RENDERED: FEBRUARY 11, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1597-MR

RUSSELL KARL FALKENBURG APPELLANT 

v. 

APPEAL FROM JESSAMINE CIRCUIT COURT

HONORABLE JEFF MOSS, JUDGE

ACTION NO. 19-CI-00758

ELIZABETH SOTELO SOLANO1 APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.

CALDWELL, JUDGE: Russell Karl Falkenburg appeals from the Jessamine 

Family Court’s rulings on several matters in a proceeding in which Falkenburg 

initially sought to dissolve, but later sought to annul, his marriage to Elizabeth 

Sotelo Solano. We affirm. 

1 Falkenburg refers to the appellee in his notice of appeal as Elizabeth Sotelo Solano, consistent 

with his petition for dissolution of marriage. Although the dissolution decree indicated that the 

legal name of the respondent in the divorce action was Elizabeth Falkenburg, we will refer to the 

appellee as Solano based on the notice of appeal. 
-2-

Before addressing the merits of Falkenburg’s arguments, we must 

address the effect of Falkenburg’s failure to comply with key briefing requirements 

and of Solano’s failure to file an appellee brief. 

We Review for Manifest Injustice Due to Lack of Proper Preservation 

Statement and Lack of Specific Citations to the Record in Appellant’s Brief

Falkenburg’s brief fails to comply with two key requirements for an 

appellant’s brief. First, his brief does not comply with the requirement that the 

argument portion of an appellant’s brief state if and how issues on appeal were 

properly preserved–meaning that the issues were raised to the family court so it 

had an opportunity to rule on them. See CR2 76.12(4)(c)(v) (emphasis added)

(requiring that briefs for appellants contain: “An ‘ARGUMENT’ conforming to 

the statement of Points and Authorities, with ample supportive references to 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.”). 

Second, his appellant brief does not comply with the requirement that 

the appellant provide ample supporting references to pages of the written record 

and to dates and times of audio and/or video recordings wherein the appellant 

2 Kentucky Rules of Civil Procedure. 
-3-

presented such issues to the family court. See CR 76.12(4)(c)(iv) (emphasis 

added) (requiring that appellant’s brief contain: “A ‘STATEMENT OF THE 

CASE’ consisting of a chronological summary of the facts and procedural events 

necessary to an understanding of the issues presented by the appeal, with ample 

references to the specific pages of the record, or tape and digital counter 

number in the case of untranscribed videotape or audiotape recordings, or date 

and time in the case of all other untranscribed electronic recordings, supporting 

each of the statements narrated in the summary.”). 

When the appellant fails to include a proper preservation statement 

and fails to cite to the record in a manner enabling an appellate court to easily find 

where the issue was argued to the trial court, Kentucky case law makes clear that 

the reviewing appellate court has no obligation to search the record. See, e.g., S.T. 

v. Cabinet for Health and Family Services, 585 S.W.3d 769, 777 (Ky. App. 2019); 

Koteras v. Commonwealth, 589 S.W.3d 534, 540 (Ky. App. 2018). 

Briefs may be stricken for non-compliance with briefing 

requirements. CR 76.12(8)(a). And an appellate court may only review for 

manifest injustice when an appellant fails to provide a preservation statement with 

supporting references to the record. Ford v. Commonwealth, 628 S.W.3d 147, 155

(Ky. 2021) (“the manifest injustice standard of review is reserved only for errors in 

appellate briefing related to the statement of preservation. If a party fails to inform 
-4-

the appellate court of where in the record his issue is preserved, the appellate court 

can treat that issue as unpreserved.”). See also CR 61.02 (emphasis added) (“A 

palpable error which affects the substantial rights of a party may be considered by 

the court on motion for a new trial or by an appellate court on appeal, even though 

insufficiently raised or preserved for review, and appropriate relief may be granted 

upon a determination that manifest injustice has resulted from the error.”). 

