RENDERED: APRIL 2, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1745-MR

KRISTOPHER SUTHERLAND APPELLANT 

v. 

APPEAL FROM HARDIN CIRCUIT COURT

HONORABLE PAMELA ADDINGTON, JUDGE

ACTION NO. 16-CI-01584 

KAYLA HAGER APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.

KRAMER, JUDGE: Kristopher Sutherland (“Father”) appeals from an order of 

the Hardin Circuit Court, Family Division IV, which reduced his parenting time 

with his minor child (“Child”) as a result of a motion by Child’s mother, Kayla 

Hager (“Mother”).

1

 Upon review, we affirm.

 

1 The family court also found that Father was in contempt for violation of a restraining order 

preventing contact between Child and Father’s paramour. The court also extended said 

restraining order until August 22, 2021. Father does not appeal those portions of the order.
-2-

Father and Mother exercised shared parenting time with Child. 

However, in December 2018, Mother filed a motion seeking to reduce Father’s 

parenting time, asserting that (1) he was seldom with Child during his parenting 

time, instead leaving Child with her paternal grandmother; and (2) despite a 

restraining order preventing contact between Child and Father’s paramour due to 

domestic violence, Father allowed contact to occur. Child was three years old at 

the time. 

The family court held a hearing and thereafter granted Mother’s 

motion, reducing Father’s parenting time to every other Saturday from 10:00 a.m. 

to 5:00 p.m. and granting him three non-consecutive weeks of parenting time 

during the summer months. The family court found credible the testimony that 

Father exercised very little of the parenting time that had been allotted to him and 

that “his mother had been exercising [Father’s] parenting time” due to his work 

schedule. Father saw Child “on average for a few hours two (2) or three (3) times 

during his week.” Moreover, the family court “believe[d] that at this time [Father]

should have no overnight visitation with [C]hild as [the family] [c]ourt is not 

convinced that the relationship between [Father and his paramour] is over and also 

lacks confidence that [Father] would not allow [his paramour to be] around 

[Child].”
-3-

We first note that, in contravention of CR2 76.12(4)(c)(v), Father does 

not have a preservation statement at the beginning of his argument. Rather, he 

contends that, “[a]s this assignment of error alleges abuse of discretion, [Father] 

was not required to take additional steps to preserve it for appellate review.” 

Father cites no authority for this assertion, and this Court is unaware of any reason 

to disregard the requirements of CR 76.12(4)(c)(v) simply because Father asserts 

an abuse of discretion. Nor does Father cite to the record in his argument. 

Although he cites to the record in his statement of the case, CR 76.12(4)(c)(iv) and 

(v) require ample references to the record and citation to authority supporting each

argument. It is not the responsibility of this Court to search the record to find 

support for Father’s arguments or where they are preserved, assuming such exists.

Smith v. Smith, 235 S.W.3d 1 (Ky. App. 2006).

We further note that Father’s counsel has been previously warned on 

at least one occasion about failure to follow CR 76.12(4)(c)(v). In Pettingill v.

Pettingill, No. 2016-CA-000589-ME, 2017 WL 651990 (Ky. App. Feb. 17, 2017), 

Father’s counsel represented the appellant therein, and this Court noted

[Appellant] has failed to comply with CR 76.12(4)(c)(v). 

That rule requires the brief for [A]ppellant to:

contain at the beginning of the argument a 

statement with reference to the record 

showing whether the issue was properly 

 

2 Kentucky Rule of Civil Procedure.
-4-

preserved for review, and, if so, in what 

manner.

The Argument portion of [Appellant’s] brief contains no 

statement of preservation and, furthermore, does not cite 

the record at all.

Id. at *1.

For years, the Court has been pointing out deficiencies in briefs and 

the rationale and importance of adherence to the rules. Nearly eleven years ago, 

this Court pointed out:

Compliance with [CR 76.12] permits a meaningful and 

efficient review by directing the reviewing court to the 

most important aspects of the appeal: what facts are 

important and where they can be found in the record; 

what legal reasoning supports the argument and where it 

can be found in jurisprudence; and where in the record 

the preceding court had an opportunity to correct its own 

error before the reviewing court considers the error itself. 

The parties, when acting pro se, or their attorneys who 

appear before us have typically spent considerable time, 

sometimes even years, creating and studying the record 

of their case. On the other hand, the record that arrives 

on the desk of the judges of the reviewing court is 

entirely unknown to them. To do justice, the reviewing 

court must become familiar with that record. To that end, 

appellate advocates must separate the chaff from the 

wheat and direct the court to those portions of the record 

which matter to their argument. When appellate 

advocates perform that role effectively, the quality of the 

opinion in their case is improved, Kentucky 

jurisprudence evolves more confidently, and the 

millstones of justice, while still grinding exceedingly 

fine, can grind a little faster.
-5-

But the rules are not only a matter of judicial 

convenience. They help assure the reviewing court that 

the arguments are intellectually and ethically honest. 

Adherence to those rules reduces the likelihood that the 

advocates will rely on red herrings and straw-men 

arguments—typically unsuccessful strategies. Adherence 

enables opposing counsel to respond in a meaningfully 

way to the arguments so that dispute about the issues on 

appeal is honed to a finer point.

