RENDERED: APRIL 19, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0372-MR
JULIE TUCKER APPELLANT
APPEAL FROM BOYD CIRCUIT COURT v. HONORABLE GEORGE W. DAVIS, III, JUDGE ACTION NO. 21-CI-00528
WESLEY TUCKER APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.
CALDWELL, JUDGE: Julie Tucker appeals from the Boyd Circuit Court’s orders
resolving timesharing and debt allocation in a divorce action. We affirm.
FACTS
In late 2021, Appellee Wesley Tucker (“Wes”) filed a petition for
divorce from Appellant Julie Tucker (“Julie”). The parties have two children, born
in 2016 and 2017. Initially the parties had temporary joint legal custody with both parties having some parenting time with the children. Due to Wes working out of
town during the weekdays, his parenting time generally occurred on weekends.
In the fall of 2022, the Boyd Circuit Court entered a decree dissolving
the parties’ marriage. However, the trial court reserved for later adjudication
issues including child custody, timesharing or visitation, child support, and
property division. See generally Putnam v. Fanning, 495 S.W.2d 175 (Ky. 1973).
Shortly after entry of the Putnam v. Fanning-type divorce decree, in
October 2022, the parties appeared before a Domestic Relations Commissioner
(“DRC”) for an evidentiary hearing. They presented evidence relating to custody,
timesharing, and property issues.
Each party testified about their current living arrangements and
employment. Wes testified he was laid off at that time following a health-related
absence. He also testified he generally worked out of town on weekdays. He
admitted he was currently living in a camper in his brother’s yard. He testified that
during his parenting time on weekends, he and the children sometimes stayed in
the camper and sometimes stayed at his parents’ house.
Julie testified to her concerns about Wes having an equal say in
decision-making and equal parenting time. She believed Wes was not well-
informed when making medical and other decisions due to failure to research
issues. She also believed Wes did not supervise the children sufficiently during his
-2- parenting time and stated the children sometimes had scratches or bruises after
spending time with Wes.
The parties also testified about financial matters. They had recently
sold the marital residence and agreed to split the proceeds – albeit with some
disputes about details. Both parties testified to Wes having recently bought a
refrigerator, despite the fact there were two other refrigerators on the premises.
And both parties testified that Wes consulted Julie about possibly buying a new
refrigerator after the refrigerator in the kitchen stopped working and she told him
to do what he wanted to do.
About four months after the evidentiary hearing, the DRC filed her
report and recommendations. She recommended the parties have joint legal
custody and equal timesharing to the extent practicable. While Wes continued to
live in the camper and work out of town, she recommended he continue to have
weekend visitation. If he obtained other housing and started working in town, she
recommended the parties have equal timesharing on a weekly basis – meaning they
take turns having parenting time for a week at a time. As for the refrigerator debt,
the DRC recommended that this be allocated equally between the parties. The
DRC stated child support would be determined later under statutory guidelines.
Both parties filed exceptions to the DRC’s report and
recommendations. Julie asserted that Wes had made a unilateral decision to buy
-3- the new refrigerator despite the two other refrigerators in the house and that he
controlled all marital funds. She also contended that equal or nearly equal
timesharing was not in the children’s best interests since Wes had not previously
had the children for more than a weekend at a time and he did not, in her view,
have suitable housing.
Julie asserted in her exceptions that there was a pending investigation
into allegations that one of the children had been sexually assaulted by Wes’s
neighbor while the children were in Wes’s care. She also claimed that Wes
allowed the children around this neighbor after the alleged assault despite being
informed of the incident. She argued Wes’s timesharing should be restricted due
to his failure to properly supervise the children while in his care. However, no
affidavit or documentation about the investigation or sexual abuse allegations was
attached to her exceptions.
The trial court entered an order confirming the DRC’s report and
adopting the DRC’s recommendations. It also entered an order overruling the
parties’ exceptions.
