RENDERED: MARCH 18, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0700-MR
WHITNEY LEE LUTZ (NOW BEELER) APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT v. HONORABLE BRUCE T. BUTLER, JUDGE ACTION NO. 09-CI-00282
CHRISTOPHER ALAN ARMSTRONG APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
DIXON, JUDGE: Whitney Lee Beeler appeals the findings of fact, conclusions of
law, and judgment adopted by the Grayson Circuit Court on May 14, 2021. After
careful review of the briefs, the record, and the law, we affirm. BACKGROUND FACTS AND PROCEDURAL HISTORY
Beeler and Christopher Alan Armstrong have three children together.
In 2009, the court adopted the parties’ parenting agreement which provided for
joint custody and a visitation schedule consisting of Mondays, Tuesdays, and
alternate weekends with Beeler and Wednesdays through Fridays and alternate
weekends with Armstrong. In July 2019, Armstrong struck the oldest child in the
leg with a fiberglass stick leaving a bruise while the middle child was present.
This incident led to a domestic violence petition, which was dismissed by the
court; a dependency, neglect, and abuse action, wherein Armstrong stipulated to
neglect or abuse and temporary orders limited his visitation time; and a criminal
action for domestic violence, fourth degree, of which Armstrong was ultimately
acquitted. In September 2019, alleging that the children feared Armstrong, Beeler
filed a motion for sole custody of the children and for Armstrong to have limited
supervised visitation.
A hearing was held before the Domestic Relations Commissioner
(DRC) at which the children, their therapists, the parties, the paternal grandparents,
and two friends who had observed Armstrong’s interactions with the children
testified. Thereafter, the DRC, applying KRS1 403.270, issued a report
recommending that the parties retain joint custody and gradually resume the prior
1 Kentucky Revised Statutes.
-2- visitation schedule as recommended by the therapists. Over Beeler’s objection, the
court adopted the report, and this appeal timely followed. Additional facts will be
introduced as they become relevant.
ANALYSIS
Beeler argues on appeal that the court erred by applying the incorrect
statute, KRS 403.270 instead of KRS 403.340, to its custody determination, and
the court abused its discretion in determining that restoring the prior visitation
arrangement was in the children’s best interest. Before we consider the merits,
Armstrong asserts that this matter should be dismissed where Beeler failed to
preserve her claim that the court applied the incorrect law, failed to request a
palpable error review, and failed to comply with CR2 76.12(4)(c)(v). We address
each in turn.
The role of the appellate court is to review the decisions of the trial
court. See Jones v. Livesay, 551 S.W.3d 47 (Ky. App. 2018). Accordingly, as a
general rule “[t]he Court of Appeals is without authority to review issues not raised
in or decided by the trial court.” Regional Jail Auth. v. Tackett, 770 S.W.2d 225,
228 (Ky. 1989) (citing Matthews v. Ward, 350 S.W.2d 500 (Ky. 1961); Combs v.
Knott Co. Fiscal Court, 283 Ky. 456, 141 S.W.2d 859 (1940); Tipton v. Brown,
273 Ky. 496, 117 S.W.2d 217 (1938)). An exception exists where a party asserts
2 Kentucky Rules of Civil Procedure.
-3- that the lower court made a palpable error which affected their substantial rights
and resulted in a manifest injustice. CR 61.02. Herein, not only did Beeler fail to
raise the issue that KRS 403.270 was inapplicable before the lower court, she also
affirmatively argued that KRS 403.270 was the governing law in her objections to
the DRC’s report. Accordingly, Armstrong is correct that Beeler’s contention was
not preserved. Moreover, as Beeler has not requested that this Court undertake a
palpable error review, we do not reach the merits of this claim.
Regarding Beeler’s remaining argument, Armstrong is correct that
Beeler’s brief does not comply with CR 76.12(4)(c)(v) where she failed to include
a statement identifying “whether the issue was properly preserved for review and,
if so, in what manner.” Where a party fails to abide by the rules of civil procedure,
we are permitted to ignore the deficiency, strike the brief in whole or part, or
review the issues raised for manifest injustice. CR 76.12(8); Elwell v. Stone, 799
S.W.2d 46, 47 (Ky. App. 1990). Given the import of child-related matters, we will
disregard the error to the extent Beeler’s claim is properly preserved.
