without hearing any further evidence, is
not only perplexing to this Court, but is also an abuse of discretion.
We examine Joshua’s first and second arguments together. Keli was
seeking to restrict Joshua’s timesharing with the minor child to every other
weekend at the time of the final hearing. However, after Keli concluded her case
in chief, Joshua moved for a directed verdict, arguing that Keli had presented no
evidence to overcome the presumption of equal timesharing,3 and asked that his
temporary timesharing schedule be expanded to begin Saturday at 8:00 a.m. and
3 See Kentucky Revised Statute (KRS) 403.270(2).
-5- conclude Tuesday at 8:00 p.m. every week. The family court agreed and granted
the motion. Because of that, Joshua did not present any evidence to the family
court in support of his request for equal timesharing. The February 21, 2019 order
reflected the directed verdict initially made from the bench and included Joshua’s
requested expansion of his timesharing. Yet, without any additional evidence
before it, the family court then restricted Joshua’s timesharing with the child to
even less time than he was granted in the temporary order. In reducing Joshua’s
time with the child in its October 10, 2019 order, the family court ruled that
[t]he Court makes this finding due solely to the amount of time which the parties can spend with the child, and not find it necessary to utilize caregivers outside of the family. The Court finds it is in the best interest of this child to have a parent as a caregiver.
Joshua testified that he is off work on Sunday, Monday, and Tuesday
and that he works third shift. Joshua also lives with his brother, Zachary, who is
with the child while he is asleep if Joshua is at work. Joshua testified regarding the
child’s close relationship with Zachary; this was unrefuted by Keli. The drastic
change in Joshua’s timesharing by the family court in the October 10, 2019 order
was arbitrary and an abuse of discretion. We, therefore, reverse the circuit court.
Regarding the distribution of property, the decision as to how to
proceed in imposing penalties under CR 76.12(8)(c) is a matter committed to our
discretion. Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007). Joshua
-6- argues that the family court abused its discretion in its October 10, 2019 order
regarding distribution of marital property when it again, and without any
explanation or additional evidence before it, drastically altered its February 21,
2019 order regarding Keli’s interest in the marital home and the amount Joshua
was to pay to her for that interest.4 Joshua further argues that the family court
abused its discretion by ordering him to pay Keli any marital interest in the Kia
Sorento, which had been traded for a 2018 Jeep in which the parties had no equity
because it was leased. Taking Joshua’s statement of facts as true, we also regard
Keli’s failure to file a brief as a confession of error regarding these issues and
reverse the family court without addressing the merits of Joshua’s arguments
pursuant to CR 76.12(8)(c)(iii).
Accordingly, we REVERSE the Carter Family Court’s order entered
October 10, 2019.
ALL CONCUR.
4 In the February 21, 2019 order, the family court found that Keli’s mother had given both parties a gift of $20,000.00 to put towards the mobile home which was the marital residence. The evidence supports this finding. The family court also ordered Joshua to pay Keli one half of the equity interest, or $8,000.00. Without explanation or additional evidence, the family court completely changed this finding in the October 10, 2019 order and instead ruled that the $20,000.00 was a gift to Keli only and Joshua was to repay Keli the same amount for her non- marital interest plus an additional $5,000.00 for her marital interest.
-7- BRIEF FOR APPELLANT: NO APPELLEE BRIEF FILED
Tracy D. Frye Russell, Kentucky
-8-