RENDERED: SEPTEMBER 24, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0837-MR
MARIAH NICHOLS APPELLANT
APPEAL FROM BELL CIRCUIT COURT v. HONORABLE ROBERT V. COSTANZO, JUDGE ACTION NO. 19-CI-00254
TIFFANY BRICE NICHOLS APPELLEE
OPINION VACATING AND REMANDING
** ** ** ** **
BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.
JONES, JUDGE: The Appellant, Mariah Nichols, appeals the Bell Circuit Court’s
Findings of Fact and Conclusions of Law as incorporated by reference into its final
Judgment and Decree dissolving Mariah’s marriage to the Appellee, Tiffany Brice
Nichols, awarding the parties joint legal custody of their minor child, G.T.W.A.
(“Child”), and designating Tiffany as Child’s primary residential custodian. On
appeal, Mariah asserts the circuit court erred when it awarded Tiffany substantially more parenting time with Child without first having made a finding that equal
parenting time was not in Child’s best interest as required by KRS1 403.270(2).
Having reviewed the record and being otherwise sufficiently advised, we agree
with Mariah. KRS 403.270(2) creates a rebuttable presumption in favor of equal
timesharing. The circuit court’s order does not contain any findings to explain
why it chose to deviate from the presumption. As such, it does not comply with
Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011), and Keifer v. Keifer, 354
S.W.3d 123 (Ky. 2011), which require written findings of fact in all matters
affecting child custody and timesharing. Accordingly, we must vacate and remand
the order as related to timesharing.
I. BACKGROUND
Tiffany and Mariah were married on October 10, 2016. In September
of 2019, Tiffany petitioned the circuit court to dissolve the parties’ marriage.
Tiffany was pregnant at the time she filed the petition for dissolution. On
December 29, 2019, while the marriage was still intact, Tiffany gave birth to Child.
Approximately three months after Child’s birth, the circuit court
conducted a final evidentiary hearing. Custody and timesharing were the primary
focus of the hearing. Because she was still breastfeeding Child, Tiffany wanted to
be designated Child’s primary residential custodian; Tiffany did not object to
1 Kentucky Revised Statutes. -2- Mariah having limited time with Child. However, she was concerned that she
would not be able to pump and store enough breast milk to accommodate the
“week on/week off” schedule proposed by Mariah, especially given the three-hour
distance between the parties’ residences. For her part, Mariah testified that she
was able to care for Child, provide him a safe and nurturing environment, and
desired equal time with him.
On June 16, 2020, the circuit court entered its Findings of Fact and
Conclusions of Law (“Findings”), which it incorporated by reference into a final
Judgment and Decree entered the same day. Paragraph 6 of the circuit court’s
Findings provides:
The Court finds that it is in the best interest of the infant child for the Parties to be awarded Joint custody with [Tiffany] being the Primary Residential Custodian and [Mariah] having visitation as set out in the attached visitation schedule of Bell Circuit Court. Visitation exchanges shall be conducted at Exit 38 on Interstate 75, London, Kentucky. [Mariah] shall pay child support in compliance with the Kentucky Child Support Chart.
The circuit court appended its timesharing schedule for children
younger than eighteen months to its Findings. Pursuant to that schedule, Mariah
has timesharing with Child every first and third weekend day from 1:00 p.m. to
6:00 p.m. and every Wednesday from 6:00 p.m. to 8:00 p.m. Application of the
schedule results in Tiffany having Child greater than 95% of the time.
-3- II. ANALYSIS
Before we delve into the merits of this appeal, we must first address
Tiffany’s motion to dismiss. Tiffany argues that we should strike Mariah’s brief
and dismiss her appeal for failure to comply with the briefing requirements of CR2
76.12(4). Tiffany points out that Mariah failed to conform her brief to the
requirements of CR 76.12(4)(c)(iv), which requires the statement of the case to
contain ample references to the record, and CR 76.12(4)(c)(v), which requires the
beginning of each argument to contain a statement with reference to the record
showing where the issue was properly preserved for review and in what manner.
