Opinion
NO. 2019-CA-000055-MR
04-17-2020
LAM NGUYEN KINGREY APPELLANT v. CLYDE MYROM KINGREY, JR. APPELLEE
BRIEF FOR APPELLANT: Mark Hyatt Gaston Louisville, Kentucky BRIEF FOR APPELLEE: Zachary J. Springer Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DERWIN L. WEBB, JUDGE
ACTION NO. 13-CI-502761 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES. CLAYTON, CHIEF JUDGE: Lam Nguyen Kingrey ("Lam") appeals from the Jefferson Circuit Court's order which, among other things, denied Lam's motion for contempt against her former husband, Clyde Myrom Kingrey, Jr. ("Myrom") for his alleged failure to pay child support. The trial court's order additionally granted Myrom's motion for contempt against Lam for failing to pay certain debts assumed by Lam under the parties' marital settlement agreement. Finally, the trial court's order required Lam to fully cooperate and take all necessary action for Myrom to claim one of the parties' minor children as a dependent for tax purposes in the 2017 tax year. Finding no manifest injustice, we affirm the Jefferson Circuit Court's order.
BACKGROUND
The parties were married in November of 2003 and had two children born in 2004 and 2007. Lam filed a petition for dissolution of marriage on September 6, 2013. Thereafter, the parties entered into a marital settlement agreement (the "Settlement Agreement") on January 26, 2016 that dealt with child support payments, discussed which party could claim the parties' minor children as exemptions for tax purposes, and resolved the payment of marital debts. The Jefferson Circuit Court entered a decree of dissolution of marriage incorporating the Settlement Agreement on February 1, 2016.
Starting in November of 2017, and continuing through October of 2018, Myrom and Lam each filed motions of contempt against the other based on various issues. Myrom claimed that Lam was failing to pay certain marital debts that she had agreed to assume under the Settlement Agreement and that she was preventing Myrom from claiming one of the minor children as a dependent for tax purposes for the 2017 tax year in contravention of the Settlement Agreement. Alternatively, Lam claimed that Myrom had failed and was continuing to fail to fulfill his child support obligations under the Settlement Agreement.
The trial court held hearings on the motions in September and October of 2018, at which both parties were represented by counsel. Thereafter, the trial court entered an order on December 11, 2018, in which it stated that, after weighing the testimony of both parties and the other evidence in the case, it had determined that Myrom was current on his child support obligations as of the date of the hearing. The trial court further found that, because Myrom had consistently paid his child support obligations, he was entitled under the Settlement Agreement to claim one of the parties' minor children as a dependent for tax deduction purposes for the 2017 tax year. Additionally, the trial court found Lam to be in contempt of court for her outright refusal to pay the debts assumed by her under the Settlement Agreement and required that Lam pay Myrom's attorney's fees in the amount of $900.00. Lam filed a timely appeal of the trial court's order.
ANALYSIS
Generally, in an action tried without a jury, an appellate court reviews a trial court's findings of fact for clear error, while the trial court's conclusions of law are reviewed de novo. Kentucky Rule of Civil Procedure (CR) 52.01. The foregoing standards may be disregarded, however, when an appellant fails to substantially comply with the appellate rules expressed in CR 76.12.
In the case sub judice, Lam's appellate brief deviates significantly from the format mandated by CR 76.12. First, Lam's brief does not comply with CR 76.12(4)(c)(iv), which requires:
A "STATEMENT OF THE CASE" consisting of a chronological summary of the facts and procedural events necessary to an understanding of the issues presented by the appeal, with ample references to the specific pages of the record . . . supporting each of the statements narrated in the summary.(Emphasis added.) Lam's "statement of the case" does not contain a single "reference[] to the specific pages of the record . . . supporting each of the statements narrated in the summary." Moreover, parts of Lam's argument appear to be contained in the statement of the case.