Our precedent also makes clear that although pro se litigants are 

perhaps not expected to make arguments with the same sophistication as lawyers, 

pro se litigants must comply with the briefing requirements in our civil rules and 

may suffer consequences for failing to do so. See Koester v. Koester, 569 S.W.3d 

412, 415 (Ky. App. 2019) (striking pro se appellant’s brief and dismissing appeal 

due to several substantive failures to comply with briefing requirements–especially 

after he failed to correct errors in reply brief after being informed of his 

noncompliance); Prescott v. Commonwealth, 572 S.W.3d 913, 919 (Ky. App. 

2019) (noting that despite some leniency afforded to pro se litigants, pro se

litigants are expected to follow court rules so we limited our review to “those 

portions of Prescott’s arguments supported by careful and correct citation to the 

record” and declined to fully analyze issues which were raised in brief in a manner

not complying with governing rules). 
-5-

In the instant case, we elect not to strike Falkenburg’s brief so we do 

not summarily dismiss his appeal. However, we review the issues he raises on 

appeal only for manifest injustice since he failed to indicate if or how issues were

preserved for appeal with specific references to the record. Furthermore, we may 

decline to address certain issues or provide less detailed analysis of some issues

due to his failure to provide specific citations to pages of the written record and/or 

dates and times in recorded hearings wherein these issues were discussed in the 

family court. See Prescott, 572 S.W.3d at 919. 

We Opt Against CR 76.12(8)(c) Sanctions for Failure to File Appellee Brief

Solano failed to file an appellee brief. So, we would have the 

authority to take steps such as treating the lack of appellee brief as a confession of 

error or simply accepting the appellant’s statement of facts and issues as correct 

under CR 76.12(8)(c).3 We also have discretion to not choose to exercise any of 

the options listed in CR 76.12(8)(c). Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. 

App. 2007). Under the unique facts and circumstances of this case, including the 

issues presented and the deficiencies in Falkenburg’s brief, we choose not to 

exercise any of the options listed in CR 76.12(8)(c). 

3 CR 76.12(8)(c)(ii) states that we could reverse the family court’s judgment if the appellant’s 

brief “reasonably appears to sustain such action;” however, we conclude that Falkenburg’s brief 

does not appear to reasonably support reversing the family court’s judgment as we discuss in 

further detail elsewhere in this Opinion. 
-6-

FACTS AND PROCEDURAL HISTORY

Falkenburg and Solano were married in February 2018 in Texas. 

They separated in June 2019, following Falkenburg’s return to Texas after a 

military deployment. No children were born of their marriage. 

In December 2019, Falkenburg filed a petition for dissolution of 

marriage in the Jessamine Family Court. He alleged that he had been living in 

Kentucky for more than 180 days, but that Solano was currently living in Texas 

and had not resided in Kentucky for more than 180 days. In addition to requesting 

dissolution of the marriage, he requested that the family court order Solano to 

return some personal property and investments. As in this appeal, he was 

unrepresented by counsel in the proceedings before the family court.

Solano filed, by counsel, a verified response to the divorce petition on 

or about February 13, 2020. Falkenburg filed a motion for default judgment and 

for sanctions a few days later. (His motion for default judgment argued other 

issues but did not claim that Solano failed to file a timely response to his petition.) 

Shortly thereafter, Falkenburg filed a pleading styled as a Motion to Deny/Motion 

to Modify. 
-7-

In his motion, Falkenburg asked the family court to, among other 

things, amend his petition for dissolution of marriage to a petition for annulment.4 

He asserted that Texas law was controlling and allowed for annulment on the basis 

of fraud. And he alleged that Solano had acted fraudulently in failing to support 

her spouse and/or in otherwise failing to fulfill marital obligations. 

Solano’s filed response argued that default judgment was 

inappropriate due to her having actively participated in the proceedings. She also 

asserted that jurisdiction over the case was proper in Kentucky and that Kentucky 

law would apply to the case. 

