Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982). · Go Syfert
Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982). Cases Citing This Book View Copy Cite
131 citation events (108 in the last 25 years) across 3 distinct courts.
Strongest positive: Ryan Mitchell Yoder v. E.Y., a Minor Child (kyctapp, 2026-06-26)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) Ryan Mitchell Yoder v. E.Y., a Minor Child
Ky. Ct. App. · 2026 · confidence medium
Ultimately, “in reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion.” Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted).
cited Cited as authority (rule) Eric Triggs v. Tanika Desiree Cobb
Ky. Ct. App. · 2026 · confidence medium
CR 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986); Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
cited Cited as authority (rule) Garth Harris v. Jason Baker
Ky. Ct. App. · 2025 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
discussed Cited as authority (rule) Dontae Tennyson v. Jasmine Northington (2×)
Ky. Ct. App. · 2025 · confidence medium
CR 52.01; Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
cited Cited as authority (rule) David White v. Aiesha White (Now Cole)
Ky. Ct. App. · 2025 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
discussed Cited as authority (rule) Trevor Ammerman v. Tara Drury
Ky. Ct. App. · 2025 · confidence medium
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). “[I]n reviewing the -4- decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion.” Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted).
discussed Cited as authority (rule) Commonwealth of Kentucky v. Kiano Jarrell Knox
Ky. Ct. App. · 2025 · confidence medium
“The test is not whether an appellate court would have decided the matter differently, but whether the trial court’s rulings were clearly erroneous or constituted an abuse of discretion.” Id. at 294 (citing Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982)). 23 VR 11/13/23 at 11:26:15 to 11:26:58. 24 VR 11/13/23 at 11:29:15 to 11:30:40. 25 VR 11/13/23 at 11:30:42 to 11:30:44. -15- An abuse of discretion exists if the ruling of the trial court was “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Porter, 611 S.W.3d at 294 (quoting Commonwealth v. English, 993…
discussed Cited as authority (rule) Zachariah L. Dowlen v. Kierston J. Harrod (2×)
Ky. Ct. App. · 2024 · confidence medium
Caudill v. Caudill, 318 S.W.3d 112, 115 (Ky. App. 2010) (citing Cherry v. Cherry, -3- 634 S.W.2d 423, 425 (Ky. 1982)).
cited Cited as authority (rule) Ernest Rodriguez v. Monica Quiggins
Ky. Ct. App. · 2024 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
cited Cited as authority (rule) Sharronn Adair v. Terry Lee Adair, Jr.
Ky. Ct. App. · 2024 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted).
cited Cited as authority (rule) Howard W. Collins v. Cindy Griffith
Ky. Ct. App. · 2024 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
discussed Cited as authority (rule) Christopher Michael Torn v. Angela Kae Torn (Now Castro)
Ky. Ct. App. · 2024 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982). 2 Kentucky Revised Statutes. -4- “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
cited Cited as authority (rule) Shawntele Jackson 200020 v. Jessie Ferguson
Ky. Ct. App. · 2024 · confidence medium
Kentucky Rules of Civil Procedure (“CR”) 52.01; Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
discussed Cited as authority (rule) Justin Aldava v. Alyssa Baum
Ky. Ct. App. · 2024 · confidence medium
Guenther v. Guenther, 379 S.W.3d 796, 802 (Ky. App. 2012) (“We bear in mind that in reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial court were clearly erroneous or that it abused its discretion.”) (citing Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982); CR 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986)).
cited Cited as authority (rule) Jamie Patterson v. Martha Allen
Ky. Ct. App. · 2024 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
discussed Cited as authority (rule) Priyanka Nichani v. Sahaas Nichani
Ky. Ct. App. · 2024 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted) (“[T]he test is not whether we would have decided [the issue] differently, but whether the findings of the [family court] were clearly erroneous” or an abuse of discretion.).
discussed Cited as authority (rule) Thomas Maginnis v. Ninamary Buba (Maginnis)
Ky. Ct. App. · 2024 · confidence medium
CR 52.01; Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982). -14- Buba complains that the Family Court’s allocation of goodwill was not in accordance with the holding of Gaskill v. Robbins, supra. She maintains that the Family Court’s 2019 judgment properly concluded that Chimney Master has no personal goodwill.
discussed Cited as authority (rule) Mandeep Singh v. Harjinder Kaur
Ky. Ct. App. · 2023 · confidence medium
Again, “the test is not whether we would have decided it differently, but whether the findings . . . were clearly erroneous or that [the judge] abused his discretion.” Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted).
discussed Cited as authority (rule) Brian Strong v. Krystalanne N. Gary
Ky. Ct. App. · 2023 · confidence medium
In our review of an IPO, “the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion.” Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted).
discussed Cited as authority (rule) Manoj Jaladi v. Deekshitha Turaka
Ky. Ct. App. · 2023 · confidence medium
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). “[I]n reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion.” Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted).
cited Cited as authority (rule) Justin Alan Lyons v. Laura Grace Lyons
Ky. Ct. App. · 2023 · confidence medium
CR 52.01; Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
discussed Cited as authority (rule) David Khazai v. Anita Ahmadi
Ky. Ct. App. · 2023 · confidence medium
Thus, “[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal,” and appellate courts should not disturb trial court findings that are supported by substantial evidence. -4- Moore, 110 S.W.3d at 354 (citations omitted). “[I]n reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion.” Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted).
discussed Cited as authority (rule) Christopher Cameron, Jr. v. Emily Smith
Ky. Ct. App. · 2023 · confidence medium
“The test is not whether we would have decided the issue differently, but whether the findings of the trial court were clearly erroneous or an abuse of discretion.” Id. (citing Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982)).
discussed Cited as authority (rule) David Khazai v. Shahpar Shahab
Ky. Ct. App. · 2023 · confidence medium
Moore, 110 S.W.3d at 354 (footnotes and citations omitted). -3- “[I]n reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion.” Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted).
