RENDERED: FEBRUARY 10, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0710-MR

JASON M. GAINES APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE TARA HAGERTY, JUDGE

ACTION NO. 18-CI-501153

ROSEMARIE STURGEON APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND GOODWINE, 

JUDGES.

THOMPSON, CHIEF JUDGE: Jason M. Gaines (“Appellant”), pro se, appeals 

from an order of the Jefferson Circuit Court, Family Division, entered on May 21, 

2021, addressing the parties’ competing motions for contempt, Appellant’s motion 

to change custody of the parties’ minor child1(“Child”), and Appellant’s motion to 

change Child’s residence. Appellant argues that the circuit court relied on false 

1 Based on the nature of the proceeding and the age of the child, we will not use her name.
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evidence, and improperly relied on the recommendations of the Friend of Court

(“FOC”), Hon. Rexena Napier. Appellant seeks an opinion granting him full 

custody of Child and any other relief to which he may be entitled. After careful 

review, we find no error and affirm the order on appeal.

FACTS AND PROCEDURAL HISTORY

Child was born in 2005 to her biological parents, Appellant and 

Rosemarie Sturgeon (“Appellee”). The parties were not married. A paternity 

action was filed in that year (No. 05-J-506825) which apparently established 

Appellant as Child’s biological father.2

In 2018, Appellee filed a petition in Jefferson Circuit Court, Family 

Division, seeking sole custody of Child, a parenting schedule, and child support. 

Appellant answered and requested joint custody. On September 4, 2018, the 

circuit court entered an order fixing temporary child support in favor of Appellee 

in the amount of $276.00 per month, with Appellant also paying 40% of Child’s 

health insurance, medical expenses, and childcare. The court ordered that Child 

would continue to reside primarily with Appellee, with Appellant having parenting 

time as previously agreed to by the parties. The parties were referred to mediation, 

and Ms. Napier was appointed as FOC to give the court recommendations as to 

Child’s best interests. 

2 This proceeding is not part of the appellate record.
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An extensive procedural history followed, with Appellant claiming 

that Appellee engaged in psychological manipulation causing Child to show 

unwarranted fear, disrespect, and hostility toward Appellant. Appellant also 

alleged that Appellee blocked his calls on Child’s cellphone and denied him 

visitation.

A hearing was conducted on April 4, 2019, resulting in an order 

allowing Appellant to have daily phone calls with Child and reestablishing 

Appellant’s parenting time. The following month, Appellee alleged that Appellant 

failed to pay any child support as previously ordered. A subsequent hearing 

resulted in an order entered on July 26, 2019, wherein the court ordered the 

following: Child was to enroll in therapy; Appellant’s visitation with Child on 

Sundays would continue, but the phone calls were terminated; and the parties were

to refrain from fighting, yelling, or discussing the case in Child’s presence. 

Appellee’s motion to increase Appellant’s child support obligation was reserved 

for an October 7, 2019 hearing. Appellant acknowledged having not paid any 

child support and stated that he thought his motion to set aside child support stayed 

his obligation.

Numerous motions for contempt and to show cause were filed in 2020 

and into 2021. On February 23, 2021, Appellant, now proceeding pro se, filed a 

motion to establish him as primary residential custodian. Appellant asserted that 
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this was necessary to secure health insurance for Child because Appellee failed to 

provide necessary paperwork. A few days later, Appellant again moved to hold 

Appellee in contempt for failing to enroll Child in therapy as ordered. 

The circuit court entered an order on May 21, 2021, which addressed 

all pending matters. It found that Appellant had a child support arrearage of 

$12,508.00, and it reaffirmed prior orders establishing his obligation of $446.00 

per month plus $200.00 per month toward the arrearage. The court addressed 

Appellant’s multiple motions to hold Appellee in contempt for interfering with 

Appellant’s parenting time. It found that Appellant was not entitled to a contempt 

order, as Appellant’s actions made Child – then about age 15 – uncomfortable and 

reluctant to spend time with him. The court found that Child reported to Ms. 

