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

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0346-MR

MICHAEL ALLEN SASSEEN APPELLANT 

v. 

APPEAL FROM MCCRACKEN CIRCUIT COURT

HONORABLE DEANNA WISE HENSCHEL, JUDGE

ACTION NO. 14-CI-00688 

VIVIAN MARIE SASSEEN (NOW 

VINIARD) 

APPELLEE 

OPINION

AFFIRMING IN PART, VACATING IN PART,

AND REMANDING 

**   **  **

BEFORE: DIXON, KRAMER,

1 AND McNEILL, JUDGES. 

McNEILL, JUDGE: Michael Allen Sasseen (“Father”) appeals from an order of 

the McCracken Family Court denying his request for sanctions and attorney’s fees 

and removing restrictions on contact between appellee, Vivian Marie Sasseen (now

 

1

Judge Joy A. Kramer concurred in the above-styled Opinion prior to her retirement effective 

September 1, 2021. Release of this Opinion was delayed due to administrative handling.
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Viniard) (“Mother”) and the parties’ minor child, A.S., without finding such 

contact was in the best interest of the child. For the reasons below, we affirm in 

part, vacate in part, and remand for specific findings of fact and conclusions of law 

regarding modification of visitation.

The parties were divorced on November 4, 2014. On May 8, 2015, 

the family court entered an “Agreed Supplemental Findings of Fact and Decree of 

Dissolution” which incorporated a marital settlement agreement between the 

parties. Pursuant to the agreement, Father and Mother were granted joint custody 

of their three children, N.S., J.S., and A.S.,

2 with Father being designated the 

primary residential parent. At the time, Mother had become estranged from her 

children and agreed to not exercise her visitation. 

Relevant to the appeal, on August 24, 2017, Mother filed a “Motion to 

Increase Visitation” to attempt to reconnect with her children. Following a

hearing, the family court entered an order granting mother’s request to begin

reunification counseling, and appointed Dr. Holly J. Mattingly, a licensed clinical 

psychologist, to perform the counseling.

Shortly into the sessions, Father and the children became concerned 

that Dr. Mattingly was siding with Mother in the reunification process and became 

 

2 At the time of the divorce, the children ranged in age from 10 to 16. N.S. and J.S. are now 

emancipated.
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increasingly distrustful of her motives. Then, in January 2019, J.S. discovered a 

timeline of the family’s custody and visitation issues Mother had posted on the 

internet, including information that suggested Mother had consulted with Dr. 

Mattingly prior to the reunification counseling. Concerned Dr. Mattingly and 

Mother were colluding in the reunification process, Father filed a motion to 

terminate reunification and to disqualify Dr. Mattingly. 

On May 16, 2019, the family court held a lengthy hearing on the 

motion where Father, Mother, Dr. Mattingly, and Katherine Englert, the children’s 

counselor, testified. Prior to the hearing, Father subpoenaed a copy of Dr. 

Mattingly’s file as well as all text and email communications between Mother and 

Dr. Mattingly. Based upon these communications, Father alleged Dr. Mattingly 

and Mother had committed a fraud upon the court by colluding to remove Father 

from the children’s lives. Following the hearing, the family court postponed ruling 

on the motion until it could review the text and email communications. 

On August 28, 2019, the court met with the children to get their 

feedback on the reunification process. Prior to the meeting, Mother’s attorney 

represented to the court that Dr. Mattingly no longer felt she was the best person to 

provide therapy to the children considering the state of her and the children’s 

relationship. Thereafter, the court entered an order holding that the issue of 

whether to disqualify Dr. Mattingly as the reunification therapist was now moot. 
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Subsequently, Father moved the court to specifically rule on all issues 

contained in his “Motion to Terminate Reunification and Disqualify Therapist,” 

including whether to terminate the reunification process; whether to disqualify Dr. 

Mattingly as a reunification therapist based upon collusion and fraud; and whether 

to award attorney’s fees based upon the same. On February 6, 2020, the family 

court entered an order denying Father’s request for attorney’s fees, declining to 

“find that there was a fraud perpetrated on the [c]ourt.” The court also denied the 

motion to disqualify Dr. Mattingly and stated that it “continue[d] to believe that 

reunification therapy is in the remaining minor child’s best interest.” Finally, the 

court removed all restrictions on contact between Mother and A.S., noting it 

“remained optimistic that the child and mother may begin to communicate slowly 

and perhaps their relationship will develop on its own.” It is from this order that 

Father now appeals. Further facts will be set forth as necessary below. 

First, we address the threshold issue of whether the above-styled 

appeal was taken from a final and appealable order. This Court lacks jurisdiction 

to hear appeals from interlocutory orders, and we are required to consider the issue 

of jurisdiction sua sponte before deciding a case on the merits. See generally 

Hubbard v. Hubbard, 303 Ky. 411, 197 S.W.2d 923 (1946). In the case at bar, 

although the order appealed from contemplates possible reunification therapy for 

the remaining minor child in the future, it does not mandate the parties obtain an 
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alternate reunification therapist or require that they take any further action 

concerning reunification. As noted above, the order instead rules that there shall 

be “no restriction on contact between [Mother] and [A.S.],” in the absence of either 

party’s “present[ing] the [c]ourt with a proposed reunification therapist.” 

