RENDERED: MARCH 24, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-1094-ME

TIMOTHY MCILWAIN APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE DERWIN L. WEBB, JUDGE

ACTION NO. 19-D-501308-001

BROOKE BERRY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, GOODWINE, AND MCNEILL, JUDGES.

CALDWELL, JUDGE: According to the notice of appeal, Timothy McIlwain

(McIlwain) appeals from three orders: 1) a May 2019 domestic violence order 

(DVO); 2) a July 2022 order extending the DVO; and 3) an August 2022 order 

denying his motion to alter, amend, or vacate the July 2022 DVO extension order. 

But McIlwain’s appellate briefs substantively challenge only the May 2019 DVO –

for which the time to appeal has long passed – and do not substantively address the 
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extension proceedings or the merits of the July 2022 extension order. Thus, we 

decline to address the merits of the May 2019 DVO and must summarily affirm the 

July 2022 DVO extension order. 

FACTS

McIlwain and Brooke Berry (Berry) previously cohabitated and have 

a child together. In May 2019, the Jefferson Family Court granted Berry’s petition 

for a DVO to last three years – until May 2022. Shortly after entry of the May 

2019 DVO, McIlwain filed a motion to alter, amend, or vacate the DVO. And 

soon after that, Berry filed a motion to hold McIlwain in contempt for allegedly 

violating the DVO. 

While these motions remained pending, the original family court 

judge recused from presiding over any future proceedings in the case in August 

2019. The case was transferred to another family court judge. 

In January 2020, the family court entered an agreed order noting the 

parties’ participation in mediation. Under the agreed order’s terms, a request for 

an emergency protective order on the child’s behalf was dismissed and McIlwain’s 

motion to alter, amend, or vacate the DVO was withdrawn. 

Prior to the DVO’s expiration, Berry filed a motion to extend it for 

another three years. McIlwain filed a response, arguing that extension was 

unwarranted on various bases. The family court heard evidence on the motion to 
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extend the DVO. McIlwain did not attend the hearing, but counsel appeared on his 

behalf. The family court entered an order extending the DVO for three years in 

July 2022. 

Shortly thereafter, McIlwain filed a motion to alter, amend, or vacate

– which the family court denied in August 2022. Within thirty days of the family 

court’s entry of the order denying the motion to alter or amend or vacate, McIlwain 

filed a notice of appeal. The notice of appeal states McIlwain appeals from the 

May 2019 DVO, the July 2022 order extending the DVO, and the August 2022 

order denying the motion to alter or amend or vacate. Berry argued, inter alia, in 

her brief that any challenge to the May 2019 DVO is untimely and that McIlwain’s 

appeal should be dismissed. 

July 2022 Order is Only Appealable Order Which was Timely Appealed

Generally, a party has thirty days to file an appeal from a trial court 

judgment. See RAP1 3(A)(1); see also former CR2 73.02(1)(a). However, “the

filing of a CR 59.05 motion suspends the running of the time for an appeal, and the 

entry of an order overruling a CR 59.05 motion resets the time for appeal so that a 

party has the full thirty-days to begin the appeals process.” Hoffman v. Hoffman, 

500 S.W.3d 234, 236-37 (Ky. App. 2016). 

1 Kentucky Rules of Appellate Procedure.

2 Kentucky Rules of Civil Procedure. 
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McIlwain argues that his appeal from the May 2019 DVO is timely 

because he filed a motion to alter, amend, or vacate the May 2019 DVO. It is true 

that his CR 59.05 motion suspended the time to appeal while the CR 59.05 motion 

was pending. However, once the CR 59.05 motion was withdrawn via the agreed 

order, the time to file an appeal from the May 2019 DVO started to run again. 

McIlwain has asserted that the family court refused to hold a hearing 

on his motion to alter, amend, or vacate the May 2019 order and that he was forced 

to participate in mediation resulting in withdrawal of his CR 59.05 motion. But he 

provides no citations to the record to show that he objected to mediation or that the 

court refused to hold a hearing on his CR 59.05 motion.3 Though he requested a 

hearing in his CR 59.05 motion before the original family court judge recused, 

nothing in the record indicates that McIlwain again requested a hearing on the CR 

59.05 motion after the case was transferred to another family court judge. 

3 McIlwain’s appellant brief also does not comply with our appellate rule requirements for 

preservation statements identifying how and where in the record issues were raised to the trial 

court and thus preserved for review, RAP 32(A)(4), despite our previously advising McIlwain’s 

appellate counsel of the importance of complying with preservation statement requirements. See

Babcock v. Estridge, No. 2019-CA-000544-MR, 2020 WL 5587369, at *1 (Ky. App. Sep. 18, 

2020) (noting failure to provide proper preservation statement required by then-effective CR 

76.12(4)(c)(v) in appellant brief filed by J. Fox DeMoisey). 

