author: Justice SCOTT.

text:
    Steven LICHTENSTEIN, Appellant, v. Roberta J. BARBANEL, Appellee.
    No. 2008-SC-000661-DG.
    Supreme Court of Kentucky.
    May 20, 2010.

      James Michael Smither, J. Michael Smither, PSC, Louisville, ICY, Counsel for Appellant.
    Roberta J. Barbanel, Loveland, OH, Counsel for Appellee.
   Opinion of the Court by

Justice SCOTT.

This case involves Steven J. Lichtenstein’s appeal of two Income Withholding Orders of the Jefferson Family Court which require garnishment of his wages under two separate orders: (1) for child support arrearage, spousal support arrear-age, medical care, insurance reimbursement, and attorney’s fees; and (2) for Roberta Lichtenstein Barbanal’s monetary share of the marital property and reimbursement for a marital debt that she paid.

Steven now contends that the family court abused its discretion, or violated his right to due process, when it entered the Income Withholding Order “regarding child support” before it accounted for Roberta’s child support arrearage pursuant to the parties 1996 Agreed Order — which had changed custody of the children to Steven and in which Roberta agreed that she would be liable to him for support.

In addition, Steven asserts that Kentucky’s Uniform Interstate Family Support Act (UIFSA) (KRS 407.5101) does not apply to marital debt or property divided during a divorce action, but only to support and the other remedies that are specifically set forth in KRS 407.5101(21). Consequently, he argues that the “other support” Income Withholding Order, which includes money for property division and reimbursement of marital debt, exceeds the statutory limitations otherwise applicable to ordinary garnishment of non-child support debt.

I. Background

A. Procedural History

The procedural history of this case fills twenty-one volumes and includes three appeals. Even so, review of its development is important in addressing the issues now before this Court.

Steven and Roberta were married in 1978. Steven is a physician and Roberta is an attorney. Two children were born of the marriage — Anana and Drew.

Steven filed for divorce on November 5, 1990 in the Jefferson County Circuit Court. On June 6,1996, the court issued a ruling on all financial issues, (including child support), and determined Steven’s liability to Roberta as follows:

$40,000.00 — Marital property share for the medical practice;
$3,729.00 — Reimbursement for child medical expenses;
$2,800.00 — Reimbursement for marital debt Roberta paid;
$57,765.21 — Pendente lite maintenance, child support, and medical insurance ar-rearages; and,
$75,000.00 — Attorneys’ fees and court costs.

In addition, the court assessed all martial debt, as well as the Commissioner’s fee, against Steven.

On September 17, 1996, Roberta served an Order of Wage Garnishment on Steven’s employer, Louisville Children’s Eye Specialists, PSC (PSC). From September 1996 through February 2000, the PSC remitted $8,817.74 to Roberta pursuant to the wage garnishment.

During the battle over money, the parties’ minor children went to live with Steven. On October 2, 1996, the parties signed an Agreed Order (the 1996 Agreed Order) giving Steven physical custody of the children, discontinuing his child support for as long as the children were with him and reserving the issue of the amount of child support to be paid by Roberta. The parties agreed that the amount Roberta owed would be “set-off’ as against Steven’s child support arrearage.

All was quiet between Steven and Roberta during their children’s high school years. Then, on January 30, 2003, after Steven had helped pay for Ariana’s college education and Drew was enrolled in the Naval Academy, Roberta moved the family court to hold Steven in contempt for failing to satisfy the June 6,1996 judgment and to hold the PSC liable for its failure to respond to the 1996 Order of Wage Garnishment.

In response, Steven requested that the court establish Roberta’s child support for the time that he had custody of the children and to determine, with the off-set, the amount that he actually owed Roberta under the June 6, 1996 judgment. During contempt proceedings, Steven renewed his request for a determination of Roberta’s child support.

In response to the parties’ various motions, the family court issued orders addressing the terms of the parties’ 1996 Agreed Order and determining the PSC’s liability under KRS 425.526 for the garnishments. As to the agreed order, the family court found that the parties had modified the original child support order, that it was “an enforceable order, and that its terms are at issue in the litigation now pending before the Court.” (Emphasis added). The court went on to determine that the agreed order applied as to an offset “only to the child support arrearage issue against both parties.” (Emphasis in original). Regarding Steven’s PSC’s liability, the court found it liable to Roberta and awarded a judgment against the company for the “funds that should have been withheld from the judgment debtor’s earnings ... plus 12% interest on those funds not properly withheld....” The court made a specific finding that “none ” of the $121,586.76 (“other support”) reflected in the Order of Wage Garnishment was from child support arrearage. (Emphasis original).

Given its findings, the court reasoned that the contempt proceedings as to Steven’s alleged non-payment of the $121,529.00 in debts (property/reimbursement/healthcare/attorney fees) and the non-payment of $57,765.21 (child support) would “be heard separately as unrelated claims.” (Emphasis added). The court went onto hear evidence of Steven’s alleged contempt as to “other support” and found that Steven had not paid the arrear-ages. Thus, although the court purportedly bifurcated the property and child support issues, it held Steven in civil contempt for failing to pay the June 6, 1996 judgment as a whole, including child support, by order dated April 26, 2006. As a result, the court scheduled a “purge” hearing but did not schedule a separate hearing on the child support issues.

B. The Income Withholding Orders

1. Order 1

In July 2005, Steven moved to Illinois and began working for Illinois Eye Center. Later, in August of 2006, Roberta moved for, and the court issued, an Income Withholding Order for $639,773.12. This order encompassed the entire June 1996 judgment, with interest. It also required that Steven’s employer withhold 360 semimonthly payments of $3,835.56 from his wages. The court did not determine the amount of child support that Roberta owed before entering the Income Withholding Order. Steven moved to vacate the order arguing, in part, that property division and marital debt does not constitute “support” under KRS 407.5101.

2. Orders 2 and 3

In response to Steven’s arguments, Roberta requested two superseding Income Withholding Orders: one order for “monies owed for unpaid child support arrear-ages” and the second for “monies owed for other support” The Court denied Steven’s Motion to Vacate on February 7, 2007, and on the same day entered two Amended and Clarified Income Withholding Orders: one for child support arrears and one for “other support.” It also entered an order denying Steven of “any relief requested” until he purged himself of contempt.

3. Orders 3 and 4

On March 3, 2007, Roberta moved the court again for Income Withholding Orders to supersede the February orders as those orders did not comply with Illinois law. Again, Steven objected. On March 12, 2007, the court entered a child support arrearage order for $247,586.08, to be withheld at $9,000.00 per month, and an “other support” arrearage order for $420,273.36, to be paid at $12,000.00 per month.

Steven appealed the issuance of the Income Withholding Orders of February 7, 2007 and March 16, 2007, asserting that the family court’s failure to determine the amount to be “off-set” against the child support arrearage before the orders were entered was an abuse of discretion, or a violation of due process. He also argued that the UIFSA does not support the issuance of an Income Withholding Order for amounts due for marital property division or reimbursement of marital debt and thus there was no basis to withhold his income at the rate of 65%.

III. Analysis

A. Failure to Determine Child Support under the Parties’ 1996 Agreed Order

The Court of Appeals held that the family court did not abuse its discretion in failing to determine the amount of child support that Roberta owed, reasoning that Steven “points to no discovery request nor any action taken specifically to establish Roberta’s child support obligation ... and his failure to do so constituted a waiver of this issue.” Thus, Steven’s abuse of discretion and constitutional arguments were dismissed. We disagree with this rationale and result and thus the issue of the amount of Steven’s arrearage “off-set” must be remanded for further proceedings.

A trial court has broad discretion in the way that it conducts its business. Abuse of discretion “ ‘in relation to the exercise of judicial power implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision.’ ... The exercise of discretion must be legally sound.” Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky.1994) (citations omitted).

However, once “the validity of an order setting child support is established, the non-custodial parent bears the burden of proving that he satisfied the obligation and owes no arrearage.” Gibson v. Gibson, 211 S.W.3d 601, 611 (Ky.App.2006) (citing Raymer v. Raymer, 752 S.W.2d 313 (Ky.App.1988)). In Gibson, the Court of Appeals considered whether the trial court abused its discretion when it failed to enforce the parties’ child support agreement. In that case, the child support amount was agreed to, but the court did not agree with the custodial parent’s calculations. Yet, the court did not proceed to make the correct calculations, and therefore did not enter a judgment as to the child support arrearage owed. To that issue, the Court of Appeals held that the court “abused its discretion by failing to calculate the arrearages and by not entering a judgment thereon.” Id.

In the instant action, we know that the issue of the amount of child support to be paid by Roberta was reserved for future determination, and that the amount, once determined, would be “off-set” against the arrearage that Steven owed. They agreed to this.

Moreover, the trial court, in its September 1, 2004 order, found the parties’ agreement to be “an enforceable order” and that “its terms are at issue in the litigation now pending before the Couri.” (Emphasis added). The court then bifurcated the issue of child/spousal support from “other support,” scheduling a show cause contempt hearing regarding the “property ar-rearage” only and continued the show cause hearing on alleged contempt for failure to pay child support arrearage. As the child support issues were on hold, the court declined at that time to determine the amount of child support that Roberta owed. Steven raised the matter again during the contempt proceedings as to “other support,” but the court passed all matters relating to child support, including any determination of the amount of arrears that Roberta owed.

