CLAYTON STEPHEN DUVALL v. YOLANDA JO TURNER (FORMERLY DUVALL)
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RENDERED: April 3, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 97-CA-0533-MR
CLAYTON STEPHEN DUVALL
APPELLANT
APPEAL FROM WOODFORD CIRCUIT COURT
HONORABLE DAVID L. KNOX, JUDGE
ACTION NO. 89-CI-000030
v.
YOLANDA JO TURNER (FORMERLY DUVALL)
APPELLEE
OPINION
AFFIRMING
* * * * * * * *
BEFORE:
COMBS, EMBERTON and MILLER, Judges.
COMBS, JUDGE:
This is an appeal from an order of the Woodford
Circuit Court denying the motions of Clayton Stephen Duvall for
modification of child custody and child support, for restitution,
for litigation fees, and for other relief.
We affirm.
Clayton and Yolanda Jo Turner were married on June 2,
1979.
Three children were born of the marriage:
Miranda, born
October 10, 1982; Joshua, born March 12, 1984; and Amber, born
December 11, 1985.
On February 2, 1989, Clayton filed a petition
to dissolve the marriage.
children.
He requested custody of the three
In her response to the petition, Yolanda also sought
custody of the children.
In May 1989, Clayton was arrested and jailed for
soliciting an undercover police officer to rape and sodomize
Yolanda.
Clayton apparently planned to photograph the incident
and use the pictures as evidence of Yolanda’s unfitness for
custody.
Yolanda was awarded temporary custody of the children.
On August 24, 1989, the trial court entered a decree dissolving
the marriage.
The issue of child support was reserved pending
Clayton’s release from jail.
On September 15, 1989, Clayton pled
guilty to the solicitation charge and received a sentence of
seven years.
In February 1991, Yolanda filed a motion seeking child
support on the grounds that Clayton, though still incarcerated,
now had the means to pay support as a result of an inheritance
from the estate of his grandfather.
In March 1991, the trial
court ordered that appellant’s inheritance be deposited with the
Clerk of the Court and that Yolanda be awarded $100.00 per week
in child support.
In January 1992, following the settlement of
the grandfather’s estate, this court-ordered plan was
implemented.
In August 1994, the trial court approved an
agreement between the parties which provided that in lieu of
child support, Clayton would pay the monthly private school
tuition and entrance fees for the children and that he would
continue to pay the costs of the children’s education through
college.
At some point, Yolanda remarried.
produced one child, Dakota.
This marriage
The marriage also coincided in the
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molestation of both of Yolanda's daughters born of her marriage
to Clayton.
A relative of Yolanda's new husband had sexual
contact with Miranda; in early 1996, the new husband had sexual
contact with Amber.
Yolanda timely reported the incidents to the
Department for Social Services.
At some point in 1996, following
Clayton’s release from prison, Joshua requested permission to
live with Clayton, beginning an extended visitation with him in
the summer of 1996.
By an agreed order entered August 10, 1994,
the parties consented to permit each child to select the parent
with whom he or she would reside.
On July 31, 1996, Clayton filed a motion seeking
permanent custody of the three children, involuntary termination
of the mother’s parental rights, reimbursement of his inheritance
from his grandfather’s estate, and damages for loss of clothing
and personal belongings awarded to him in the dissolution decree.
For procedural reasons, the motion was refiled on September 3,
1996.
In November 1996, Clayton filed a motion seeking the
termination of appellee’s parental rights to Dakota and for
adoption of that child.
Arguing that Clayton had failed to pay
certain educational costs under the agreement, Yolanda filed a
motion (November 13, 1996) to determine the child support
arrearage.
On November 20, 1996, Clayton filed a motion for
expenses associated with bringing his motions and for travel to
Kentucky for the resulting hearings.
On November 21, 1996,
Clayton filed a motion seeking a restraining order to keep
Randall McVey, a friend of Yolanda’s, away from the children.
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On November 21, 1996, a hearing was held before the
Domestic Relations Commissioner.
On December 5, 1996, the
Commissioner entered his report and recommendation generally
denying appellant's motions.
On February 12, 1997, the trial
court entered an order adopting the Commissioner’s Report and
Recommendations.
This appeal followed.
On appeal pro se, Clayton presents eight enumerated
arguments.
However, it appears that few of the issues raised on
appeal were ever raised before the trial court -- either in
appellant’s initial motions or in his motion for reconsideration.
When the trial court has not had an opportunity to address an
alleged error, an appellate court is precluded from reviewing the
alleged error.
(1994).
See Sherley v. Commonwealth, Ky., 889 S.W.2d 794
While some of the arguments raised on appeal are related
to issues originally brought before the trial court, they present
new theories.
appeal.
A new theory of error cannot be presented on
See Harrison v. Commonwealth, Ky., 858 S.W.2d 172 (1993)
cert. denied, 512 U.S. 1238, 114 S. Ct. 2746, 129 L. Ed. 2d 864
(1994); Ruppee v. Commonwealth, Ky., 821 S.W.2d 484 (1991).
Furthermore, appellant has failed to establish by proper citation
to the trial court record that his arguments are preserved for
appeal.
Errors to be considered for appellate review must be
precisely preserved and identified in the lower court.
Combs v.
Knott County Fiscal Court, Ky., 141 S.W.2d 859 (1940); CR
76.12(4)(c)(iv).
Skaggs v. Assad, By and Through Assad, Ky., 712
S.W.2d 947, 950 (1986).
