RENDERED: JUNE 13, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0118-MR
ZOEY LYNN SEWELL APPELLANT
APPEAL FROM MEADE CIRCUIT COURT v. HONORABLE JOHN M. MCCARTY, SPECIAL JUDGE ACTION NO. 22-CI-00229
DAVID MICHAEL REESE APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, EASTON, AND L. JONES, JUDGES.
CALDWELL, JUDGE: Zoey Lynn Sewell (“Mother”) appeals from a judgment of
the Meade Circuit Court designating David Michael Reese (“Father”) as the
primary residential parent of the parties’ minor child (“Child”). We affirm.
FACTS
Mother and Father were married in 2018. Child was born in 2019.
Mother, Father, and Child lived in the marital residence in Glasgow, Barren
County, Kentucky until Mother and Father separated in late September 2022. When the parties separated, Mother went to stay with her parents in
Cumberland County, Kentucky. Mother called Father to ask about Child and to
request to see Child a couple of days later. Father simply told Mother that Child
was with him. Father admittedly did not let Mother see Child for about three
weeks – until a court order could be entered. Father stated he did not let Mother
see Child during this period because he feared she would run off with Child.
Since the parties’ separation, Mother has remained in Cumberland
County and Father has lived in Meade County. The parties’ homes are located
about a three hours’ drive apart. Both Mother and Father have family members,
including parents and siblings, who live near them.
Father filed for divorce in Meade Circuit Court (“the trial court”) in
October 2022. Mother filed a response shortly thereafter. Both parties were
represented by counsel.
In November 2022, the trial court entered a temporary agreed order
granting the parties temporary joint custody and setting an alternate week, equal
timesharing schedule. This agreed order also required that “the party not in
possession of the child shall be afforded a nightly phone call with the child”
facilitated by the other parent between the hours of 6 and 8 PM Eastern Standard
Time. Also, the agreed order stated each parent shall notify the other about which
childcare providers were used.
-2- In late February 2023, the trial court entered an order noting the
parties had requested a hearing before the Domestic Relations Commissioner
(“DRC”). The order stated a hearing before the DRC was scheduled for June 29th.
The order also stated a non-refundable $240 fee for the cost of the DRC hearing
must be paid twenty-four hours prior to the hearing and failure to pay the fee prior
to the hearing date would result in cancellation of the hearing.
Both parties filed witness and exhibits lists in June 2023. On June 29,
2023, Father filed a notice and motion requesting he be named Child’s primary
residential custodian so Child could attend preschool in Meade County starting in
August. The notice stated the motion would be made to the DRC on July 6, 2023.
Father also filed a supporting affidavit alleging Mother had violated the agreed
order by failing to facilitate timely phone calls between him and Child during her
parenting time and by refusing to notify him about childcare providers.
A few days later, Mother filed a Motion for Immediate Relief and
Hearing. She alleged that on June 28th, her counsel received a phone call from the
DRC, who said the hearing scheduled for June 29th was cancelled due to failure to
pay the DRC hearing fee 24 hours in advance. Mother also alleged the DRC
recounted contacting Father’s attorney the day before (on June 27th) to check on
the status of the fee. Mother asserted her attorney advised the DRC that Mother
would offer to pay the entire fee and be reimbursed for Father’s half of the fee later
-3- so the matter could be heard as scheduled – but the DRC advised this was not
possible and the hearing would have to be rescheduled for a few months later. (We
note no affidavit was attached to her motion to support these factual allegations.)
Mother contended the DRC’s cancelling the hearing was in violation
of Rule 7.02 of the 46th Circuit’s Domestic Relations Rules, which provided the
DRC fee must be paid no later than 5 days after the hearing. She also asserted the
DRC had improperly failed to communicate with her attorney despite
communicating with Father’s attorney prior to cancelling the hearing. She alleged
the DRC’s cancellation of the prior hearing along with the immediate scheduling
of Father’s motion to be named primary residential custodian created concerns
about impropriety and the DRC not being impartial. Mother requested the trial
court grant her immediate relief by revoking the referral to the DRC and setting the
matter for a hearing before the court. Mother’s notice indicated her motion would
be heard by the trial court on July 6, 2023.