cited Cited as authority (rule) Rhonda Lawson v. Mark Kleinman
Ky. Ct. App. · 2022 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
cited Cited as authority (rule) Lawrence Miller, Jr. v. Brittany Bunch, Administratrix of the Estate of Autumn Raine Bunch
Ky. · 2022 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
discussed Cited as authority (rule) Cassie Ann Stowers v. Cole Wayne Stowers
Ky. Ct. App. · 2022 · confidence medium
However, “[w]hen reviewing the propriety of a custody award, the test is not whether some other court may have reached a different decision, but rather, whether the circuit court abused its discretion.” Gertler v. Gertler, 303 S.W.3d 131, 137 (Ky. App. 2010) (citing Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982)).
discussed Cited as authority (rule) Anthony Fountaine v. Pamela Jean Fountaine
Ky. Ct. App. · 2022 · confidence medium
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). “[I]n reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion.” Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted).
cited Cited as authority (rule) Damon J. King v. Lindsey Harrod
Ky. Ct. App. · 2022 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
cited Cited as authority (rule) Ashley Sexton v. Christopher Phillip Sexton
Ky. Ct. App. · 2022 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
cited Cited as authority (rule) Benny Ray Bailey v. Dennis Jones
Ky. Ct. App. · 2022 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
discussed Cited as authority (rule) Jordan Boyd v. Skylar Weisenberger
Ky. Ct. App. · 2022 · confidence medium
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). “[I]n reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion.” Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted).
cited Cited as authority (rule) Nathan Scott Guthrie v. Morgan Elizabeth Martin, Now Stamper
Ky. Ct. App. · 2022 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
discussed Cited as authority (rule) Jennifer Lance v. Monty Honaker
Ky. Ct. App. · 2021 · confidence medium
Other than this guideline and the provisions of KRS 403.270, we are not prepared to define precisely the quantum of proof necessary to justify awarding the care, custody and control of a minor to one parent over the other. 634 S.W.2d 423, 425 (Ky. 1982).
discussed Cited as authority (rule) James Christopher Sewell v. Elizabeth Ingrid Sweet (2×)
Ky. Ct. App. · 2021 · confidence medium
CR1 52.01; Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
discussed Cited as authority (rule) Jordan C. Tredway v. Emily Meaghan Mickelson
Ky. Ct. App. · 2021 · confidence medium
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). “[I]n reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion.” Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted).
discussed Cited as authority (rule) Alex Hex v. Sam Larimer
Ky. Ct. App. · 2021 · confidence medium
Moore, 110 S.W.3d at 354 (citations omitted). -3- “[I]n reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion.” Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted).
discussed Cited as authority (rule) Joseph Greer v. Ashley M. Clark
Ky. Ct. App. · 2021 · confidence medium
Findings of fact “are not clearly erroneous if they are supported by substantial evidence.” Id. at 114-15 (citing Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003)). “[I]n reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial [court] were clearly erroneous or that [the court] abused [its] discretion.” Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted).
cited Cited as authority (rule) Heather Lerae Moore v. Eddie Dean Moore
Ky. · 2021 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
cited Cited as authority (rule) Micheal Pierson v. Stephanie Hartline
Ky. Ct. App. · 2021 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
cited Cited as authority (rule) Vivian Hill v. Chi Kentucky, Inc.
Ky. Ct. App. · 2021 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
discussed Cited as authority (rule) Kristopher Sutherland v. Kayla Hager
Ky. Ct. App. · 2021 · confidence medium
Moreover, if the family court failed to make adequate findings of fact (which is not the case based on our review of the record), Father waived that argument because he failed to bring it to the attention of the family court pursuant to CR 52.02 and 52.04.4 See Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
cited Cited as authority (rule) Lawrence Smith v. Sheila Murphy Smith
Ky. Ct. App. · 2020 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
cited Cited as authority (rule) Sandra Porter v. Evan Hunter Allen
Ky. Ct. App. · 2020 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
discussed Cited as authority (rule) Kyle M. Marcum v. Kouet Meng (2×)
Ky. Ct. App. · 2020 · confidence medium
Kentucky Rule of Civil Procedure (CR) 52.01; Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
cited Cited as authority (rule) Zachary W. Miotke v. Chase Michael Chaney
Ky. Ct. App. · 2020 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982); see also Carpenter v. Schlomann, 336 S.W.3d 129, 130 (Ky. App. 2011).
cited Cited as authority (rule) Halloway v. Simmons
Ky. Ct. App. · 2017 · confidence medium
CR 1 62.01; Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
discussed Cited as authority (rule) Ashley v. Ashley
Ky. Ct. App. · 2017 · confidence medium
Our standard of review is whether the court’s finding of domestic violence is clearly erroneous pursuant to Kentucky Rules of Civil Procedure (CR) 52.01, and findings of fact “are not clearly erroneous if they are supported by substantial evidence.” Id. at 114-15, citing Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). “[I]n reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion.” Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation …
discussed Cited as authority (rule) Gibson v. Campbell-Marletta
Ky. Ct. App. · 2016 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982); Kentucky Rules of Civil Procedure (CR) 52.01. • Michael’s first argument on appeal is that the trial court’s entry of a DVO was based upon his statement that he would exercise his statutory rights, which he argues he was entitled to make.
cited Cited as authority (rule) Glodo v. Evans
Ky. Ct. App. · 2015 · confidence medium
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
Retrieving the full opinion text from the archive…
Cynthia J. CHERRY, Movant,
v.
Timothy P. CHERRY, Respondent
Kentucky Supreme Court.
Jun 15, 1982.
634 S.W.2d 423
William A. Hoskins, III, Nave, Williams & Palmore, Lexington, for movant., C. Randall Raine, Lexington, for respondent.
Sternberg, Aker, Clayton, O'Hara, Stephens, Stephenson, Stern-Berg.
Cited by 118 opinions  |  Published
STERNBERG, Justice.