The family court explained at a hearing in early March 2020 that 

Kentucky law would apply in this Kentucky state court. The family court noted 

that Solano consented to its jurisdiction even though Solano lived in Texas. The 

family court stated that since Solano had already participated in the action before 

the motion for default judgment was filed, default judgment was not appropriate. 

Although the family court judge orally indicated that the default 

judgment motion would be denied at the early March 2020 hearing, the family 

court did not enter a written order formally denying default judgment for a few 

4

In addition to requesting leave to amend his petition to one for annulment, Falkenburg also 

asked that Solano’s requests for discovery be denied. But the family court ruled that discovery 

should proceed. 
-8-

months. During spring 2020, Falkenburg filed additional motions including 

motions for summary judgment, annulment, and the judge’s recusal. 

Solano filed a motion to compel Falkenburg to cooperate with 

discovery and she requested a tele-video hearing. The family court emailed 

Falkenburg and Solano’s counsel to schedule a teleconference hearing. Falkenburg 

expressed concerns in an email that he would waive his motion for recusal if he 

appeared at the hearing. The family court told him via email that appearing at a 

hearing would not waive his recusal motion and that if Falkenburg chose not to 

appear, the hearing would proceed in his absence. (Copies of this email 

correspondence were included in the written record, and it appears that the judge, 

Falkenburg, and Solano’s counsel received copies of each email.) 

The family court conducted the scheduled tele-video hearing in midJune 2020. By the time of the hearing, Falkenburg had just filed a request for 

disqualification of the judge with the Chief Justice–along with an affidavit 

indicating why he believed the judge was biased against him. 

Falkenburg did not attend the scheduled tele-video hearing. The 

hearing proceeded without him. The judge denied the motions for a default 

judgment and the motion for recusal. However, the judge declined to rule on other 

pending motions, due to the pending disqualification request. 
-9-

The Chief Justice denied the request for disqualification. The case 

then proceeded further before the family court. Falkenburg filed additional 

motions, including a motion to amend the petition to one for annulment. The 

family court entered a written order in late September 2020, stating that 

Falkenburg’s request to amend his petition to one for annulment was denied as 

untimely under KRS5 403.120. 

The case then proceeded to trial, after which the family court entered 

a decree dissolving the marriage, dividing marital property, and assigning debt. 

The family court issued supplemental findings of fact and conclusions of law along 

with the decree. Falkenburg then filed a timely appeal. Other facts will be 

discussed as needed to resolve the issues raised on appeal. 

ANALYSIS

Falkenburg argues in his brief that the family court’s judgment should 

be reversed because, in his view: 1) the family court judge erroneously denied his 

request to amend his petition to one for annulment rather than dissolution of the 

marriage, 2) the family court failed to consider or follow federal law about 

immigration marriage fraud, 3) the family court judge should have recused, and 4) 

the family court improperly conducted a final divorce hearing and/or improperly 

5 Kentucky Revised Statutes.
-10-

divided marital property and assigned marital debt. We disagree, as we conclude

that the family court’s handling of these issues did not result in manifest injustice. 

I) No Manifest Injustice in Denying Leave to Amend Petition

In its written order denying leave to amend the petition, the family 

court noted that Solano filed her response to the petition before Falkenburg 

requested to amend his petition for divorce into a petition for annulment. Solano 

objected to the request to amend the petition. The family court correctly 

determined that the court’s permission was required for amendment. CR 15.01 

(subject to other exceptions not relevant here such as a one-time request to amend 

a pleading before the other side files a response, providing that parties may only 

amend pleadings with the opposing party’s consent or with leave of court “and 

leave shall be freely given when justice so requires.”). 

The family court explained that it was denying leave to amend the 

petition because Falkenburg’s request to invalidate the marriage based on alleged 

fraud was untimely under KRS 403.120(2)(a). The family court noted: “KRS 

403.120(2)(a) requires that an action to declare a marriage invalid based on fraud 

as to the essentials of the marriage must be brought within 90 days of the petitioner 

becoming aware of the fraud.”6(Record (R.), p. 211.) 

