COMMONWEALTH OF KENTUCKY, EX REL, MARY EVALYNN HERBERT BERRY v. STEVEN DOUGLAS BERRY
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RENDERED: February 19, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001670-MR
COMMONWEALTH OF KENTUCKY,
EX REL, MARY EVALYNN HERBERT BERRY
(NOW WALLACE)
v.
APPELLANT
APPEAL FROM BARREN CIRCUIT COURT
HONORABLE BENJAMIN L. DICKINSON, JUDGE
ACTION NO. 91-CI-000321
STEVEN DOUGLAS BERRY
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE:
BUCKINGHAM, DYCHE, and HUDDLESTON, Judges.
BUCKINGHAM, JUDGE.
Commonwealth of Kentucky ex rel. Mary Evalynn
Herbert Berry (now Wallace) appeals from an order of the Barren
Circuit Court which reduced the monthly child support to be paid
by her ex-husband, Steven Douglas Berry, to $177.02 per month.
Pursuant to Eiland v. Ferrell, Ky., 937 S.W.2d 713 (1997), we
affirm.
Berry was employed by Venture Contracting, Inc., and
was under an order of the trial court to pay child support in the
amount of $380.94 per month when a wage assignment was served on
his employer.
Berry quit his employment the same day and began
working as a self-employed cabinet maker at an income in a
considerably lesser amount than that he had received while
working at Venture.
Berry subsequently moved the trial court to
modify his child support, and a domestic relations commissioner
(DRC) heard the motion on May 5, 1997, and tendered a recommended
order on May 28, 1997, recommending that the trial court reduce
Berry’s child support obligation to $177.02 per month.1
The
clerk distributed the tendered order to the attorneys,2 and the
trial court approved the order and entered it on June 10, 1997,
as no exceptions had been filed by either party within the tenday period allowed by Kentucky Rule of Civil Procedure (CR)
53.06(2). This appeal followed.
CR 53.06(2) provides in pertinent part that “within 10
days after being served with notice of the filing of the report
any party may serve written objections thereto upon the other
parties.”
Furthermore, “[i]n general, a party who desires to
object to a report must do so as provided in CR 53.06(2) or be
precluded from questioning on appeal the action of the circuit
court in confirming the commissioner’s report.”
716.
Eiland, supra at
Thus, the failure to file exceptions to the DRC’s report is
fatal to this appeal.
The order of the Barren Circuit Court is affirmed.
1
The DRC found that Berry’s change of employment was not
made in good faith and imputed the minimum wage to him for
purposes of computing his support obligation.
2
Wallace was represented by the Barren County Attorney who
had previously intervened in the case on her behalf.
-2-
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ben Rogers
Barren County Attorney
Glasgow, KY
Robert M. Alexander
Glasgow, KY
-3-
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