Cynthia and Timothy were married on August 15,1970. Their first child Todd was bom September 13, 1972, and their second and final child Ryan was born on December 30, 1974. The parties separated on March 26,1979, and on the same date Cynthia filed a dissolution of marriage action in the Fay-ette Circuit Court. On January 8, 1980, Timothy filed an affidavit in support of a written motion for temporary custody of[*424] the two children. The trial court, in the absence of Cynthia and her counsel, granted Timothy’s motion. On January 17, 1980, Cynthia sought to have the temporary custody order set aside and moved the trial court to grant her the temporary care, custody and control of the two children. On March 3,1980, the trial judge granted Cynthia’s motion and ordered that she have the temporary care, custody and control of Todd and Ryan. This action was tried to the court on August 18 and 20,1980. Findings of fact and conclusions of law were filed by the trial judge on September 25, 1980. A decree in which custody of Todd and Ryan was awarded to Cynthia was entered on December 11, 1980.

The Court of Appeals reversed the trial court on the issue of custody. In doing so, it said: “The trial judge gave no reason for his findings hereinabove set forth.” The Court of Appeals further said: “When we view this record as a whole ... we can only come to the inescapable conclusion that the evidence clearly reflects that the best interests of the children are served by placing them in the custody of the appellant and it will be so ordered. The contrary result reached by the trial court is clearly erroneous. We have so concluded not only with the provisions of KRS 403.270 in mind but also the principle that we are not concerned with what might be best for a parent but rather what is best for the children.” Custody of the children was thereupon awarded by the Court of Appeals to Timothy, their father.

One of the issues presented is did the Court of Appeals, acting as a finder of fact, improperly conclude that the trial court’s decision was clearly erroneous.

A reading of the transcript of evidence discloses that on several occasions movant made gestures toward attempting to take her own life; that she expressed to respondent a fear that she may do harm to their younger child; that on numerous occasions movant would telephone for the respondent to come home from work to assist her with the children; that she was distraught over conflicts occurring in her marital relationship and the rapid deterioration of her marriage; that she individually, as well as she and her husband together, attended numerous counseling sessions with psychiatrists and psychologists; that movant is a good homemaker and regularly baby sat for her neighbors; that Todd and Ryan are usually well behaved children; that movant is a good mother; that Todd is a diabetic; that the parties were straining to meet their financial obligations; and that respondent contended that he had come home early from work so as to be with the children. However, the record reflects that he found time on many occasions to visit a girlfriend and stayed overnight on at least one occasion, and that during the time that respondent had temporary custody of the children, his mother and father took care of them. In characterizing his relationship with the children, the respondent was asked the following questions and made the following answers:

“Q. Do you have a preference regarding custody of the children in the action?
A. Yes. I am seeking custody.
Q. And will you state for the court if you will the grounds upon which you seek custody?
A. I am very close to the two boys. We have enjoyed a lot of things together. Unfortunately there has not been all the time I wanted to spend with them, but the time I have spent has been of quality. I think that I can be the model role that they need to grow up and to mature, and there is really no sacrifice I would not be willing to make for them.”

