Background
Hudson Flynn (“Father”) and Ashley Foster-Flynn (“Mother”) divorced in March 2020 under a Hardin Family Court decree that established joint custody and equal timesharing of their minor child. In November 2024, Mother moved to modify custody, seeking sole custody or, alternatively, supervised parenting time for Father. Her supporting affidavit described Father’s serial housing instability — he had been kicked out of multiple households over the prior year — along with suspected heavy alcohol use, failure to administer the child’s prescribed medication during his parenting time, and a recent DUI arrest that occurred while Father was en route to pick up the child.
The family court set a modification hearing for February 12, 2025, with witness and exhibit lists due by January 29, 2025. Mother timely filed her lists, but a supplemental list mailed on January 31 was addressed to a wrong house number and returned undeliverable. Father appeared at the hearing pro se, stating he could not reach his attorney because he and the child were ill, and he requested a continuance. The court proceeded with the hearing. Father did not testify, did not call witnesses, and did not cross-examine Mother’s witnesses.
On February 25, 2025, the family court granted Mother sole custody, finding Father lacked stable housing and employment, had an alcohol use problem corroborated by multiple witnesses who observed him drinking daily, and that his decision to drive while intoxicated toward the child “manifestly unsafe and endangered the child.” The court ordered Father to complete a substance abuse assessment and limited his visitation to supervised contact. Father moved to set aside the order, asserting he never received Mother’s witness and exhibit lists and that knowing the witnesses in advance would have “changed the outcome tremendously.” The family court denied that motion on March 25, 2025, and Father timely appealed.
The Court’s Holding
The Kentucky Court of Appeals affirmed, reviewing Father’s claims only for palpable error resulting in manifest injustice. The court applied that deferential standard because Father’s brief failed to include the preservation statement required by RAP 32(A)(4), and because neither party ensured that recordings of the modification hearing or the hearing on the motion to set aside were included in the appellate record. Under settled Kentucky precedent, the absence of hearing recordings — caused by Father’s own failure to designate them — permits the appellate court to presume those recordings would support the trial court’s ruling.
On the witness-list issue, the court distinguished the principal case Father relied upon, W.R.G. v. K.C., 673 S.W.3d 81 (Ky. App. 2023), where the father received no notice of the final hearing at all and the court and opposing counsel had repeated, documented knowledge that mail was being returned undeliverable. Here, Father had notice of the hearing date, appeared at the hearing, and there was no clear indication that the family court or Mother’s counsel knew before the hearing that the supplemental list had gone to the wrong address. The court also noted that Father never specifically identified what evidence or counter-witnesses he would have presented had he received the lists in advance, rendering the claimed prejudice speculative.
On Father’s argument that the family court improperly assumed his guilt on the pending DUI charge, the court found no palpable error. The family court expressly acknowledged Father had not yet been convicted. More importantly, the custody modification rested on multiple independent grounds — chronic housing instability, documented heavy alcohol use testified to by multiple witnesses, and lack of stable employment — none of which Father disputed on the merits. Father cited no legal authority in support of this argument, which the court also deemed waived on that basis.
Key Takeaways
- A child custody modification order is inherently final and appealable in Kentucky even when it does not contain express CR 54.01 finality language and even when it directs a party to take additional steps such as completing a substance abuse assessment.
- An appellant who fails to include hearing recordings in the appellate record and fails to provide a preservation statement in the brief will be limited to palpable-error review, and the appellate court may presume the missing recordings support the trial court’s decision.
- A family court does not commit palpable error by proceeding with a custody modification hearing when the opposing party received notice of the hearing date and appeared, even if that party did not receive the movant’s witness and exhibit lists beforehand, particularly where the appellant fails to identify specific evidence he would have offered with proper notice.
- A pending, unconvicted DUI charge may be considered in a best-interest-of-the-child analysis without constituting an assumption of guilt, especially when corroborated by independent findings of housing instability, unemployment, and alcohol misuse.
Why It Matters
This decision reinforces the practical consequences of appellate procedure failures in Kentucky family law cases. Attorneys handling custody appeals must designate hearing recordings for inclusion in the appellate record and must include a preservation statement identifying how each issue was raised below; failure on either front effectively forfeits de novo or abuse-of-discretion review and leaves the client exposed to the far more demanding palpable-error standard. The court’s pointed warning — and its notation of Father’s counsel’s prior briefing violations — signals that future non-compliance may result in briefs being stricken or appeals dismissed outright.
The opinion also clarifies that W.R.G. v. K.C. does not broadly require reversal whenever a party fails to receive pretrial disclosures. The due-process concern animating W.R.G. was the complete absence of notice of the hearing itself, combined with a court and opposing counsel who knowingly continued serving a party at an address they knew was invalid. Where a party has actual notice of the hearing and appears, the failure to receive a witness list — without more — will not automatically warrant relief, particularly when the appellant cannot point to specific, concrete prejudice.