FROM PULASKI CIRCUIT COURT HONORABLE MARCUS L. VANOVER, JUDGE
ACTION NO. 14-CI-00932
FOR APPELLANT: Bobby L. Amburgey Mt. Vernon, Kentucky
FOR APPELLEE: Joseph B. Venters Somerset, Kentucky
BEFORE: DIXON, KRAMER, AND NICKELL, JUDGES.
Jones has appealed from the denial by the Pulaski Circuit
Court, Family Division, of her motion to alter, amend or
vacate its findings of fact, conclusions of law and decree of
dissolution of marriage ending her union with David Samuel
Livesay ("Sam"). She challenges the trial
court's findings on timesharing with the parties'
minor son and a portion of its classification and division of
marital and nonmarital assets. Following a careful review, we
and Sam married in 2008 and separated in 2014. A son was born
of the union. Sam filed for divorce in September 2014. After
an extensive period of discovery and motion practice, the
matter came on for final hearing on March 21, 2016. The trial
court entered its findings of fact, conclusions of law and
decree of dissolution of marriage on May 12, 2016. The decree
granted the parties joint custody of their son with a
"2-2-3" visitation schedule,  designated
neither party as primary residential parent, restored the
parties their nonmarital assets, and divided the marital
estate. Dissatisfied with the division of assets and the
timeshare arrangement, Jeanette moved to alter, amend or
vacate the decree pursuant to CR 59.05. The trial court
denied the motion, and this appeal followed.
initial matter, Sam has moved to dismiss the appeal for
Jeanette's failure to appeal from a final order. Jeanette
did not respond. CR 73.03(1) provides that "[t]he notice
of appeal shall . . . identify the judgment, order or part
thereof appealed from." Sam contends Jeanette's
notice of appeal references only the order denying her CR
59.05 motion, an inherently interlocutory and non-appealable
order. He argues dismissal is required, citing Hoffman v.
Hoffman, 500 S.W.3d 234, 236-37 (Ky. App. 2016). We
1986, Kentucky has adopted a policy of substantial compliance
rather than strict compliance regarding precisely this issue.
See, e.g., Ready v. Jamison, 705 S.W.2d 479 (Ky.
1986). Because the judgment appealed from (the May 12, 2016,
decree of dissolution) is obvious to this Court, and Sam has
demonstrated no substantial harm or prejudice, our policy of
substantial compliance dictates dismissing Jeanette's
appeal on this basis would be inappropriate. Id. at
in contravention of CR 76.12(4)(c)(v), Jeanette does not
state how she preserved any of her arguments in the trial
CR 76.12(4)(c)[(v)] in providing that an appellate
brief's contents must contain at the beginning of each
argument a reference to the record showing whether the issue
was preserved for review and in what manner emphasizes the
importance of the firmly established rule that the trial
court should first be given the opportunity to rule on
questions before they are available for appellate review. It
is only to avert a manifest injustice that this court will
entertain an argument not presented to the trial court.
Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990)
(quoting Massie v. Persson, 729 S.W.2d 448, 452 (Ky.
App. 1987)). We require a statement of preservation:
so that we, the reviewing Court, can be confident the issue
was properly presented to the trial court and therefore, is
appropriate for our consideration. It also has a bearing on
whether we employ the recognized standard of review, or in
the case of an unpreserved error, ...