Full Opinion

RENDERED: OCTOBER 23, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2025-CA-1408-MR CALLAHAN L. MCINTOSH APPELLANT APPEAL FROM MADISON CIRCUIT COURT v. HONORABLE KIMBERLY BLAIR WALSON, JUDGE ACTION NO. 21-CI-50610 CHASITY C. MCINTOSH APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: THOMPSON, CHIEF JUDGE; A. JONES AND KAREM, JUDGES. THOMPSON, CHIEF JUDGE: Callahan L. McIntosh (Appellant) appeals from Findings of Fact, Conclusions of Law, Final Order and Decree entered by the Madison Family Court in this dissolution of marriage action filed by Appellant against Chasity C. McIntosh (Appellee) in 2021. Appellant argues that the circuit court’s maintenance award did not meet the statutory requirements and should be vacated; that the court erroneously ordered Appellant to pay Appellee’s attorney fees and all of the guardian ad litem (GAL) fees; and, that Appellant should have received equal time sharing. After careful review, we find no error and affirm the final order on appeal.1 FACTS AND PROCEDURAL HISTORY Appellant and Appellee were married in Washington County, Kentucky in 2010. The marriage produced two children. The parties separated in November 2021, and the following month, Appellant filed a petition for dissolution of marriage in Madison Family Court. A final hearing was conducted on April 24, 2025, where both parties testified as did the GAL and the older child in camera. On September 10, 2025, the family court entered its Findings of Fact, Conclusions of Law, Final Order and Decree disposing of all remaining matters including maintenance, attorney fees, and timesharing. Thereafter, both parties filed CR 59.05 motions to alter, amend, or vacate the Final Order and Decree. On October 6, 2025, the family court entered an order denying the motions. This appeal followed. 1 In his Notice of Appeal, Appellant attempts to appeal from the denial of his Kentucky Rules of Civil Procedure (CR) 59.05 motion to alter, amend, or vacate the Final Order and Decree. Orders denying CR 59.05 motions “are interlocutory, i.e., non-final and non-appealable and cannot be made so by including the finality recitations.” Tax Ease Lien Investments 1, LLC v. Brown, 340 S.W.3d 99, 103 (Ky. App. 2011). Under circumstances void of prejudice, we may consider the appeal as “properly taken from the final judgment that was the subject of the CR 59.05 motion.” Id. n.5 (citation omitted). -2- ARGUMENTS AND ANALYSIS Appellant first argues that the Madison Family Court’s maintenance award did not meet the statutory requirements and must be vacated. After the April 24, 2025, hearing, the family court awarded maintenance to Appellee in the amount of $2,500 per month for a term of two years. The court characterized this award as allowing Appellee to “get on her feet” after the divorce as she took steps to become financially self-sufficient. Appellant contends that this award is erroneous, as the family court improperly failed to consider the elements of Kentucky Revised Statutes (KRS) 403.200 in reaching its award. Appellant notes that Appellee received over $65,000 in assets, her car free of debt, $864 per month in child support, and other personal property. He further points out that Appellee was awarded most of the attorney fees and GAL costs. Appellant also maintains that Appellee has done little during the pendency of these proceedings to prepare herself for self- sufficiency. Appellant asserts that based on the family court’s failure to properly consider KRS 403.200, in conjunction with the generous award to Appellee of marital assets, child support, and attorney fees, the maintenance award was erroneous and should be reversed. KRS 403.200 governs spousal maintenance and states that, -3- (1) In a proceeding for dissolution of marriage . . . the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance: (a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (b) Is unable to support himself through appropriate employment[.] (2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including: (a) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently . . .; (b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (c) The standard of living established during the marriage; (d) The duration of the marriage; (e) The age, and the physical and emotional condition of the spouse seeking maintenance; and (f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. -4- We review the family court’s maintenance decision for an abuse of discretion. Young v. Young, 314 S.W.3d 306, 308 (Ky. App. 2010); McGregor v. McGregor, 334 S.W.3d 113, 119 (Ky. App. 2011). To constitute an abuse of discretion, the court’s decision must be “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). The family court’s findings of fact will not be disturbed unless they are clearly erroneous. CR 52.01. “Findings of fact are not clearly erroneous if supported by substantial evidence.” Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 852 (Ky. App. 1999) (citation omitted). Substantial evidence is evidence which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the minds of reasonable people. Id. The family court’s conclusions of law are reviewed de novo. Stipp v. St. Charles, 291 S.W.3d 720, 723 (Ky. App. 2009). Here, while Appellant is correct that the Madison Family Court did not expressly address KRS 403.200, it is clear from the court’s comprehensive findings of fact that it considered each element of the statutory scheme. The family court found that Appellee lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs (KRS 403.200(1)(a); and, that she is currently unable to support herself through appropriate employment (KRS 403.200(1)(b)). Further, the family court addressed -5- Appellee’s financial resources; the time necessary for her to acquire sufficient education or training to find appropriate employment; the standard of living and duration of