RENDERED: SEPTEMBER 24, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0837-MR

MARIAH NICHOLS APPELLANT 

v. 

APPEAL FROM BELL CIRCUIT COURT

HONORABLE ROBERT V. COSTANZO, JUDGE

ACTION NO. 19-CI-00254 

TIFFANY BRICE NICHOLS APPELLEE 

OPINION

VACATING AND REMANDING

**   **  **

BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.

JONES, JUDGE: The Appellant, Mariah Nichols, appeals the Bell Circuit Court’s

Findings of Fact and Conclusions of Law as incorporated by reference into its final 

Judgment and Decree dissolving Mariah’s marriage to the Appellee, Tiffany Brice 

Nichols, awarding the parties joint legal custody of their minor child, G.T.W.A. 

(“Child”), and designating Tiffany as Child’s primary residential custodian. On 

appeal, Mariah asserts the circuit court erred when it awarded Tiffany substantially 
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more parenting time with Child without first having made a finding that equal 

parenting time was not in Child’s best interest as required by KRS1 403.270(2). 

Having reviewed the record and being otherwise sufficiently advised, we agree 

with Mariah. KRS 403.270(2) creates a rebuttable presumption in favor of equal 

timesharing. The circuit court’s order does not contain any findings to explain 

why it chose to deviate from the presumption. As such, it does not comply with 

Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011), and Keifer v. Keifer, 354 

S.W.3d 123 (Ky. 2011), which require written findings of fact in all matters 

affecting child custody and timesharing. Accordingly, we must vacate and remand 

the order as related to timesharing. 

I. BACKGROUND 

Tiffany and Mariah were married on October 10, 2016. In September 

of 2019, Tiffany petitioned the circuit court to dissolve the parties’ marriage. 

Tiffany was pregnant at the time she filed the petition for dissolution. On 

December 29, 2019, while the marriage was still intact, Tiffany gave birth to Child.

Approximately three months after Child’s birth, the circuit court 

conducted a final evidentiary hearing. Custody and timesharing were the primary 

focus of the hearing. Because she was still breastfeeding Child, Tiffany wanted to 

be designated Child’s primary residential custodian; Tiffany did not object to 

 

1 Kentucky Revised Statutes.
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Mariah having limited time with Child. However, she was concerned that she 

would not be able to pump and store enough breast milk to accommodate the 

“week on/week off” schedule proposed by Mariah, especially given the three-hour 

distance between the parties’ residences. For her part, Mariah testified that she 

was able to care for Child, provide him a safe and nurturing environment, and 

desired equal time with him.

On June 16, 2020, the circuit court entered its Findings of Fact and 

Conclusions of Law (“Findings”), which it incorporated by reference into a final 

Judgment and Decree entered the same day. Paragraph 6 of the circuit court’s 

Findings provides:

The Court finds that it is in the best interest of the infant

child for the Parties to be awarded Joint custody with 

[Tiffany] being the Primary Residential Custodian and 

[Mariah] having visitation as set out in the attached 

visitation schedule of Bell Circuit Court. Visitation 

exchanges shall be conducted at Exit 38 on Interstate 75, 

London, Kentucky. [Mariah] shall pay child support in

compliance with the Kentucky Child Support Chart. 

The circuit court appended its timesharing schedule for children 

younger than eighteen months to its Findings. Pursuant to that schedule, Mariah 

has timesharing with Child every first and third weekend day from 1:00 p.m. to 

6:00 p.m. and every Wednesday from 6:00 p.m. to 8:00 p.m. Application of the 

schedule results in Tiffany having Child greater than 95% of the time. 
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II. ANALYSIS

Before we delve into the merits of this appeal, we must first address 

Tiffany’s motion to dismiss. Tiffany argues that we should strike Mariah’s brief 

and dismiss her appeal for failure to comply with the briefing requirements of CR2

76.12(4). Tiffany points out that Mariah failed to conform her brief to the 

requirements of CR 76.12(4)(c)(iv), which requires the statement of the case to 

contain ample references to the record, and CR 76.12(4)(c)(v), which requires the 

beginning of each argument to contain a statement with reference to the record 

showing where the issue was properly preserved for review and in what manner. 

Mariah counters that she was not required to preserve her argument via a CR 52.02

motion because the circuit court failed make any factual findings to support its 

deviation from the presumption in favor of equal timesharing. 

Mariah is correct that the circuit court’s failure to make any kind of a 

finding regarding the necessity of deviating from the presumption in favor of equal 

timesharing absolved her of the requirement to request additional findings by filing 

a CR 52.02 motion. Anderson, 350 S.W.3d at 458 (“[A]s a matter of policy, when 

a court fails to make any kind of factual findings as required, the litigant should not 

be prohibited from asking an appellate court to require the lower court to make 

 

2 Kentucky Rules of Civil Procedure. 
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such findings.”); Keifer, 354 S.W.3d at 126 (“A bare-bone, conclusory order such 

as the one entered here, setting forth nothing but the final outcome, is inadequate 

and will enjoy no presumption of validity on appeal.”). 