6

See KRS 403.120, which provides in pertinent part: 
-11-

The family court found that Falkenburg “recounts in his pleadings that 

upon discovering [Solano’s] alleged fraud he left Texas and came to Kentucky” in 

early June 2019, but that Falkenburg waited until December 2019 to file his 

divorce petition. The family court explained that while Falkenburg was correct in 

believing that he must establish 180 days’ residency in Kentucky before filing for 

divorce, “under Kentucky law his delay in requesting annulment prohibits him 

from pursuing an annulment.” (R., p. 211.) Viewing Falkenburg’s request for 

annulment as time-barred, the family court denied the request to amend.

Falkenburg filed an objection and/or motion for the family court to 

reconsider this order. The family court construed this as a motion to alter, amend,

or vacate. It denied this motion/objection for “substantive” reasons,7stating that it 

(1) The Circuit Court shall enter its decree declaring the invalidity of a marriage entered 

into under the following circumstances: 

(a) . . . a party was induced to enter into a marriage by force or duress, or by fraud 

involving the essentials of marriage;

. . . .

(2) A declaration of invalidity under paragraph (a), (b) or (c) of subsection (1) may be 

sought by any of the following persons and must be commenced within the times 

specified, but only for the causes set out in paragraph (a) may a declaration of invalidity 

be sought after the death of either party to the marriage: 

(a) For a reason set forth in paragraphs (a) and (b) of subsection (1), by party or by the 

legal representative of the party who lacked capacity to consent, who was the offended 

party or did not know of the incapacity, no later than 90 days after the petitioner 

obtained knowledge of the described condition[.]

7 Although the family court denied the motion for substantive reasons, its order also indicated 

that it believed the motion was not timely filed. 
-12-

understood “that there is a difference of opinion” about its ruling but that “nothing

was offered from a legal perspective to persuade the [c]ourt to change its prior 

order.” (R., p. 223.) 

From our review of Falkenburg’s written objection and/or motion, 

Falkenburg did not dispute therein the family court’s finding that he asserted 

having discovered alleged fraud by Solano and therefore left for Kentucky in early 

June 2019 in his pleadings. The family court correctly noted that Falkenburg’s 

petition for dissolution was filed in December 2019. Falkenburg’s request to 

amend the petition to one for annulment was not filed until February 2020. Thus, 

we discern no manifest injustice in the family court therefore determining that 

based on Falkenburg’s own admitted discovery of alleged fraud in early June 2019, 

his failure to request annulment within 90 days of this discovery meant that his 

annulment request was time-barred under KRS 403.120. 

As Falkenburg points out, leave to amend a pleading is to be “freely 

given when justice so requires” under CR 15.01. But based on his own admitted 

discovery of facts underlying his fraud claims by June 2019, we discern no 

manifest injustice in the family court’s determination that justice did not require 

permitting Falkenburg to amend his petition to annulment some eight months after 

he claimed to have discovered fraud by Solano. A court does not err by denying 
-13-

leave to amend a pleading if the proposed amendment is futile. Kenney v. Hanger 

Prosthetics & Orthotics, Inc., 269 S.W.3d 866, 869-70 (Ky. App. 2007). 

Although Falkenburg claims that the 90-day time limit to pursue 

invalidation of a marriage after discovering alleged fraud in KRS 403.120 does not 

begin to run until a party has established residency in Kentucky for 180 days, he 

cites no authority specifically supporting his argument.8 Perhaps this specific 

argument might merit further consideration when an appellant’s brief properly 

shows how and where it was preserved for review–unlike here. But we decline to 

address this argument further given the lack of proper preservation statement and 

the lack of authority cited specifically supporting this argument. In short, we

discern no manifest injustice in the family court’s denying Falkenburg’s request for 

leave to amend his divorce petition to one for annulment; thus, we affirm on this 

issue.