Julie filed a timely appeal from the trial court’s orders regarding the
DRC’s report and recommendations.1 The same day that she filed her notice of
1 Julie’s notice of appeal also stated that she appealed from the DRC’s report and recommendations. But a DRC’s report and recommendations have no legal effect unless formally confirmed or adopted by the trial court. See Pennington v. Marcum, 266 S.W.3d 759,
-4- appeal, she also filed a motion for emergency relief regarding sexual abuse
allegations. She requested the trial court grant her temporary emergency custody
of the children and restrict Wes’s time with the children to supervised visitation
once a week. She also requested that the record be sealed regarding the sexual
abuse allegations.
The trial court later entered an agreed order between the parties in
which both promised to offer in-sight supervision of the children when in their
care. However, there is no order resolving Julie’s motion for emergency relief in
the record on appeal.
Julie argues in her appellant brief that the trial court’s custody and
timesharing decision must be reversed due to Wes’s unsuitable living arrangements
and his neglecting the children in her view. She also asserts this Court must
reverse the allocation of the refrigerator debt to her due to Wes unilaterally
purchasing the refrigerator despite having other refrigerators in the home. (The
adopted report called for allocating the refrigerator debt equally between the
parties.) Lastly, Julie argues in her brief that this Court should adopt a bright-line
rule that a parent’s time with children must be restricted and supervised whenever
771 (Ky. 2008) (“The trial commissioner acts only to further judicial economy by assisting the trial court; the commissioner’s report is a recommendation and is not binding. It is the trial court itself that makes findings of fact, either by adopting those recommended by the commissioner or by acting anew.”).
-5- a parent is being investigated for “uncontroverted allegations of neglect and/or
exposure to the risk of harm relating to children being sexually assaulted” until the
investigation is complete.
ANALYSIS
Before we address the custody and timesharing arguments, we address
Julie’s arguments about the refrigerator debt.
No Reversible Error in Allocation of Refrigerator Debt
We review the trial court’s allocation of the refrigerator debt equally
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RENDERED: APRIL 19, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0372-MR
JULIE TUCKER APPELLANT
APPEAL FROM BOYD CIRCUIT COURT v. HONORABLE GEORGE W. DAVIS, III, JUDGE ACTION NO. 21-CI-00528
WESLEY TUCKER APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.
CALDWELL, JUDGE: Julie Tucker appeals from the Boyd Circuit Court’s orders
resolving timesharing and debt allocation in a divorce action. We affirm.
FACTS
In late 2021, Appellee Wesley Tucker (“Wes”) filed a petition for
divorce from Appellant Julie Tucker (“Julie”). The parties have two children, born
in 2016 and 2017. Initially the parties had temporary joint legal custody with both parties having some parenting time with the children. Due to Wes working out of
town during the weekdays, his parenting time generally occurred on weekends.
In the fall of 2022, the Boyd Circuit Court entered a decree dissolving
the parties’ marriage. However, the trial court reserved for later adjudication
issues including child custody, timesharing or visitation, child support, and
property division. See generally Putnam v. Fanning, 495 S.W.2d 175 (Ky. 1973).
Shortly after entry of the Putnam v. Fanning-type divorce decree, in
October 2022, the parties appeared before a Domestic Relations Commissioner
(“DRC”) for an evidentiary hearing. They presented evidence relating to custody,
timesharing, and property issues.
Each party testified about their current living arrangements and
employment. Wes testified he was laid off at that time following a health-related
absence. He also testified he generally worked out of town on weekdays. He
admitted he was currently living in a camper in his brother’s yard. He testified that
during his parenting time on weekends, he and the children sometimes stayed in
the camper and sometimes stayed at his parents’ house.
Julie testified to her concerns about Wes having an equal say in
decision-making and equal parenting time. She believed Wes was not well-
informed when making medical and other decisions due to failure to research
issues. She also believed Wes did not supervise the children sufficiently during his
-2- parenting time and stated the children sometimes had scratches or bruises after
spending time with Wes.
