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Jones v. Livesay

Court of Appeals of Kentucky

June 1, 2018

JEANETTE JONES APPELLANT
v.
DAVID SAMUEL LIVESAY APPELLEE

          APPEAL FROM PULASKI CIRCUIT COURT HONORABLE MARCUS L. VANOVER, JUDGE ACTION NO. 14-CI-00932

          BRIEF FOR APPELLANT: Bobby L. Amburgey Mt. Vernon, Kentucky

          BRIEF FOR APPELLEE: Joseph B. Venters Somerset, Kentucky

          BEFORE: DIXON, KRAMER, AND NICKELL, JUDGES.

          OPINION

          NICKELL, JUDGE

         Jeanette 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 affirm.

         Jeanette 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, [1] 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[2] 59.05. The trial court denied the motion, and this appeal followed.

         As an 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 disagree.

         Since 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 481-82.

         Next, in contravention of CR 76.12(4)(c)(v), Jeanette does not state how she preserved any of her arguments in the trial court.

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. (citations omitted).

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, ...

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