RENDERED: APRIL 19, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0372-MR

JULIE TUCKER APPELLANT 

v. 

APPEAL FROM BOYD CIRCUIT COURT

HONORABLE GEORGE W. DAVIS, III, JUDGE

ACTION NO. 21-CI-00528

WESLEY TUCKER APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.

CALDWELL, JUDGE: Julie Tucker appeals from the Boyd Circuit Court’s orders 

resolving timesharing and debt allocation in a divorce action. We affirm. 

FACTS

In late 2021, Appellee Wesley Tucker (“Wes”) filed a petition for 

divorce from Appellant Julie Tucker (“Julie”). The parties have two children, born 

in 2016 and 2017. Initially the parties had temporary joint legal custody with both 
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parties having some parenting time with the children. Due to Wes working out of 

town during the weekdays, his parenting time generally occurred on weekends. 

In the fall of 2022, the Boyd Circuit Court entered a decree dissolving 

the parties’ marriage. However, the trial court reserved for later adjudication 

issues including child custody, timesharing or visitation, child support, and 

property division. See generally Putnam v. Fanning, 495 S.W.2d 175 (Ky. 1973). 

Shortly after entry of the Putnam v. Fanning-type divorce decree, in 

October 2022, the parties appeared before a Domestic Relations Commissioner 

(“DRC”) for an evidentiary hearing. They presented evidence relating to custody, 

timesharing, and property issues. 

Each party testified about their current living arrangements and 

employment. Wes testified he was laid off at that time following a health-related 

absence. He also testified he generally worked out of town on weekdays. He 

admitted he was currently living in a camper in his brother’s yard. He testified that 

during his parenting time on weekends, he and the children sometimes stayed in 

the camper and sometimes stayed at his parents’ house. 

Julie testified to her concerns about Wes having an equal say in 

decision-making and equal parenting time. She believed Wes was not wellinformed when making medical and other decisions due to failure to research 

issues. She also believed Wes did not supervise the children sufficiently during his 
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parenting time and stated the children sometimes had scratches or bruises after 

spending time with Wes. 

The parties also testified about financial matters. They had recently 

sold the marital residence and agreed to split the proceeds – albeit with some 

disputes about details. Both parties testified to Wes having recently bought a 

refrigerator, despite the fact there were two other refrigerators on the premises. 

And both parties testified that Wes consulted Julie about possibly buying a new 

refrigerator after the refrigerator in the kitchen stopped working and she told him 

to do what he wanted to do. 

About four months after the evidentiary hearing, the DRC filed her 

report and recommendations. She recommended the parties have joint legal 

custody and equal timesharing to the extent practicable. While Wes continued to 

live in the camper and work out of town, she recommended he continue to have 

weekend visitation. If he obtained other housing and started working in town, she 

recommended the parties have equal timesharing on a weekly basis – meaning they 

take turns having parenting time for a week at a time. As for the refrigerator debt, 

the DRC recommended that this be allocated equally between the parties. The 

DRC stated child support would be determined later under statutory guidelines. 

Both parties filed exceptions to the DRC’s report and

recommendations. Julie asserted that Wes had made a unilateral decision to buy 
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the new refrigerator despite the two other refrigerators in the house and that he 

controlled all marital funds. She also contended that equal or nearly equal 

timesharing was not in the children’s best interests since Wes had not previously 

had the children for more than a weekend at a time and he did not, in her view, 

have suitable housing. 

Julie asserted in her exceptions that there was a pending investigation

into allegations that one of the children had been sexually assaulted by Wes’s 

neighbor while the children were in Wes’s care. She also claimed that Wes 

allowed the children around this neighbor after the alleged assault despite being 

informed of the incident. She argued Wes’s timesharing should be restricted due 

to his failure to properly supervise the children while in his care. However, no 

affidavit or documentation about the investigation or sexual abuse allegations was 

attached to her exceptions. 

The trial court entered an order confirming the DRC’s report and 

adopting the DRC’s recommendations. It also entered an order overruling the 

parties’ exceptions. 

Julie filed a timely appeal from the trial court’s orders regarding the 

DRC’s report and recommendations.1 The same day that she filed her notice of 

1

Julie’s notice of appeal also stated that she appealed from the DRC’s report and 

recommendations. But a DRC’s report and recommendations have no legal effect unless 

formally confirmed or adopted by the trial court. See Pennington v. Marcum, 266 S.W.3d 759, 
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appeal, she also filed a motion for emergency relief regarding sexual abuse 

allegations. She requested the trial court grant her temporary emergency custody 

of the children and restrict Wes’s time with the children to supervised visitation 

once a week. She also requested that the record be sealed regarding the sexual 

abuse allegations. 