Failure to provide preservation statements can result in issues being reviewed only for 

palpable error resulting in manifest injustice rather than under otherwise applicable standards of 

review for such issues. See Ford v. Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021). See also

CR 61.02. Furthermore, substantive failure to comply with appellate briefing rules can result in 

briefs being stricken and appeals dismissed. See RAP 31(H)(1); former CR 76.12(8)(a). 
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In short, there is no reason to depart from the general rule stated in 

Hoffman. We conclude McIlwain’s CR 59.05 motion to alter or amend or vacate 

the May 2019 DVO suspended the running of the thirty-day period to appeal until 

the family court effectively denied the CR 59.05 motion by entering an agreed 

order withdrawing that motion. Upon entry of that order, the time for an appeal 

began again and ran out.

The agreed order withdrawing the CR 59.05 motion was entered in 

January 2020. McIlwain’s time to appeal from the May 2019 DVO therefore 

expired 30 days later in February 2020. Since McIlwain filed his notice of appeal 

in September 2022, the appeal from the May 2019 DVO is clearly time-barred and 

must be dismissed. RAP 2(A)(3);4see also former CR 73.02(2). We will not 

address the merits of the May 2019 DVO. 

On the other hand, the appeal from the July 2022 order extending the 

DVO for another three years was timely filed. McIlwain’s CR 59.05 motion to 

alter or amend or vacate the July 2022 order was timely filed. So, the timely CR 

59.05 motion regarding the July 2022 order suspended the thirty-day deadline to 

appeal until the family court denied the CR 59.05 motion in August 2022. 

4 RAP 2(A)(3) states that the failure to file a timely notice of appeal “shall result in a dismissal”

of the appeal – as did former CR 73.02(2). 
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In sum, the appeal from the July 2022 extension order – unlike the 

appeal from the May 2019 DVO – is not time-barred.5 However, the July 2022 

order must be affirmed due to McIlwain’s failure to argue any error related to this 

order or the extension proceedings in his briefs. 

We Summarily Affirm the July 2022 Order Based on Lack of Substantive 

Argument in Briefs About this Order or the Extension Proceedings

Despite generally requesting that all of the family court’s orders be 

vacated at the conclusion of his appellant brief, McIlwain does not substantively 

address the merits of the July 2022 order or the extension proceedings in his 

appellate brief arguments. In the statement of facts portion of his initial brief, 

McIlwain asserts: “the DVO extension hearing consisted of the mother claiming 

she was afraid even though for three years there had been no incidents and the 

father has no criminal history.” But McIlwain does not cite any supporting legal 

authority to challenge the July 2022 order or even make any substantive arguments 

about the July 2022 order or the extension proceedings in the argument portion of 

his appellant brief or in his reply brief.6

5 McIlwain claims to also appeal from the August 2022 order denying his CR 59.05 motion to 

alter or amend or vacate the July 2022 DVO extension. Technically one cannot appeal from an 

order denying a CR 59.05 motion. So, we construe his appeal from the August 2022 order 

denying his CR 59.05 motion to be from the judgment which was the subject of the CR 59.05 

motion (the July 2022 order extending the DVO). See Ford v. Ford, 578 S.W.3d 356, 366 (Ky. 

App. 2019). 

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Instead, the legal arguments raised in McIlwain’s briefs relate only to alleged problems with the 

family court’s entering the May 2019 DVO and/or not granting McIlwain’s CR 59.05 motion to 
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We have no obligation to research or argue any such issues about the 

July 2022 order or extension proceedings for him. “It is not our function as an 

appellate court to research and construct a party’s legal arguments[.]” Hadley v. 

Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005). Without any citation 

of supporting authority, or even argument about alleged error in the July 2022 

order, or the extension proceedings in McIlwain’s briefs, any error in this regard 

has been waived. See id. (“Our courts have established that an alleged error may 

be deemed waived where an appellant fails to cite any authority in support of the 

issues and arguments advanced on appeal. [W]ithout any argument or citation of 

authorities, [an appellate] [c]ourt has little or no indication of why the assignment 

represents an error.”) (internal quotation marks and citations omitted). 

In short, the appeal from the May 2019 DVO is barred as untimely 

and the appeal from the July 2022 extension order fails due to lack of any 

argument or citation of supporting authority in the briefs to challenge this order. 

Further arguments in the briefs not discussed herein have been determined to lack 

merit or relevancy to our resolving this appeal. 

CONCLUSION

For the foregoing reasons, we AFFIRM the family court’s judgment. 

alter, amend, or vacate the May 2019 DVO. References to videotaped recordings in McIlwain’s 

briefs appear to be from the May 2019 hearing on the initial petition for a DVO, though the 

recordings are identified only by time and not by date. 
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ALL CONCUR.

BRIEFS FOR APPELLANT:

J. Fox DeMoisey

Prospect, Kentucky

BRIEF FOR APPELLEE:

Troy DeMuth

Spencer J. Brooks

Prospect, Kentucky