DANNY WAYNE BROWN v. PENNY ALICE BROWN
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RENDERED: NOVEMBER 21, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001041-ME
DANNY WAYNE BROWN
v.
APPELLANT
APPEAL FROM BARREN CIRCUIT COURT
HONORABLE W. MITCHELL NANCE, JUDGE
ACTION NO. 06-CI-00132
PENNY ALICE BROWN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: NICKELL, THOMPSON AND VANMETER, JUDGES.
VANMETER, JUDGE: Danny Wayne Brown appeals from an order entered by the
Barren Circuit Court, Family Division, in a marital dissolution proceeding. For the
reasons stated, we affirm.
Danny and appellee Penny Alice Brown married in 1994 and separated in
2006. They entered into a partial separation agreement which provided for joint custody
of their three children, but they reserved for the court the determination of the primary
residential custodian, visitation, and child support. After a February 2007 trial, the court
designated Penny as the primary residential custodian and established terms of visitation
and child support. This appeal followed.
First, Danny contends that the trial court abused its discretion by denying
his pretrial request for counseling and a custodial evaluation, and by denying his request
for a continuance to allow such counseling or evaluation. We disagree.
As noted by Penny, the record shows that the children were seen by several
counselors, and that they were receiving ongoing counseling at the time of the trial.
Although the parties had agreed that they could not afford private counseling for the
children, some three weeks before the scheduled trial Danny filed a motion requesting the
court to order the parties and children to immediately schedule counseling with a specific
named private counselor, with the costs to be paid by a family member. Danny also
asked the court to reschedule the February hearing pending the receipt of such
counseling. Penny objected, noting that the children already were receiving services
from a licensed counselor, that the counseling was beneficial to them, and that requiring
them to change counseling efforts at this late date and meet
with some other counselor, no matter how qualified and
which, by statements of [Danny] through counsel, would be
designed primarily to provide testimony for the benefit of
[Danny], does not serve the best interest of the three infant
children. The best interest of these children can only be
served by getting this matter finally considered by the Court
and concluded.
When addressing the issue of custody, a trial court must consider all
relevant factors including “[t]he mental and physical health of all individuals involved.”
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KRS1 403.270(2)(e). Determining whether the evidence is sufficient to address such
factors falls well within a trial court's discretion. Here, given the other evidence
concerning the mental health of the parents and children, as well as the court's obvious
concerns about the impact of further delays on the welfare of the children, that the court
did not abuse its discretion by denying Danny's motion seeking additional court-ordered
counseling or an evaluation, or by denying his request for a continuance.
Next, Danny contends that the trial court abused its discretion by denying
his motion for additional time in which to present his case-in-chief. We disagree.
The party who bears the burden of proof at trial “must ordinarily exhaust
his evidence before the other begins.” CR2 43.02(c). However, a trial court is vested with
great discretion in how it conducts a trial, including in the way that it imposes reasonable
time limits. See Hicks v. Commonwealth, 805 S.W.2d 144, 151 (Ky.App. 1990). See
also KRE3 611(a), directing courts to “exercise reasonable control over the mode and
order of interrogating witnesses and presenting evidence[.]” This court will not attempt
to control a trial court's exercise of discretion in directing the conduct of a trial “unless
there has been an abuse or a most unwise exercise thereof.” Transit Auth. of River City
v. Montgomery, 836 S.W.2d 413, 416 (Ky. 1992); Welsh v. Galen of Va., Inc., 128
S.W.3d 41, 59-60 (Ky.App. 2001).
1
Kentucky Revised Statutes.
2
Kentucky Rules of Civil Procedure.
3
Kentucky Rules of Evidence.
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Here, the record shows that on November 7, 2006, the court set the matter
to be tried on February 14, 2007, between the hours of 8:30 and 12:00 noon. According
to Danny, the court declared his case closed after the passage of one-half of the allotted
trial time even though he had not yet testified. Danny's requests for additional time were
denied.
The record shows that Danny made no pretrial requests for additional time
in which to present his case at trial. Further, he admits that he ran out of time because he
first called Penny as a hostile witness, and then called a representative of the Cabinet for
Health and Family Services. Even if, as Danny asserts, Penny's recalcitrance caused him
to waste much of his allotted trial time, he was not entitled to a court order providing him
with additional time to present his witnesses, either during the trial or on a later date.
Obviously, Danny controlled the order in which he called his witnesses, and his decision
to first call witnesses other than himself must be considered a trial strategy even if he
later regretted the results. Under these circumstances, there is no merit to Danny's
contention that the trial court abused its discretion by failing to allow him time in which
to present additional evidence, either at trial or on a later date.
Next, Danny contends that the trial court abused its discretion by denying
his motion to present rebuttal witnesses and rebuttal evidence. Essentially, this argument
consists of the rephrasing of his prior argument concerning his inability to testify or to
present additional witnesses. Again, the court specifically advised the parties well in
advance of trial of the time limitations. Further, the record does not show and Danny
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does not claim that he attempted to reserve any time for rebuttal at the close of Penny's
case. Thus, the trial court did not abuse its discretion by denying his motion.
Finally, although Danny raises an issue on appeal relating to an alleged
marital debt, his attorney confirmed below that all financial issues had been resolved by
agreement. Hence, this issue is not properly before us on appeal.
The court's order is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David Keen
Bowling Green, Kentucky
Robert M. Alexander
Glasgow, Kentucky
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