RENDERED: OCTOBER 8, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1657-MR

STEPHEN HOLBROOK APPELLANT 

v. 

APPEAL FROM LETCHER CIRCUIT COURT

HONORABLE ALISON C. WELLS, SPECIAL JUDGE

ACTION NO. 11-CI-00355 

JENNY ELICE HOLBROOK APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND McNEILL, 

JUDGES.

GOODWINE, JUDGE: Stephen Holbrook appeals from an order of the Letcher 

Circuit Court, entered October 4, 2019, awarding his former spouse, Jenny 

Holbrook, $350/month in spousal maintenance from April 11, 2014, until April 26, 

2018. After careful review of the record, we affirm.

Stephen and Jenny divorced in 2012. After the decree of dissolution 

was entered, additional hearings were held on October 23, 2012, and November 
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20, 2012, to address all outstanding issues.1 Stephen failed to appear for either

hearing. The circuit court entered an order on April 15, 2014, awarding Jenny, in 

relevant part, $350 per month in spousal maintenance “until such time as [Jenny] is 

awarded Social Security Disability benefits, for which [Jenny] has already 

applied.” The order was not appealed. 

On September 15, 2015, an agreed order was entered. Notably, 

Stephen agreed, in relevant part,

1. [Stephen] shall pay [maintenance] of $350.00 monthly 

until such time as [Jenny] is awarded Social Security 

Disability Benefits, for which [Jenny] has already 

applied.

2. [Stephen] has arrears of $3500 for [maintenance]. 

These shall be paid out of [Stephen’s] Kentucky 

Teacher’s Retirement System Account [(“KTRSA”)].

3. A garnishment shall issue to [Stephen’s] [KTRSA] for 

future [maintenance] payments in addition to the 

previous amount directed to pay in the [o]rder entered on 

April 15, 2014 by the [c]ourt for the amount of $350.00 

per month. These sums are to be paid out of the half of 

[Stephen’s] retirement account not already awarded to 

[Jenny][.] 

On September 11, 2017, Stephen filed what he titled a “Motion to 

Modify Decree.” Stephen argued that Jenny had actively stopped pursuing her 

1 The outstanding issues at the time were child support and custody/visitation, property 

distribution, and spousal maintenance. Only the issue of spousal maintenance is relevant to this 

appeal.
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Social Security Disability claim and he should therefore be relieved from his 

maintenance obligation. A series of continuations followed for various reasons 

and the matter was not heard by the Domestic Relations Commissioner (DRC) 

until May 2019. Following the hearing, the DRC tendered a proposed order to the 

circuit court which found, in relevant part, that Stephen owed Jenny maintenance 

“in the amount of Three Hundred Fifty Dollars ($350.00) per month from April 11, 

2014 until April 26, 2018[.]”2 The DRC found the total amount of maintenance 

Stephen owed for that time period was $15,850.

3

 Stephen filed exceptions to the 

DRC’s proposed order, but the circuit court overruled the exceptions and the order 

was entered on October 4, 2019. This appeal followed. Further facts will be 

developed as necessary.

On appeal, Stephen argues the circuit court (1) erred by failing to 

make the necessary findings to award maintenance pursuant to KRS4 403.200(1); 

(2) erred by failing to modify the award of maintenance; and (3) abused its 

discretion in requiring him to pay maintenance from his KTRSA.

2 Although no finding was made, it appears from the DRC’s handwritten notes contained in the 

record that Jenny remarried in 2018.

3 At the time the hearing was held in May 2019, Stephen had not made any maintenance 

payments to Jenny since the divorce. To arrive at the total amount owed, the circuit court 

deducted $1300 for half of the value of some personal property Jenny removed from the marital 

home following the parties’ separation.

4 Kentucky Revised Statutes.
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Before addressing Stephen’s arguments, we must first discuss the 

parties’ violations of CR5 76.12. “It is a dangerous precedent to permit appellate 

advocates to ignore procedural rules.” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. 

App. 2010). Procedural rules “do not exist for the mere sake of form and style. 

They are lights and buoys to mark the channels of safe passage and assure an 

expeditious voyage to the right destination. Their importance simply cannot be 

disdained or denigrated.” Id. (quoting Louisville and Jefferson Cty. Metro. Sewer 

Dist. v. Bischoff, 248 S.W.3d 533, 536 (Ky. 2007)).