The court’s finding that the issue of child support owed by Roberta was pending in the current litigation and the sequence of events as ordered strongly indicate the court’s intention to only address the alleged contempt as to “other support,” so that it could address the child/spousal support contempt issue and child support arrearages that Roberta owed at the same time. This is buttressed by the fact that the court compelled Roberta to provide documentation regarding her earnings. However, after the court heard and ruled on the contempt as to “other support,” the court entered an Income Withholding Order as to the entire June 6, 1996 judgment amounts, including child support, without considering the amount of child support arrearage owed by Roberta in light of the “off-set.”

Steven moved to vacate the first order, claiming that it did not comport with KRS 407.5101. He argued that an Income Withholding Order for monies not owed as child or spousal support is “outside the remedies of KRS 407.5101.” The court subsequently issued two amended withholding orders dated February 7, 2006 and two more superseding orders on March 12, 2007, for child support arrearage, and “Other Support Owed To Respondent.” Yet, the court had not determined the “off-set” amount that it previously found Steven entitled to.

It is significant that the court entered five Income Withholding Orders and, each time, continued to differentiate between the “child support” order and the “other support” oi'der. We agree that the trial court did not have to address the alleged contempt as to child support before compelling Steven to pay arrears on the “other support” because the fact that he owed property arrears was uncontested. Yet, the amount he owed in child support arrears was contested and the court ruled that Roberta’s arrearage had to be determined. Thus, the court would have been justified in proceeding with the determinations as to “other support” had it not entered an order as to child support— subjecting Steven’s wages to the 65% withholding rate — before it ascertained the precise amount owed by Roberta and thus, Steven.

Plainly, the reasoning in Gibson argues for a similar result. The facts before us, like those in Gibson, demand the calculation of the child support arrearage that Roberta owed concurrent with the determination of a “net” amount that Steven owed.

A trial court has no authority to forgive child support arrearage. Price v. Price, 912 S.W.2d 44, 46 (Ky.1995) (citing Mauk v. Mauk, 873 S.W.2d 213, 216 (Ky. App.1994)). Here, arrearage accrued but without an amount certain because the parties agreed as to the date that Roberta’s obligation would begin. We can be certain of that date, October 2, 1996, because the children were already living with Steven when the agreement was executed. The fact that Roberta and Steven chose to reserve the determination of the exact amount that Roberta would pay does not prohibit application of this principle in this case: the parties agreed that Roberta would owe child support and she did not pay child support. Therefore, arrears accrued. Once the court determined that the order was enforceable, i.e., a valid child support order, and that the issue was pending, i.e., properly before the court, it was incumbent upon the court to calculate the arrearage (render judgment on the arrearage that Roberta owed) and allow the “off-set” of that amount against Steven’s arrears before entry of any “child support” Income Withholding Order. The failure to do so was error.

B. “Support” and the Uniform Interstate Family Support Act

The Court of Appeals also reviewed KRS 407.5101(21), and noted that the definition of “support order” was “sufficiently broad to include [all of] the items covered in the original 1996 judgment of the trial court.” (Emphasis added). We disagree and hold that monies owed for interest in marital property or for payment of marital debt cannot be construed as “support” within the context of the Family Support Act.

We review the Court of Appeals’ construction and application of KRS 407.5101(21) de novo. See Richardson v. Louisville/Jefferson County Metro Gov’t, 260 S.W.3d 777, 779 (Ky.2008) (citing Osborne v. Commonwealth, 185 S.W.3d 645, 648 (Ky.2006)).

This statutory provision provides: Support Order — means a judgment, decree, or order, whether temporary, final, or subject to modification, for the benefit of a child, a spouse, or a former spouse, which provides for monetary support, health care, arrearages, or reimbursement, and may include related costs and fees, interest, income withholding, attorney’s fees, and other relief. ...

KRS 407.5101(21).

“To determine legislative intent, we look first to the language of the statute, giving the words their plain and ordinary meaning.” Richardson, 260 S.W.3d at 779. The Court can enforce a “statute only as written, and the intent of the Legislature must be deduced from the language it used, when it is plain and unambiguous .... ” Western Kentucky Coal Co. v. Nall & Bailey, 228 Ky. 76, 14 S.W.2d 400, 401-02 (1929). Where a statute is unambiguous, we need not consider extrinsic evidence of legislative intent and public policy. County Board of Education Jefferson County v. Southern Pac. Co., 225 Ky. 621, 9 S.W.2d 984, 986 (1928). If the statutory language is ambiguous, we will look to other sources to ascertain the legislature’s meaning, including legislative history. MPM Financial Group Inc. v. Morton, 289 S.W.3d 193, 198 (Ky.2009) (citation omitted). We will read the statute as a whole, and with other parts of the law of the Commonwealth, to ensure that our interpretation is logical in context. See Richardson, 260 S.W.3d at 779 (citing Lewis v. Jackson Energy Co-op. Corp., 189 S.W.3d 87, 92 (Ky.2005)).

Steven and Roberta’s arguments emphasize the fact that the term “support,” as it is used in “support order,” is subject to various interpretations and is, therefore, ambiguous. We agree. Many words within the definition of “support order” have “plain and ordinary meaning,” others do not. The Comments following the Interstate Family Support Act of 1996 provide that the terms in sub-section 21 are “subject to individualized definitions on a state-by-state basis.” Uniform Laws Annotated, Vol. 9, Part IB, 258. Thus, we will determine the meaning of “support order” in accordance with common understanding, current law, logic, and legislative intent, because we presume that our legislature did not intend an “absurd result.” See Workforce Dev. Cabinet v. Gaines, 276 S.W.3d 789, 793 (Ky.2008); Commonwealth v. Reynolds, 136 S.W.3d 442, 445 (Ky.2004).

The United States Congress required that every state adopt the Uniform Interstate Family Support Act (UIFSA) by January 1, 1998. See 42 U.S.C. § 654[20]; 655, 666[f|. In order to receive federal funding for social welfare programs, Kentucky adopted the UIFSA on January 1, 1998, replacing the Uniform Reciprocal Enforcement of Support Act (URESA). URESA allowed a state to establish, modify, or vacate a support order, even when the order had been created in another jurisdiction. Often this resulted in multiple, inconsistent judgments — and injustices — as a person could avoid judgment by moving to another state and having the support obligation modified, or even vacated. The UIFSA was designed to correct this problem. This statute establishes a one order system, whereby all states are required to recognize and enforce a support order rendered in another state. Gibson, 211 S.W.3d at 606. The UIFSA provides for “Income Withholding Orders” that are entitled to the same recognition and enforcement efforts, no matter where the obligated parent lives. KRS 407.5101(6).

Although we have never considered whether a “support order” and a subsequent Income Withholding Order allow for garnishment of monies received from the division of marital property (or as reimbursement for payment of marital debt), statutes closely related to the UIFSA shed light on the legislative intent.

Because the UIFSA was adopted, at least in part, so that Kentucky would continue to receive federal funding for social welfare programs, we look to the language of KRS 405.465, which is titled: “Income withholding or wage assignments for child support, medical support, maintenance, and medical support insurance orders.” Here, the legislature provided for wage garnishment by the Cabinet for Families and Children for “child support, medical support, maintenance, and medical support insurance orders that are established, modified, or enforced by the Cabinet....” It is telling that the Cabinet is also allowed to register an income withholding order under the UIFSA. KRS 407.5605.

Nowhere in KRS 405.465 (including its historical notes and the Legislative Research Notes) do we see any reference to payment of debt not arising from the obligation to pay support for a child or spouse. Thus, the Cabinet does not have the authority to pursue debt owed to a custodial parent due to the failure of the other parent to pay his or her share of the. divided marital debt. This is compelling. It is clear from reading the UIFSA together with KRS 405.465 that Congress and our General Assembly were concerned about support, not marital debt.

Of our sister states, it appears that only Arkansas has considered whether the payment of a marital debt may be set-off against child support under the UIFSA. Chaisson v. Ragsdale, 823 Ark. 373, 914 S.W.2d 739 (1996). In Chaisson, the mother was awarded custody of the children and the father was ordered to pay certain marital debts. Several months later, the father filed Chapter 7 bankruptcy and his marital debts were discharged. However, a creditor pursued the mother for payment of the debt. Id. at 740. Later, the father gained custody of his sons and filed a petition pursuant to the UIFSA seeking child support. The mother pled the defense of “off-set,” arguing that she should get credit for the marital debt that she paid. Id. The lower court allowed the off-set, but the Arkansas Supreme Court reversed and remanded the case, reasoning that “[ojther issues, such as visitation and payments of debts under a divorce decree, are collateral matters which necessarily burden child support determinations and run counter to the Act’s goal of streamlining these proceedings.” Id. at 741.

Moreover, during the Senate Committee on Health and Welfare meeting on March 14, 1996, the members briefly discussed the federal policy behind the UIF-SA, and verbalized the hope that the statutory scheme would “successfully package all things child support,” to ease the burden [to the courts] of inconsistent “child support and maintenance orders” and to “hinder dead-beat [parents] from escaping enforcement” of those orders. Uniform Interstate Family Support Act: Committee Meeting on adoption of act, revisions to same (1996).