Napier that Child did not want to continue individual counseling sessions with 

Appellant because Appellant insisted on providing transportation to and from the 

counseling sessions which made Child uncomfortable. 

The court also addressed Appellant’s February 23, 2021 motion to 

change custody and primary residency, for Appellant to be the provider of health 

insurance for Child, and to have Appellee held in contempt. It determined that 

based on the totality of the record, it was not appropriate to change custody and 

primary residency in favor of Appellant, nor for Appellant to be Child’s provider 

of healthcare insurance. This appeal followed.
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ARGUMENTS AND ANALYSIS

Appellant argues that the Jefferson Circuit Court erred in its custody 

and child support rulings as set out in the May 21, 2021 order. Appellant asserts 

that there was collusion between Appellee’s counsel and Ms. Napier; that Ms. 

Napier, and Appellee’s current and former counsel engaged in a pattern of lying to 

Judge Hagerty; that Judge Hagerty avoided rectifying her earlier rulings to avoid 

embarrassment and so as not to expose the collusion of Ms. Napier and Appellee’s 

counsel; and, that Ms. Napier’s recommendations to the circuit court were flawed. 

He seeks an opinion reversing the May 21, 2021 order on the issues of custody and 

support, with instructions that the circuit court grant him full custody of child.3

Appellant has not complied with Kentucky Rules of Appellate 

Procedure (“RAP”) 32(A)(4),

4 which requires, 

[a]n argument conforming to the statement of points and 

authorities, with ample references to the specific location 

in 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 original.)

3 Appellee has not filed an appellate brief.

4 Formerly Kentucky Rules of Civil Procedure 76.12(4)(c)(v).
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Appellant’s argument section of the brief does not contain a statement 

at the beginning with reference to the record showing whether each issue was 

properly preserved for review and, if so, in what manner.

“A brief may be stricken for failure to substantially comply with the 

requirements of these rules.” RAP 31(H)(1). The rule requiring an argument 

section including a statement of preservation is a substantial requirement of RAP 

32 encompassed by RAP 31(H)(1).

When a party fails to abide by the Rules of Appellate Procedure, we 

may choose “(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 v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 

2010) (citation omitted); see also Ford v. Commonwealth, 628 S.W.3d 147, 153-55 

(Ky. 2021). We choose to ignore the deficiency and proceed with the review.

Appellant asserts that he was entitled to a change in custody 

designating him as Child’s primary residential custodian. Modification of custody 

is governed by Kentucky Revised Statutes (“KRS”) 403.340, which states,

(1) As used in this section, “custody” means sole or joint 

custody, whether ordered by a court or agreed to by the 

parties.

(2) No motion to modify a custody decree shall be made 

earlier than two (2) years after its date, unless the court 

permits it to be made on the basis of affidavits that there 

is reason to believe that:
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(a) The child’s present environment may endanger 

seriously his physical, mental, moral, or emotional 

health; or

(b) The custodian appointed under the prior decree 

has placed the child with a de facto custodian.

(3) If a court of this state has jurisdiction pursuant to the 

Uniform Child Custody Jurisdiction Act, the court shall 

not modify a prior custody decree unless after hearing it 

finds, upon the basis of facts that have arisen since the 

prior decree or that were unknown to the court at the time 

of entry of the prior decree, that a change has occurred in 

the circumstances of the child or his custodian, and that 

the modification is necessary to serve the best interests of 

the child. When determining if a change has occurred 

and whether a modification of custody is in the best 

interests of the child, the court shall consider the 

following:

(a) Whether the custodian agrees to the modification;

(b) Whether the child has been integrated into the 

family of the petitioner with consent of the custodian;

(c) The factors set forth in KRS 403.270(2) to 

determine the best interests of the child;

(d) Whether the child’s present environment 

endangers seriously his physical, mental, moral, or 

emotional health;