In arguing that the court abused its discretion in setting visitation,
Beeler first contends that the court erred by disregarding the statutory presumption
that “equally shared parenting time” is in the children’s best interest where
Armstrong has the children 8 out of every 14 days. KRS 403.270; 403.315. We
easily dispense with this challenge as the Supreme Court of Kentucky in Layman v.
-4- Bohanon, 599 S.W.3d 423, 431 (Ky. 2020), held that the presumption does not
apply to the modification of visitation or timesharing.
Finally, Beeler asserts that the court’s findings do not support its
visitation decision where the court placed too great an emphasis on Armstrong’s
wishes and the children’s ties to their step-siblings, and gave too little regard for
the children’s stated wishes to limit visitation, as well as their diagnoses of mental
anguish, anxiety, and depression. Armstrong disagrees, noting that the court
considered the extensive therapy in which both the children and Armstrong have
participated, the therapist’s recommendations supporting a slow progression in
visitation, and the fact that the visitation arrangement had been successfully
implemented for approximately 11 years before this one, isolated incident.
A “court may modify an order granting or denying visitation rights
whenever modification would serve the best interests of the child[.]” KRS
403.320(3).3 Courts have broad discretion in setting visitation. Pennington v.
Marcum, 266 S.W.3d 759, 769 (Ky. 2008). “Accordingly, we ‘will only reverse a
circuit 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
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: MARCH 18, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0700-MR
WHITNEY LEE LUTZ (NOW BEELER) APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT v. HONORABLE BRUCE T. BUTLER, JUDGE ACTION NO. 09-CI-00282
CHRISTOPHER ALAN ARMSTRONG APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
DIXON, JUDGE: Whitney Lee Beeler appeals the findings of fact, conclusions of
law, and judgment adopted by the Grayson Circuit Court on May 14, 2021. After
careful review of the briefs, the record, and the law, we affirm. BACKGROUND FACTS AND PROCEDURAL HISTORY
Beeler and Christopher Alan Armstrong have three children together.
In 2009, the court adopted the parties’ parenting agreement which provided for
joint custody and a visitation schedule consisting of Mondays, Tuesdays, and
alternate weekends with Beeler and Wednesdays through Fridays and alternate
weekends with Armstrong. In July 2019, Armstrong struck the oldest child in the
leg with a fiberglass stick leaving a bruise while the middle child was present.
This incident led to a domestic violence petition, which was dismissed by the
court; a dependency, neglect, and abuse action, wherein Armstrong stipulated to
neglect or abuse and temporary orders limited his visitation time; and a criminal
action for domestic violence, fourth degree, of which Armstrong was ultimately
acquitted. In September 2019, alleging that the children feared Armstrong, Beeler
filed a motion for sole custody of the children and for Armstrong to have limited
supervised visitation.
A hearing was held before the Domestic Relations Commissioner
(DRC) at which the children, their therapists, the parties, the paternal grandparents,
and two friends who had observed Armstrong’s interactions with the children
testified. Thereafter, the DRC, applying KRS1 403.270, issued a report
recommending that the parties retain joint custody and gradually resume the prior
1 Kentucky Revised Statutes.
-2- visitation schedule as recommended by the therapists. Over Beeler’s objection, the
court adopted the report, and this appeal timely followed. Additional facts will be
introduced as they become relevant.
ANALYSIS
Beeler argues on appeal that the court erred by applying the incorrect
statute, KRS 403.270 instead of KRS 403.340, to its custody determination, and
the court abused its discretion in determining that restoring the prior visitation
arrangement was in the children’s best interest. Before we consider the merits,
Armstrong asserts that this matter should be dismissed where Beeler failed to
preserve her claim that the court applied the incorrect law, failed to request a
palpable error review, and failed to comply with CR2 76.12(4)(c)(v). We address
each in turn.
The role of the appellate court is to review the decisions of the trial
court. See Jones v. Livesay, 551 S.W.3d 47 (Ky. App. 2018). Accordingly, as a
general rule “[t]he Court of Appeals is without authority to review issues not raised
in or decided by the trial court.” Regional Jail Auth. v. Tackett, 770 S.W.2d 225,
228 (Ky. 1989) (citing Matthews v. Ward, 350 S.W.2d 500 (Ky. 1961); Combs v.