Hallis v. Hallis, 328 S.W.3d 694, 696-97 (Ky. App. 2010) (internal footnote 

omitted).

The Court has continued to attempt to educate parties and attorneys on 

the importance of the rules and the pitfalls of failure to comply with them. The 

Court addressed noncompliant briefing again in detail in Curty v. Norton 

Healthcare, Inc., 561 S.W.3d 374, 377-78 (Ky. App. 2018). Given the length at 

which the Court in Curty urged compliance with CR 76.12(4)(c), we quote the 

rationale for the rule and the Court’s warnings that leniency should not be 

presumed. 

CR 76.12(4)(c)[(v)] in providing that an 

appellate brief’s contents must contain at the 

beginning of each argument a reference to the 

record showing whether the issue was 

preserved for review and in what manner 

emphasizes 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. 

It is only to avert a manifest injustice that this 

court will entertain an argument not presented 

to the trial court. (citations omitted).
-6-

Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990) 

(quoting Massie v. Persson, 729 S.W.2d 448, 452 (Ky. 

App. 1987)). 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). 

. . .

Failing to comply with the civil rules is an 

unnecessary risk the appellate advocate should not 

chance. Compliance with CR 76.12 is mandatory. See

Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). 

Although noncompliance with CR 76.12 is not 

automatically fatal, we would be well within our 

discretion to strike Curty’s brief or dismiss her appeal for 

her attorney’s failure to comply. Elwell. While we have 

chosen not to impose such a harsh sanction, we strongly 

suggest counsel familiarize himself with the rules of 

appellate practice and caution counsel such latitude may 

not be extended in the future.

Curty, 561 S.W.3d at 377-78 (emphasis added).

Three years have passed since the Curty opinion, and the brief 

deficiencies have increased. In June 2020, this Court again commented on the 

volume of noncompliant briefs and wrote as follows:
-7-

This Court is weary of the need to render opinions such 

as this one, necessitated as they are by the failure of 

appellate advocates to follow rules of appellate advocacy. 

In just the last two years, at least one hundred and one 

(101) Kentucky appellate opinions were rendered in 

which an attorney’s carelessness made appellate rule 

violations an issue in his or her client’s case. The 

prodigious number of attorneys appearing in Kentucky’s 

appellate courts lacking the skill, will, or interest in 

following procedural rules is growing. In 2005, only two 

(2) Kentucky opinions addressed appellate rules 

violations. In 2010, the number jumped to eleven (11). 

In 2015, the number rose slightly to fourteen (14). The 

average for the last two years is more than three times 

that. If this is not a crisis yet, it soon will be if trends do 

not reverse.

We will not reiterate all that has been said too many 

times before on this subject. If a lawyer is curious about 

the importance of these procedural rules or the practical 

reasons for following them, we recommend reading these 

opinions in chronological order: Commonwealth v. Roth, 

567 S.W.3d 591 (Ky. 2019); Koester v. Koester, 569 

S.W.3d 412 (Ky. App. 2019); Hallis v. Hallis, 328 

S.W.3d 694 (Ky. App. 2010); Elwell v. Stone, 799 

S.W.2d 46 (Ky. App. 1990).

Clark v. Workman, 604 S.W.3d 616, 618 (Ky. App. 2020).

Our options when an appellate advocate fails to abide by the rules are: 

(1) to ignore the deficiencies 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. Given only because the 

record before us is not voluminous and because the matter involves a minor child, 

we review for manifest injustice only and, accordingly, find none.
-8-

Our review of the record convinces us that the family court’s decision 

to reduce Father’s parenting time was well founded. The record supports the 

findings of fact and conclusions of law based on his failure to utilize the prior 

shared parenting schedule, but also due to domestic violence between Father and 

his paramour and Father’s disregard for court orders pertaining to such, 

particularly as they relate to Child. 

Finally, we note that Father’s argument lies primarily with his 

contentions that the family court’s findings were not adequate.

3

 We disagree; the 

order entered in this matter fully sets out the rationale and the evidence supporting 

the family court’s decision. Moreover, if the family court failed to make adequate 

findings of fact (which is not the case based on our review of the record), Father 

waived that argument because he failed to bring it to the attention of the family 

court pursuant to CR 52.02 and 52.04.4 See Cherry v. Cherry, 634 S.W.2d 423, 

425 (Ky. 1982).

Accordingly, the order of the Hardin Circuit Court, Family Division 

IV, is affirmed.

 

3 Findings of fact are reviewed for clear error, not abuse of discretion, which renders even less 

credence to Father’s assertion that he was “not required” to preserve his argument for appellate 

review. See CR 52.01.

4 CR 52.04 provides: “A final judgment shall not be reversed or remanded because of the failure 

of the trial court to make a finding of fact on an issue essential to the judgment unless such 

failure is brought to the attention of the trial court by a written request for a finding on that issue 

or by a motion pursuant to Rule 52.02.”
-9-

GOODWINE, JUDGE, CONCURS.

MAZE, JUDGE, CONCURS IN RESULT ONLY.

BRIEF FOR APPELLANT:

William D. Tingley

Louisville, Kentucky

BRIEF FOR APPELLEE:

Caleb T. Bland

Elizabethtown, Kentucky