Mariah counters that she was not required to preserve her argument via a CR 52.02
motion because the circuit court failed make any factual findings to support its
deviation from the presumption in favor of equal timesharing.
Mariah is correct that the circuit court’s failure to make any kind of a
finding regarding the necessity of deviating from the presumption in favor of equal
timesharing absolved her of the requirement to request additional findings by filing
a CR 52.02 motion. Anderson, 350 S.W.3d at 458 (“[A]s a matter of policy, when
a court fails to make any kind of factual findings as required, the litigant should not
be prohibited from asking an appellate court to require the lower court to make
2 Kentucky Rules of Civil Procedure.
-4- such findings.”); Keifer, 354 S.W.3d at 126 (“A bare-bone, conclusory order such
as the one entered here, setting forth nothing but the final outcome, is inadequate
and will enjoy no presumption of validity on appeal.”).
However, we cannot agree that the circuit court’s failure to make the
requisite findings absolved Mariah from following the most basic briefing
requirements of our Civil Rules. While Mariah was not required to file a CR 52.02
motion to preserve the issue of lack of any findings, she still should have identified
in the preservation section of her brief where she put the circuit court on notice that
she wanted equal timesharing. A proper brief would have contained citations to
the petition for dissolution and Mariah’s response showing that she requested equal
timesharing as well as any testimony or argument at the hearing related to her
request for equal time with Child. Additionally, a proper brief would have
identified where in the record, by page number, the circuit court erred.
While Mariah’s brief does not technically conform to our
requirements, the record is relatively short and the issue is not complex. While we
would be within our rights to sanction Mariah for her failure, this appeal involves
issues of child custody and timesharing. The imposition of sanctions, which could
affect the outcome of the case, are not always appropriate in appeals involving
child custody, timesharing, or support. See Galloway v. Pruitt, 469 S.W.2d 556,
557 (Ky. 1971). Given the discrete issue involved, the relatively short record, and
-5- the magnitude of the issue, we elect not to impose any sanctions on Mariah, and
will deny Tiffany’s motion to dismiss by separate order. However, we caution
counsel that failure to follow our briefing requirements in future appeals could
result in sanctions.
We now turn to the substance of the circuit court’s order regarding
timesharing.
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RENDERED: SEPTEMBER 24, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0837-MR
MARIAH NICHOLS APPELLANT
APPEAL FROM BELL CIRCUIT COURT v. HONORABLE ROBERT V. COSTANZO, JUDGE ACTION NO. 19-CI-00254
TIFFANY BRICE NICHOLS APPELLEE
OPINION VACATING AND REMANDING
** ** ** ** **
BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.
JONES, JUDGE: The Appellant, Mariah Nichols, appeals the Bell Circuit Court’s
Findings of Fact and Conclusions of Law as incorporated by reference into its final
Judgment and Decree dissolving Mariah’s marriage to the Appellee, Tiffany Brice
Nichols, awarding the parties joint legal custody of their minor child, G.T.W.A.
(“Child”), and designating Tiffany as Child’s primary residential custodian. On
appeal, Mariah asserts the circuit court erred when it awarded Tiffany substantially more parenting time with Child without first having made a finding that equal
parenting time was not in Child’s best interest as required by KRS1 403.270(2).
Having reviewed the record and being otherwise sufficiently advised, we agree
with Mariah. KRS 403.270(2) creates a rebuttable presumption in favor of equal
timesharing. The circuit court’s order does not contain any findings to explain
why it chose to deviate from the presumption. As such, it does not comply with
Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011), and Keifer v. Keifer, 354
S.W.3d 123 (Ky. 2011), which require written findings of fact in all matters
affecting child custody and timesharing. Accordingly, we must vacate and remand
the order as related to timesharing.
I. BACKGROUND
Tiffany and Mariah were married on October 10, 2016. In September
of 2019, Tiffany petitioned the circuit court to dissolve the parties’ marriage.