We agree with the committee and the Arkansas Court’s line of reasoning. Roberta paid a marital debt initially assessed to Steven. On June 6, 1996, the trial court ordered Steven to reimburse Roberta. In 2006, the family court included this debt, with interest, in the Income Withholding Orders. To consider reimbursement of this marital debt as “support” of the children would be to seriously confuse the purpose of support — which is both a legal and moral obligation to provide one’s child with the necessities of life. It is logical that the reimbursement of debt is a matter “collateral” to the primary monetary issue in any divorce — support of the child. There is not room in the UIFSA for litigation of matters collateral to child support or spousal support, such as reimbursement of marital debt. It will simply complicate the issue, as well as hamper the courts’ remedies on contempt. Therefore, an order for reimbursement of a marital debt paid is not child “support” under Kentucky’s UIFSA and cannot be enforced as such by an Income Withholding Order.

Steven also asserts that Roberta’s award for her interest in the medical practice is not spousal support under the UIF-SA. Spousal support may also be a legal obligation but is contingent upon certain statutory factors. See KRS 403.200. Moreover, courts may award lump sum payments in lieu of maintenance. If, indeed, the award of $40,000.00 was for maintenance, as Roberta contends, then it may be enforced under the UIFSA: if the money was paid solely as an “equalization payment” for Roberta’s marital share of the medical practice, it cannot be collected under the UIFSA, as debt owed for the division of marital property is certainly a collateral matter to support.

However, there are indicia of support that are helpful in determining whether an award in a divorce decree is maintenance or the division of property. In Mattingly v. Mattingly, 164 S.W.3d 518 (Ky.App.2005), the Court of Appeals found that an award is in “the nature of support” and therefore not dischargeable in bankruptcy, if “(1) [i]t is owed to a spouse, former spouse, or child of the debtor; (2) [i]t has not been assigned to another entity, except pursuant to section 402 of the Social Security Act; (3) [i]t arose in connection with a divorce decree, separation agreement, property settlement agreement, order of a court of record, or determination made by a governmental unit with state or territorial law”; and (4) [i]t is “in the nature of alimony, maintenance or support.” 164 S.W.3d at 521-22.

While the court in Mattingly was looking at a debt to determine dischargeability, we agree that the elements set forth are helpful in determining whether an award during divorce is in fact “support.” Here, as in Mattingly, the first three elements of the test are met. However, in this case, the record does not support Roberta’s contention that the $40,000.00 was “in the nature of alimony, maintenance or support.”

In its June 6, 1996 order, the trial court made a point of discussing the parties’ objections to the “value” placed on the medical practice. Roberta had argued that she was entitled to more than $40,000.00 of the medical practice, as her “share” had been reduced by debt assigned to Steven. However, the court relied upon KRS 403.190 (“Division of Property5’) in determining that the commissioner had fairly divided the PSC.

Moreover, on August 9, 2006, the family court found that the 1996 judgment was one “in equity for money (support arrear-ages, attorney fees, reimbursement, etc.) and in specific performance (division of marital assets).” It further found that the 1996 judgment required that Steven pay Roberta $40,000.00 “as a division of the medical practice.”

Thus, the award of $40,000.00 can only be interpreted as Roberta’s share of the medical practice, a marital asset, reduced to dollars. An award from the division of marital property is certainly a matter collateral to child or spousal support. As such, this amount cannot be garnished via support order, as the UIFSA does not provide for the collection of money awarded on collateral matters during a divorce.

IV. Conclusion

For the foregoing reasons, the decision of the Court of Appeals is hereby reversed and this matter is remanded to the Jefferson County Family Court for proceedings consistent with this opinion.

All sitting. All concur.

      . An Income Withholding Order is unique to the UIFSA. While garnishment of wages may be pursued for any debt, an Income Withholding Order may be issued only on a “support order” under the UIFSA. The Income Withholding Orders at issue here are distinguished as "child support” and “other support” by the trial court and we refer herein to those orders as such.

      . KRS 427.010(2) and its federal companion, 15 U.S.C. § 1673(a), allow for garnishment (withholding) of 25% of a person’s monthly pay for a debt reduced to judgment, whereas KRS 427.010(3) and 15 U.S.C. § 1673(b)(1)(A) provide an exception to that rule, allowing withholding of 50%-65% for "support.”

      . Thus, at this time, Roberta’s judgment totaled $179,294.21.

      . The parties appealed the 1996 judgment. By Memorandum and Opinion dated August 28, 1998, the Court of Appeals affirmed the trial court on all issues.

      . Steven was the sole shareholder of Louisville Children's Eye Specialists, PSC.

        . Steven did not appear for the purge hearing.

      . The 1996 award of $179,294.21 accumulated to this amount by virtue of the application of KRS 360.040, which provides for post-judgment interest at 12% compounded annually.

      . On August 28, 2006, the Court also issued an Order of Arrest for Steven for failing to purge himself of contempt — e.g., by not paying the property arrears.

      . On its order for child support arrears, the court added a handwritten note, "hearing on objections heard and considered: and rejected,” and on the order for “other support,” it noted: "Ct. held hearing on Petitioner's objections, having considered same, rejects objections.”

      . The order for “other support” included Roberta's marital share of the medical practice, reimbursement for the marital debt that she paid and attorney's fees, for a total balance of $399,390.96 as of September 28, 2006.

      . Steven had already appealed the issuance of the February Income Withholding Orders.

      . Here, by virtue of the 1996 Agreed Order, Roberta was the non-custodial parent.

      . Steven served interrogatories and requests for production concerning Roberta's current income and Roberta refused to answer arguing that her income was irrelevant to the issues at hand. The trial court disagreed.

      . In the interim, Steven filed further objections to the entry of the Income Support Orders, contending that the support order should not be entered before Robert's arrear-age was determined. Steven's counsel also raised this argument during the hearing on the third motion for Amended Income Withholding Orders and the court's order reflects a handwritten note: “Objections noted."

      . The court ordered that the amounts withheld "should not exceed 65% of his [Steven's] disposable income.”

      . One may question whether a debtor is subject to contempt, and incarceration, for failure to pay debt other than child support. This issue was not raised on appeal.

      . Roberta argues that Steven's flagrant failure to pay the child support arrears and failure to prosecute the 1996 agreed order constitutes waivers of his right to claim child support against her. However, we note that, from 1990 through June 1992, the parties equally shared care of their children and Steven was the custodial parent of Ariana (from 1996 through 1997) and of Drew (from 1996 through 2002). Steven waited for the parties agreed order of October 1996 until 2003 to collect child support and Roberta waited for the court’s judgment of June 1996 until 2003 to collect the arrears that she was entitled to. Roberta concedes that Steven has now paid the child support arrearage, minus a portion of the interest.

      .The court heard child custody and visitation in June of 1992. Over two dozen witnesses testified during the four day trial. The children were living with their parents on alternate weeks at that time. On August 7, 1992, the circuit court awarded custody of the children to Roberta. In its Order, the court: (1) did not address the written report or testimony of the only professional to counsel each of the family members, who opined that Steven was the best choice as custodial parent; and (2) failed to acknowledge Roberta’s paid expert who testified that the children responded better to their father. Further, in 1993, a child welfare agent petitioned the family court to award custody to Steven and Steven made the same appeal to the circuit court. However, Roberta retained custody until 1996.

      . At no time before 2003 did Roberta claim that the 1996 support agreement with Steven was invalid. Moreover, Steven did not "waive” the issue of child support as he repeatedly brought the issue to the court’s attention and because the agreement was signed in 1996 — the statute of limitation to pursue child support (either to establish or enforce) is fifteen years. KRS 413.090.

      . Roberta argues that reimbursement for the marital debt that she paid and her interest in marital property falls within "other relief” as provided for by KRS 407.5101(21).

      . Other states have considered whether "collateral matters” are properly heard under their uniform child support act. The Kansas Supreme Court has held that "[l]he goal to be achieved under URESA is to provide a separate and independent forum to promptly and expeditiously enforce the duty of support without allowing complex collateral issues to become involved.” See Thompson v. Kite, 214 Kan. 700, 522 P.2d 327 (1974); Paredes v. Paredes, 118 Ill.App.3d 27, 73 Ill.Dec. 765, 454 N.E.2d 1014, 1017 (1983) ("The primary purpose of URESA is to secure support for dependent children from persons legally responsible for their support.”) (citations omitted).

      . The Arkansas Supreme Court had addressed the issue of whether "collateral matters” are appropriate for consideration under Arkansas' revised version of URESA. See State v. Robinson, 311 Ark. 133, 842 S.W.2d 47 (1992); State v. Kerfoot, 308 Ark. 289, 823 S.W.2d 895 (1992); Iowa v. Reynolds, 291 Ark. 488, 725 S.W.2d 847 (1987). In each case, it held that consideration of collateral matters, whether they be visitation rights or affirmative defenses to liability for child support, was error.

      .The record is silent as to whether Roberta chose to pay the debt or whether the creditor collected the debt from her though, in her brief to this Court, Roberta states that she was "forced” to pay the debt. We do know that Steven discharged all of his marital debt in a Chapter 7 action.

      . Neither can we say that the reimbursement of the debt was "support" for Roberta. The lower court clearly delineated this debt as part of the marital debt division. There is nothing in the record to indicate that the trial court meant for reimbursement of the debt to be "maintenance,” or even "supplementary to maintenance.” In fact, maintenance was discontinued on June 6, 1996. Later, maintenance was reinstated because Roberta was unemployed.