The trial court later entered an agreed order between the parties in 

which both promised to offer in-sight supervision of the children when in their 

care. However, there is no order resolving Julie’s motion for emergency relief in 

the record on appeal. 

Julie argues in her appellant brief that the trial court’s custody and 

timesharing decision must be reversed due to Wes’s unsuitable living arrangements 

and his neglecting the children in her view. She also asserts this Court must 

reverse the allocation of the refrigerator debt to her due to Wes unilaterally 

purchasing the refrigerator despite having other refrigerators in the home. (The 

adopted report called for allocating the refrigerator debt equally between the 

parties.) Lastly, Julie argues in her brief that this Court should adopt a bright-line 

rule that a parent’s time with children must be restricted and supervised whenever 

771 (Ky. 2008) (“The trial commissioner acts only to further judicial economy by assisting the 

trial court; the commissioner’s report is a recommendation and is not binding. It is the trial court 

itself that makes findings of fact, either by adopting those recommended by the commissioner or 

by acting anew.”). 
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a parent is being investigated for “uncontroverted allegations of neglect and/or 

exposure to the risk of harm relating to children being sexually assaulted” until the 

investigation is complete.

ANALYSIS

Before we address the custody and timesharing arguments, we address 

Julie’s arguments about the refrigerator debt. 

No Reversible Error in Allocation of Refrigerator Debt

We review the trial court’s allocation of the refrigerator debt equally 

between the parties for abuse of discretion. Rice v. Rice, 336 S.W.3d 66, 68 (Ky. 

2011) (“Questions of whether property or debt is marital or nonmarital are left to 

the sound discretion of the trial court, as is the equitable division of any marital 

property, and will be reviewed for abuse of discretion[.]”). 

Unlike property acquired during a marriage, there is no presumption 

that debt acquired during a marriage is marital. See id. See also KRS2 403.190. In 

adopting the DRC’s recommendation to split the refrigerator debt evenly between 

the parties, the trial court evidently implicitly concluded that this debt was marital 

and that it was equitable to divide this debt equally. 

The DRC’s report adopted by the trial court noted that Julie argued 

that Wes should be responsible for paying the refrigerator debt since he bought the 

2 Kentucky Revised Statutes. 
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refrigerator. It also noted that Wes requested this debt be paid off from the marital 

home sale proceeds. The DRC recommended that the parties each pay half of the 

debt on the refrigerator before receiving their half of the marital home sale 

proceeds. Or the parties could also elect to have their respective share of the 

refrigerator debt deducted from marital home sale proceeds prior to their checks 

for their respective shares of the proceeds being written. 

Though not explicitly discussed in the DRC report, both parties 

testified that Wes consulted Julie before buying the refrigerator and that she told 

him to do what he wanted to do. So, this is not a case in which a spouse incurred a 

great deal of debt without the knowledge or consent of the other spouse. Compare

Rice, 336 S.W.3d at 69. And no one has pointed to any testimony that when 

consulted by Wes, Julie told him that she opposed buying a new refrigerator. 

Despite Julie’s contention on appeal that she did not see any benefit to buying a 

new refrigerator, she does not point to any evidence that she expressed this opinion 

to Wes before the refrigerator purchase. 

Furthermore, not only does the evidence support a finding that Julie 

was aware of, and seemingly consented to, the refrigerator purchase, but the 

evidence supports a finding that the refrigerator was bought as marital property to 

be used in the marital home. Compare id. (Husband’s incurring large debt for 

benefit of adult child was not to buy marital property.) 
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Given these circumstances, we perceive no abuse of discretion in the

allocation of half of this debt to Julie – especially as Wes was held responsible for 

all debt on the camper and both parties shared in the home sale proceeds. In short, 

there was no abuse of discretion in the trial court allocating half of the refrigerator 

debt to Julie. Next, we address timesharing issues. 

No Reversible Error in Timesharing Decision

We review the trial court’s custody and timesharing decisions for 

abuse of discretion. Jones v. Livesay, 551 S.W.3d 47, 51 (Ky. App. 2018). We 

discern no abuse of discretion in these matters based on the evidence in the record. 

Citing no authority other than a general reference to KRS Chapter 

403, Julie argues in her appellant brief that the trial court erred in failing to find 

that the presumption for equal timesharing was overcome. She contends this made 

no sense as, in her view, the trial court found that Wes lacked suitable living 

arrangements and/or stable housing and was unable to exercise equal timesharing 

due to generally working out of town.

In adopting the DRC’s report, the trial court determined that joint 

custody was in the child’s best interest and found: “There were no allegations that 

would overcome the presumption of shared parenting.” And the court also

recognized that totally equal shared parenting was not feasible due to Wes’s 

working out of town most of the week. So long as Wes was working out of town 
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and still living in the camper, he would have parenting time mainly on the 

weekends although a more equal, weekly exchange of parenting time was to take 

place if his working and living arrangements changed. But the adopted DRC 

report did not find that Wes lacked stable housing or suitable living arrangements 

as Julie suggests. 

