RENDERED: APRIL 30, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1250-ME

TIFFANY RABE APPELLANT 

v. 

APPEAL FROM KENTON FAMILY COURT

HONORABLE CHRISTOPHER J. MEHLING, JUDGE

ACTION NO. 13-CI-00856 

MICHAEL ABNEY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, MCNEILL, AND TAYLOR, JUDGES.

CALDWELL, JUDGE: This case comes to us after successive motions for 

modification of child support and other conditions were denied by the Kenton 

Family Court. Because we find that the brief filed by Ms. Rabe, through counsel, 

falls far short of meeting the requirements clearly outlined by CR1 76.12(4), we are 

inclined to strike the brief for Ms. Rabe. However, as this case involves care and 

 

1 Kentucky Rules of Civil Procedure.
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support of minor children, we review for manifest injustice. Galloway v. Pruitt,

469 S.W.2d 556 (Ky. 1971). In so doing, we find no manifest injustice in the order 

of the Kenton Family Court denying the relief requested, and therefore affirm.

FACTS

The parties to this action have two minor children in common. Since 

2013, the parties have continued to litigate custody and support of said children, 

who are now teenagers. The litigation is too lengthy and eventful to recount in 

detail here, but it has been fraught with motions for contempt and multiple motions 

for modification of custody, visitation, and child support. 

This appeal arises from the denial of a motion for modification filed 

by Ms. Rabe in 2019. In appealing the family court’s July 17, 2019 order, Ms. 

Rabe complains that the family court erred in imputing income to her in a 2018 

modification order. Prior to 2017, Ms. Rabe was a licensed registered nurse who 

earned $29.50 an hour. She was terminated from her position after her nursing 

license was probated due to a substance abuse problem. At the time of the 2018 

motion for modification she was making considerably less working either as a 

server at a local restaurant or in freight operations for a logistics company. In its 

2018 order, the family court imputed the nursing income to Ms. Rabe, finding that 

she had failed to take the steps outlined by the licensing authority to regain her 

license and such failure was voluntary. 
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On appeal, Ms. Rabe argues that the family court erred in imputing 

the income she earned as a nurse. She argues that her separation from that career 

was not voluntary and that the diminution in her income constituted a sufficient 

change in income to warrant a modification of support. 

ANALYSIS

As mentioned supra, the brief filed on Ms. Rabe’s behalf fails to 

conform to the minimal requirements of CR 76.12(4) in that it contains not one 

citation to the record. Rather than comport with the rules of appellate procedure, 

counsel instead chose to cite only to the orders of the Kenton Family Court, 

attaching them to the brief as items in the Appendix, rather than referring to the 

record as certified by the Kenton Circuit Court Clerk. Such is not appropriate and 

does not conform to the rules. Further, counsel makes no attempt to satisfy the 

requirement of CR 76.12(4)(c)(v), which requires a preservation statement as to 

each issue raised “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.” 

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, CR 76.12(8)(a); or (3) to review the issues 

raised in the brief for manifest injustice only, Elwell v. 

Stone, 799 S.W.2d 46, 47 (Ky. App.1990).

Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).
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The rules of appellate procedure are not mere desires or supercilious 

finery. Rather, they are meaningful, purposeful, and designed in furtherance of 

justice. As Judge Glenn E. Acree observed in Hallis:

Compliance with this rule 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. 

The parties, when acting pro se, or their attorneys who 

appear before us have typically spent considerable time, 

sometimes even years, creating and studying the record 

of their case. On the other hand, the record that arrives 

on the desk of the judges of the reviewing court is 

entirely unknown to them. To do justice, the reviewing 

court must become familiar with that record. To that 

end, appellate advocates must separate the chaff from the 

wheat and direct the court to those portions of the record 

which matter to their argument. When appellate 

advocates perform that role effectively, the quality of the 

opinion in their case is improved, Kentucky 

jurisprudence evolves more confidently, and the 

millstones of justice, while still grinding exceedingly 

fine, can grind a little faster.

Id. at 696-97.