(e) Whether the harm likely to be caused by a change 

of environment is outweighed by its advantages to 

him; and

(f) Whether the custodian has placed the child with a 

de facto custodian.
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(4) In determining whether a child’s present environment 

may endanger seriously his physical, mental, moral, or 

emotional health, the court shall consider all relevant 

factors, including, but not limited to:

(a) The interaction and interrelationship of the child 

with his parent or parents, his de facto custodian, his 

siblings, and any other person who may significantly 

affect the child’s best interests;

(b) The mental and physical health of all individuals 

involved;

(c) Repeated or substantial failure, without good cause

as specified in KRS 403.240, of either parent to 

observe visitation, child support, or other provisions 

of the decree which affect the child, except that 

modification of custody orders shall not be made 

solely on the basis of failure to comply with visitation 

or child support provisions, or on the basis of which 

parent is more likely to allow visitation or pay child 

support;

(d) If domestic violence and abuse, as defined in KRS

403.720, is found by the court to exist, the extent to 

which the domestic violence and abuse has affected 

the child and the child’s relationship to both parents.

(5) Subject to KRS 403.315, if the court orders a 

modification of a child custody decree, there shall be a 

presumption, rebuttable by a preponderance of evidence, 

that it is in the best interest of the child for the parents to 

have joint custody and share equally in parenting time. If 

a deviation from equal parenting time is warranted, the 

court shall construct a parenting time schedule which 

maximizes the time each parent or de facto custodian has 

with the child and is consistent with ensuring the child’s 

welfare.
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(6) Attorney fees and costs shall be assessed against a 

party seeking modification if the court finds that the 

modification action is vexatious and constitutes 

harassment.

To summarize, modification of custody may be ordered where it is 

necessary to serve the best interests of the child. KRS 403.340(3). A child’s best 

interests may be determined by application of KRS 403.270(2). In considering 

Appellant’s motion for modification of custody, the circuit court determined that 

Child’s best interests were not served by modification of the existing custodial 

orders. This determination was based in part on the recommendations of Ms. 

Napier, as well as the court’s recognition that Child felt uncomfortable and/or 

fearful around Appellant. While Appellant seeks to characterize the court’s 

findings as improperly influenced by the lies and collusion of Ms. Napier, 

Appellee, and her counsel, nothing in the record supports such a finding. The 

circuit court based its findings and conclusions on the record and the law. The 

burden rests with an appellant to overcome the strong presumption that the rulings 

of the trial court are correct. Oakes v. Oakes, 204 Ky. 298, 302, 264 S.W. 752, 753 

(1924). Appellant has not overcome that burden, and accordingly we find no error 

on this issue.

Appellant also broadly asserts that the court erred in its disposition of 

child support. Appellant makes no specific claim of error, however, nor any 

reference to the record to support such a claim. Appellant has previously 
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acknowledged having not made child support payments as ordered by the court, 

and the court found that he incurred a substantial arrearage. “The provisions of 

any decree respecting child support may be modified only as to installments 

accruing subsequent to the filing of the motion for modification and only upon a 

showing of a material change in circumstances that is substantial and continuing.” 

KRS 403.213(1). The Jefferson Circuit Court made no finding of a substantial and 

continuing material change sufficient to support a modification of custody and our 

review of the record reveals no such change. Again, the burden rests with 

Appellant to overcome the presumption that the trial court’s rulings are correct. 

Oakes, supra. Appellant has not overcome this burden, and we find no error.

CONCLUSION

For the foregoing reasons, we affirm the May 21, 2021 order of the 

Jefferson Circuit Court.

GOODWINE, JUDGE, CONCURS.

CALDWELL, JUDGE, CONCURS IN RESULT ONLY.
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BRIEF FOR APPELLANT:

Jason M. Gaines, pro se

Louisville, Kentucky

NO BRIEF FOR APPELLEE.