RENDERED: MARCH 25, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1139-ME
DARIAN R. CLAY APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
v. HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 20-CI-00205
MARICARMEN1 RIVERA APPELLEE
OPINION
AFFIRMING
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BEFORE: CETRULO, DIXON, AND LAMBERT, JUDGES.
DIXON, JUDGE: Darian R. Clay, pro se, appeals the custody and parenting time
order entered by the Oldham Circuit Court on September 16, 2021. After careful
review of the briefs, the record, and the law, we affirm.
1
Appellant’s notice of appeal misidentified Appellee as Marie Carmen Rivera. We have opted
to use the correct spelling in this Opinion.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Clay and Maricarmen Rivera are the parents of H.C., born January
2010. Clay’s paternity was established by the Jefferson Circuit Court in 2011, and
as part of that action, orders regarding parenting time were entered. In May 2019,
Clay’s parenting time was restricted to supervised after Rivera sought and was
granted a domestic violence order (DVO) from the Oldham Circuit Court; the
DVO expired May 17, 2021.
In April 2020, Rivera filed the petition underlying this appeal seeking
sole custody of H.C. and the establishment of a parenting time schedule for Clay.
Clay moved to dismiss the action arguing that the Jefferson Circuit Court had
continuing jurisdiction by virtue of its prior orders and that Rivera was proceeding
improperly by seeking an initial determination of custody and parenting time
instead of a modification. Rivera opposed the motion asserting that the Jefferson
Circuit Court orders did not constitute initial determinations because they were not
based upon a KRS2 403.270 best interest analysis. The court denied Clay’s motion
and proceeded with a hearing. Thereafter, by order entered September 16, 2021,
the court denied Rivera’s request for sole custody and set supervised parenting
time for Clay. Clay timely appealed.
2
Kentucky Revised Statutes.
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ANALYSIS
As a preliminary matter, we must address Rivera’s contention that this
appeal should be dismissed, or reviewed only for a manifest injustice, as a result of
Clay’s failure to provide specific citations to the record, as required by CR3
76.12(4)(c)(v), establishing that his alleged errors are preserved. Clay’s brief
contains a statement that his claims are preserved “by timely filed motions and
objections during the Oldham Circuit Court hearing of August 11, 2021.”
However, as this assertion provides the Court no guidance as to where in the record
or during the four-hour hearing the arguments can be located, we agree with Rivera
that Clay’s preservation statement is insufficient. Where a party fails to abide by
the rules of civil procedure, we are permitted to ignore the deficiency, strike the
brief in whole or part, or review the issues raised for manifest injustice. CR
76.12(8); Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990). Given the import
of child-related matters, we will disregard the error to the extent Clay’s claims are
properly preserved.
Clay’s first claim of error pertains to the court’s application of KRS
403.270, which governs initial custody determinations, as opposed to KRS
403.340, relating to modifications of custody. We need not delve into the specifics
of this contention since Rivera’s petition for sole custody was denied and,
3
Kentucky Rules of Civil Procedure.
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consequently, any alleged error was harmless. CR 61.01. Likewise, we need not
address Clay’s argument that the court erred in determining custody without the
filing of an affidavit as required by KRS 403.350.
Clay next contends that because Rivera failed to file a verified motion
or affidavit, as required by FCRPP4 8(2) to seek a modification of parenting time
orders, the court lacked particular case jurisdiction to adjudge the matter. Rivera
disputes that FCRPP 8(2) is applicable, renewing her argument before the circuit
court that the prior orders did not constitute initial determinations, and thus,
jurisdiction was proper.
Particular case jurisdiction “‘refers to the authority and power of the
court to decide a specific case, rather than the class of cases over which the court
has subject-matter jurisdiction.’” Nordike v. Nordike, 231 S.W.3d 733, 738 (Ky.
2007) (quoting Milby v. Wright, 952 S.W.2d 202, 205 (Ky. 1997)). Whether a
court has particular case jurisdiction often turns solely on a party’s compliance
with prerequisites established by statute or rule. Id. FCRPP 8(2) provides that “[a]
motion to modify parenting time shall set forth facts supporting the requested
modification and be verified or accompanied by an affidavit.” Assuming arguendo
that Clay is correct that FCRPP 8(2) was applicable, we conclude Rivera
4
Family Court Rules of Procedure and Practice.
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substantially complied where she filed a verified petition, and thus, the court had
particular case jurisdiction.
Clay additionally argues the court erred by relying on an expired
DVO as the basis to modify his parenting time. We disagree. Pursuant to KRS
403.320(3), a “court may modify an order granting or denying [parenting time]
whenever modification would serve the best interests of the child[.]” A history of
domestic violence is undoubtedly a relevant factor to a child’s best interests. See
KRS 403.320(2). Moreover, the court herein did not conclude that modification
was in H.C.’s best interest as an inherent consequence of the DVO; rather, the
court determined H.C.’s discomfort with unsupervised time with Clay, a finding
Clay has not challenged, required modification of his parenting time. Accordingly,
we conclude this claim is without merit.
Finally, Clay takes umbrage with an order that he participate in
parent-child therapy and argues the order constitutes the erroneous enforcement of
a provision of the expired DVO. Pursuant to FCRPP 6(2)(c), because the
underlying action is a dispute regarding custody or parenting time, the court is
permitted to order family counseling, and thus, the order for parent-child therapy
was not in error.
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CONCLUSION
Therefore, and for the foregoing reasons, the order entered by the
Oldham Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Darian R. Clay, pro se Ben Wyman
Louisville, Kentucky Carrollton, Kentucky
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