      . Roberta argues that reimbursement for the marital debt that she paid and her interest in marital property falls within "other relief” as provided for by KRS 407.5101(21). However, we cannot find that "other relief” includes collateral matters — which only detracts from the goal of the UIFSA.


source: Caselaw Access Project

license: Public Domain

text:
    QUEBECOR BOOK COMPANY, Appellant, v. Lou MIKLETICH; Honorable Richard M. Joiner, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2010-SC-000122-WC.
    Supreme Court of Kentucky.
    Sept. 23, 2010.
    Jo Alice Van Nagell, Patrick Joseph Murphy, II, Casey, Bailey & Maines,

      PLLC, Lexington, KY, for Appellant, Quebecor Book Company.
    Paul Guthrie, Lexington, KY, for Appel-lee, Lou Mikletich.
   OPINION OF THE COURT

An Administrative Law Judge (ALJ) awarded income benefits based on the claimant’s entire impairment from work-related hearing loss, having refused to exclude a portion of the impairment as being barred by the statute of limitations. The Workers’ Compensation Board affirmed, and the Court of Appeals affirmed the Board. This appeal by the employer followed.

The employer asserts that KRS 342.185 and KRS 342.270 bar compensation for impairment resulting from hazardous noise exposure that occurred before May 28, 2006 (ie., more than two years before the claimant filed his application for benefits) because he had been informed previously that his hearing loss was work-related. Moreover, they bar compensation for such impairment regardless of whether it was adequate as of May 28, 2006 to authorize income benefits under KRS 342.7305(2). We disagree.

The claimant sustained an injury that produced a 6% impairment rating as of May 26, 2006 and knew that it was work-related but continued to be exposed to workplace hazardous noise when he filed his claim. He had no claim based on trauma incurred when the 6% impairment was assigned. Unlike KRS 342.730(1), KRS 342.7305(2) imposes an 8% threshold for awarding income benefits, and no medical evidence indicates that his injury warranted treatment at that time. Disability resulting from the 6% impairment that was inadequate to be compensable as of two years before he filed his claim need not be excluded when calculating his award of income benefits.

The claimant had no hearing impairment when he began working in the defendant-employer’s printing plant in 1988. Recognizing the potential that employees would be exposed to hazardous noise in the workplace, the employer implemented a formal hearing conservation program that included annual hearing tests. Records of the claimant’s participation in the program indicated that he reported a ringing sensation in his ears in 1995 and that subsequent annual tests revealed a pattern of increasing high-frequency hearing loss.

The employer arranged to have the claimant examined on December 4,1998 by Dr. Green, an audiologist, who reported a moderate, high-frequency, noise-induced hearing loss due to years of exposure to hazardous noise. Dr. Green informed the claimant of his hearing loss; informed him that it was work-related; and advised him to use hearing protection while at work.

The claimant met with his employer’s human resources supervisor on March 3, 2008 to discuss his hearing loss and completed an injury report. Dr. Jones confirmed the presence of a noise-induced hearing loss on March 26, 2008 and recommended hearing aids. He testified subsequently that the claimant’s hearing loss warranted a 23% permanent impairment rating as of March 2008 and would have warranted a 1% impairment rating when measured by Dr. Green in December 1998. The claimant filed an application for benefits on May 28, 2008.

Dr. Windmill evaluated the claimant in June 2008. He indicated that the annual audiometric test performed on May 26, 2006 revealed a hearing loss that warranted a 6% impairment rating. He assigned a 23% impairment rating as of May 2008 based on a high-frequency hearing loss that was consistent with noise exposure. Subsequent evidence indicated that the impairment rating had increased to 24% when the claim was heard.

The employer argued to the ALJ that KRS 342.185 and KRS 342.270 barred compensation for the 6% impairment attributable to trauma the claimant incurred more than two years before filing his claim. Rejecting the argument, the ALJ reasoned that KRS 342.7305(2) would have prohibited an award from being based on the 6% impairment rating existing before May 28, 2006 and, thus, that the 6% rating need not be excluded from the claimant’s award. We agree.

KRS 342.730(l)(b) bases the amount of income benefits awarded for permanent partial disability on the injured worker’s disability rating, which is the product of the permanent impairment rating produced by the injury and the corresponding statutory factor. It permits income benefits to be awarded based on the extent to which a permanent impairment rating exceeds 0%.

The legislature enacted KRS 342.7305 in 1996 specifically to address claims for hearing loss due to single accident trauma or repetitive exposure to hazardous noise. KRS 342.7305 provides as follows:

(1) In all claims for occupational hearing loss caused by either a single incident of trauma or by repetitive exposure to hazardous noise over an extended period of employment, the extent of binaural hearing impairment shall be determined under the latest available edition of the American Medical Association “Guides to the Evaluation of Permanent Impairment.”
(2) Income benefits payable for occupational hearing loss shall be as provided in KRS 312.730, except income benefits shall not be payable where the binaural hearing impairment converted to impairment of the whole person results in impairment of less than eight percent (8%). No impairment percentage for tinnitus shall be considered in determining impairment to the whole person, (emphasis added).
(3) The commissioner shall provide by administrative regulation for prompt referral of hearing loss claims for evaluation, for all medical reimbursement, and for prompt authorization of hearing enhancement devices.
(4) When audiograms and other testing reveal a pattern of hearing loss compatible with that caused by hazardous noise exposure and the employee demonstrates repetitive exposure to hazardous noise in the workplace, there shall be a rebuttable presumption that the hearing impairment is an injury covered by this chapter, and the employer with whom the employee was last injuriously exposed to hazardous noise shall be exclusively liable for benefits.

The ALJ, the Board, and the Court of Appeals based their decisions on the fact that KRS 342.7305(2), unlike KRS 342.730(1), requires at least an 8% impairment rating in order for income benefits to be awarded. They concluded that no claim existed in this case as of May 28, 2006 because the claimant’s impairment rating was only 6% at the time.

Noise-induced hearing loss is a form of cumulative trauma injury as defined by KRS 342.0011(1). Absent a statute of limitations directed specifically at cumulative trauma claims, the court determined in Alcan Foil Products v. Huff that KRS 342.185(1) applies to such claims and that the “date of ... accident” to which the statute refers is the date that the injury becomes manifest. The court determined subsequently in Hill v. Sextet Mining Corp. that the notice requirement arises and the two-year limitations period begins to run when a physician informs the worker of the injury and its cause. Although Special Fund v. Clark explains that KRS 342.185(1) bars compensation for impairment due to trauma incurred more than two years before a claim is filed if an individual continues to incur cumulative trauma after being informed of the injury and its cause, Clark does not involve a hearing loss claim or the implications of KRS 342.7305(2)’s threshold requirement.

The employer asserts that the claimant’s failure to file an application for benefits within two years after May 26, 2006 bars compensation for the 6% impairment that existed at that time. The employer reasons that the claimant knew of his hearing loss and knew that it was work-related in 1998, which triggered the notice and limitations requirements. The employer also argues that he had a claim for medical benefits more than two years before filing his claim regardless of whether his impairment and resulting disability were great enough to warrant income benefits. We disagree and are not convinced that a 6% impairment must be excluded as being time-barred on these facts.

The claimant sustained an injury due to hearing loss that produced a 6% impairment as of May 26, 2006 but failed to rise to the level of compensability under KRS 342.7305(2). He continued to be exposed to hazardous noise thereafter and had sustained a compensable impairment when he filed his claim on May 28, 2008. Although KRS 342.730(1) authorizes income benefits based on the extent to which a permanent impairment rating exceeds 0%, KRS 342.7305(2) imposes an 8% threshold. We conclude under the circumstances that disability resulting from the 6% impairment due to the work-related injury that existed but was inadequate to be compen-sable as of May 28, 2006 (ie., as of two years before he filed the claim) need not be excluded when calculating his award of income benefits.

The decision of the Court of Appeals is affirmed.

All sitting. All concur.

      . See Caldwell Tanks v. Roark, 104 S.W.3d 753 (Ky.2003).

      . 2 S.W.3d 96 (Ky.1999).

      . 65 S.W.3d 503 (Ky.2001).

      . 998 S.W.2d 487 (Ky.1999).

      . FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 318-19 (Ky.2007) (a worker’s entitlement to medical benefits requires proof that a work-related injury causes impairment without regard of whether the impairment warrants a permanent impairment rating, disability rating, or income benefits).

      . Contrary to the employer’s assertion, he had no claim for medical benefits based on trauma incurred on or before May 26, 2006 because no medical evidence indicated that his injury required treatment at that point.

      . This fact distinguishes the present case from Manalapan Mining Company, Inc. v. Lunsford, 204 S.W.3d 601 (Ky.2006), in which the worker sought compensation more than two years after his workplace hazardous noise exposure ceased.


author: Chief Justice MINTON.

text:
    H. Drew MAYO, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000820-MR.
    Supreme Court of Kentucky.
    Sept. 23, 2010.

      William F. McGee, Jr., Smithland, KY, Counsel for Appellant.
    Jack Conway, Attorney General of Kentucky, Heather Michelle Fryman, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Chief Justice MINTON.

A circuit court jury convicted H. Drew Mayo of one count of first-degree rape, one count of first-degree sodomy, and of being a second-degree persistent felony offender (PFO 2). Mayo now appeals from the resulting judgment as a matter of right. Finding no reversible error, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY.

