SLONE (PHILLIP) VS. SLONE (TOBY SPRADLIN)Annotate this Case
RENDERED: OCTOBER 3, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE STEPHEN N. FRAZIER, JUDGE
ACTION NO. 03-CI-01112
TOBY SPRADLIN SLONE
** ** ** ** **
BEFORE: ACREE AND VANMETER, JUDGES; HENRY,1 SENIOR JUDGE.
VANMETER, JUDGE: Phillip Slone appeals from an order entered by the Floyd
Circuit Court, Family Division, which denied his motion seeking recusal of the
special judge appointed below, and granted appellee Toby Spradlin Slone’s motion
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
to have Phillip pay a portion of their minor son’s extracurricular expenses. For the
reasons stated hereafter, we affirm.
The parties married in 1984 and divorced in 2004. Numerous
postdissolution proceedings followed over the next several years. Pertinent to this
appeal is the fact that in January 2007, the parties’ case was assigned to a special
judge, Stephen N. Frazier, “pursuant to the Order of the Supreme Court of
Kentucky dated December 19, 2006[,]” as one of the parties had been represented
at some point by the new family court judge, Johnny Ray Harris.
The record shows that in January 2007, Judge Frazier conducted a
hearing and entered orders relating to Phillip’s financial obligations to Toby.
Meanwhile, Phillip moved for the termination of his maintenance obligation
because Toby was “now gainfully employed and [sic] the Office of Floyd Family
Court Judge Johnny R. Harris.” In February Phillip renewed his motion to
terminate maintenance, and he sought the right to claim the income tax exemption
for the parties’ son. In March Judge Frazier awarded Toby the income tax
exemption and, pursuant to this court’s direction in an earlier appeal, vacated
Phillip’s maintenance obligation pending further proceedings. In April Toby
requested the court to compel Phillip both to show cause why he should not be held
in contempt for failing to make a court-ordered payment or provide a current
medical insurance card for their son, and to order Phillip to assist in paying for
their son’s “extracurricular activity and basketball camps.”
In May Phillip, for the first time, requested the trial judge’s recusal
and a transfer of the matter to another family court for the following reasons:
1) That [Toby] is currently employed by the Floyd
2) That in order to avoid the appearance of any
impropriety, the best interest would be served to have
the issues in this matter resolved by either the Pike
Family Court or the Johnson Family Court.
No affidavit accompanied the motion, which Toby opposed. In denying the
motion, Judge Frazier stated in part that although Toby
is employed by the Floyd Family Court, she is not
employed by Hon. Stephen N. Frazier. In fact, her
employment with the Floyd Family Court was the
justification for the recusal of Hon. Johnny Ray Harris
and the appointment of Judge Frazier as Special Judge.
The court granted Toby’s pending motion to have Phillip share the cost of their
son’s extracurricular activities, and ordered him to provide the requested medical
insurance card for their son. This appeal followed.2
First, Phillip asserts that Judge Frazier abused his discretion by failing
to recuse from the matter below. We disagree.
As stated in Bussell v. Commonwealth, 882 S.W.2d 111, 113 (Ky.
[a] motion for recusal should be made immediately upon
discovery of the facts upon which the disqualification
rests. Bailey v. Bailey, Ky., 474 S.W.2d 389 (1972);
Kohler v. Commonwealth, Ky., 492 S.W.2d 198 (1973).
Otherwise it will be waived.
No appellee brief was filed in this appeal.
See also, e.g., Crane v. Commonwealth, 833 S.W.2d 813, 818 (Ky. 1992); Johnson
v. Commonwealth, 231 S.W.3d 800, 809 (Ky.App. 2007); Johnson v.
Commonwealth, 180 S.W.3d 494, 503 (Ky.App. 2005).
Here, the record plainly shows that Phillip knew of Toby’s
employment by a Floyd Family Court judge as early as January 19, 2007, when he
sought the termination of his maintenance obligation because of her new
employment. He obviously knew that his motions were filed in that court and then
were heard by a special judge. Further, during the three and one-half months
which passed before he finally moved for the judge’s recusal, Phillip filed or
responded to several motions. Under these circumstances any objection was
waived. Bussell, 882 S.W.2d at 113. In any event, the motion to disqualify was
deficient as it was not supported by an affidavit. Crane, 833 S.W.2d at 818.
Phillip also contends that the trial court abused its discretion by
ordering him to pay a portion of the son’s extracurricular expenses, as the evidence
was insufficient to show that the claimed expenses were actually incurred, and
there was no finding that the expenses were “extraordinary.” We disagree.
Toby requested the court to order Phillip to contribute toward their
son’s expenses for basketball camps and related events, as well as expenses
relating to his prom. Phillip failed to timely respond to either the motion or Toby’s
documentation of costs, and the court ordered him to pay one-half of such
“extracurricular” expenses,3 noting that the son “is a talented basketball player with
Phillip was ordered to pay $2,247.50, which included $1,847.50 for the “extracurricular”
expenses plus $400 which was outstanding from a previous order.
the potential to obtain a college scholarship if his talents are pursued[.]”4 No
postjudgment motions were filed before Phillip appealed on May 31, 2007.5
On appeal, Phillip asserts that the trial court abused its discretion by
ordering him to pay a portion of the son’s extracurricular expenses. However,
nothing in the record shows that Phillip timely responded, much less objected, to
Toby’s request for such expenses. Further, as Phillip failed to timely seek
additional findings as to the “extraordinary” nature of the expenses for purposes of
KRS 403.211(3) and (4), he was precluded from obtaining relief on appeal by CR6
52.04, which provides:
A final judgment shall not be reversed or remanded
because of the failure of the trial court to make a finding
of fact on an issue essential to the judgment unless such
failure is brought to the attention of the trial court by a
written request for a finding on that issue or by a motion
pursuant to Rule 52.02.
Since Phillip failed to timely respond to Toby’s motion, or to bring the order’s
alleged deficiency to the court’s attention within ten days of its entry as required
by CR 52.02, he is not entitled to relief on appeal.
According to a newspaper article filed in the record, the parties’ son was ranked as one of
Kentucky’s top twenty-five high school basketball players as he entered his junior year and the
Phillip’s Designation of Record, filed in this appeal in October 2007, referenced his “motion for
relief from order entered on May 24, 2007.” However, the only such motion in the trial court
record is a motion filed on August 2, 2007, seeking CR 60.02 relief from the May 24 order. The
motion alleged that the evidence submitted in support of Toby’s motion was inadequate and/or
inaccurate, and requested the trial court to vacate its order. The court treated the motion as one
to alter, amend or vacate the order, and denied it as untimely. As neither the motion nor the
order preceded the May 31 filing of Phillip’s appeal, neither is properly before this court for
Kentucky Rules of Civil Procedure.
The order of the Floyd Circuit Court is affirmed.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
John T. Chafin