Second, Lam's failure to comply with CR 76.12(4)(c)(v) is particularly problematic. CR 76.12(4)(c)(v) requires that a brief contain:
An "ARGUMENT" conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.(Emphasis added.) Here, Lam engages in nearly three pages of argument with only a single citation to the record. As stated by another panel of this Court, "we will not undergo an expedition into this case's voluminous record to ensure [the appellant's] argument corresponds with it." Koester v. Koester, 569 S.W.3d 412, 414 (Ky. App. 2019).
Additionally, Lam cites no relevant controlling law or authority which corresponds with her accusations. While Lam discusses two cases, those cases are cited only in her statement of the case and fail to correspond with, and are entirely irrelevant to, any analysis or claims she appears to be making in the "Argument" section of her brief. As stated in Koester, "[a]ssertions of error devoid of any controlling authority do not merit relief." Id. (citation omitted).
Further, Lam's brief has no statement of preservation of the issues she raises on appeal. CR 76.12(4)(c)(v). "It goes without saying that errors to be considered for appellate review must be precisely preserved and identified in the lower court." Skaggs v. Assad, By and Through Assad, 712 S.W.2d 947, 950 (Ky. 1986) (citations omitted). Further, "[i]t is not the function or responsibility of this court to scour the record on appeal to ensure that an issue has been preserved." Koester, 569 S.W.3d at 415 (citation omitted).
An appellant's compliance with CR 76.12:
permits a meaningful and efficient review by directing the reviewing court to the most important aspects of the appeal: what facts are important and where they can be found in the record; what legal reasoning supports the argument and where it can be found in jurisprudence; and where in the record the preceding court had an
opportunity to correct its own error before the reviewing court considers the error itself.Hallis v. Hallis, 328 S.W.3d 694, 696-97 (Ky. App. 2010). It is not the job of an appellate court to search either the record or applicable law to bolster an appellant's position on appeal. Dennis v. Fulkerson, 343 S.W.3d 633, 637 (Ky. App. 2011).
"Our options when an appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions; or (3) to review the issues raised in the brief for manifest injustice only[.]" Hallis, 328 S.W.3d at 696 (citations omitted). In this case, we decline to strike Lam's brief pursuant to CR 76.12(8). However, because of Appellant's near-total failure to follow the mandatory briefing format set forth in CR 76.12, we will review this appeal only to determine whether a manifest injustice has occurred.
We turn now to Lam's arguments on appeal. As a preliminary matter, while Lam argues throughout her brief that the trial court's order was deficient because it allegedly did not include certain findings regarding the court's decisions on child support and the 2017 tax deduction issue, such arguments are unavailing. Under CR 52.04:
A final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such
failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to Rule 52.02.(Emphasis added.) If a litigant fails to request such findings, he or she has "waived [the] right to raise the issue on appeal." Maclean v. Middleton, 419 S.W.3d 755, 760 (Ky. App. 2014) (citation omitted). In this case, Lam also did not file a motion or other request with the trial court seeking additional findings on any of the issues that the court discussed in its order, and therefore waived her right to raise the issue on appeal.
Lam next contends that the trial court's findings were contrary to, or not supported by, the evidence. That argument is not borne out by the record. First, the trial court specifically stated that it had weighed the testimony of the parties regarding the child support, tax, and debt issues and found Myrom's testimony to be more credible regarding those issues. Under Kentucky's rules, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." CR 52.01.
Additionally, the trial court stated in its order that it had also reviewed all of the other evidence, which included an agreed order previously entered in the matter, certified child support payment logs generated by the county attorney evidencing Myrom's child support payments, and the Settlement Agreement. Our review of the record reveals that both the testimony of the parties as well as the documentary evidence supported the trial court's findings, and therefore no manifest injustice occurred.
CONCLUSION
For the foregoing reasons, we affirm the Jefferson Circuit Court's order.
ALL CONCUR. BRIEF FOR APPELLANT: Mark Hyatt Gaston
Louisville, Kentucky BRIEF FOR APPELLEE: Zachary J. Springer
Louisville, Kentucky