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We will nonetheless attempt to sort out and address the
issues as we are able to discern them from the arguments of the
parties and from the Commissioner’s report of December 5, 1996 as
adopted by the trial court where these issues have been properly
preserved.
The most important issue concerns custody of the
parties’ children.
In the final decree, Yolanda was awarded sole
custody of the three children.
However, under the existing
agreed order entered into on August 10, 1994, each child was
entitled to select the parent with whom he or she would reside.
Presently, Miranda and Amber reside with Yolanda, and Joshua
resides with Clayton.
Clayton's motion to modify custody was
filed September 3, 1996.
KRS 403.340(2) sets forth the standard
to be used in determining whether a modification of custody is
warranted and provides in relevant part that:
"[t]he court shall not modify a prior custody
decree unless: . . . (c) the child's present
environment endangers seriously his physical,
mental, moral or emotional health, and the
harm likely to be caused by a change of
environment is outweighed by its advantages
to him." See Quisenberry v. Quisenberry,
Ky., 785 S.W.2d 485 (1990).
The trial court carefully considered this standard and
concluded that Clayton had failed to show that the two children
in the custody of Yolanda (Amber and Miranda) are seriously
endangered in their current environment.
The trial court
rejected Clayton’s allegations relating to sexual abuse,
concluding that the perpetrators of the abuse had been removed
from the children’s environment by the actions of Yolanda.
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The
trial court further found that Yolanda’s friend, Randall McVey,
does not present any major threat to the children; appellant
alleges that McVey has engaged in drug abuse in the presence of
the children.
As a reviewing court, we may not substitute findings of
fact for those of the trial court where they are not clearly
erroneous.
Riechle v. Riechle, Ky., 719 S.W.2d 442 (1986);
Bennett v. Horton, Ky., 592 S.W.2d 460 (1979); see also CR 52.01.
As the findings of the trial court regarding Amber and Miranda's
present environment are not clearly erroneous, they will not be
disturbed.
The trial court applied the proper standard, and
accordingly we find no error.
Clayton raised two issues with the trial court relating
to child support.
The first issue concerns the current court-
approved child support agreement, which provides that in lieu of
paying child support under the guidelines, appellant will pay the
private school tuition for the children.
The trial court’s order
recognizes that Joshua is currently residing with Clayton and
that, consequently, his support obligation should be reduced to
reflect the cost of tuition for the other two children.
This
order is consistent with the agreed order on child support, and
we find no error.
Second, the trial court determined that there
is an arrearage in child support of $1,800 - $2,000 related to
Clayton’s past failure to pay tuition.
We must accept findings
of the trial court unless clearly erroneous.
See Riechle, supra.
As this finding is not clearly erroneous, we affirm the court's
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holding regarding the arrearage.
Clayton argued to the trial court that he is entitled
to restitution relating to personal property and inheritances.
He seeks reimbursement of $5,000 for the value of clothing
awarded in the final decree that he allegedly never received.
The decree stated that this “personal property had been
previously divided.”
Clayton did not seek timely reconsideration
of this finding.
Clayton further alleges that he is entitled to
reimbursement of a $30,000 inheritance received from the estate
of his father during the course of the parties' marriage.
The
trial court recognized that while this inheritance was nonmarital property, Clayton failed to raise the issue prior to
entry of the final decree -- nor did he attempt to establish its
non-marital character through tracing.
See Chenault v. Chenault,
Ky., 799 S.W.2d 575 (1990).
Res judicata applies when a previous judgment has been
rendered involving the same subject matter and the same parties.
BTC Leasing, Inc. v. Martin, Ky. App., 685 S.W.2d 191 (1983).
Even if an issue was not litigated in the initial action, a
subsequent action will be barred if the issue should have been
raised in the first action.
417, 419 (1970).
Newman v. Newman, Ky., 451 S.W.2d
The issue as to clothing was raised but
abandoned upon failure to seek reconsideration of the findings of
the trial court.
The issue as to the inheritance was not raised
at all in the proceedings leading up to the final decree.
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Consequently, these issues are barred from relitigation under res
judicata.
BTC Leasing, supra; Newman, supra.
Clayton further argues that he is entitled to
reimbursement of amounts related to his $11,500 inheritance from
the estate of his grandfather.
The inheritance occurred after
the final decree and while appellant was incarcerated.
The trial
court ordered that the proceeds of the inheritance be paid to the
clerk of the court for distribution to appellee as child support.
Clayton subsequently filed his notice of appeal with this Court.
The appeal was dismissed for failure to file a prehearing
statement.
See Duvall v. Turner, 91-CA-0708-MR, rendered August
26, 1991, unpublished.
Appellant may not, under the doctrine of
res judicata, again raise this issue.
See BTC Leasing, Inc. v.
Martin, supra.
Lastly, the trial court denied appellant’s request for
fees and costs.
Under KRS 403.220, a court may award attorney's
fees and costs upon a finding of financial disparity between the
parties.
Bashir v. Bashir, Ky., 698 S.W.2d 823, 826 (1985).
The
amount of an award of attorney's fees is committed to the sound
discretion of the trial court.
The trial court is in the best
position to observe any conduct and tactics which waste the
court's and attorneys' time; courts enjoy wide latitude to
sanction or discourage such conduct.
S.W.2d 929, 937-38 (1990).
Gentry v. Gentry, Ky., 798
We find no error in the trial court’s
denial of Clayton's fees and costs.
The order of the trial court is affirmed.
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ALL CONCUR.
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BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
Clayton Stephen Duvall
Houston, TX
William K. Moore
Versailles, KY
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