Callahan L. McIntosh v. Chasity C. McIntosh
CourtCourt of Appeals of Kentucky
Date FiledOctober 23, 2026
Docket2025-CA-1408
JudgeThompson
StatusUnpublished
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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NOT TO BE PUBLISHED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).
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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,
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(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.
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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
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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
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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.
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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.
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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.
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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
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