On July 11, the trial court entered an order stating that a DRC hearing
would be conducted on August 10, 2023 – again stating the DRC fee must be paid
24 hours in advance. The trial court did not enter any written order resolving
Mother’s motion for immediate relief at that time. Moreover, other documents
filed by both parties in the record state the DRC declined to hear Father’s request
-4- to be named primary residential custodian on July 6th and instead passed the
matter to the scheduled August hearing.
On August 10, 2023, the DRC conducted the evidentiary hearing as
scheduled. The parties agreed to joint custody during the hearing. Both parties
presented evidence regarding who should be the primary residential custodian –
including testimony from the parties and other family members but not from Child,
then just four years old.
Father testified Child could go to preschool in Meade County starting
that August. Mother testified Child could go to Head Start in Cumberland County
on alternate weeks. The DRC orally expressed concerns that Head Start might not
permit alternate-week attendance and Mother’s counsel suggested Mother meant
day care when she said Head Start.
The DRC orally praised the parties for doing well overall with an
equal timesharing agreement. But she noted continued equal timesharing was not
likely to work with Child in school and the parties’ living three hours apart. She
also noted some concerning behavior on each parties’ part – including Father not
allowing Mother to see Child for about three weeks, Mother not complying with
the order which specifically set forth a time for Child to speak on the phone with
Father during Mother’s parenting time, Mother’s failing to notify Father of some of
Child’s dentist and doctor appointments, and Mother’s not having previously told
-5- Father of her plans to enroll Child in Head Start. At the end of the hearing, the
DRC took the matter under advisement.
In September 2023, the DRC filed with the trial court a
recommendation for joint custody with Father to be the primary residential parent.
The DRC noted Father lived in Meade County and Mother lived in Cumberland
County and she discussed several statutory factors in her written recommendation.
The DRC recommended Mother have timesharing under local
guidelines with the exception of getting overnights Monday through Friday due to
the distance between the parties’ residences.
Mother filed objections and exceptions to the DRC’s
recommendation. She pointed out the DRC’s recommendation wrongly stated the
parties and Child undisputedly lived in Meade County before their separation. She
asserted it was undisputed the parties and Child had lived in Glasgow in Barren
County prior to their separation. She argued the DRC’s recommendation was
problematic in several other ways, largely mirroring the allegations of error
asserted in her appellant brief. Mother asked the trial court to name her the
primary residential custodian and she requested a hearing on her exceptions.
Father filed a motion to confirm the DRC report.
In early November 2023, the trial court conducted a hearing in which
it reserved ruling on both Father’s motion to confirm the DRC report and on
-6- Mother’s exceptions. The court orally stated it would review the file but did not
see a need to conduct a trial de novo. The court indicated it would hear arguments
on Mother’s objections and exceptions two weeks later.
After another hearing was held on November 16th, the trial court
entered an order a few days later which dissolved the marriage but reserved child
custody and timesharing issues for later determination. In January 2024, the trial
court issued an order regarding custody and timesharing in which it mostly
confirmed the DRC’s recommendation. It found no reason to disagree with the
DRC’s recommendation for the parties to have joint custody.1 Also, it designated
Father as the primary residential parent and stated Mother was entitled to
timesharing under local guidelines except for not having overnights Monday
through Thursday. (In other words, the trial court confirmed the DRC’s
recommendation except for amending the DRC’s recommendation to allow Mother
to have Friday overnights.) The trial court’s order was designated as final and
appealable with no just cause for delay. Mother filed a timely appeal.
1 The trial court stated it had no issues with the DRC’s findings or reasoning, after noting the DRC concluded it was in Child’s best interests for his parents to “share” custody. (Page 2 of Order under Appeal, R., p. 79). We construe this statement as the trial court’s adoption of the DRC’s recommendation that the parties have joint custody.
-7- Standard Governing a Trial Court’s Initial Custody Decision, Including Designation of a Primary Residential Parent
When making its initial child custody decision (including designation
of a primary residential parent when parents have joint custody), the trial court
must determine the best interests of the child pursuant to KRS2 403.270, giving
each parent equal consideration and considering all relevant factors. Frances v.