Because Ms. Rabe did not appeal from the September 4, 2018, order 

imputing the nursing income to her and declaring that she was voluntarily 

underemployed, there is no manifest injustice in denying relief in her attempt to 

appeal the court’s July 17, 2019 order denying her motion to modify child support.
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We find Ms. Rabe had no basis for filing the successive motions which begat the 

latter order. KRS2 403.213. “Filing of the notice of appeal within the time 

prescribed by CR 73.02 is mandatory and jurisdictional. This court thus lacks the 

requisite jurisdiction to entertain an appeal unless the notice is seasonably filed.”

Burchell v. Burchell, 684 S.W.2d 296, 299 (Ky. App. 1984) (citations omitted). In 

other words, Ms. Rabe was without basis for filing the motion from which she now 

appeals. She failed to appeal the only order for which there was an adequate basis 

for issuance pursuant to KRS 403.213. Thus, there is no manifest injustice in the 

family court’s denial of relief to Ms. Rabe.

In the order properly before this Court, entered July 17, 2019, the 

family court declined to modify the amount of support set in its September 4, 2018, 

order. The family court held, in part, that a motion to modify child support is 

governed by KRS 403.213 and there had not been a sufficient change in 

circumstances to provide for modification. We agree. KRS 403.213(2) holds:

Application which results in less than a fifteen percent 

(15%) change in the amount of support due per month 

shall be rebuttably presumed not to be a material change 

in circumstances. For the one (1) year period 

immediately following enactment of this statute, the 

presumption of material change shall be a twenty-five 

percent (25%) change in the amount of child support due 

rather than the fifteen percent (15%) stated above.

 

2 Kentucky Revised Statutes.
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Because Ms. Rabe did not appeal from the September 4, 2018, order, 

there can be no manifest injustice in the imputation of nursing income in that order. 

We find there has effectively been no change in circumstances whatsoever between 

the September 4, 2018, order and the order appealed from on July 17, 2019. Thus, 

no manifest injustice has occurred by the family court’s refusal to modify the 

support amount as it properly applied the statute. 

A party seeking modification of child support must 

demonstrate “a material change in circumstances that is 

substantial and continuing.” KRS 403.213(1); Tilley v. 

Tilley, 947 S.W.2d 63, 65 (Ky. App. 1997). The burden 

of proof is on the party seeking the modification. See

Combs v. Daugherty, 170 S.W.3d 424, 426 (Ky. App. 

2005). “Under KRS 403.213(2), a change in 

circumstances is rebuttably presumed to be substantial if 

application of the child-support guidelines (KRS 

403.212) to the new circumstances would result in a 

change in the amount of child support of 15% or more.” 

Snow v. Snow, 24 S.W.3d 668, 672 (Ky. App. 2000). If a 

material change in circumstances that is substantial and 

continuing occurs, the family court then must consider 

child support “anew.” Giacalone v. Giacalone, 876 

S.W.2d 616, 620 (Ky. App. 1994). 

Wilson v. Inglis, 554 S.W.3d 377, 382 (Ky. App. 2018).

Ms. Rabe also complains that the family court was biased against her 

chosen paramour and improperly took judicial notice of his involvement with the 

justice system. However, yet again, this is not a new order. As clearly stated in 

the July 17, 2019, order, the family court had previously ordered on March 21, 

2017, that the paramour not be in contact with the minor children of Ms. Rabe and 
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Mr. Abney as the paramour had a “significant record which includes alcohol 

intoxication, assault, domestic violence directed at women and children and 

pleading guilty to a DVO.” Again, Ms. Rabe should have appealed the March 21, 

2017, order, if she felt aggrieved by it, and we find no manifest injustice in the 

order properly before this Court. 

Finding no manifest injustice in the Kenton Family Court’s order, we 

affirm.

ALL CONCUR.

BRIEF FOR APPELLANT:

Michael W. Bouldin

Covington, Kentucky

BRIEF FOR APPELLEE:

Holly A. Daugherty

Erlanger, Kentucky