The grand jury indicted Mayo for raping and sodomizing his estranged wife by forcible compulsion and for being a PFO 2. The charges proceeded to jury trial. At trial, the victim testified that she and Mayo had been separated for about two weeks before the acts in question occurred. According to the victim, she brought Mayo to her home — the former marital home that Mayo had vacated — to talk. The victim testified that an argument ensued and that Mayo became angry and forcibly raped her and forced her to perform oral sex on him. The victim testified that she did not want to have sex of any kind with Mayo at that time, but she engaged in the oral and vaginal copulation because Mayo threatened her with anal sex if she did not comply. The victim also testified that Mayo threatened to “bust” her in the mouth if she did not comply.

Mayo’s version of events was different. Mayo agreed that he and the victim had been separated; but Mayo testified at trial that he and the victim had spent time together in the day or so preceding the alleged rape, and he believed they were going to repair their relationship. According to Mayo, he and the victim had consensual sexual intercourse several times in the hours preceding the alleged rape.

Obviously disbelieving Mayo, the jury convicted him of first-degree rape, first-degree sodomy, and being a PFO 2. The jury recommended ten years’ imprisonment for the rape to be served consecutively to ten years’ imprisonment for the sodomy. In lieu of these sentences, the jury recommended that Mayo be sentenced to twenty years’ imprisonment for the PFO 2 conviction. The trial court sentenced Mayo in accordance with the jury’s verdict and recommended sentences, after which Mayo filed this appeal.

II. ANALYSIS.

Mayo raises several interconnected issues, some of which we will combine in this opinion. Mayo contends the trial court erred by:

• granting the Commonwealth’s motion in limine to prevent testimony of past anal intercourse between Mayo and the victim;
• failing to grant a mistrial and failing to admonish the jury for remarks made by the Commonwealth both during its cross-examination of Mayo and during its closing argument;
• failing to ask Mayo expressly to waive his right to poll the jury; and
• returning partially completed jury verdict forms to the jury during deliberations in the penalty phase.

We find no reversible error as to any of Mayo’s arguments.

A. No Error in Excluding Evidence of Past Consensual Anal Intercourse.

On the morning the trial was scheduled to begin, the trial court conducted an in-chambers hearing on motions in limine, including an oral motion by the Commonwealth to prohibit evidence of the victim’s sexual history. At the conclusion of that lengthy hearing, the trial court seemed to rule that Kentucky Rules of Evidence (KRE) 412, commonly known as the rape shield law, prevented testimony about the victim’s sexual history because Mayo had not provided the Commonwealth with the fourteen-day notice required by KRE 412(c)(1)(A). During the trial, however, the trial court orally amended its ruling to permit questioning regarding prior sexual relations between Mayo and the victim near the time of the alleged rape. But the trial court did not allow testimony regarding prior anal intercourse between Mayo and the victim.

On appeal, Mayo contends the trial court committed reversible error by excluding testimony of alleged consensual anal intercourse between him and the victim. Mayo admitted to having had sexual relations with the victim on the day in question and was, thus, relying on a consent defense. So Mayo contends that the trial court should have allowed testimony about prior anal intercourse to show that the alleged threat he made to the victim — submit to oral and vaginal intercourse under threat of anal intercourse — was not really a threat because anal intercourse had previously been a consensual act between Mayo and the victim. We disagree that the trial court erred in its ruling.

Our analysis must begin with a recitation of the relevant provisions of KRE 412. That rule provides, in relevant part:

(a) Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim’s sexual predisposition.
(b) Exceptions:
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution ....
(c)Procedure to determine admissibility.
(1) A party intending to offer evidence under subdivision (b) must:
(A) file a written motion at least fourteen (14) days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and
(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim’s guardian or representative.
(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

Although the general thrust of KRE 412 is toward exclusion of evidence regarding an alleged victim’s sexual history, the rule makes an exception for evidence of past sexual behavior of the alleged victim with the accused if offered by the accused to prove consent or if offered by the prosecution. Certainly, we have interpreted KRE 412(b)(1)(B) in an earlier unpublished case to mean that “past sexual behavior between the alleged victim and the defendant is relevant and is generally admissible on the issue of consent” because “evidence of consensual sex or the desire to have consensual sex after an allegation of rape would tend to prove that consent may have in fact been given and that no rape occurred.” Mayo relies upon this exception to argue that the trial court should not have excluded evidence regarding prior consensual anal intercourse Mayo allegedly had with the victim.

Before we delve into whether the trial court properly excluded this evidence, we must address some general principles. Mayo argued to the trial court, and seems to argue similarly before us, that sexual relationships between a husband and wife fall outside the protections of KRE 412 primarily because of a general assumption that spouses engage in sexual relations with each other. So Mayo’s argument goes: any stigma associated with revealing a victim’s sexual history would not apply when the alleged victim was the spouse of the alleged perpetrator because no juror would think less of a victim after learning that the victim had engaged in sexual relations with a spouse. But before we can address whether sex crimes committed against a spouse fall outside the protections of KRE 412, we must determine whether a spouse can even commit an inter-spousal sexual offense.

Former Kentucky law defined rape and sodomy in such a way as to preclude one spouse from raping or sodomizing the other spouse. Under modern Kentucky law, however, it is clear that “[sjexual intercourse and deviate sexual intercourse can constitute rape or sodomy, even though the defendant and victim are married to one another.” So having determined that it is possible for a spouse to be guilty of raping or illegally — that is, without consent — sodomizing a spouse, we move on to the question of whether evidence of inter-spousal sexual relations is outside the scope of KRE 412.

Mayo argues that evidence of sexual relations between a victim and spouse is outside the scope of KRE 412 because “[t]he obvious purpose of KRE 412 was to prevent unfair and unforeseen attack by a defendant upon the character of the victim”; but “[t]he husband/wife relationship is clearly not the type of evidence that would be [unforeseen] by the victim to be used at trial.” But Mayo is unable to cite to any authority to support his contention that KRE 412 does not apply to inter-spousal sexual relations. The rule contains no such exception, and we decline to create one in this case. In short, KRE 412 is not rendered inapplicable simply because the victim is the spouse of the accused.

Having cleared away the procedural underbrush, we now may focus on the merits of the trial court’s decision to exclude evidence of alleged past consensual anal intercourse between Mayo and the victim. At the hearing on the Commonwealth’s motion in limine, the trial court focused upon the lack of notice given by Mayo of his intent to introduce evidence of his past sexual relations with the victim under the rape shield exception codified at KRE 412(b)(1)(B). Since there was admittedly insufficient notice given to comply with the requirements of KRE 412(c)(1)(A), the trial court had the discretion to rely upon the lack of notice alone to exclude testimony about the victim’s sexual history with Mayo.

But the trial court did not ultimately rely upon the lack of notice. Instead, the trial court permitted testimony about the sexual relations Mayo claims to have had with the victim in the day or so before the rape; and Mayo repeatedly — and usually without objection — testified on both direct and cross-examination about those purported sexual encounters.

The trial court really only excluded evidence of past alleged anal intercourse between Mayo and the victim, seemingly because it believed that such evidence would prejudice the victim in the eyes of the jury. Although it did not frame it as such, the trial court essentially barred the testimony regarding anal intercourse by applying KRE 403, which permits exclusion of otherwise relevant evidence if the probative value of that evidence is “substantially outweighed by the danger of undue prejudice....”

The probative value of the evidence regarding a history of anal sex was low. Solely for the sake of analysis, we shall assume that the victim did have consensual anal sex with Mayo in the past. That does not mean, however, that she consented to having anal sex — or any other type of sex — with Mayo on the date in question. And the only real issue in Mayo’s trial was whether the victim consented to the intercourse in question, or whether that intercourse was rape by forcible compulsion.

At most, evidence of past anal sex with Mayo would show a slight lessening of the fear suffered by the victim when Mayo threatened her with anal sex if she did not consent to oral and vaginal intercourse. In other words, because the only real issue was whether the sex in question between Mayo and the victim was consensual, the fact that the victim and Mayo may have had consensual anal sex in the past does not make it more or less likely that she consented to having any type of sex — anal or otherwise — with Mayo at the time in question, especially since Mayo was permitted to testify repeatedly that he had had consensual sex with the victim multiple times in the hours preceding the rape. Adding a detail that those sexual encounters or other more temporally remote past sexual encounters involved anal intercourse did not materially add to Mayo’s consent defense.

On the other hand, evidence that the victim had engaged in past anal intercourse with Mayo would have had the potential to embarrass the victim. Mayo has pointed to nothing concrete to contradict the trial court’s conclusion that the victim would have been unduly prejudiced in the minds of the jurors if evidence were presented regarding the victim’s alleged affinity for, and history of, anal intercourse.

Of course, evidence is not necessarily inadmissible if it has a stigmatizing effect. But the stigma that may have been associated with a history of anal intercourse is not the only reason to exclude the evidence. As stated before, the probative value of that evidence in this case was low because it had little bearing on whether the victim consented to have intercourse with Mayo at the time in question, especially since Mayo was permitted to testify about his alleged sexual encounters with the victim in the hours leading up to the rape. So permitting testimony about a history of anal intercourse was unnecessary and could have distracted the jury from its task of determining whether the victim consented to oral and vaginal intercourse at the time in question.

Determining whether proposed evidence’s prejudicial effects substantially outweigh its probative value under KRE 403 is a delicate, fact-intensive inquiry. As an appellate court, we may only disturb a trial court’s reasoned decision in this area if that decision is an abuse of the trial court’s discretion. On balance, we cannot find that the trial court abused its discretion when it ruled that the prejudicial effects of the anal intercourse testimony substantially outweighed that evidence’s probative value, nor do we conclude that the trial court’s exclusion of this evidence improperly abridged Mayo’s rights to cross-examine witnesses and to present a defense to the charges against him.