Frances, 266 S.W.3d 754, 756 (Ky. 2008).
Standard of Review
We review a child custody decision (including designation of a
primary residential parent) for abuse of discretion and any supporting factual
findings for clear error. Id.; Gonzalez v. Dooley, 614 S.W.3d 515, 519 (Ky. App.
2020). See also Young v. Holmes, 295 S.W.3d 144, 146 (Ky. App. 2009) (“As to
what constitutes the best interest of the child, any factual findings are reviewed
under the clearly erroneous standard; any decisions based upon said facts are
reviewed under an abuse of discretion standard.”). Moreover, factual findings may
not be set aside as clearly erroneous unless they are not supported by substantial
evidence. Gonzalez, 614 S.W.3d at 519.
With these standards in mind, we consider the party’s arguments on
appeal. Mother raises questions about the fairness and/or impartiality of the DRC.
2 Kentucky Revised Statutes.
-8- She also argues the DRC’s recommendations and the trial court’s conclusions
about custody and timesharing are not supported by sufficient evidence. In
response, Father argues Mother is not entitled to relief on appeal due to lack of
compliance with appellate briefing rules, failure to cite supporting authority, and
failure to preserve issues in his estimation. Mother did not file a reply brief to
respond to these assertions or correct any deficiencies in her appellant brief. First,
we consider Father’s assertions about Mother’s alleged lack of compliance with
appellate rules.
We Decline to Impose Sanctions for Mother’s Failure to Provide More Specific References to the Record
Father points out Mother’s appellant brief fails to provide specific
references to the record showing where these issues were preserved for our review.
See RAP3 32(A)(3)-(4). As he notes, Mother generally asserts in her brief that all
appellate issues were preserved in her prehearing statement and motion for
intermediate relief and at the hearing on her objections and exceptions to the
DRC’s recommendation. But Mother does not provide citations to specific page
numbers in the written record or to specific portions of video-recorded hearings
3 Kentucky Rules of Appellate Procedure.
-9- identified by date and time in her preservation statement or elsewhere in the
argument section of her brief. See RAP 31(E)(3)-(4); RAP 32(A)(4).4
Certainly, an appellant should cite to specific portions of the record –
identified by page numbers in the written record or specific date and time stamps
in video-recordings – when pointing out how issues were preserved for our review.
After all, an appellate court is not responsible for searching the record to see if
issues were properly preserved for review. See, e.g., Koester v. Koester, 569
S.W.3d 412, 415 (Ky. App. 2019). Also, an appellate court is not obligated to
consider issues not previously raised to the trial court. See McWhorter v. Baptist
Healthcare System, Inc., 686 S.W.3d 142, 144 (Ky. 2024) (addressing only those
appellate issues which were also raised to the trial court).
Nonetheless, although providing more specific references to the
record in the appellant brief would have been advisable, we easily located
Mother’s motion for immediate relief and her exceptions within the relatively brief
written record. Moreover, we have reviewed the videotaped hearings provided to
us in the record and we are satisfied that the basic issues raised in this appeal were
also raised to the trial court based on our review.5 Thus, we review the issues
4 Mother does cite to a few specific pages in the written record in her statement of facts, identifying where a few salient documents are located. Neither party’s briefs refer to any specific portions of video-recorded hearings, however. 5 Mother also states she preserved issues for review in a prehearing statement. Assuming Mother is referring to the prehearing statement filed in this Court, such prehearing statements do not
-10- raised in Mother’s brief and we leniently decline to impose any sanctions for
Mother’s failure to fully comply with our appellate briefing rules. See RAP
31(H)(3).6
First, we address Mother’s arguments about appearances of
impropriety and/or lack of impartiality on the part of the DRC.
No Reversible Error Based on Appearance of Impropriety or Lack of Impartiality on DRC’s Part
Mother’s first argument as stated in her appellate brief is: “The
Appearance of Impropriety Regarding the Domestic Relations Commissioner’s
Relationship with Appellee’s [Father’s] Counsel Violates Canon 2 of the Kentucky
Code of Judicial Conduct.”
