Opinion
NO. 2016-CA-000742-MR
03-09-2018
NATALIYA VASYLIVNA WILLIAMS APPELLANT v. MATTHEW CURTIS WILLIAMS APPELLEE
BRIEF FOR APPELLANT: Nataliya Vasylivna Williams, pro se Elizabethtown, Kentucky BRIEF FOR APPELLEE: Barry Birdwhistell Elizabethtown, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN FAMILY COURT
HONORABLE M. BRENT HALL, JUDGE
ACTION NO. 12-CI-00971 OPINION
AFFIRMING
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BEFORE: COMBS, J. LAMBERT, AND NICKELL, JUDGES. NICKELL, JUDGE: Nataliya Vasylivna Williams ("Nataliya"), pro se, appeals from the Hardin Family Court's order denying her motion containing several requests to alter the child custody arrangement between herself and her ex-husband, Matthew Curtis Williams ("Matthew"). Finding no error, we affirm.
This case began with a divorce and child custody action. The parties entered a mediated settlement agreement resolving several issues. The order from which Nataliya appeals was entered on May 2, 2016. Nataliya moved for longer telephonic visitations, a trip to her native Ukraine with her and Matthew's son, a change in the weekly exchange time, Matthew to cook homemade food, Matthew to provide their son with his own clothing, and Matthew to provide Nataliya information about the foster care system, among other things. Immediately after a hearing, the trial court denied Nataliya's motion finding some of the issues were resolved in previous orders and other requests were unreasonable. This appeal follows.
We first address the flawed Notice of Appeal. During our review, the statutorily mandated Notice of Appeal was found to be defective. Nataliya filed a Notice of Appeal on May 5, 2016, and a second on May 6, 2016. The second was treated as an Amended Notice of Appeal. Both failed to strictly comply with CR 73.03, requiring the Notice of Appeal to "specify by name all appellants and all appellees" and "identify the judgment . . . appealed from." Nataliya seemingly found a "notice of appeal" form for the United States District Court and filled in some of the blanks. In the original Notice of Appeal, she failed to identify the order from which she is appealing, though this error is remedied in the Amended Notice of Appeal. Neither attempt specifically states who is the appellant and who is the appellee; but both parties are named in both. The Supreme Court of Kentucky has consistently held, "a notice of appeal will be deemed adequate 'if it contain[s] a listing of parties sufficient to give the opposing party notice of the identities of the parties against whom the appeal was filed.'" Flick v. Estate of Wittich, 396 S.W.3d 816, 819 (Ky. 2013) (quoting Morris v. Cabinet for Families and Children, 69 S.W.3d 73, 74 (Ky. 2002)). Only substantial compliance with the rule is required after the 1985 amendment of CR 73.02(2). Id. Because Nataliya timely filed her Notice of Appeal, identifying and giving notice of the judgment from which she is appealing to all indispensable parties, we do not discern any prejudice to Matthew resulting from her procedural deficiencies. For that reason, we grant Nataliya leniency as a pro se litigant and review the appeal.
Kentucky Rules of Civil Procedure.
We next address Nataliya's failure to comply with CR 76.12(4)(c)(v). Nataliya's claims of preservation are wholly inadequate. Each argument must begin with "a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." Id. Stating for each argument, "the issue was raised for the appeal pro se, Nataliya Vasylivna Williams to the Court during the preparation of my brief and my request that appropriate ratification be imposed by the Family Law," does not tell us "whether . . . and, if so, in what manner" the claim was argued to the trial court. Id. This rule's purpose "is not so much to ensure that opposing counsel can find the point at which the argument is preserved, it is so that we, the reviewing Court, can be confident the issue was properly presented to the trial court[.]" Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). Not only has she failed to direct opposing counsel and this Court to the point of preservation; many issues raised in her brief were not argued to the trial court. She did not include them in her motion to the trial court nor did she raise them at the April 26, 2016, hearing. Though Nataliya is appealing from an order entered on May 2, 2016, the arguments she makes in her brief bear little relation to the issues addressed in the order. A party "will not be permitted to feed one can of worms to the trial judge and another to the appellate court." Kennedy v. Commonwealth, 544 S.W.2d 219 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321, 327 (Ky. 2010) (citations omitted). Because many of her arguments were not precisely raised before or adjudicated by the trial court, we will not consider them here. For this reason, we consider only the argument preserved for our review. No relief will be forthcoming on unpreserved issues.
As an example, Nataliya contends she should have been provided an interpreter to understand the nature of the proceedings throughout this case. This issue was not addressed in the order being appealed, but in an order entered August 19, 2014, denying Nataliya's CR 60.02 motion to set aside a mediated agreement. The trial court found it had conducted several hearings in this case between 2012 and 2014 without any suggestion an interpreter was needed. Not until April 15, 2014, did Nataliya inform the court she "may need the assistance of a court interpreter." Interpreters were not requested in future proceedings, and the court ultimately did not sense she required the assistance of an interpreter. In an order entered October 26, 2016, this Court denied Nataliya's request for an interpreter, finding her filings in this Court demonstrated an adequate understanding of the English language.
By challenging her son's nutrition and clothing in the trial court, Nataliya preserved this claim for our review. Disagreements surrounding a child's upbringing are best classified as custody-related matters. See Young v. Holmes, 295 S.W.3d 144, 146 (Ky. App. 2009) (citing Burchell v. Burchell, 684 S.W.2d 296, 300 (Ky. App. 1984)) (characterizing challenges to a child's education as within the trial court's "continuing jurisdiction over custody matters"). Trial courts are given broad discretion in matters concerning custody and visitation. Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000). Thus, we review the trial court's decision for abuse of discretion, the test of which "is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citation omitted).
At the trial court's hearing on April 26, 2016, Nataliya asked the court to order Matthew to cook homemade food for their son and to provide him his own clothing. Matthew stated he did not always make homemade food, but their son was well-fed, and was provided his own clothing, though some were hand-me-downs from relatives. The trial court stated it would not order Matthew to comply with either of Nataliya's requests as they were unreasonable and were not actual issues. Nataliya's brief does not include more relevant information on these issues than was provided to the trial court. We have no duty to search the record for support of her claims and our cursory review of the record reveals no abuse of discretion by the trial court.
Matthew urges us to impose sanctions and require Nataliya to pay $5,000.00 in attorney's fees. Because we do not hold pro se litigants to the same standard as parties represented by counsel, we will not award sanctions; however, we warn Nataliya to refrain from making personal attacks in future filings with any court. Louisville and Jefferson Cty. Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 537 (Ky. 2007).
This Court warned Nataliya in an order entered on January 17, 2017, to be objective and avoid personal attacks. Regardless, Nataliya asserts many inappropriate and unfounded allegations directed at her own prior counsel and Matthew's counsel. These have no relevance in this appeal and should not have been included in her brief. --------
For the foregoing reasons, we affirm the order of the Hardin Family Court.
ALL CONCUR. BRIEF FOR APPELLANT: Nataliya Vasylivna Williams, pro se
Elizabethtown, Kentucky BRIEF FOR APPELLEE: Barry Birdwhistell
Elizabethtown, Kentucky