ROBERT LYLE ESLINGER v. CYNTHIA ANN ESLINGER (NOW RICKLEFS)
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RENDERED:
August 22, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO.
96-CA-3163-MR
ROBERT LYLE ESLINGER
APPELLANT
APPEAL FROM MEADE CIRCUIT COURT
HONORABLE SAM H. MONARCH, JUDGE
ACTION NO. 91-CI-0161
v.
CYNTHIA ANN ESLINGER (NOW RICKLEFS)
APPELLEE
OPINION AFFIRMING
* * * * * * * *
BEFORE:
DYCHE, GUIDUGLI, and MILLER, Judges.
MILLER, JUDGE.
Robert Lyle Eslinger, acting pro se, appeals an
October 24, 1996 order of the Meade Circuit Court rejecting the
recommendations of the Domestic Relations Commissioner (Commissioner) and modifying the custody arrangement by transferring
primary residence of the parties' three children to appellee,
Cynthia Eslinger Ricklefs.
We affirm.
The parties were married in 1982 and separated in 1990.
During the marriage, they had three children: John, Travis, and
Tessa, born January 1983, August 1984, and February 1987, respectively.
A decree of dissolution was entered in February 1992,
but the issue of child custody was reserved for later adjudica-
tion.
On April 9, 1993, the circuit court granted the parties'
joint custody with primary residence of the children being with
Robert.
On December 14, 1995, Cynthia moved for modification of
custody and requested sole custody of the children.
On April 2,
1996, Robert filed a motion seeking an order from the court to
require Cynthia to pay his attorney fees prior to the child
custody hearing.
After a hearing on this motion, the Commis-
sioner denied Robert's motion for advance attorney fees based on
a lack of legal authority.
The Commissioner conducted eviden-
tiary hearings on May 10, 1996 and June 6, 1996 on the issue of
custody and child support.
On June 21, 1996, the Commissioner
entered a report recommending that Cynthia's motion for change of
custody be denied, but that Robert be ordered to undertake
parental counseling.
report.
Both parties filed exceptions to the
On October 24, 1996, the circuit court entered an order
and opinion rejecting the Commissioner's recommendations by
sustaining Cynthia's exceptions to the report on the issue of
custody.
The circuit court ordered that the parties retain joint
custody with the primary residence of the children being with
Cynthia.
The court also set out visitation rights for Robert
consistent with the standard visitation guidelines.
This appeal
follows.
Robert has raised three challenges to the procedure
utilized in determining the custody issue.
First, he maintains
the Commissioner erred by failing to order Cynthia to pay his
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attorney fees in advance.
Second, he argues the Commissioner
erred by refusing to allow him to submit on avowal a one-page
document consisting of a "Staff Note" prepared by Dr. Craig
Cabezas, Ph.D.
And, third, Robert contends the circuit court
erred by considering Cynthia's exceptions to the Commissioner's
report because they were allegedly filed too late.
Finding no
error, we affirm the circuit court's order.
The Commissioner denied Robert's prehearing request for
attorney fees stating he knew of no authority that required an
opposing party in a domestic relations case to provide, in
advance, the fees necessary to retain counsel.
Robert cites
Kentucky Revised Statute (KRS) 403.220 and Molloy v. Molloy, Ky.
App., 460 S.W.2d 15 (1970), but neither of these sources supports
his position.
KRS 403.220 gives the circuit court discretion to
award attorney fees for "legal services rendered and costs
incurred prior to commencement of the proceeding or after entry
of judgment."
See also Glidewell v. Glidewell, Ky. App., 859
S.W.2d 675 (1993).
The language of the statute indicates that
the legal services must have already been rendered before a court
may order payment by the other party.
In Molloy v. Molloy,
supra, the court remanded the case for further consideration on
the issue of the denial of attorney fees by the Commissioner, who
believed he had no authority to grant attorney fees.
However, in
Molloy, the court noted that the case law was in a state of
confusion concerning the award of attorney fees and a subsequent
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case decided after judgment, and prior to appeal, allowed the
award of attorney fees under the circumstances in Molloy.
In the
case sub judice, Robert has presented no statutory or case law
authorizing an award of attorney fees in advance or prior to the
rendering of legal services.
Moreover, Robert did not raise this
issue before the trial judge or in his exceptions to the Commissioner's report.
Robert's second argument, that the Commissioner erred
by failing to permit submission of a document on avowal, does not
compel reversal.
Dr. Cabezas is a psychologist who was acting as
a family counselor for Robert and his children in November 1995.
In conjunction with counseling, Dr. Cabezas prepared a document
designated as "staff notes" and dated November 28, 1995.1
The
document contains opinions by Dr. Cabezas about Robert's
parenting skills.
It states in part: "[Bob] continues to be
structured and firm with his consequences.
Based on his
presentation, it appears as though his consequences are
appropriate .... [Bob] continues to do a good job of
consequenting his children.
He tries to be consistent and firm."
During the custody hearing, Robert attempted to introduce this
document into evidence, but Cynthia's attorney objected based on
hearsay and a lack of foundation.
Robert did not produce Dr.
Cabezas or any legitimate records custodian to authenticate the
1
Robert has included this document in his appendix to his
brief.
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document.
Robert also failed to provide a sufficient foundation
for admissibility under any exception to the hearsay rule.
See,
e.g., Kentucky Rule of Evidence (KRE) 803(6) and City of
Louisville v. Willoughby, Ky., 455 S.W.2d 558 (1970) (allowing
copy of hospital record to be filed on avowal through testimony
of custodian).
The Commissioner sustained the objection and also
denied Robert's request to file the document as part of the
record through an avowal.
Robert argues he should have been permitted to submit
the document by avowal.