8 Falkenburg quotes Parks v. Parks, 418 S.W.2d 726, 726 (Ky. 1967) (“Our statute, KRS 

402.030, authorizes a court having equity jurisdiction to ‘declare void any marriage obtained by 

. . . fraud.’”). But Parks did not concern any jurisdictional or other issues about how a person’s 

desire to seek annulment might be affected by the length of his or her residency in Kentucky. In 

fact, Parks did not and could not have addressed KRS 403.120’s requirement for requesting 

invalidation of marriage within 90 days of discovering facts allegedly constituting fraud because 

Parks pre-dates KRS 403.120, which was enacted in 1972. And despite Falkenburg’s citation of 

Eck v. Eck, 793 S.W.2d 858 (Ky. App. 1990), for the same quoted material, Eck does not contain 

the quote from Parks and does not discuss the 90-day time limit for seeking to invalidate a 

marriage for fraud in KRS 403.120 nor any length of residency requirement for seeking 

amendment. 
-14-

II) Family Court’s Not Discussing Federal Law Regarding 

Immigration Marriage Fraud Not Manifest Injustice Under Facts 

of this Case

Falkenburg asserts in his brief that the family court incorrectly 

claimed that the federal Immigration Marriage Fraud Act (IMFA) of 1986 and 

related federal law do not apply in Kentucky state family court. He argues that 

federal courts hear only criminal cases about immigration fraud. But he perceives 

that state courts can hear civil cases relating to immigration marriage fraud, with 

federal courts focusing on fraud affecting the federal government and state courts 

focusing on fraud affecting individuals. 

Falkenburg claims that state courts in other jurisdictions have 

“recognized the authority of the IMFA with annulment as the remedy” on page 7 

of his brief. He contends that the IMFA has no statute of limitations about 

immigration marriage fraud and that it is against Kentucky’s public policy to 

sanction marriages entered into for purposes of illegally obtaining immigration 

advantages–just as Kentucky allows for the invalidation of other marriages based 

on other types of fraud. He concludes this argument stating, “for Court to ignore 

the act of fraud based on the ‘opinion’ that the type has no State relevance, is 

erroneous, and because the type, being immigration, is regulated by Congress, 

Kentucky courts have a duty to acknowledge.” (Appellant brief, p. 9.) 
-15-

In denying the motion to amend the petition to one for annulment and 

in declining to discuss the IMFA or other federal law, the family court stated: “As 

stated to [Falkenburg] in [c]ourt previously, it is not within the jurisdiction of this 

state court to determine whether [Solano] is legally in the United States. 

Immigration is left to the Federal Courts.” (R., p. 208.) 

Falkenburg concedes in his brief that criminal actions regarding 

immigration must be litigated in federal court. There appears to be no dispute that

the family court could not, for example, determine if Solano should be deported for 

alleged immigration marriage fraud. 

We construe the aforementioned quote from the family court as 

indicating that it lacked jurisdiction over criminal proceedings regarding alleged 

immigration marriage fraud. And it was not necessary for the family court to 

determine whether any party here had violated any provision in the federal IMFA 

for purposes of the proceedings before it–which began with Falkenburg’s request 

to terminate the marriage through divorce followed by his untimely, contested 

request to amend the petition to one for annulment. Had Falkenburg timely sought 

to annul or invalidate the marriage on the basis of fraud within 90 days of his

discovery of facts causing him to believe that Solano had committed fraud, perhaps

discussion of the IMFA and related federal case law would have been in order to 

consider whether there were grounds to annul based on immigration marriage-
-16-

related fraud. But we discern no manifest injustice in the family court’s declining 

to discuss the IMFA as that was unnecessary for it to resolve the proceedings 

before it under the facts here. So, we affirm on this issue.