Father contends this issue was not properly preserved. He suggests
that any argument the DRC should have been disqualified was not preserved by
Mother’s motion for immediate relief. He notes Mother asked for the case to be
raise issues to the trial court, so they do not preserve issues for appeal. 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.”). 6 We caution Mother’s counsel to take better care to comply with appellate briefing rules in the future as we are not obligated to leniently overlook non-compliance. We are unaware of similar instances of Mother’s counsel having failed to comply with our Rules of Appellate Procedure by failing to provide specific citations to the record. However, Mother’s counsel (Donald L. Wilkerson, III) is listed as one of the attorneys for the appellants in McWhorter, in which our Supreme Court noted some issues raised by the appellants on appeal were not raised to the trial court and were thus not preserved for appeal, despite the appellant brief’s indicating all appellate issues had been preserved. See 686 S.W.3d at 143-44.
-11- heard by the trial court rather than the DRC. And he asserts nothing in the record
shows the trial court ever ruled on this motion. He contends this court cannot
review this issue because Mother never obtained a ruling on this motion, citing
Baker v. Ryan, 967 S.W.2d 591, 593 (Ky. App. 1997).
We disagree. While Mother may have never formally filed a motion
to disqualify the DRC or to request her recusal,7 Mother clearly expressed concerns
about the DRC’s impartiality or an appearance of impropriety in her motion for
immediate relief and in her objections and exceptions to the DRC’s
recommendation. Moreover, Mother clearly requested the evidence be heard by
the trial court rather than the DRC in her motion for immediate relief. And while
Mother does not point to a written court order resolving her motion for immediate
relief, the trial court clearly denied her request for it to hear evidence itself based
on our review of video-recorded hearings. The trial court judge orally stated the
court would not be hearing evidence or conducting a trial de novo but stated the
court would review the case file and consider the party’s arguments.
While we conclude issues about the DRC’s alleged appearance of
impropriety and/or lack of impartiality and whether the evidence should be heard
7 See Kentucky Supreme Court Rules, Kentucky Code of Judicial Conduct, Application Section II, Comment I.
-12- by the trial court instead were preserved, Mother is nonetheless not entitled to
relief based on our review of the record.
Mother cites authority indicating it is improper for a judge or trial
commissioner to hear evidence or determine issues if the judge or trial
commissioner has a close relationship with an attorney who practices before the
judge or with an employee of that attorney. See Commonwealth v. Brandenburg,
114 S.W.3d 830, 833 (Ky. 2003); O’Hara v. Kentucky Bar Ass’n, 535 S.W.2d 83,
83 (Ky. 1975). Moreover, Mother asserts Father’s trial counsel and the DRC
apparently had a close relationship, which in her view presents an appearance of
impropriety.
Mother points out Father sought modification of the parties’
temporary timesharing arrangement shortly after the originally scheduled DRC
hearing was suddenly cancelled – with Father’s attorney (unlike Mother’s attorney)
allegedly being offered an opportunity to pay the DRC fee in time to allow the
scheduled hearing to proceed. She also mentions that Father’s motion was noticed
for a hearing before the DRC just seven days in advance.8 Mother states that from
that point forward, she “questioned the fairness of the tribunal, especially given the
fact that [Mother] and her counsel were foreign to the jurisdiction.”
8 However, the DRC ultimately declined to hear evidence regarding Father’s motion for modification of the temporary timesharing arrangement until the final hearing which occurred on August 10, 2023, based on our review of the record.
-13- Mother contends she is entitled to relief based on procedural
irregularities (including the sudden cancellation of the DRC hearing) and the
DRC’s report and recommendation, which was inadequate and inaccurate in her
view. We disagree.
Despite Mother’s assertions that it appeared the DRC and Father’s
attorney had a close relationship, the DRC orally noted she was familiar with
Father’s attorney, who practiced locally but the DRC did not indicate they had any
social or other close relationship based on our review of the DRC hearing.
Moreover, the DRC acknowledged she was not as familiar with Mother’s counsel,
but the DRC also orally stated she thought Mother’s counsel was doing well based
on her observations of the hearing.