Ky. R. Civ. P. (CR) 43.10, which deals
with avowals, states:
In an action tried by a jury, if an
objection to a question propounded to a
witness is sustained by the court, upon
request of the examining attorney, the
witness may make a specific offer of his
answer to the question. The court shall
require the offer to be made out of the
hearing of the jury. The court may add such
other or further statement as clearly shows
the character of the evidence, the form in
which it was offered, the objection made, and
the ruling thereon. In actions tried without
a jury the same procedure may be followed,
except that the court upon request shall take
and report the evidence in full, unless it
clearly appears that the evidence is not
admissible on any ground or that the witness
is privileged.
See also KRE 103.
Robert failed utterly to follow the rules of evidence
in presenting Dr. Cabezas's notes at the custody hearing.
Robert's failure to provide either a proper foundation or
authentication of the document support the Commissioner's
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decision to exclude the document from evidence.
The purpose of
an avowal or offer of proof is to provide a record for an
appellate court to evaluate the trial court's evidentiary ruling.
See Perkins v. Commonwealth, Ky. App., 834 S.W.2d 182 (1992).
In
an action tried without a jury, the trial court has some
discretion on whether to allow an avowal.
Id.
We cannot say the
Commissioner erred by not allowing Robert to file the document as
an avowal because it appears the document was not admissible on
any ground.
Robert cites United Fuel Gas Co. v. Mauk, Ky., 272
S.W.2d 810 (1954), and Eilers v. Eilers, Ky., 412 S.W.2d 871
(1967), as supporting his position on the avowal, but these cases
are distinguishable.
In Mauk, the court held that the
appellant's offer of proof contained in an avowal was sufficient
to permit appellate review of the issue concerning fair market
value for condemned land despite the appellant's failure to
satisfy the best evidence rule.
In that case, the court
indicated the significance of the proof was obvious and the
avowals were sufficient to permit review.
Mauk did not concern
the propriety or availability of an offer of proof; rather, it
involved the sufficiency and necessity of the avowals that were
made.
In Eilers v. Eilers, supra, the court held that the
trial court erred by refusing to allow appellant to submit by way
of avowal letters written by a witness to the trial judge
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concerning the child custody matter at issue in the case.
The
appellate court specifically found the letters were not
inadmissible "on any ground" under CR 43.10.
Unlike the case sub
judice, the party in Eilers tendered the documents through the
witness who had written the letters, so the evidentiary barriers
present in our case were not present in Eilers.
In addition, Robert has not demonstrated that the
refusal to allow submission of Dr. Cazebas's notes on avowal
precluded review of the Commissioner's evidentiary ruling on the
admissibility of the document.
Robert has not maintained or
shown that the Commissioner's evidentiary ruling was incorrect or
affected a substantial right.
See KRE 103(a) and R. Lawson, The
Kentucky Evidence Law Handbook, ยง 1.10 VI (Third Edition 1993)
(discussing harmless error standard for excluded evidence).
Finally, Robert contends that the circuit court erred
by considering Cynthia's exceptions to the Commissioner's report
because they were filed untimely.
filed on June 21, 1996.
The Commissioner's report was
On July 1, 1996, Cynthia filed a motion
for an extension of time to serve her exceptions to the
Commissioner's report.
On July 9, 1996, Cynthia filed her
exceptions to the report.
On July 25, 1996, the circuit court
issued an order allowing Robert ten days to file his response to
Cynthia's exceptions, and allowing Cynthia five days for a reply,
after which time the case stood submitted for decision.
On July
27, 1996, Robert filed his response to Cynthia's exceptions.
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On
October 24, 1996, the circuit court issued an order rejecting the
custody recommendation of the Commissioner and accepting the
exceptions raised by Cynthia.
Robert argues that Cynthia's exceptions were untimely
based on the local Domestic Relations Rule (DrR) 3(F), which
states as follows:
In pendente lite matters, the recommended
order and case file shall be delivered to the
Judge of the Court. Unless otherwise
ordered, the recommended order shall be
immediately signed by the Judge and entered
by the Clerk on or before the close of the
third business day after it has been so
delivered. Any party may file a motion for
reconsideration of the Court's order within
ten (10) days after the entry of that order.
Robert maintains that because the circuit court did not sign a
separate order explicitly granting an extension of time and
Cynthia's exceptions were not filed until July 9, 1996, the
circuit court should not have considered the exceptions.
disagree.
We
The language of DrR 3(F) indicates the ten-day time
frame referenced in that rule applies to motions to reconsider
the circuit court's order accepting or rejecting the
Commissioner's report.
It does not apply to the filing of
exceptions to the Commissioner's report.
In fact, Cynthia filed
her motion for extension of time on the tenth day following the
Commissioner's report.
The more applicable rule is CR 53.06, which states that
any party may serve written objections to a Commissioner's report
within ten days after being served with notice of the filing of
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the
report.
It also states that application to the court for
action on the report and the objections shall be by motion with
proper notice.
This rule does not create a jurisdictional time
limitation for filing of objections, but rather allows the
circuit court to adopt the report without considering objections
filed after the ten-day period.
Cf. United States v. Central
Bank & Trust Co., Ky., 511 S.W.2d 212 (1974) (holding that party
who failed to file objections to Commissioner's report in
compliance with rule providing objections should be filed within
ten days from submission of report could not object on appeal to
circuit court's action confirming the report).
In the present
case, the circuit court exercised its discretion to consider
Cynthia's objections and allowed Robert an adequate period to
file a response.
Robert filed a response and did not raise the
untimeliness issue before the circuit court.
Robert has shown no
prejudice by the circuit court's action.
For the foregoing reasons, the order of the Meade
Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT, PRO SE:
BRIEF FOR APPELLEE:
Robert L. Eslinger
Vine Grove, Kentucky
Vincent P. Yustas
Brandenburg, Kentucky
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