The parties also testified about financial matters. They had recently
sold the marital residence and agreed to split the proceeds – albeit with some
disputes about details. Both parties testified to Wes having recently bought a
refrigerator, despite the fact there were two other refrigerators on the premises.
And both parties testified that Wes consulted Julie about possibly buying a new
refrigerator after the refrigerator in the kitchen stopped working and she told him
to do what he wanted to do.
About four months after the evidentiary hearing, the DRC filed her
report and recommendations. She recommended the parties have joint legal
custody and equal timesharing to the extent practicable. While Wes continued to
live in the camper and work out of town, she recommended he continue to have
weekend visitation. If he obtained other housing and started working in town, she
recommended the parties have equal timesharing on a weekly basis – meaning they
take turns having parenting time for a week at a time. As for the refrigerator debt,
the DRC recommended that this be allocated equally between the parties. The
DRC stated child support would be determined later under statutory guidelines.
Both parties filed exceptions to the DRC’s report and
recommendations. Julie asserted that Wes had made a unilateral decision to buy
-3- the new refrigerator despite the two other refrigerators in the house and that he
controlled all marital funds. She also contended that equal or nearly equal
timesharing was not in the children’s best interests since Wes had not previously
had the children for more than a weekend at a time and he did not, in her view,
have suitable housing.
Julie asserted in her exceptions that there was a pending investigation
into allegations that one of the children had been sexually assaulted by Wes’s
neighbor while the children were in Wes’s care. She also claimed that Wes
allowed the children around this neighbor after the alleged assault despite being
informed of the incident. She argued Wes’s timesharing should be restricted due
to his failure to properly supervise the children while in his care. However, no
affidavit or documentation about the investigation or sexual abuse allegations was
attached to her exceptions.
The trial court entered an order confirming the DRC’s report and
adopting the DRC’s recommendations. It also entered an order overruling the
parties’ exceptions.
Julie filed a timely appeal from the trial court’s orders regarding the
DRC’s report and recommendations.1 The same day that she filed her notice of
1 Julie’s notice of appeal also stated that she appealed from the DRC’s report and recommendations. But a DRC’s report and recommendations have no legal effect unless formally confirmed or adopted by the trial court. See Pennington v. Marcum, 266 S.W.3d 759,
-4- appeal, she also filed a motion for emergency relief regarding sexual abuse
allegations. She requested the trial court grant her temporary emergency custody
of the children and restrict Wes’s time with the children to supervised visitation
once a week. She also requested that the record be sealed regarding the sexual
abuse allegations.
The trial court later entered an agreed order between the parties in
which both promised to offer in-sight supervision of the children when in their
care. However, there is no order resolving Julie’s motion for emergency relief in
the record on appeal.
Julie argues in her appellant brief that the trial court’s custody and
timesharing decision must be reversed due to Wes’s unsuitable living arrangements
and his neglecting the children in her view. She also asserts this Court must
reverse the allocation of the refrigerator debt to her due to Wes unilaterally
purchasing the refrigerator despite having other refrigerators in the home. (The
adopted report called for allocating the refrigerator debt equally between the
parties.) Lastly, Julie argues in her brief that this Court should adopt a bright-line
rule that a parent’s time with children must be restricted and supervised whenever
771 (Ky. 2008) (“The trial commissioner acts only to further judicial economy by assisting the trial court; the commissioner’s report is a recommendation and is not binding. It is the trial court itself that makes findings of fact, either by adopting those recommended by the commissioner or by acting anew.”).
-5- a parent is being investigated for “uncontroverted allegations of neglect and/or
exposure to the risk of harm relating to children being sexually assaulted” until the
investigation is complete.
ANALYSIS
Before we address the custody and timesharing arguments, we address
Julie’s arguments about the refrigerator debt.