As noted herein, the genesis of the February 6, 2020 order was 

Father’s Motion to Terminate Reunification and Disqualify Therapist. This motion 

followed the family court’s February 5, 2018 order granting mother’s request to 

engage in the reunification process. Appellant’s Brief, at p. 3. In Anderson v. 

Johnson, 350 S.W.3d 453, 456-67 (Ky. 2011), our Supreme Court held that a postdecree motion concerning visitation or timesharing modification “is actually a

vehicle for the reopening and rehearing on some part of a final order, which asks 

for adjudication on the merits presented at a required hearing.” Id. Hence, an

order “modifying a final order becomes the new final order and is subject to 

appeal.” Id. at 436. See also KRS3 403.320; KRS 403.270. In this case, although 

the February 6, 2020 order does not contain complete finality recitations under CR4

54.02, it appears to have resolved all issues then pending before the family court

by removing the restrictions on visitation between Mother and A.S. 

notwithstanding Father’s assertion that Mother “circumvent[ed] court mandates for 

 

3 Kentucky Revised Statutes.

4 Kentucky Rules of Civil Procedure.
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reunification with a scheme of collusion”; by denying Father’s request for 

attorney’s fees; and by denying the motion to disqualify Dr. Mattingly. CR 54.01. 

Having been satisfied that our jurisdiction was properly invoked, we now turn to 

the merits of Father’s arguments on appeal. 

Father asserts the family court erred in failing to find fraud on the 

part of Mother and Dr. Mattingly and in removing restrictions on contact between

Mother and A.S. Concerning fraud, the argument section of Father’s brief only 

addresses the issue of sanctions and attorney’s fees. There is no discussion of the 

court’s failure to disqualify Dr. Mattingly or terminate reunification therapy.

Therefore, we consider these issues waived. “An appellant’s failure to discuss 

particular errors in his brief is the same as if no brief at all had been filed on 

those issues.”  Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979); see 

also Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 815-16 (Ky. 2004).

As to attorney’s fees, a trial court has broad discretion in awarding

attorney’s fees to either party in a dissolution proceeding. Tucker v. Hill, 763 

S.W.2d 144 (Ky. App. 1988). KRS 403.220 authorizes an award of attorney’s fees 

“after considering the financial resources of both parties” or to discourage 

obstructive tactics and conduct. Gentry v. Gentry, 798 S.W.2d 928, 938 (Ky. 

1990). Further, attorney’s fees may be awarded as a sanction “when the integrity 

of the court is at stake.” Seeger v. Lanham, 542 S.W.3d 286, 295 (Ky. 2018). The 
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decision of whether to award attorney’s fees will not be disturbed on appeal absent 

an abuse of discretion.  Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004). “The 

test for abuse of discretion is whether the trial judge’s decision was arbitrary, 

unreasonable, unfair, or unsupported by sound legal principles.” Id. (citations

omitted).

The family court denied Father’s request for attorney’s fees after 

considering “the income of both parties, the issues before the [c]ourt, and the 

litigation and pleading practice and procedures.” It further did “not find that there 

was a fraud perpetrated on the [c]ourt warranting an issuance of attorney fees.” 

Father argues the family court’s failure to find fraud warranting an award of 

attorney’s fees was an abuse of discretion, pointing to text messages and emails 

between Mother and Dr. Mattingly as evidence of fraud and collusion.

Specifically, he takes issue with Mother dictating Dr. Mattingly’s therapy through 

third parties; questions Dr. Mattingly’s motives and intentions in providing 

therapy; and argues Dr. Mattingly advocated for Mother, not the children. 

Having reviewed the record, we cannot say the family court abused its 

discretion in denying Father’s request for attorney’s fees. The court considered the 

financial situation of the parties as required by KRS 403.220 and the parties’ 

conduct as allowed by case law. It further found that no fraud had been committed 

warranting sanctions. Father’s fraud allegations all boil down to disagreement 
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over witness credibility and Dr. Mattingly’s methods. But “judging 

the credibility of witnesses and weighing evidence are tasks within the exclusive 

province of the trial court.” Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). 

However, we agree with Father that the family court erred in 

removing restrictions on contact between Mother and A.S. without concluding that

unrestricted contact was in the child’s best interest. Pursuant to KRS 403.320(3), a 

family court may modify visitation “whenever modification would serve the best 

interests of the child . . . .” Id. Here, the family court’s order contained no such

conclusion. Further, any conclusion concerning the best interest of the child 

should be supported by findings of fact, as required by CR 52.01. See Anderson, 

350 S.W.3d at 459. Therefore, we remand with directions to the family court to 

enter specific written findings of fact and conclusions of law containing a best 

interest analysis. 

Based on the foregoing, the McCracken Family Court’s February 6, 

2020 order is affirmed in part, vacated in part, and this matter is remanded for 

further proceedings consistent with this Opinion. 

KRAMER, JUDGE, CONCURS. 

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

Tiffany Gabehart Poindexter

Paducah, Kentucky

NO BRIEF FILED FOR APPELLEE.