III) Family Court’s Denying Recusal Motion Not Manifest Injustice

Falkenburg asserts in his brief that the family court judge should have 

recused because the judge adopted and raised a Latina immigrant child, is involved 

in missionary work and/or outreach programs to Latino countries, and has assisted 

others with adopting immigrant children. Although opining that this involvement 

is commendable, Falkenburg also asserts that the family court judge’s “deep 

involvement within the topic creates a situation where he is willing to bend, break 

and ignore the law on behalf of immigrants to the detriment of US Citizens while 

depriving Pro Se litigants of their rights[.]” (Appellant’s brief, p. 16.) 

Falkenburg also asserts that in his motion for the judge’s recusal, he

addressed the judge’s allegedly criticizing a political opponent for being divorced. 

He asserts that the judge holds opinions that anyone “who has experienced 

relationship issues or been divorced, is less in ability than he, merely because he 

has not been, and isn’t fit to question his ‘opinions’ as a legal and relationship 

expert.” Then Falkenburg states: “So how much less would he treat [Falkenburg], 

a mere layman begging for relief, duped by a female immigrant, his favorite.” 

(Appellant’s brief, p. 17.) 
-17-

Falkenburg notes that he also requested that the Chief Justice 

disqualify the judge. He admits that the Chief Justice determined that Falkenburg 

had not proven bias, but he takes issue with the Chief Justice’s conclusion. 

He also alleges the judge entered an order when the judge knew 

Falkenburg would be out of town so Falkenburg would not be able to timely file an 

objection. He also generally contends that the judge’s orders were entered in 

violation of the constitution and other legislation. More specifically, Falkenburg 

claims the judge ruled on all pending motions during an improper ex parte hearing 

with opposing counsel on June 16, 2020. We disagree with this contention. 

The June 16, 2020 hearing was conducted via Skype or similar 

platform. The judge spent a lot of time in the hearing looking through items in the 

case record trying to find alternate ways to contact Falkenburg, who had apparently 

received notice of the hearing but might be experiencing technical problems or 

might be reluctant to attend. The judge recalled that he told Falkenburg via email 

that his attendance at a hearing would not waive his motions. The judge noted the 

pending motion for disqualification before the Chief Justice, with accompanying 

affidavit filed with the circuit clerk, as well as the pending motion for recusal in his 

court. The family court judge decided to address the recusal motion before going 

on to other matters. 
-18-

The judge found that the motion filed in his court did not address the 

factors regarding recusal in KRS 26A.015 so he denied it. He construed 

Falkenburg’s motion as calling for recusal because of the judge’s having adopted a 

Latina child, because of the judge’s not having been divorced, and because the 

judge had not entered judgment in Falkenburg’s favor. Although the judge briefly 

noted he would deny Falkenburg’s motion for default judgment, the judge 

indicated he would hold off on ruling on other matters until the disqualification 

request before the Chief Justice was resolved. 

Based on our review of the record and applicable law, there was no 

manifest injustice in the family court judge’s declining to recuse or in his 

discussions with opposing counsel during the mid-June 2020 hearing. Falkenburg 

has pointed to no objective evidence of bias and we cannot say that the alleged 

facts would put a reasonably prudent person in fear of not receiving a fair and 

impartial trial. Considering that a judge has a duty to sit on cases unless there are 

valid reasons for recusal, there was no reversible error in the judge’s denial of 

recusal here. See Clay v. WesBanco Bank, Inc., 589 S.W.3d 550, 557 (Ky. App. 

2019) (upholding denial of recusal based on lack of objective evidence of bias after 

noting trial court’s duty to sit absent valid reasons for recusal and appellate court’s 

duty to consider whether a reasonably prudent person would be in fear of not 

receiving a fair and impartial trial based on the alleged facts). See also Stopher v. 
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Commonwealth, 57 S.W.3d 787, 794-95 (Ky. 2001) (party seeking judicial recusal 

has an “onerous” burden of proof to show facts demonstrating a serious 

impairment of judge’s impartiality swaying his/her judgment; mere belief that 

judge will not conduct a fair trial is not enough to require recusal; even some 

expressions of frustration with litigant by judge not enough to merit recusal9so 

long as judge does not violate litigant’s rights and conducts a basically fair if 

imperfect trial). 