Thus, we discern no indication of bias or even appearance of
impropriety based on our review of the DRC hearing. In fact, the DRC orally
discussed how both parties had done well overall with timesharing at the end of the
hearing. She also orally stated she found some of the parties’ behavior concerning
– including Father’s not letting Mother see Child for three weeks.
We discuss the DRC’s recommendation (including a factual error
therein) in detail later in this Opinion. But we simply discern here that there was
no indication of lack of impartiality, or the appearance of impropriety due to a
-14- close relationship between Father’s counsel and the DRC – based on our review of
the written recommendation and in the DRC’s conduct of the evidentiary hearing.
At most, the only anomaly of concern in terms of presenting an
appearance of impropriety or lack of impartiality is the DRC’s allegedly not
contacting Mother’s counsel simultaneously with Father’s counsel to advise of the
imminent cancellation of the hearing in time to correct the failure to pay the DRC
fee so the scheduled hearing could go forward. (Again, Mother did not file an
affidavit supporting Mother’s allegation about the DRC’s contacting only Father’s
attorney and not Mother’s attorney prior to cancelling the hearing.)
Nonetheless, based on our review of the record, both parties’ counsel
received notice of the obligation to pay the DRC fee 24 hours prior to the hearing
via the trial court’s February 2023 order scheduling the late June 2023 hearing.
This February 2023 order clearly stated that the cost of the DRC hearing must be
paid into court 24 hours prior to the hearing and that failure to pay the fee prior to
the hearing date would cause the hearing to be cancelled.
Certainly, assuming Mother’s allegations are true, better practice
would have been for the DRC to contact both parties’ counsel with sufficient time
to correct the failure to pay the DRC fee so the scheduled hearing could take place
or to contact neither attorney before cancelling the hearing. But considering the
prior trial court order informing both parties and their counsel of the obligation to
-15- pay the DRC fee in advance and the consequences of not doing so, the DRC’s
failure to give both parties’ counsel simultaneous notice of the impending
cancellation for failure to pay the fee does not amount to reversible error here.
Courts must disregard any errors not affecting the parties’ substantial
rights and nothing done by the trial court or the parties is grounds for disturbing a
judgment unless refusal to afford relief for the error is “inconsistent with
substantial justice.” CR9 61.01. Here, the hearing was rescheduled, and Mother
has not shown that the cancellation of the first hearing or Father’s counsel
allegedly learning about that cancellation a day or so before her counsel learned of
it impacted the trial court’s substantive decisions.
In sum, though Mother adequately preserved this issue by raising it to
the trial court, Mother is not entitled to relief on appeal based on her allegations of
appearance of impropriety and/or lack of impartiality on the DRC’s part. Next, we
address her arguments about the alleged insufficiency of the evidence.
Mother Is Not Entitled to Appellate Relief Based on Insufficient Evidence
Mother contends the evidence is insufficient to support the DRC’s
recommendations and the trial court’s conclusions about custody and
9 Kentucky Rules of Civil Procedure.
-16- timesharing.10 Father points out Mother fails to cite any supporting legal authority
in her discussion of this issue. He also contends she fails to provide specific
references to the record showing where this issue was preserved for review.
Again, while Mother’s failure to cite to specific page numbers in the
written record or specific portions of video-recorded hearings is less than ideal,
Mother’s exceptions and objections to the DRC’s recommended findings were
easily located in the slim record and Mother alleged the same errors in the DRC’s
report and recommendations as she claims on appeal. In sum, we view this issue to
be adequately preserved.
Not only is this issue adequately preserved, but we agree with Mother
that one finding in the DRC’s report and recommendation – which the trial court
adopted – is clearly erroneous. Specifically, Mother correctly points out that the
DRC’s finding that Mother, Father, and Child all lived in Meade County before the
parties separated is incorrect. Both parties testified that they (and Child) lived in
Glasgow, Barren County prior to their separation. Also, Father stated in his
verified petition for dissolution that Child had lived in Glasgow, Barren County
from Child’s birth until the present. (The petition was filed in October 2022.)
10 Though Mother argues error in the trial court’s conclusions about both custody and timesharing, we note the parties agreed to joint custody so the trial court essentially only resolved issues about timesharing, – including with which parent Child would primarily reside. See generally Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008).