Tiffany was pregnant at the time she filed the petition for dissolution. On
December 29, 2019, while the marriage was still intact, Tiffany gave birth to Child.
Approximately three months after Child’s birth, the circuit court
conducted a final evidentiary hearing. Custody and timesharing were the primary
focus of the hearing. Because she was still breastfeeding Child, Tiffany wanted to
be designated Child’s primary residential custodian; Tiffany did not object to
1 Kentucky Revised Statutes. -2- Mariah having limited time with Child. However, she was concerned that she
would not be able to pump and store enough breast milk to accommodate the
“week on/week off” schedule proposed by Mariah, especially given the three-hour
distance between the parties’ residences. For her part, Mariah testified that she
was able to care for Child, provide him a safe and nurturing environment, and
desired equal time with him.
On June 16, 2020, the circuit court entered its Findings of Fact and
Conclusions of Law (“Findings”), which it incorporated by reference into a final
Judgment and Decree entered the same day. Paragraph 6 of the circuit court’s
Findings provides:
The Court finds that it is in the best interest of the infant child for the Parties to be awarded Joint custody with [Tiffany] being the Primary Residential Custodian and [Mariah] having visitation as set out in the attached visitation schedule of Bell Circuit Court. Visitation exchanges shall be conducted at Exit 38 on Interstate 75, London, Kentucky. [Mariah] shall pay child support in compliance with the Kentucky Child Support Chart.
The circuit court appended its timesharing schedule for children
younger than eighteen months to its Findings. Pursuant to that schedule, Mariah
has timesharing with Child every first and third weekend day from 1:00 p.m. to
6:00 p.m. and every Wednesday from 6:00 p.m. to 8:00 p.m. Application of the
schedule results in Tiffany having Child greater than 95% of the time.
-3- II. ANALYSIS
Before we delve into the merits of this appeal, we must first address
Tiffany’s motion to dismiss. Tiffany argues that we should strike Mariah’s brief
and dismiss her appeal for failure to comply with the briefing requirements of CR2
76.12(4). Tiffany points out that Mariah failed to conform her brief to the
requirements of CR 76.12(4)(c)(iv), which requires the statement of the case to
contain ample references to the record, and CR 76.12(4)(c)(v), which requires the
beginning of each argument to contain a statement with reference to the record
showing where the issue was properly preserved for review and in what manner.
Mariah counters that she was not required to preserve her argument via a CR 52.02
motion because the circuit court failed make any factual findings to support its
deviation from the presumption in favor of equal timesharing.
Mariah is correct that the circuit court’s failure to make any kind of a
finding regarding the necessity of deviating from the presumption in favor of equal
timesharing absolved her of the requirement to request additional findings by filing
a CR 52.02 motion. Anderson, 350 S.W.3d at 458 (“[A]s a matter of policy, when
a court fails to make any kind of factual findings as required, the litigant should not
be prohibited from asking an appellate court to require the lower court to make
2 Kentucky Rules of Civil Procedure.
-4- such findings.”); Keifer, 354 S.W.3d at 126 (“A bare-bone, conclusory order such
as the one entered here, setting forth nothing but the final outcome, is inadequate
and will enjoy no presumption of validity on appeal.”).
However, we cannot agree that the circuit court’s failure to make the
requisite findings absolved Mariah from following the most basic briefing
requirements of our Civil Rules. While Mariah was not required to file a CR 52.02
motion to preserve the issue of lack of any findings, she still should have identified
in the preservation section of her brief where she put the circuit court on notice that
she wanted equal timesharing. A proper brief would have contained citations to
the petition for dissolution and Mariah’s response showing that she requested equal
timesharing as well as any testimony or argument at the hearing related to her
request for equal time with Child. Additionally, a proper brief would have
identified where in the record, by page number, the circuit court erred.