In contrasting movant’s ability to care for the children subsequent to the dissolution of the marriage of these parties, respondent said:

“... I think that Cindy is capable of providing the kids with clean clothes, with the visits to the doctors, with her nutrition, etcetera and giving Todd a shot. I don’t think she is capable of dealing with them and a situation entailing her necessity to work which will obviously have to be the case in this situation.”

[*425] Psychiatric evaluation of movant’s adequacy to care for the children is described by Dr. Meegan, a clinical psychologist, as follows:

“Q. Based upon your observations and your meetings with Mrs. Cherry and your meeting with Mrs. Cherry and Todd and your meeting with Mr. Cherry, Mrs. Cherry and Todd, is there anything that you observed that would indicate to you in your professional opinion that Mrs. Cherry could not be able to handle custodial situations involving her two children?
A. No. I was never—I never formally evaluated that question, so it is hard to have an opinion about, you know, which parent would be better, but in my opinion I never saw anything in the history or in the current situation that would indicate major deficiencies on Mrs. Cherry’s part that would lead me to conclude her parenting was inadequate and needed questioning.”

The trial court, in dealing with the custody issue, stated in its findings of fact that, “The wife has had considerable periods of depression during which she has attempted suicide. This depression and suicidal attempts have resulted from severe emotional distress caused by the marital breakdown of the parties. The court finds that at the present time the wife is mentally and physically able to care for and take care of the children as well as herself. She is the fit and proper person to have the care, custody and control of the children at this time.” The trial court therefore found (1) that movant’s attempt to take her own life resulted from severe emotional distress caused by the marital breakdown of the parties, and (2) that at the time the court filed its findings of fact movant was mentally and physically able to care for and take care of the children as well as herself. As a result thereof, that court found mov-ant to be the proper party to have the care, custody and control of the children.

The trial judge did not make as in-depth findings of fact as could have been made so as to clearly comply with CR 52.01; however, CR 52.04 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.”

The failure, if there was a failure, on the part of the trial judge to make adequate findings of fact was not brought to his attention as required by CR 52.02 or CR 52.04; consequently, it is waived. CR 52.01 provides that findings of fact may be set aside if clearly erroneous. However, we must bear in mind that in reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion. Eviston v. Eviston, Ky., 507 S.W.2d 153 (1974). Other than this guideline and the provisions of KRS 403.-270, we are not prepared to define precisely the quantum of proof necessary to justify awarding the care, custody and control of a minor to one parent over the other.

Even though the trial judge may not have made in-depth findings of fact as contemplated by CR 52.01; nevertheless, when the record as a whole is considered, we do not find that the action of the trial judge was clearly erroneous, and we are of the opinion that the trial court properly awarded the care, custody and control of the two children to their mother.

Did the Court of Appeals properly reverse the custody award without remanding for a new determination based on any possible changes in circumstances which may have occurred since trial?

At some plateau in an original dissolution of marriage proceeding there must be a cutoff point where the taking of proof pertaining to the award of care, custody and control of minors must be drawn to a halt. This point is left in the good hands of the trial judge, and this court will not interfere with the action of the trial court unless there has been an abuse of discretion. Cox v. Bramblet, Ky., 492 S.W.2d 188 (1973).[*426] The original award of care, custody and control of minors is subject to the control of the court and may be modified pursuant to KRS 403.340 upon a showing of a change of circumstances. Cox v. Bramblet, supra. We find no error in this respect.

As an issue in the Court of Appeals, Timothy argued that the trial court abused its discretion in dividing the marital property. The Court of Appeals, in response to this issue, wrote: “We find no error in the court’s conclusions in this respect and no violation of Colley v. Colley, Ky., 460 S.W.2d 821 (1970).” This issue was not raised in this court; therefore, we do not reach it.

The decision of the Court of Appeals insofar as it awarded custody of the two minor children to their father is reversed, and the action of the trial judge in this respect is affirmed.

AKER, CLAYTON, O’HARA, STEPHENS, STEPHENSON and STERN-BERG, JJ., sitting.

All concur except CLAYTON, J., who dissents.