B. No Reversible Error in Commonwealth’s Cross-Examination and Closing Argument.

Mayo argues that the trial court erred by not granting a mistrial or admonishing the jury in response to questions asked of Mayo by the Commonwealth on cross-examination and statements made by the Commonwealth in closing argument. Although we disapprove of some of the Commonwealth’s comments, we disagree with Mayo that the comments or questions entitle him to relief.

Generally, Mayo’s objections on appeal follow three broad contours. First, he contends that he was entitled to a mistrial because the Commonwealth’s improper cross-examination of him regarding other prior bad acts violates KRE 404. Relat-edly, he contends the trial court erred by-failing to exclude evidence of these purported prior bad acts. Finally, he alleges that the trial court erred by failing to grant a mistrial or admonish the jury because of statements by the Commonwealth about a “good jury” during its closing argument.

1. Partial Preservation.

Although Mayo’s brief is vague on the subject, our review of the record confirms the Commonwealth’s contention that these interrelated issues are only partially preserved for appellate review. And Mayo did unsuccessfully move for a mistrial during the Commonwealth’s cross-examination of him. So the denial of that motion for a mistrial is adequately preserved.

Mayo did object to the Commonwealth’s reference to matters ostensibly covered by KRE 404, but that objection was based upon the alleged impermissible use of that evidence by the Commonwealth to show Mayo’s bad character. On appeal, however, Mayo contends that the evidence in question fails admissibility under KRE 404(b) (ie., that it is facially inadmissible) and, moreover, that the trial court should have excluded the matters because the Commonwealth did not give the requisite notice of its intent to introduce evidence of prior bad acts. The issue regarding the evidence’s facial admissibility under KRE 404 is preserved, therefore; but any issue regarding exclusion because of the Corn-monwealth’s failure to provide adequate notice is unpreserved.

Finally, Mayo did not ask for a mistrial during the Commonwealth’s closing argument; instead, Mayo asked for the trial court to admonish the jury — a request the trial court granted. And Mayo expressed no contemporaneous dissatisfaction with the content of the trial court’s admonition. So because Mayo received all the relief on that point he requested, his argument on appeal that he was entitled to a mistrial or a further admonition because of the Commonwealth’s references to a “good jury” is unpreserved.

2. No Necessity for Mistrial and No Reversible KRE 404 Error.

In order to understand fully the mistrial issue, we must recount at some length the underlying testimony and questions. On cross-examination, the Commonwealth asked Mayo if his substance abuse was one of the “singular” problems of his marriage with the victim. Mayo admitted that his substance abuse was one of the “big factors” in his marriage. The Commonwealth then asked Mayo if he had a “pretty serious drinking problem” during his marriage, to which Mayo responded: “At that time, no I did not have a big drinking problem.” The Commonwealth then asked if Mayo’s drinking problem had gotten him “in trouble with the law” on “numerous times.” Mayo responded, “It has.” The Commonwealth then asked Mayo how many times he had been arrested for “AI” (alcohol intoxication). Mayo’s counsel objected. Before the trial court made a ruling on the objection, the Commonwealth asked Mayo if the victim had been aware of problems Mayo had been “running into with the law” because of “alcohol abuse problems.” Mayo’s counsel objected to that question as not being “appropriate.”

The trial court did not specifically rule on Mayo’s objection. Instead, the trial court told the Commonwealth to inquire about whether Mayo “had problems because of his drinking”; and the questioning would “go from that.” Nevertheless, the Commonwealth immediately asked Mayo if the victim had had Mayo arrested a week before the rape. Mayo’s counsel again objected, and a bench conference ensued.

During that bench conference, Mayo’s counsel moved for a mistrial for the allegedly incurable prejudice Mayo suffered by the Commonwealth’s repeated references to Mayo’s past contacts with law enforcement. Mayo’s counsel also argued that the Commonwealth’s questions concerned prior bad acts for which it had not received notice. The trial court denied the motion for mistrial and permitted the Commonwealth to ask if Mayo had been arrested at the victim’s behest a week before the rape to rebut Mayo’s contention that he did not have a problem with alcohol during that time period. The trial court did not permit the Commonwealth to ask if Mayo had been convicted as a result of that arrest. The Commonwealth then asked Mayo if the victim had had him arrested for AI a week before the rape, to which Mayo responded yes. The Commonwealth then asked if Mayo had spent the night in jail, to which Mayo again responded yes.

Having established the facts surrounding the motion for a mistrial, we now turn our attention to the legal standard for granting a mistrial. A mistrial is an extreme remedy that should be granted only upon a showing of manifest necessity. A reviewing court may only disturb a trial court’s decision to grant, or refuse to grant, a mistrial if the trial court’s decision is an abuse of discretion. We do not believe the trial court abused its discretion by denying a mistrial in this case.

The victim testified that she did not allow drinking in her home. She also testified that she knew Mayo had a bottle of vodka on his person in the time period immediately preceding the rape. The Commonwealth’s intent, as stated in its brief, was to impeach Mayo on cross-examination by casting doubt on his version of the events surrounding the rape — that the victim did not object to his drinking and that he and the victim had enjoyed sexual relations in the hours before the rape as an act of marital reconciliation.

We question, however, the necessity of an inquiry into the particulars of Mayo’s arrest record. In order to impeach Mayo’s version of events, the jury did not need to be informed of the number of AI arrests in Mayo’s past, especially since some of those arrests could have been remote in time to the rape. And the victim had made references in her testimony to Mayo’s alcohol use. So general questions concerning whether Mayo’s alleged drinking problem had caused marital discord between Mayo and the victim would have been sufficient for impeachment purposes without raising the specter of KRE 404.

But even if we accept for the sake of analysis that the Commonwealth’s questions regarding Mayo’s arrest record and alleged problems with alcohol were improper and contrary to KRE 404, we do not conclude that any error was so egregious as to necessitate a mistrial. The victim testified that Mayo purchased vodka shortly before the rape and that he had likely consumed some of that vodka. Mayo largely corroborated that version of events. In light of all the properly admitted evidence against Mayo, we do not believe the trial court erred by determining that a mistrial was not necessitated because any error in the Commonwealth’s questioning was not so egregious as to undermine the basic fairness of Mayo’s trial.

For the same reason, we decline to hold that any error in this regard entitles Mayo to relief. To the extent the issue of facial admissibility of evidence is preserved, any error is harmless because we conclude that the evidence in question did not substantially sway the jury’s verdict in light of the strong evidence presented of Mayo’s guilt. Likewise, to the extent the issue is unpreserved for lack of notice, we do not conclude that the lack of notice was sufficiently egregious so as to have probably changed the result. So Mayo is not entitled to palpable error relief under RCr 10.26.

3. No Reversible Error from Commonwealth’s Comments.

Mayo claims he is entitled to relief because of improper questions asked by the Commonwealth during its cross-examination of him and because of statements made by the Commonwealth during its closing argument. Essentially, Mayo is claiming an entitlement to relief based upon prosecutorial misconduct.

a. The comments and questions at issue.

Mayo’s main argument is based upon statements made by the Commonwealth during closing argument about a “good jury.” More specifically, at one point during its closing argument, the Commonwealth began a comment by saying, “Is there a reason why a good jury would not return a finding ...” at which point Mayo’s counsel interrupted with an objection to the Commonwealth’s statement as being “not proper.” The trial court remarked that it did not understand the reason for the objection and invited counsel to the bench.

At that bench conference, Mayo’s counsel stated that the Commonwealth’s intimation to the jury that a good jury would find Mayo guilty was improper. The Commonwealth responded that it was not sure what the problem was but that it would “fix it.” The trial court did not make a formal ruling on the objection. And Mayo requested no formal ruling. Instead, the trial court merely dispatched the Commonwealth forward to “fix it.”

Immediately, the Commonwealth addressed the jury and feigned fault for assuming that this jury was going to be a good jury. Mayo’s counsel objected. Instead of returning to the bench for clarification, the Commonwealth gestured toward Mayo’s counsel and asked her — in full view and hearing of the jury — “Is it your belief they are not a good jury?” The trial court then implored counsel: “Let’s don’t go into all that. Just, just move on to something else.” Mayo’s counsel, however, approached the bench and asked for an admonition that a good jury was a jury that considered all the facts and rendered the verdict it believed was appropriate. The Commonwealth stated it had no objection to such an admonition, after which the trial court admonished the jury that it would be a good jury whichever verdict it returned. Mayo requested no further relief.

Mayo’s second basis for relief based upon prosecutorial misconduct stems from the Commonwealth’s cross-examination of Mayo. Although his brief is thin on the subject, Mayo argues that the Commonwealth erred during its cross-examination of Mayo by “engaging] in a series of question[s] implying that defense counsel had acted improperly in preparing Mayo to testify.”