CR 76.12(4)(c)(v) requires at the beginning of each argument “a 

statement with reference to the record showing whether the issue was properly 

preserved for review and, if so, in what manner.” Although Stephen does have a 

statement of preservation at the beginning of his first two arguments, close 

examination of the record before us reveals that these arguments are unpreserved. 

His third argument is also unpreserved. 

Citing CR 76.12(4)(c)(v) which requires appellate briefs 

to contain references to the record showing that an issue 

was preserved for review and in what manner, this Court 

has previously noted 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[.]

5 Kentucky Rules of Civil Procedure.
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Keco v. Ayala, 592 S.W.3d 753, 757 (Ky. App. 2019) (internal quotation marks

and citation omitted). The law is well-settled that “[t]he Court of Appeals is 

without authority to review issues not raised in or decided by the trial court.” 

Reg’l Jail Auth. v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989).

 Stephen’s first argument, made pursuant to KRS 403.200(1), is not 

found in his exceptions to the DRC’s proposed order contained in the record before 

us, wherein he argued only that “The Commissioner erroneously found that 

[Jenny] is entitled to maintenance.” Similarly, Stephen’s second argument to this 

Court relies on modification of maintenance pursuant to KRS 403.250, but this 

argument is also not found within the exceptions filed, which rely primarily on the 

assertion that Jenny had abandoned her Social Security Disability claim. Finally, 

Stephen’s third argument also does not appear in the record before us.6 

6 Stephen’s third argument also lacks a statement of preservation. 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, whether palpable error review is being requested and may be 

granted.

Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). See also CR 76.12(4)(c)(v).
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 CR 76.12(4)(c)(v) also requires an appellant’s argument to contain 

“ample supportive references to the record.”7 Stephen’s arguments contain only 

the erroneous citations to his exceptions to the DRC’s proposed order previously 

mentioned.

8

 

It is fundamental that it is an [a]ppellant’s duty and

obligation to provide citations to the record regarding the

location of the evidence and testimony upon which he

relies to support his position, and if an appellant fails to

do so, we will accordingly not address it on the merits.

Commonwealth v. Roth, 567 S.W.3d 591, 594 (Ky. 2019) (internal quotation marks

and footnote omitted); see also CR 76.12(4)(c)(v). Therefore, Stephen’s brief does 

not satisfy CR 76.12(4)(c)(v)’s requirement for his argument to contain “ample 

supportive references to the record[.]” 

Stephen’s brief also fails to comply with CR 76.12(4)(c)(v) in that it 

lacks ample “citations of authority pertinent to each issue of law[.]” The caselaw 

cited in Stephen’s brief is sparse and is included only in reference to the appellate 

standard of review. Although Stephen does cite some applicable statutes, he does 

so with no accompanying analysis or application of facts. His brief therefore does 

7 We note that Stephen does include citations to the record in the Statement of the Case portion 

of his brief. However, CR 76.12(4)(c)(v) requires ample citations to the record in support of an 

appellant’s argument.

8

In contravention of CR 75.01, Stephen did not file a designation of record. Therefore, the

record before us contains no video recordings of any hearings before the circuit court or the 

DRC.
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not fulfill CR 76.12(4)(c)(v)’s requirement that arguments contain ample “citations 

of authority pertinent to each issue of law.”

Compliance with CR 76.12 is mandatory, and failing to comply with 

the civil rules is an unnecessary risk appellate advocates should not chance. Petrie 

v. Brackett, 590 S.W.3d 830, 834-35 (Ky. App. 2019) (citing Hallis, 328 S.W.3d at 

696). “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[.]” Hallis, 328 S.W. 3d at 696 (citing Elwell v. Stone, 

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

Before deciding this issue, we note Jenny failed to file a brief. 

Subject to exceptions that do not apply here, the filing of a brief by appellants and 

appellees is mandatory. CR 76.12(1). Our options when an appellee fails to file a 

brief include: (1) accept the appellant’s statement of the facts and issues as 

correct; (2) reverse the judgment if appellant’s brief reasonably appears to sustain 

such action; or (3) regard the appellee’s failure as a confession of error and reverse 

the judgment without considering the merits of the case. CR 76.12(8)(c). See also 

St. Joseph Catholic Orphan Society v. Edwards, 449 S.W.3d 727, 732 (Ky. 2014).