No Reversible Error in Allocation of Refrigerator Debt
We review the trial court’s allocation of the refrigerator debt equally
between the parties for abuse of discretion. Rice v. Rice, 336 S.W.3d 66, 68 (Ky.
2011) (“Questions of whether property or debt is marital or nonmarital are left to
the sound discretion of the trial court, as is the equitable division of any marital
property, and will be reviewed for abuse of discretion[.]”).
Unlike property acquired during a marriage, there is no presumption
that debt acquired during a marriage is marital. See id. See also KRS2 403.190. In
adopting the DRC’s recommendation to split the refrigerator debt evenly between
the parties, the trial court evidently implicitly concluded that this debt was marital
and that it was equitable to divide this debt equally.
The DRC’s report adopted by the trial court noted that Julie argued
that Wes should be responsible for paying the refrigerator debt since he bought the
2 Kentucky Revised Statutes.
-6- refrigerator. It also noted that Wes requested this debt be paid off from the marital
home sale proceeds. The DRC recommended that the parties each pay half of the
debt on the refrigerator before receiving their half of the marital home sale
proceeds. Or the parties could also elect to have their respective share of the
refrigerator debt deducted from marital home sale proceeds prior to their checks
for their respective shares of the proceeds being written.
Though not explicitly discussed in the DRC report, both parties
testified that Wes consulted Julie before buying the refrigerator and that she told
him to do what he wanted to do. So, this is not a case in which a spouse incurred a
great deal of debt without the knowledge or consent of the other spouse. Compare
Rice, 336 S.W.3d at 69. And no one has pointed to any testimony that when
consulted by Wes, Julie told him that she opposed buying a new refrigerator.
Despite Julie’s contention on appeal that she did not see any benefit to buying a
new refrigerator, she does not point to any evidence that she expressed this opinion
to Wes before the refrigerator purchase.
Furthermore, not only does the evidence support a finding that Julie
was aware of, and seemingly consented to, the refrigerator purchase, but the
evidence supports a finding that the refrigerator was bought as marital property to
be used in the marital home. Compare id. (Husband’s incurring large debt for
benefit of adult child was not to buy marital property.)
-7- Given these circumstances, we perceive no abuse of discretion in the
allocation of half of this debt to Julie – especially as Wes was held responsible for
all debt on the camper and both parties shared in the home sale proceeds. In short,
there was no abuse of discretion in the trial court allocating half of the refrigerator
debt to Julie. Next, we address timesharing issues.
No Reversible Error in Timesharing Decision
We review the trial court’s custody and timesharing decisions for
abuse of discretion. Jones v. Livesay, 551 S.W.3d 47, 51 (Ky. App. 2018). We
discern no abuse of discretion in these matters based on the evidence in the record.
Citing no authority other than a general reference to KRS Chapter
403, Julie argues in her appellant brief that the trial court erred in failing to find
that the presumption for equal timesharing was overcome. She contends this made
no sense as, in her view, the trial court found that Wes lacked suitable living
arrangements and/or stable housing and was unable to exercise equal timesharing
due to generally working out of town.
In adopting the DRC’s report, the trial court determined that joint
custody was in the child’s best interest and found: “There were no allegations that
would overcome the presumption of shared parenting.” And the court also
recognized that totally equal shared parenting was not feasible due to Wes’s
working out of town most of the week. So long as Wes was working out of town
-8- and still living in the camper, he would have parenting time mainly on the
weekends although a more equal, weekly exchange of parenting time was to take
place if his working and living arrangements changed. But the adopted DRC
report did not find that Wes lacked stable housing or suitable living arrangements
as Julie suggests.
Furthermore, though Wes and the children admittedly stayed in the
camper or his parents’ house during his parenting time, Julie has not cited any
testimony or other evidence of deplorable living conditions in either the camper or
Wes’s parents’ house. And Julie testified to living in her mother’s home at the
time of the hearing. Julie also testified she suspected Wes did not supervise the
children well and she claimed they had bruises or scratches after spending time
with him. However, she does not point to any medical evidence or other evidence
indicating the nature of how any bruises or scratches were acquired.