the marriage; and Appellant’s ability to meet his needs while meeting those of Appellee (KRS 403.200(2)(a)-(f)). The Madison Family Court’s findings of fact are supported by substantial evidence, and therefore are not clearly erroneous. Its decision to award Appellee maintenance for 24 months was not arbitrary, unreasonable, unfair, nor unsupported by sound legal principles. We find no error. Appellant next argues that the Madison Family Court’s award of $18,000 in attorney fees to Appellee, as well as the award of GAL fees to Appellee, was erroneous and must be reversed. Appellant directs our attention to KRS 403.220, which provides that after considering the financial resources of both parties, the court may order a party to pay a reasonable amount for the cost of the other party’s defense including legal services rendered. Appellant asserts that Appellee’s counsel stated that counsel had over $18,000 in outstanding legal fees, but submitted no affidavit upon which the reasonableness of the fees could be assessed. Appellant points out that Appellee received $65,000 from the dissolution, plus her vehicle, while Appellant received all of the vehicle debt and credit card debt. Appellant argues that, as there was no testimony or affidavit as to -6- fees, and no assessment as to the reasonableness of the fees, the award of fees constituted an abuse of discretion and must be reserved. KRS 403.220 states: The Court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name. Further, “[t]he amount of an award of attorney’s fees is committed to the sound discretion of the trial court with good reason,” with the court possessing “wide latitude” in its award. Smith v. McGill, 556 S.W.3d 552, 556 (Ky. 2018) (internal quotation marks and citation omitted). Accordingly, we review for an abuse of discretion. Appellee states that her trial counsel tendered to the Madison Family Court a calculation of attorney fees, minus fees incurred by Appellee for a contempt proceeding, which was not filed into the record. She argues that this calculation was examined by the family court and formed a proper basis for its award of attorney fees. She also argues that the court was aware that Appellee’s counsel waived or delayed certain attorney fees to accommodate Appellee. -7- Irrespective of this, it is clear from the record that the family court considered the financial resources of both parties per KRS 403.220 prior to awarding attorney fees. The statute requires only that the court consider the parties’ financial resources, and that the amount of the award be reasonable. Each of those elements is satisfied herein. Both parties filed verified financial disclosures, and Appellant responded to extensive discovery requests from Appellee regarding his income, expenses, debts, military retirement, 401(k) from Walmart, and other property. The court was also fully apprised of each party’s current income and/or ability to earn income, as well as other factors including the disposition of both marital and non-marital property. Based on the totality of the record, including the Madison Family Court’s comprehensive analysis of the parties’ financial resources, we conclude that the family court acted well within its sound discretion in awarding $18,000 in attorney fees and GAL costs to Appellee. We find no error. Lastly, Appellant argues that the Madison Family Court erred in finding that he was an alcoholic, and that this erroneous finding formed an improper basis for awarding him less than equal timesharing with the parties’ children. Appellant contends that this finding was not supported by the evidence and is clearly erroneous. He requests an opinion reversing the family court’s order. -8- Below, the Madison Family Court awarded joint custody of the children, with Appellee being the primary residential custodian and Appellant awarded timesharing with the children every other weekend. According to the record, Appellant had a problem with excessive alcohol consumption. He stated that at one point, he consumed 8 to 12 beers per day. The parties’ oldest child stated that she did not feel safe being in the car with Appellant due to his drinking, and a text message to this effect was entered into the record. The GAL also gave testimony about Appellant’s excessive alcohol consumption. In response, the Madison Family Court ordered Appellant to conduct regular “PeTh” and “BACTrack” testing to monitor Appellant’s alcohol consumption as a prerequisite for increased timesharing.2 KRS 403.270(2) sets out a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interests of the child. If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child’s welfare. In a civil proceeding, preponderance of the evidence means that the act is more likely than not to have occurred. Rankin v. Criswell, 277 S.W.3d 621, 2 In the final order now on appeal, the family court stated that Appellant must show proof of sobriety through compliance with prior orders for one calendar year, before the court would have confidence that Appellant is sober and has addressed his substance issues in a meaningful way. -9- 624 (Ky. App. 2008). Here, while KRS 403.270(2) provides a presumption that equally shared parenting time is in the best interests of the children, there is ample evidence in the record that this presumption was overcome. Appellant’s own testimony, in conjunction with that of the child, the GAL, and Appellee make it more likely than not that Appellant had a drinking problem affecting the best interests of the children. This satisfies the standard of rebuttal by a preponderance of the evidence. We find no error. CONCLUSION For these reasons, we affirm the Madison Family Court’s Findings of Fact, Conclusions of Law, Final Order and Decree. ALL CONCUR. BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE: Rachel D. Yavelak Lisa J. Oeltgen Lexington, Kentucky Lexington, Kentucky -10-