Assuming that the judge had adopted a Latina immigrant child and/or 

been involved in missionary work or outreach programs to benefit immigrants or 

those seeking to adopt immigrant children, this does not show that the judge would 

favor any Latino immigrant litigant in court proceedings or seek to further illegal 

immigration activity. We will not assume that any judge who had ever legally 

adopted an immigrant child or assisted others with legally adopting other 

9 Falkenburg claims in his brief that at one point in a hearing on March 4, 2020, the judge 

“snapp[ed]” at him because Falkenburg indicated he wanted to educate himself about the law–

although Falkenburg did not indicate an approximate time this alleged “snapping” occurred. 

Based on our review of recorded hearings in the record, Falkenburg said he would look into an 

issue after the judge indicated how he would rule on some issues. The judge then calmly asked 

Falkenburg what he meant about looking into the issue. Then Falkenburg stated he needed to do 

some research and the judge paused briefly, looked a bit stunned and then just said “okay” before 

going on to other matters. (Video Record 3/4/2020, 10:56:48-10:57:05.) But we are unaware of 

any instances of the family court judge raising his voice in anger or using rude or abusive 

language from our review of this recorded hearing. Furthermore, an isolated expression of 

frustration with a party’s conduct does not necessitate recusal so long as the judge does not 

violate the party’s rights and affords him a fair trial. Stopher, 57 S.W.3d at 794. 
-20-

immigrant children would purposefully try to evade federal immigration law or to 

show favoritism towards immigrant litigants. 

Additionally, if the judge made any comments indicating that people 

who had relationship problems or had ever sought divorce were not relationship 

nor legal experts, this would not demonstrate bias for one party and against the 

other in this case. Both parties sought to end their marriage in some manner and 

obviously had experienced relationship problems with each other. Moreover, 

Falkenburg has not shown where in the record we may view any alleged comments 

of this nature (casting aspersions on people seeking divorce or having relationship 

problems) by the judge in this proceeding. 

Furthermore, Falkenburg has failed to specifically cite to any portion 

of the record showing that the family court judge demonstrated any bias against 

him or in favor of Solano. On the contrary, from our examination of recorded 

hearings, the family court judge treated all parties with respect and took steps to 

allow both parties to develop and present their cases. 

As for Falkenburg’s allegation of an improper ex parte hearing 

conducted in his absence, Falkenburg received notice of the hearing and was 

advised that it would proceed if he elected not to attend. Thus, we have our doubts 

whether the hearing could even fairly be considered a true ex parte hearing. See ex 

parte, BLACK’S LAW DICTIONARY (11th Ed. 2019) (“[d]one or made at the instance 
-21-

and for the benefit of one party only, and without notice to, or argument by, 

anyone having an adverse interest”) and ex parte proceeding (“[a] proceeding in 

which not all parties are present or given the opportunity to be heard. – Also 

termed ex parte hearing.”). 

Furthermore, other than discussing scheduling and administrative 

matters10 such as looking in the record for more contact information for 

Falkenburg, nothing of substance occurred in Falkenburg’s absence–so any ex 

parte hearing was not an improper one. The family court simply noted it was 

denying the motion for default judgment (consistent with its earlier indication that 

default judgment would be denied at a previous hearing). Similarly, it stated it was

denying the motion for recusal for failure to state sufficient grounds under KRS 

26A.015. It did not hear any argument on these motions from Solano’s counsel

and it notified Falkenburg of its rulings on his default and recusal motions and the 

court’s reservation of other issues via written order entered on June 17, 2020. 