Knott Co. Fiscal Court, 283 Ky. 456, 141 S.W.2d 859 (1940); Tipton v. Brown,
273 Ky. 496, 117 S.W.2d 217 (1938)). An exception exists where a party asserts
2 Kentucky Rules of Civil Procedure.
-3- that the lower court made a palpable error which affected their substantial rights
and resulted in a manifest injustice. CR 61.02. Herein, not only did Beeler fail to
raise the issue that KRS 403.270 was inapplicable before the lower court, she also
affirmatively argued that KRS 403.270 was the governing law in her objections to
the DRC’s report. Accordingly, Armstrong is correct that Beeler’s contention was
not preserved. Moreover, as Beeler has not requested that this Court undertake a
palpable error review, we do not reach the merits of this claim.
Regarding Beeler’s remaining argument, Armstrong is correct that
Beeler’s brief does not comply with CR 76.12(4)(c)(v) where she failed to include
a statement identifying “whether the issue was properly preserved for review and,
if so, in what manner.” Where a party fails to abide by the rules of civil procedure,
we are permitted to ignore the deficiency, strike the brief in whole or part, or
review the issues raised for manifest injustice. CR 76.12(8); Elwell v. Stone, 799
S.W.2d 46, 47 (Ky. App. 1990). Given the import of child-related matters, we will
disregard the error to the extent Beeler’s claim is properly preserved.
In arguing that the court abused its discretion in setting visitation,
Beeler first contends that the court erred by disregarding the statutory presumption
that “equally shared parenting time” is in the children’s best interest where
Armstrong has the children 8 out of every 14 days. KRS 403.270; 403.315. We
easily dispense with this challenge as the Supreme Court of Kentucky in Layman v.
-4- Bohanon, 599 S.W.3d 423, 431 (Ky. 2020), held that the presumption does not
apply to the modification of visitation or timesharing.
Finally, Beeler asserts that the court’s findings do not support its
visitation decision where the court placed too great an emphasis on Armstrong’s
wishes and the children’s ties to their step-siblings, and gave too little regard for
the children’s stated wishes to limit visitation, as well as their diagnoses of mental
anguish, anxiety, and depression. Armstrong disagrees, noting that the court
considered the extensive therapy in which both the children and Armstrong have
participated, the therapist’s recommendations supporting a slow progression in
visitation, and the fact that the visitation arrangement had been successfully
implemented for approximately 11 years before this one, isolated incident.
A “court may modify an order granting or denying visitation rights
whenever modification would serve the best interests of the child[.]” KRS
403.320(3).3 Courts have broad discretion in setting visitation. Pennington v.
Marcum, 266 S.W.3d 759, 769 (Ky. 2008). “Accordingly, we ‘will only reverse a
circuit 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
3 We note that while neither the court nor Beeler applied KRS 403.320 to their analysis of the visitation issue, instead relying on KRS 403.270 which pertains to custody determinations, we conclude this does not constitute a reversible error where the order on appeal evinces the requisite consideration of the children’s best interests.
-5- case.’” Layman, 599 S.W.3d at 431 (quoting Drury v. Drury, 32 S.W.3d 521, 525
(Ky. App. 2000)).
Herein, while Beeler is correct that the evidence could have supported
a different visitation arrangement, the question is not whether this Court would
have decided the matter differently. Humphrey v. Humphrey, 326 S.W.3d 460, 463
(Ky. App. 2010). Our review of the order on appeal establishes that the court
considered the evidence as a whole, including the children’s mental health and
their stated wishes, in reaching its determination. In support of its decision, the
court found that: Armstrong had acknowledged his wrongdoing and had sought
and participated in family therapy; the visits between Armstrong and the children
go well; and the children’s therapists recommended increasing his parenting time,
albeit at a gradual rate of progression, so that the family may “move on and have a
normal life” leading to the reunification of Armstrong with the children.
Accordingly, we cannot conclude that the court’s determination constitutes a
manifest abuse of discretion or is clearly erroneous.
ACREE, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.
-6- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Jason C. Hays Kenneth Clay Ratley Bowling Green, Kentucky Leitchfield, Kentucky
-7-