However, we cannot agree that the circuit court’s failure to make the 

requisite findings absolved Mariah from following the most basic briefing 

requirements of our Civil Rules. While Mariah was not required to file a CR 52.02

motion to preserve the issue of lack of any findings, she still should have identified 

in the preservation section of her brief where she put the circuit court on notice that 

she wanted equal timesharing. A proper brief would have contained citations to 

the petition for dissolution and Mariah’s response showing that she requested equal 

timesharing as well as any testimony or argument at the hearing related to her 

request for equal time with Child. Additionally, a proper brief would have 

identified where in the record, by page number, the circuit court erred. 

While Mariah’s brief does not technically conform to our 

requirements, the record is relatively short and the issue is not complex. While we 

would be within our rights to sanction Mariah for her failure, this appeal involves 

issues of child custody and timesharing. The imposition of sanctions, which could 

affect the outcome of the case, are not always appropriate in appeals involving 

child custody, timesharing, or support. See Galloway v. Pruitt, 469 S.W.2d 556, 

557 (Ky. 1971). Given the discrete issue involved, the relatively short record, and 
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the magnitude of the issue, we elect not to impose any sanctions on Mariah, and 

will deny Tiffany’s motion to dismiss by separate order. However, we caution 

counsel that failure to follow our briefing requirements in future appeals could 

result in sanctions.

We now turn to the substance of the circuit court’s order regarding 

timesharing. We review the circuit court’s decisions as to primary residential 

custody and timesharing under the standards of KRS 403.270. Frances v. Frances, 

266 S.W.3d 754, 756 (Ky. 2008); Chappell v. Chappell, 312 S.W.3d 364, 366 (Ky. 

App. 2010). The circuit court has broad discretion to decide custody and 

timesharing. Jones v. Livesay, 551 S.W.3d 47, 51 (Ky. App. 2018). In reviewing a 

decision as to where a child will primarily live and how much time he will spend 

with his respective parents, we are required to defer to the circuit court’s findings 

of facts so long as they are supported by substantial evidence. Frances, 266 

S.W.3d at 758. The circuit court is in the best position to resolve the conflicting 

evidence and make the determination that is in the child’s best interest. Id. at 758-

59. So long as the circuit court properly follows the mandates of KRS 403.270, we 

will defer to its decision if it is neither clearly erroneous nor an abuse of discretion. 

Id. at 759.

On appeal, Mariah argues that the circuit court did not follow the 

mandates of KRS 403.270 where it awarded Tiffany substantially more time with 
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Child without making any finding that equal parenting time was not in Child’s best 

interest. KRS 403.270(2) provides that a “court shall determine custody in 

accordance with the best interests of the child and equal consideration shall be 

given to each parent and to any de facto custodian.” The statute creates a 

presumption, rebuttable by a preponderance of the evidence, “that joint custody 

and equally shared parenting time is in the best interest of the child.” KRS 

403.270(2). The statute provides a lengthy list of factors for the court to consider 

in determining the best interests of the child. If the court determines that a 

deviation from equal parenting time is appropriate, it must set forth a parenting 

time schedule maximizing the time each parent has with the child and “consistent 

with ensuring the child’s welfare.” KRS 403.270(2).

The circuit court did not make any factual findings to support its 

ultimate conclusion that it was in Child’s best interest for Tiffany to be the primary 

residential custodian sufficient to overcome the presumption in favor of equal 

parenting time. While the record may contain evidence that would support the 

circuit court’s ultimate conclusion, we do not have the authority to make 

supportive findings where there is no indication that the lower court actually 

considered or relied on the evidence. See Transportation Cabinet v. Caudill, 278 

S.W.3d 643, 648 (Ky. App. 2009). Since we cannot discern the basis of the circuit

court’s decision, we cannot conduct a meaningful appellate review of its decision 
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to deviate from the presumption in favor of equal parenting time. McKinney v. 

McKinney, 257 S.W.3d 130, 134 (Ky. App. 2008).

Therefore, we must vacate the portion of the circuit court’s order with 

respect to timesharing. On remand the circuit court must apply the presumption in 

favor of equal parenting time. After considering all the evidence in relation to the 

best interest factors, the circuit court should only deviate from the presumption if it 

concludes that equal parenting time is not in Child’s best interest. It must then 

render written findings of fact to support its ultimate conclusions. While the 

findings need not be overly detailed, they must be sufficient for any later reviewing 

court to determine that the circuit court engaged in the proper analysis and to 

identify the evidence it relied upon in reaching its ultimate conclusions. Should 

the circuit court determine that it is necessary to change the parenting time 

schedule, it may also need to reassess the amount of child support. 

III. CONCLUSION

For the foregoing reasons, we vacate the Bell Circuit Court’s order

and remand for additional findings of fact.

ALL CONCUR.

BRIEF FOR APPELLANT:

Levi Z. Turner

Middlesboro, Kentucky

BRIEF FOR APPELLEE:

Kellie D. Wilson

Harlan, Kentucky