“The decision as to how to proceed in imposing such penalties is a 

matter committed to our discretion.” Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. 
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App. 2007) (citations omitted). We will, therefore, review for manifest injustice 

only. Elwell, 799 S.W.2d at 48. “[T]he required showing is probability of a 

different result or error so fundamental as to threaten a [party’s] entitlement to due 

process of law.” Petrie, 590 S.W.3d at 835 (quoting Martin v. Commonwealth, 

207 S.W.3d 1, 3 (Ky. 2006)).9

Returning to Stephen’s first argument, he contends neither the April 

15, 2014 order, nor the October 4, 2019 order made the required findings that 

Jenny lacks sufficient property, including the marital property apportioned to her, 

to provide for her reasonable needs and that she is unable to support herself 

through appropriate employment. KRS 403.200(1). While we agree this language 

was not present in the April 15, 2014 order, that order was not appealed. 

Moreover, following entry of the order, Stephen and Jenny signed an agreed order 

entered on September 15, 2015, wherein Stephen agreed to pay Jenny maintenance 

in the amount of $350 per month. The October 4, 2019 order merely set the 

duration of the maintenance award already in place from prior orders. Stephen’s 

first argument is moot because he agreed to pay maintenance to Jenny.

9 Our decision to review for manifest injustice only is based solely on Appellant’s failure to 

comply with CR 76.12(4)(c)(v), in that his arguments are unpreserved. See Ford v. 

Commonwealth, ___S.W.3d___, 2021 WL 3828505, at *5 (Ky. Aug. 26, 2021) (internal 

quotation marks omitted) (“Appellate courts review[] unpreserved claims of error on direct 

appeal only for palpable error. To prevail, one must show that the error resulted in manifest 

injustice.”). Even if the manifest injustice standard was not applied, a review of the record 

supports the decision being affirmed.
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Stephen’s second argument is vague and perplexing. He claims the 

circuit court erred in failing to modify the maintenance award but fails to identify 

“changed circumstances so substantial and continuing as to make the terms 

unconscionable.” KRS 403.250(1). The circuit court discontinued Stephen’s 

maintenance payments to Jenny effective April 26, 2018. We note that there were 

only seven months between the date Stephen filed his “Motion to Modify Decree” 

on September 11, 2017, and when the circuit court determined maintenance 

payments should cease on April 26, 2018. Reviewing for manifest injustice, we 

discern nothing in the record that would warrant modification of the maintenance 

award prior to that date. 

Turning to Stephen’s third and final argument, we note several key 

facts from the record before us. First, as previously mentioned, Stephen agreed his 

arrears were to be paid out of his KTRSA. He also agreed to a garnishment of his 

KTRSA for future maintenance payments from the half of the account that had not 

been awarded to Jenny. After the September 15, 2015 agreed order was entered, 

Jenny filed a notice of filing indicating that, despite the parties’ agreement, 

maintenance payments could not be garnished from Stephen’s KTRSA due to KRS 

161.700(1), which provides, in relevant part, a KTRSA “shall not be subject to 

execution, garnishment, attachment, or other process, and shall not be assigned.” 

(Emphasis added.) Stephen filed a response that included the following statement:
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“[Jenny] points to KRS 161.700(1) as being determinative that these funds cannot 

be used as paying of past-due maintenance, when in fact, that statute says no such 

thing.”10 He now argues to this Court that 

an award of maintenance to [Jenny] would circumvent 

KRS 161.700(3). Because teachers’ retirement benefits 

are not included as marital property, absent an 

agreement, it would fly in the face of the statute to 

require [Stephen] to pay maintenance from those 

benefits. Consequently, such a requirement would be

manifestly unfair and inequitable.[11]

(Emphasis added.)

 “Our jurisprudence will not permit an appellant to feed 

one kettle of fish to the trial judge and another to the appellate court.” Owens v.

Commonwealth, 512 S.W.3d 1, 15 (Ky. App. 2017). Considering the September 

15, 2015 agreed order, Stephen’s third argument to this Court is disingenuous and 

we discern no error on the part of the circuit court.

 For the reasons stated above, we affirm the order of the Letcher 

Circuit Court.

ALL CONCUR.

10 The circuit court ultimately found that KRS 161.700(1) did apply and ordered Stephen to pay 

all maintenance payments directly to Jenny.

11 See Appellant’s brief, page 7.
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BRIEF FOR APPELLANT:

Jeremy R. Morgan

Hazard, Kentucky

NO BRIEF FOR APPELLEE.