Mayo has not cited to any specific portions of the record that contain such statements by the Commonwealth. Instead, Mayo points to his motion for a mistrial in which one of the stated grounds was the Commonwealth’s alleged references to defense counsel improperly preparing Mayo to testify. Even though the Commonwealth pointed out Mayo’s briefs noncompliance with CR 76.12, Mayo did not file a reply brief in an attempt to correct his oversight. We would be justified in disregarding this claim of error because counsel must sift through a record to show the reviewing court the basis for a claim for relief. But we did view Mayo’s cross-examination in the course of resolving other issues in this appeal and, through that process, observed the Commonwealth ask Mayo whether he had, in preparation for testifying, been given by his attorney a copy of the transcript of an interview Mayo had with a detective. Because Mayo has failed to direct us to anything more specific in the record underlying this claim for relief, we shall assume that that question by the Commonwealth is at issue in this appeal. Again, we caution counsel in the future to comply with all briefing requirements set forth in CR 76.12.

b. No entitlement to relief for prosecutor’s misconduct.

We begin our analysis by reciting the proper standard required for relief to be granted because of prosecutorial misconduct occurring during closing argument. An appellate court may reverse for prosecutorial misconduct occurring during closing argument only if the misconduct is “flagrant” or if: (1) the proof of guilt is not overwhelming, (2) an objection is made, and (3) the trial court failed to admonish the jury after sustaining the objection.

Mayo cannot meet all three elements of the test for non-flagrant prose-cutorial misconduct. Setting aside the issue of whether the proof of Mayo’s guilt was overwhelming, the trial court did admonish the jury — at Mayo’s request — and Mayo expressed no dissatisfaction with the admonition, nor did Mayo request additional relief. An admonition is presumed to cure improper comments, and a jury is presumed to follow such an admonition. And a failure to ask for a mistrial following an objection and admonition from the trial court indicates satisfactory relief was granted. So Mayo is not entitled to relief for non-flagrant prosecutorial misconduct for the “good jury” comments.

Mayo is also not entitled to relief based upon the other comments in question, which Mayo perceives as having been a veiled accusation by the Commonwealth that defense counsel had improperly prepared, coached, or even scripted Mayo for his trial testimony. There is certainly nothing inherently improper with defense counsel discussing a case with his or her client in preparation for that defendant taking the witness stand. And a direct accusation that an attorney had improperly coached the client may well be improper unless there was a satisfactory evidentiary basis for such an incendiary accusation. But we do not construe the Commonwealth’s comments regarding whether his counsel had provided Mayo with a copy of the transcript of Mayo’s conversation with a detective as being a direct accusation of wrongdoing by Mayo’s counsel. To the contrary, the question was part of an extended attempt by a frustrated prosecutor to get Mayo to say whether he had reviewed a transcript of his interview with a detective so that the prosecutor could refer to that transcript while cross-examining Mayo. In short, we conclude that nothing said in the jury’s earshot regarding counsel’s preparation of Mayo for his testimony was misconduct, flagrant or otherwise.

Having found that none of the comments support relief as non-flagrant misconduct, we now turn to whether they rise to the level of flagrant misconduct. Although we strongly disapprove of the Commonwealth’s asking defense counsel if she thought the jury was not a good jury, we do not believe that unfortunate statement merits reversal of Mayo’s convictions. So we conclude the comments are misconduct, but not flagrant misconduct.

We use a four-part test to determine if a prosecutor’s improper comments rise to the level of flagrant misconduct. The four factors of this flagrancy test are as follows: “(1) whether the remarks tended to mislead the jury or to prejudice the accused; (2) whether they were isolated or extensive; (3) whether they were deliberately or accidentally placed before the jury; and (4) the strength of the evidence against the accused.”

Of course, this four-part test applies only if a court has determined that a prosecutor’s comments were improper. The prosecutor’s asking defense counsel within the jury’s earshot whether she did not believe the jury to be a “good jury” was inarguably improper. So we shall apply the four-part test to determine if the impropriety rises to the level of flagrant misconduct.

As to the first factor, we do not believe the jury was misled by the “good jury” remarks, especially since the trial court admonished the jury that a good jury returned whatever verdict it believed was warranted by the evidence. But the Commonwealth’s questioning defense counsel about whether she believed the jury was a “good jury” would appear to have been prejudicial to Mayo. No reasonable juror would want to be considered anything but a “good” juror, and it certainly was not to Mayo’s benefit for the Commonwealth to insinuate that Mayo’s counsel did not believe these jurors comprised a “good” jury. This factor weighs in Mayo’s behalf.

As to the second factor, the comments were isolated. These “good jury” comments, including the bench conference where Mayo’s counsel requested an admonition, took up only a couple of minutes out of a two-day trial. This factor weighs in the Commonwealth’s behalf.

As to the third factor, we must conclude that the comments were deliberately placed before the jury. Neither our review of the video record nor the Commonwealth’s brief indicates anything that would even hint, much less definitively show, that the Commonwealth’s direct question to Mayo’s counsel about whether she considered the jury to be a “good jury” was anything other than deliberate. As Mayo notes in his brief, “[i]t is inconceivable that the prosecutor had any good faith basis in questioning defense counsel in front of the jury during closing ... if defense counsel ‘thought this was a good jury.’ ” This factor weighs in Mayo’s favor.

The fourth factor is the weight of the evidence against Mayo. The victim’s testimony was direct and damning. And the Commonwealth produced medical evidence showing physical injuries to the victim, as well as other witnesses who testified to Mayo seeming angry and aggressive immediately after the rape. So we conclude that the evidence against Mayo was strong, meaning that this factor weighs on behalf of the Commonwealth.

We are faced, therefore, with two factors weighing on behalf of Mayo and two factors weighing on behalf of the Commonwealth. Given this state of relative equipoise concerning the specialized test for flagrant prosecutorial misconduct during closing argument, we must use the general test for whether relief for prosecutorial misconduct is proper: an examination of the trial as a whole to determine if the improper comments undermined the essential fairness of Mayo’s trial.

We have taken into account the fact that the trial court took swift corrective action by admonishing the jury about what actually constitutes a “good jury.” And Mayo received all the relief he sought from the trial court. So we decline to find on appeal that the trial court should have taken the initiative to grant Mayo additional relief. In short, we conclude that the unfortunate comments of the Commonwealth were not so egregious as to have undermined the essential fairness of Mayo’s trial. But we strongly caution the Commonwealth in the future to avoid directing these types of personal comments toward defense counsel or to intimate to any jury that a “good jury” would return a guilty verdict.

C. No Error in Failure to Ask Defendant if he Desired to Poll Jury.

Immediately after the trial court announced the jury’s verdict in the guilt phase, the trial court asked if either side wanted to review the verdict. Counsel for both sides approached the bench and viewed the verdict forms. Neither the Commonwealth nor defense counsel voiced any objection to the completed verdict forms, nor did either side request to poll the jury. The trial then proceeded to the penalty phase. On appeal, Mayo claims that he is entitled to relief because there is no affirmative showing that he waived his right to poll the jury. We disagree.

Well over one hundred years ago, our predecessor court forcefully held that “[t]he right to poll the jury in criminal causes has in this state always been deemed an essential part of the right of trial by jury.” That ancient right is currently codified in RCr 9.88, which provides, in relevant part, “[w]hen the verdict is announced, either party may require the jury to be polled, which is done by the clerk’s or court’s asking each juror if it is his or her verdict.” But longstanding precedent also clearly holds that “the poll of the jurors is a permissive right which may be waived.”

We decline Mayo’s invitation to require a criminal defendant to affirmatively waive his or her right to poll the jury. Nothing in the plain language of RCr 9.88 requires a trial court to ask a criminal defendant if the defendant desires to waive the right to poll the jury, and Mayo has not pointed to any other authority that would require such an affirmative waiver. In reality, the general rule seems to be that a right to poll the jury is deemed waived in the absence of a timely request.

We agree with, and hereby adopt, the consensus viewpoint that a defendant’s right to poll the jury will generally be deemed to have been validly waived if the defendant does not timely request the polling of the jury. In other words, a defendant may not sit on his rights only later to ask an appellate court for relief. Instead, the burden is on the defendant to assert affirmatively and timely his right to poll the jury. Since Mayo made no request to poll the jury, despite having had ample opportunity to do so, the trial court did not err by not asking Mayo if he desired to waive the polling of the jury.

D. No Error in Correcting Verdict Forms During Deliberations.

During penalty-phase deliberations, the jury sent a note to the trial court stating that the instructions contained typographical errors: incorrect numbering and a missing signature line. Mayo’s counsel stated that she did not have a copy of the instructions so she could not see what the alleged problems might be. So, without objection and seemingly at Mayo’s counsel’s suggestion, the trial court directed a bailiff to retrieve the instructions from the jury so that the trial court and all counsel could review them. The review disclosed that the jury had completed the verdict forms concerning the penalties for rape and PFO 2 but had not addressed the penalty for sodomy in the first degree. The trial court corrected the typographical errors and returned the instructions and verdict forms to the jury so that they could complete their deliberations.

Mayo’s counsel objected, saying that she had not known the jury verdict forms were partially completed when she agreed to have the instructions brought into the courtroom. Mayo’s counsel did not make a particularized objection. Instead, she merely observed that the procedure was “funky” and “highly irregular.” Mayo’s counsel noted that she was unaware of the precise nature of any error, but she was objecting to preserve whatever error may exist for appellate review.

On appeal, Mayo contends that he is entitled to relief because the jury failed to follow their instructions because they recommended a penalty for the PFO 2 charge without first having recommended a penalty for the sodomy charge. We disagree.

Mayo’s general objection to the trial court was not based upon any specific legal ground. So he has improperly presented a different basis for objection on appeal. Since the grounds for the objection were never properly brought to the trial court’s attention, our review is limited to determining if any error rises to the level of being a palpable error.