-17- In sum, there is no substantial evidence to support the DRC’s
recommended finding (adopted by the trial court) that the parties and Child
indisputably lived in Meade County until Mother left the residence and moved in
with her parents in Cumberland County, thus causing Child to have to leave his
only known home. However, while this specific finding is clearly erroneous, this
finding is one among many findings underlying the trial court’s decision to
designate Father as the primary residential parent. And despite the clear error in
this specific finding, this specific finding was not the sole reason why the DRC
recommended Father be the primary residential parent or the trial court adopted
this recommendation.
Instead, as noted in the trial court’s somewhat terse order, the DRC
discussed several factors listed in KRS 403.270 in her recommendation.
Specifically, the DRC discussed and made findings regarding the wishes of each
parent, Child’s interactions and relationships with his parents and other persons
affecting Child’s best interests, the parties’ motivations, the mental and physical
health of the parties and Child, and the likelihood each party would permit the
other frequent, meaningful, and continuing contact with Child.
The DRC’s erroneous finding about the marital residence being in
Meade County was set forth in the DRC’s discussion of the factor of Child’s
adjustment and continuing proximity to his home, school, and community – in
-18- which the DRC stated: “There is not a lot of evidence . . . to suggest whether this
factor favors [Father] or [Mother].” (Page 3 of DRC’s recommendation). In short,
regardless of the clear factual error set forth in the discussion of this factor, the
DRC apparently perceived this factor (about Child’s adjustment and proximity to
home and community) to not favor either Mother or Father. Moreover, given the
other factual findings and explanations of the DRC’s reasoning for her
recommendation, the clear error in this one specific factual finding amounts to a
harmless error which does not substantially affect Mother’s rights, and which does
not call for disturbing the trial court’s judgment. See generally CR 61.01.
In fact, the DRC’s recommendation that Father be the primary
residential parent hinges primarily on findings of Father’s work schedule
permitting him more time with Child as well as Mother’s engaging in actions
which did not reflect well on her co-parenting capacity – such as her failure to
timely facilitate Father’s phone calls with Child during her parenting time. In
short, the incorrect finding about the marital residence played little substantive role
in the ultimate recommendation that Father be the primary residential parent.
Having addressed this clearly incorrect finding, we also recognize
Mother correctly points out the DRC’s recommendation does not discuss another
undisputed point – Father’s admittedly not permitting Mother to have contact with
Child for about three weeks. Mother points out Father had offered no explanation
-19- other than a subjective fear she would abscond with Child and yet the DRC failed
to make any mention of this event. However, the DRC’s recommendation does
note Mother testified that Father allowed her frequent, meaningful, and continuing
contact with Child since the entry of the temporary custody order in early
November 2022. Although we do not endorse the failure of the DRC and the
circuit court to directly address Father’s refusal to allow Mother any contact with
Child for three weeks, considering the other reasons given for designating Father
as primary residential parent, the lack of explicit discussion of this event in the
recommendation and order confirming the recommendation does not amount to
reversible error.
In addition to the lack of discussion about Father’s undisputed refusal
to let Mother see Child for three weeks, Mother also complains that the DRC’s
recommendation fails to discuss Child’s relationship with her and her family
members in sufficient detail. However, the DRC did find Mother and her family
had loving relationships with Child.
As Mother points out, Mother indisputably served as Child’s primary
caregiver prior to the parties’ separation. Moreover, Mother asserts there was no
evidence of her lacking the ability to parent Child or having substance abuse or
anger issues and Father’s brief does not argue to the contrary.
-20- Mother also notes the DRC did not discuss Mother’s father’s
testimony in the DRC’s recommendation. Mother points out her father (Maternal
Grandfather) testified Father was inattentive, ill-tempered, and did not take on
caregiving responsibilities and had outbursts towards Child in Maternal
Grandfather’s presence. While the DRC did not discuss Maternal Grandfather’s
testimony in her written recommendation, Mother does not cite authority requiring
that each witness’s testimony be specifically discussed or that all evidence
presented be discussed in detail. Presumably, the DRC focused on discussing the
testimony which she found to be most determinative or persuasive regarding best
interests. And regardless of whether we would assess witness credibility or weigh
conflicting evidence differently, we must defer to the factfinder’s assessment of the
weight and credibility of the evidence, and we cannot disturb factual findings
supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky.