While Mariah’s brief does not technically conform to our
requirements, the record is relatively short and the issue is not complex. While we
would be within our rights to sanction Mariah for her failure, this appeal involves
issues of child custody and timesharing. The imposition of sanctions, which could
affect the outcome of the case, are not always appropriate in appeals involving
child custody, timesharing, or support. See Galloway v. Pruitt, 469 S.W.2d 556,
557 (Ky. 1971). Given the discrete issue involved, the relatively short record, and
-5- the magnitude of the issue, we elect not to impose any sanctions on Mariah, and
will deny Tiffany’s motion to dismiss by separate order. However, we caution
counsel that failure to follow our briefing requirements in future appeals could
result in sanctions.
We now turn to the substance of the circuit court’s order regarding
timesharing. We review the circuit court’s decisions as to primary residential
custody and timesharing under the standards of KRS 403.270. Frances v. Frances,
266 S.W.3d 754, 756 (Ky. 2008); Chappell v. Chappell, 312 S.W.3d 364, 366 (Ky.
App. 2010). The circuit court has broad discretion to decide custody and
timesharing. Jones v. Livesay, 551 S.W.3d 47, 51 (Ky. App. 2018). In reviewing a
decision as to where a child will primarily live and how much time he will spend
with his respective parents, we are required to defer to the circuit court’s findings
of facts so long as they are supported by substantial evidence. Frances, 266
S.W.3d at 758. The circuit court is in the best position to resolve the conflicting
evidence and make the determination that is in the child’s best interest. Id. at 758-
59. So long as the circuit court properly follows the mandates of KRS 403.270, we
will defer to its decision if it is neither clearly erroneous nor an abuse of discretion.
Id. at 759.
On appeal, Mariah argues that the circuit court did not follow the
mandates of KRS 403.270 where it awarded Tiffany substantially more time with
-6- Child without making any finding that equal parenting time was not in Child’s best
interest. KRS 403.270(2) provides that a “court shall determine custody in
accordance with the best interests of the child and equal consideration shall be
given to each parent and to any de facto custodian.” The statute creates a
presumption, rebuttable by a preponderance of the evidence, “that joint custody
and equally shared parenting time is in the best interest of the child.” KRS
403.270(2). The statute provides a lengthy list of factors for the court to consider
in determining the best interests of the child. If the court determines that a
deviation from equal parenting time is appropriate, it must set forth a parenting
time schedule maximizing the time each parent has with the child and “consistent
with ensuring the child’s welfare.” KRS 403.270(2).
The circuit court did not make any factual findings to support its
ultimate conclusion that it was in Child’s best interest for Tiffany to be the primary
residential custodian sufficient to overcome the presumption in favor of equal
parenting time. While the record may contain evidence that would support the
circuit court’s ultimate conclusion, we do not have the authority to make
supportive findings where there is no indication that the lower court actually
considered or relied on the evidence. See Transportation Cabinet v. Caudill, 278
S.W.3d 643, 648 (Ky. App. 2009). Since we cannot discern the basis of the circuit
court’s decision, we cannot conduct a meaningful appellate review of its decision
-7- to deviate from the presumption in favor of equal parenting time. McKinney v.
McKinney, 257 S.W.3d 130, 134 (Ky. App. 2008).
Therefore, we must vacate the portion of the circuit court’s order with
respect to timesharing. On remand the circuit court must apply the presumption in
favor of equal parenting time. After considering all the evidence in relation to the
best interest factors, the circuit court should only deviate from the presumption if it
concludes that equal parenting time is not in Child’s best interest. It must then
render written findings of fact to support its ultimate conclusions. While the
findings need not be overly detailed, they must be sufficient for any later reviewing
court to determine that the circuit court engaged in the proper analysis and to
identify the evidence it relied upon in reaching its ultimate conclusions. Should
the circuit court determine that it is necessary to change the parenting time
schedule, it may also need to reassess the amount of child support.
III. CONCLUSION
For the foregoing reasons, we vacate the Bell Circuit Court’s order
and remand for additional findings of fact.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Levi Z. Turner Kellie D. Wilson Middlesboro, Kentucky Harlan, Kentucky
-8-