Even if we assume for discussion purposes that better practice would have been for the jury to complete the forms for the underlying rape and sodomy convictions before it turned its attention to the PFO 2 charge, Mayo is not entitled to relief. Mayo has pointed to absolutely no prejudice stemming from the trial court’s actions. The jury’s recommended penalty for all convictions was within the legal limits. In fact, the jury’s recommendation of a twenty-year sentence for the PFO 2 conviction was the minimum possible sentence. So we cannot say that the jury’s failure to record a verdict on the form for the underlying sodomy charge before recording a verdict on the form for the PFO 2 charge undermined the fairness of Mayo’s trial or was such an egregious error as to be shocking or jurisprudentially intolerable. In fact, we have noted our approval of a trial court similarly correcting erroneous jury instructions during jury deliberations. Mayo is not entitled to relief on this issue.

III. CONCLUSION.

For the foregoing reasons, we affirm the trial court’s judgment.

All sitting. ABRAMSON, CUNNINGHAM, SCHRODER, SCOTT, and VENTERS, JJ., concur. NOBLE, J., concurs in result only.

      . Ky. Const. § 110(2)(b).

      . George v. Commonwealth, No. 2001-SC-1067-MR, 2003 WL 22227195, at *2 (Ky. Sept. 18, 2003).

      . See Robert G. Lawson & William H. Fortune, Kentucky Criminal Law § 1 l-2(e) (1998) (“Kentucky historically defined rape and sodomy as acts with someone other than a spouse, a definition in accord with both the common law and the Model Penal Code.”) (internal footnotes omitted). For a convincing rejection of the reasons underlying the antiquated theory that a husband could not be guilty of raping his wife, see Warren v. State, 255 Ga. 151, 336 S.E.2d 221 (1985).

      . Lawson & Fortune at § 1 l-2(e).

      . Kentucky Revised Statutes (KRS) 510.020(1) provides that lack of consent by the victim is an element of all the offenses contained in KRS Chapter 510, which includes i'ape and sodomy.

      . The trial court conducted no KRE 412(c)(2) hearing before allowing extended testimony from Mayo regarding past sexual encounters he allegedly had with the victim. Neither side contemporaneously objected to this lack of a hearing. And neither side raised the lack of a hearing as an issue on appeal. So we decline to address the prejudicial impact, if any, of the failure to hold a hearing.

      . Smith v. Commonwealth, 904 S.W.2d 220, 223 (Ky.1995).

      . As stated previously, a sexual history between the victim and the accused is generally relevant. George, 2003 WL 22227195 at *2. But we perceive little probative value in letting a defendant testify that the precise sexual history he had with the victim included anal intercourse. So the trial court did not run afoul of George because it permitted general testimony about the victim’s past sexual history with Mayo.

      . We have defined something as being prejudicial when it is unnecessary. Romans v. Commonwealth, 547 S.W.2d 128, 131 (Ky.1977) ("Prejudice is a relative term. In the context of a criminal proceeding it can mean only that which is unnecessarily or unreasonably hurtful.”) (quotation marks omitted). Although Romans did not involve a construction of prejudice in the context of KRE 403, we believe our definition of the term prejudice in Romans is applicable to determinations under that rule.

      . See, e.g., Barnett v. Commonwealth, 979 S.W.2d 98, 103 (Ky.1998).

      .KRE 404 provides, in relevant part, as follows:
      (b) ... Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
      (1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or
      (2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.
      (c) Notice requirement. In a criminal case, if the prosecution intends to introduce evidence pursuant to subdivision (b) of this rule as a part of its case in chief, it shall give reasonable pretrial notice to the defendant of its intention to offer such evidence. Upon failure of the prosecution to give such notice the court may exclude the evidence offered under subdivision (b) or for good cause shown may excuse the failure to give such notice and grant the defendant a continuance or such other remedy as is necessary to avoid unfair prejudice caused by such failure.

      . Mayo's brief does not comply with Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v), which requires the argument section of an appellant's brief to contain "am-pie supportive references to the record” and also requires “at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review, and, if so, in what manner.” Kentucky Rules of Criminal Procedure (RCr) 12.02 specifically provides that CR 76 applies to criminal actions.

      . Unfortunately, numerous objections and responses occurred in full view and hearing of the jury. Better practice would have been for any discussion regarding an objection (including the grounds for the objection, any response thereto, and the trial court’s ruling) to have occurred at the bench outside the hearing of the jury. Cf. Allen v. Commonwealth, 286 S.W.3d 221, 232 n. 35 (Ky.2009) ("The attorneys and trial court dealt with many objections in open court in full hearing of the jury. Many of the issues in this case would have been eliminated if all objections had been stated and explained, responded to, and ruled upon at the bench out of the juiy’s earshot.”).

      . Graves v. Commonwealth, 285 S.W.3d 734, 737 (Ky.2009).

      . Id.

      .The Commonwealth contends KRE 404 is inapplicable because the evidence of Mayo's alcohol consumption and related legal entanglements was not used to show a propensity that he raped the victim but was, instead, offered only to rebut Mayo's contention that the victim fabricated her story to punish Mayo. But the precise nature and number of Mayo’s past alcohol-related arrests would appear to be collateral to the question of whether he raped the victim, especially because Mayo had admitted to having purchased vodka shortly before the rape. And no one has cited anything to show that the alcohol-related arrests in question resulted in any felony convictions. See KRE 609(a) (permitting impeachment of a witness based upon a past felony conviction); Slaven v. Commonwealth, 962 S.W.2d 845, 859 (Ky.1997) ("Only felony convictions can be used for impeachment in Kentucky...."). During the bench conference on Mayo’s motion for a mistrial, the trial court even characterized the issue regarding whether Mayo had a drinking problem as being a "relatively minor point." So it appears that the Commonwealth’s persistent questioning regarding the specifics of Mayo's arrest record was attempted impeachment on a collateral matter. See, e.g., Rowe v. Commonwealth, 50 S.W.3d 216, 223-24 (Ky.App.2001) (discussing prohibition on impeachment on collateral matter). And we question the Commonwealth's contention that its detailed questioning about Mayo's history with the criminal justice system falls outside KRE 404; but we need not definitively so hold because Mayo is not entitled to relief, regardless of whether the testimony at issue falls nicely under KRE 404.

      . See, e.g., Colvard v. Commonwealth, 309 S.W.3d 239, 249 (Ky.2010) (“RCr 9.24 requires us to disregard an error if it is harmless. A non-constitutional evidentiary error may be deemed harmless if the reviewing court can say with fair assurance that the judgment was not substantially swayed by the error.").

      . See, e.g., Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.2006) (holding that “the required showing [for palpable error relief] is probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law.”).

      . At the bench conference on Mayo’s motion for a mistrial, the Commonwealth did refer to Mayo's direct testimony as being "pre-pre-pared.” But that possibly accusatory statement by the Commonwealth was made outside the hearing of the jury and could not have caused any prejudice to Mayo.

      . Barnes v. Commonwealth, 91 S.W.3d 564, 568 (Ky.2002).

      . Torrence v. Commonwealth, 269 S.W.3d 842, 845 (Ky.2008).

      . Id.

      .The Commonwealth’s comment at the bench that Mayo’s direct examination was "pre-packaged” could perhaps be construed as such a direct accusation of wrongdoing. At best, that comment showed a lack of decorum and civility from the Commonwealth to defense counsel. But Mayo suffered no prejudice from that comment because it was uttered outside the jury’s earshot. And we trust the Commonwealth will refrain from making such seemingly accusatory comments in the future unless it has a compelling evidentiary basis for doing so.

      . Hannah v. Commonwealth, 306 S.W.3d 509, 518 (Ky.2010) (quotation marks and cita-lion omitted).

      . Torrence, 269 S.W.3d at 844 ("our focus in claims of prosecutorial misconduct is on whether the trial as a whole was fair.”).

      . Temple v. Commonwealth, 77 Ky. 769, 771, 1879 WL 6665 at *2 (1879).

      . Powell v. Commonwealth, 346 S.W.2d 731, 733 (Ky.1961).

      . 23A C.J.S. Criminal Law § 1886 (2010); 21A Am.Jur.2d Criminal Law § 1214 (2010) ("The right to have the jury polled may be waived, either affirmatively or by inaction. Failure to make a timely demand or request for a poll, where there has been reasonable opportunity to do so, operates as a waiver of the right.”) (internal footnotes omitted).

      . See, e.g., Commonwealth v. Dulce, 750 S.W.2d 432, 433 (Ky.1988) ("A defendant cannot pursue one theory at the trial court level and another on the appellate review.”).

      . Mayo would not be entitled to relief even if we deemed this issue to have been properly preserved.

      . Martin, 207 S.W.3d at 4.

      . Gamer v. Commonwealth, 645 S.W.2d 705, 707 (Ky.1983) ("The second error assigned by appellant arises from the following circumstances. The court had furnished the jury with erroneous instructions following the PFO phase of the trial. This error was discovered before the jury returned to give its verdict and amended instructions were prepared by the court. The jury was then brought out of the jury room and into open court in order to give them the amended instructions and the jury informed the judge that they had already fixed a punishment under the erroneous instruction. The court ordered the jury not to disclose its verdict and sent them back to the jury room with the amended instructions. The present verdict resulted.... [T]he action of the trial is not only free of error but also laudatory.”).