2003).
Mother also contends the DRC made an incorrect finding that Mother
enrolled Child in Head Start without informing Father. Without directly
addressing whether she discussed Child’s enrollment with Father, Mother states the
DRC’s finding is incorrect because Head Start was only set up for the weeks when
Mother had timesharing with Child under the original timesharing agreement.
-21- The DRC had orally expressed concerns at the hearing that Head
Start, a federally funded program, would not allow children to attend on a week-
on, week-off basis. Mother’s brief suggests she mistakenly used the words “Head
Start” to refer to day care. Even so, the agreed order reflecting the parties’
temporary timesharing arrangement required each party to notify the other of any
use of childcare providers. Thus, we discern no abuse of discretion in the DRC’s
and the trial court’s considering evidence of Mother’s not informing Father of
Child’s enrollment in day care or Head Start regardless of whether the enrollment
was intended to be on a full-time or part-time basis.
Mother also complains the DRC’s timesharing recommendations (for
Mother to have parenting time every other weekend) failed to maximize her time
with Child and the DRC failed to make recommendations about phone calls or
Facetime visits. She also contends that since the DRC did not recommend where
exchanges occur, she was burdened by the application of local guidelines which
required Mother to pick up and drop off Child in Meade County to exercise her
parenting time. We note the trial court did amend the DRC’s recommended
timesharing provisions to allow for Mother to have Friday overnights with Child –
thus affording Mother additional time with Child within the constraints imposed by
Child’s attending school and the distance between his parents’ residences.
-22- Mother suggests the sheer number of errors in the DRC’s
recommendation, in her estimation, warrants a thorough review by this Court and
should have prompted the trial court to hear the matter anew before confirming the
DRC’s recommendation. Mother also suggests the trial court must not have
carefully reviewed the matter since the trial court stated the DRC considered
Child’s wishes despite the DRC’s noting Child did not express his wishes due to
his young age. Despite the trial court’s misstatement in this regard, its order
correctly recognized that the DRC discussed the best interest factors set forth in
KRS 403.270(2)(a)-(g). Moreover, the DRC and trial court acknowledged there
was no evidence about factors set forth in KRS 403.270(2)(h)-(k) (concerning
domestic violence and de facto custodians) so those factors did not apply here. In
sum, the trial court considered applicable statutory factors and its erroneous
statement about consideration of Child’s wishes is, on these facts, a harmless error.
Certainly, we would have preferred that the trial court’s written order
confirming the DRC’s recommendations in most regards offer more substantive
and meaningful assessment of the specific issues raised by Mother in her
objections and exceptions – which notably are nearly identical to those in her
appellant brief. Nonetheless, based on our review of the record, the factual
findings in the DRC recommendation (which the trial court adopted) are supported
by substantial evidence – aside from the harmless error regarding the location of
-23- the marital residence. And despite the trial court’s misstatement about the DRC’s
consideration of Child’s wishes and the lack of detailed discussion of many issues
raised by Mother about the DRC’s recommendation, we discern no abuse of
discretion in the trial court’s decision to designate Father as the primary residential
parent based on the record before us. Moreover, to the extent that our reasoning
differs from that of the trial court, we have the authority to affirm its judgment for
any reason supported by the record. Mark D. Dean, P.S.C. v. Commonwealth Bank
& Tr. Co., 434 S.W.3d 489, 496 (Ky. 2014).
Further arguments raised by the parties which are not discussed herein
have been determined to lack merit or relevancy to our resolution of this appeal.
CONCLUSION
While other adjudicators might have weighed the evidence of best
interest factors differently, the factual findings adopted by the trial court are
supported by substantial evidence and we discern no abuse of discretion in the
decision to designate Father as the primary residential parent. Thus, we AFFIRM.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Donald L. Wilkerson III Harry B. O’Donnell IV Somerset, Kentucky Louisville, Kentucky
-24-