Considering the evidence presented at the DRC hearing, we discern
no abuse of discretion in the trial court’s custody and timesharing decision.
No Evidence in Record of Sexual Assault Allegations or Investigation
In addition to her arguments that the timesharing decision must be
disturbed due to Wes’s allegedly unsuitable living arrangements, Julie argues that
the timesharing decision must be disturbed due to an investigation of sexual abuse
allegations. As Julie asserts, this argument was preserved by her raising this issue
-9- in her exceptions. See MV Transp., Inc. v. Allgeier, 433 S.W.3d 324, 331 (Ky.
2014) (“[T]he critical point in preservation of an issue remains: was the question
fairly brought to the attention of the trial court.”).
But while Julie raised the issue to the trial court through her
exceptions, she does not point to any evidence in the record about sexual abuse
allegations or an investigation thereof. Based on our review of the videorecording
of the DRC hearing in October 2022, we are unaware of any testimony about
allegations of sexual assault during Wes’s parenting time. Julie’s appellant brief
makes no specific citations to the videorecording of the October 2022 DRC
hearing and Julie designated only this October 2022 videorecording to be included
in the record. So, we could not review the scheduled hearing on exceptions, for
example.
Though Julie asserted that an investigation about sexual abuse
allegations was ongoing when she filed her exceptions, she does not point to any
affidavits, other testimony, or documentary proof in the record. Her exceptions
were not evidence as mere allegations in court filings are not evidence. See T.C. v.
M.E., 603 S.W.3d 663, 684 (Ky. App. 2020) (allegations in pleadings are not
evidence).
Perhaps Julie later presented sealed evidence about a sexual abuse
investigation after she filed her notice of appeal and the contemporaneously filed
-10- motion for emergency relief relating to sexual assault allegations. However, there
is no evidence in the record before us about any investigation into allegations of
sexual abuse. Furthermore, the appellant bears the burden of ensuring that the
record is complete with everything the appellate court needs to decide the issues
raised on appeal. Smith v. Smith, 450 S.W.3d 729, 731 (Ky. App. 2014).
Given the lack of evidence about a sexual assault investigation in the
record, we cannot say the trial court abused its discretion in adopting the DRC’s
recommendation of joint custody and shared parenting time. And given this lack
of evidence about whether or when an investigation into sexual assault allegations
occurred, we need not reach Julie’s argument urging this Court to adopt a bright-
line rule requiring restricted or supervised visitation upon uncontroverted
allegations of sexual assault of a child while under a parent’s care until an
investigation is completed. In the absence of any evidence about such an
investigation in the record, this would be entertaining a theoretical question and we
must not issue advisory opinions even on important issues. See Philpot v. Patton,
837 S.W.2d 491, 493 (Ky. 1992) (“Our courts do not function to give advisory
opinions, even on important public issues, unless there is an actual case in
controversy.”).
Furthermore, the interests of children allegedly subjected to sexual
assault while in a parent’s care are protected under current statutes. See, e.g., KRS
-11- Chapter 620 (Dependency, Neglect, and Abuse); KRS 403.270 (initial custody
determination requiring finding of child’s best interest considering several factors
including physical and mental health and the child’s relationship with parents and
others). Notably, a court may modify custody even less than two years after an
initial custody determination based on affidavits indicating serious endangerment
to the child’s physical, mental, or emotional health. KRS 403.340(2)(a).
Similarly, a court may restrict visitation based on serious endangerment to the
child’s physical, mental, or emotional health. See KRS 403.320(3).
Thus, we decline to adopt Julie’s proposed bright-line rule.
Further arguments in the parties’ briefs not discussed herein have been
determined to lack merit or relevancy to our resolving this appeal.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Brandon M. Music Tracy D. Frye Grayson, Kentucky Marie E. Troxler Russell, Kentucky
-12-