Furthermore, though Wes and the children admittedly stayed in the 

camper or his parents’ house during his parenting time, Julie has not cited any 

testimony or other evidence of deplorable living conditions in either the camper or 

Wes’s parents’ house. And Julie testified to living in her mother’s home at the 

time of the hearing. Julie also testified she suspected Wes did not supervise the 

children well and she claimed they had bruises or scratches after spending time 

with him. However, she does not point to any medical evidence or other evidence 

indicating the nature of how any bruises or scratches were acquired. 

Considering the evidence presented at the DRC hearing, we discern 

no abuse of discretion in the trial court’s custody and timesharing decision. 

No Evidence in Record of Sexual Assault Allegations or Investigation

In addition to her arguments that the timesharing decision must be 

disturbed due to Wes’s allegedly unsuitable living arrangements, Julie argues that 

the timesharing decision must be disturbed due to an investigation of sexual abuse 

allegations. As Julie asserts, this argument was preserved by her raising this issue 
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in her exceptions. See MV Transp., Inc. v. Allgeier, 433 S.W.3d 324, 331 (Ky. 

2014) (“[T]he critical point in preservation of an issue remains: was the question 

fairly brought to the attention of the trial court.”). 

But while Julie raised the issue to the trial court through her 

exceptions, she does not point to any evidence in the record about sexual abuse 

allegations or an investigation thereof. Based on our review of the videorecording 

of the DRC hearing in October 2022, we are unaware of any testimony about 

allegations of sexual assault during Wes’s parenting time. Julie’s appellant brief

makes no specific citations to the videorecording of the October 2022 DRC 

hearing and Julie designated only this October 2022 videorecording to be included 

in the record. So, we could not review the scheduled hearing on exceptions, for 

example. 

Though Julie asserted that an investigation about sexual abuse 

allegations was ongoing when she filed her exceptions, she does not point to any 

affidavits, other testimony, or documentary proof in the record. Her exceptions 

were not evidence as mere allegations in court filings are not evidence. See T.C. v. 

M.E., 603 S.W.3d 663, 684 (Ky. App. 2020) (allegations in pleadings are not 

evidence). 

Perhaps Julie later presented sealed evidence about a sexual abuse 

investigation after she filed her notice of appeal and the contemporaneously filed 
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motion for emergency relief relating to sexual assault allegations. However, there 

is no evidence in the record before us about any investigation into allegations of 

sexual abuse. Furthermore, the appellant bears the burden of ensuring that the 

record is complete with everything the appellate court needs to decide the issues 

raised on appeal. Smith v. Smith, 450 S.W.3d 729, 731 (Ky. App. 2014). 

Given the lack of evidence about a sexual assault investigation in the 

record, we cannot say the trial court abused its discretion in adopting the DRC’s 

recommendation of joint custody and shared parenting time. And given this lack 

of evidence about whether or when an investigation into sexual assault allegations 

occurred, we need not reach Julie’s argument urging this Court to adopt a brightline rule requiring restricted or supervised visitation upon uncontroverted

allegations of sexual assault of a child while under a parent’s care until an 

investigation is completed. In the absence of any evidence about such an 

investigation in the record, this would be entertaining a theoretical question and we 

must not issue advisory opinions even on important issues. See Philpot v. Patton, 

837 S.W.2d 491, 493 (Ky. 1992) (“Our courts do not function to give advisory 

opinions, even on important public issues, unless there is an actual case in 

controversy.”). 

Furthermore, the interests of children allegedly subjected to sexual 

assault while in a parent’s care are protected under current statutes. See, e.g., KRS 
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Chapter 620 (Dependency, Neglect, and Abuse); KRS 403.270 (initial custody 

determination requiring finding of child’s best interest considering several factors 

including physical and mental health and the child’s relationship with parents and 

others). Notably, a court may modify custody even less than two years after an 

initial custody determination based on affidavits indicating serious endangerment 

to the child’s physical, mental, or emotional health. KRS 403.340(2)(a). 

Similarly, a court may restrict visitation based on serious endangerment to the 

child’s physical, mental, or emotional health. See KRS 403.320(3). 

Thus, we decline to adopt Julie’s proposed bright-line rule. 

Further arguments in the parties’ briefs not discussed herein have been 

determined to lack merit or relevancy to our resolving this appeal.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment. 

ALL CONCUR.

BRIEF FOR APPELLANT:

Brandon M. Music

Grayson, Kentucky

BRIEF FOR APPELLEE:

Tracy D. Frye

Marie E. Troxler

Russell, Kentucky