Thus, given the lack of argument on pending motions by Solano’s counsel and 

Falkenburg’s receiving prior notice of the hearing as well as being apprised of 

what occurred at the hearing, we reject Falkenburg’s assertion that the family court 

10 The family court and Solano’s counsel discussed such matters as when a ruling from the Chief 

Justice on the disqualification request might be expected and how the family court would contact 

both parties later to schedule further hearings on other pending motions if the disqualification 

request was denied by the Chief Justice. 
-22-

improperly conducted an improper ex parte hearing on June 16, 2020. See Canon 

2, Rule 2.9(A)(1) of the Kentucky Code of Judicial Conduct (SCR11 4.300)

(“When circumstances require it, ex parte communication for scheduling, 

administrative, or emergency purposes, which does not address substantive 

matters, is permitted, provided: (a) the judge reasonably believes that no party will 

gain a procedural, substantive, or tactical advantage as a result of 

the ex parte communication; and (b) the judge makes provision promptly to notify 

all other parties of the substance of the ex parte communication, and gives the 

parties an opportunity to respond.”). 

In short, we conclude that no manifest injustice resulted from the 

family court’s conduct of the June 16, 2020 hearing nor from the family court 

judge’s declining to recuse. 

IV) No Manifest Injustice in Family Court Having a Final Evidentiary 

Hearing on Dissolution or in its Resolution of Property Issues

Lastly, Falkenburg generally argues that the final dissolution hearing 

and “assignment of property and debt” were improper. (Appellant’s brief, p. 20.) 

Apparently, Falkenburg argues no dissolution trial should have occurred because 

he believes that the marriage should have been annulled instead. And perhaps 

Falkenburg intended to argue that the marriage was never valid so that there was 

11 Kentucky Supreme Court Rules. 
-23-

really no marital property to divide. Again, there was no manifest injustice in the 

family court’s refusal to entertain Falkenburg’s belated attempt to annul the 

marriage.12

Falkenburg also suggests that various specific aspects of the way the 

family court divided marital property and assigned marital debt was erroneous. 

For example, Falkenburg takes issue with the family court’s finding that several 

jewelry items (with a total worth over $4,000 according to Falkenburg’s testimony) 

were gifts from Falkenburg to Solano or other family members and therefore not 

marital property subject to division. Despite Falkenburg’s assertions that he 

bought the jewelry as investments rather than gifts, the family court’s finding was 

not clearly erroneous considering that Solano testified to Falkenburg presenting 

these items to her and family members as gifts. 

On appeals like this, from cases where a court tries a case on the facts 

without a jury, “due regard shall be given to the opportunity of the trial court to 

judge the credibility of the witnesses.” CR 52.01. And as our Supreme Court has 

stated: “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 

12 We also note that KRS 22A.020(3) provides: “there shall be no review by appeal or by writ of 

certiorari from that portion of a final judgment, order or decree of a Circuit Court dissolving a 

marriage.” In other words, the dissolution of the marriage itself cannot be disturbed on appeal 

although appellate courts can consider whether to reverse on such issues as property division, 

child custody and support, or maintenance. 
-24-

336, 354 (Ky. 2003). Based on our review of the record and applicable law, there 

is nothing to indicate any manifest injustice in the family court’s conduct of the 

final evidentiary hearing or division of marital property or assignment of debts.

Further arguments raised in Falkenburg’s brief which we have not 

discussed herein have been determined to lack merit and/or relevancy to our 

resolution of this appeal. To the extent that Falkenburg argues that any Kentucky 

state statute is unconstitutional, we decline to discuss this issue as Falkenburg 

failed to notify the Attorney General of any constitutional challenge to any 

Kentucky statute in the family court proceeding or in this appeal in violation of 

KRS 418.075. A.H. v. Louisville Metro Government, 612 S.W.3d 902, 913 (Ky. 

2020) (compliance with KRS 418.075 is mandatory so courts are prohibited from 

reviewing constitutional challenges to Kentucky statutes when the Attorney 

General has not been properly notified). 

CONCLUSION

For the foregoing reasons, the judgment of the Jessamine Family 

Court is AFFIRMED. 

CETRULO, JUDGE, CONCURS.

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

Russell Karl Falkenburg, pro se

Nicholasville, Kentucky

NO BRIEF FOR APPELLEE.