Barren Circuit Court

After the Cabinet filed a dependency, neglect, and abuse Petition on behalf of Child who was transported to Kentucky from North Dakota (N.D.) by people other than her parents, the Family Court ordered the child be returned to N.D. for a trial home visit with her mother (Mother), who was also working a case plan supervised by the N.D. child-welfare agency. Specifically, the Family Court’s January 5, 2022, order directed that the Cabinet was to facilitate the child’s return to N.D. immediately and that Cabinet worker Muse was to arrange the return travel. On January 24^th, Mother’s appointed counsel filed a motion to hold the Cabinet in contempt for their failure to comply with the January 5^th order, stating that no attempts had been made to comply. At a February 8^th hearing on the motion, local Cabinet worker Muse testified about emails she had received from Frankfort Cabinet workers that the child was not to be returned to N.D. despite the Family Court’s order. Counsel for the Cabinet, Locke, identified those Frankfort Cabinet workers as Khoury, Lane, and Humphrey. The Family Court found the Frankfort Cabinet workers to be necessary witnesses and continued the hearing to February 10^th. At this hearing, Cabinet counsel Clay appeared as counsel in place of Locke and the aforementioned Frankfort Cabinet workers testified as to why Child had not been returned to N.D. At the close of the hearing, the Family Court – still unclear as to why the Cabinet had not complied with its January 5^th order and who was responsible for the failure – ordered again that Child be returned to N.D. by February 15^th. The Family Court took the contempt motion under submission, directed the Cabinet to produce all emails in its possession related to Child’s case (except for those that included Counsel in the email), and directed Mother’s Counsel and Child’s Guardian ad Litem (GAL) to file affidavits detailing the additional work each had to complete to enforce the January 5^th order. Child was subsequently returned to Mother in N.D.

On May 8^th, the Family Court entered its order on the contempt motion, finding inconsistencies between Frankfort Cabinet workers Khoury, Lane, and Humphrey’s testimonies and their statements in the produced emails. The Family Court found that Frankfort Cabinet workers Humphrey and Lane had made the decision not to return Child despite the January 5^th order and that they failed to assist local Cabinet worker Muse in carrying out the order. The Family Court further found that Cabinet Counsel Clay had misled the court by placing blame at the Cabinet’s local level and presenting false testimony of Cabinet workers Humphrey and Lane. The Family Court subsequently found the Cabinet in contempt for its willful failure to abide by the January 5^th order and it ordered the fees of Child’s GAL and Mother’s Counsel to be paid by the Cabinet. While the Family Court did not impose sanctions against workers Humphrey and Lane or counsel Clay, it did refer Humphrey and Lane to the Commonwealth Attorney for possible perjury prosecutions, and Clay to the Kentucky Bar Association (KBA) for investigation of potential misconduct.

The Cabinet filed a motion to alter, amend or vacate, which was heard on June 14^th. The Family Court clarified its holding that workers Lane and Humphrey had not been found individually in contempt, clarified its holding that Counsel Clay had been referred to the KBA only for investigation as to whether Clay committed malpractice by indicating that additional Cabinet representatives were in contempt of Court without consulting with them first or calling them to testify, and reaffirmed its finding of contempt against the Cabinet based on the emails produced by the Cabinet which indicated the Cabinet – despite its awareness of the January 5^th order – refused to comply.

The Cabinet appealed, and the Appeals Court affirmed. The Appeals Court held that neither the Cabinet’s compliance with the January 5^th order prior to the entry of the May 8^th order of contempt, nor its argument that the Family Court imposed criminal contempt sanctions because they were not subject to purgation, barred the contempt finding. The compensatory penalty – that the Cabinet pay the attorney fees for Mother’s counsel and Child’s GAL – was appropriately within the scope of civil contempt, and the payment of the compensatory damages itself purged the contempt. Further, the Family Court’s referral of the individual cabinet workers and the cabinet counsel to the Commonwealth Attorney and the KBA, respectively, was neither a sanction for contempt nor improper. Thus, those individuals were not aggrieved by the Family Court’s orders. The Appeals Court ultimately found that the Family Court did not abuse its discretion in finding the Cabinet in contempt.

Carter Anderson

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The Commonwealth filed a motion for show cause order, alleging Mother had failed to pay her child support obligation. Mother admitted she had not made a payment since September 2017. She had quit her job and was unable to find other employment, was incarcerated from around the time she quit her job until November 2017, and was incarcerated from March 2018 to November 2018, when she was released and ordered to attend inpatient drug treatment in another matter. Family Court found Mother in contempt and ordered her to pay a purge amount of $500.00 or serve 90 days in jail, conditionally discharged for two years. Family Court stated on record that, “if I’m supposed to set a purge I think she can obtain, the only purge I could set would be zero . . . .” Family Court also refused to set attendance at the inpatient treatment program as the purge. Mother appealed.

First, Mother argued that Family Court erred in setting a purge amount Mother had no ability to pay, setting a deadline for the purge to be paid, and imposing a period of incarceration without means to purge. The Court of Appeals held that Family Court abused its discretion in setting the purge amount, because Mother could not pay it and, for civil contempt, the contemnor must have the ability to purge.

Second, Mother argued that Family Court erred in refusing to consider a non-monetary purge. The Court of Appeals held that Family Court did not so err, because trial courts have broad discretion to fashion compensatory remedies, and it was unclear that completing a substance abuse program would compel Mother to pay her child support obligation or compensate the Commonwealth. However, it also found no prohibition against the use of non-monetary purges.

Finally, Mother argued that Family Court erred in imposing a period of conditional discharge in civil contempt. The Court of Appeals held that Family Court did not so err, because it had not previously condemned conditional discharges in civil contempt.

Digested by Nathan R. Hardymon

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Trial Court revoked a conditional discharge of Father’s contempt sentence for failure to pay child support. On appeal, Father argued that the Trial Court erred when it denied his request to continue the final contempt hearing at which Father did not appear, by revoking the conditional discharge in Father’s absence, not setting an amount by which Father could purge his contempt, and failing to determine Father’s failure to pay was willful.

The Court of Appeals upheld the Trial Court’s decision. The Court found that Father had opportunity to request a purge amount, but failed to do so, and waived the right to present the defense he was unable to pay through no fault of his own when he admitted contempt. Additionally, the Court held that although the Court is required to inquire into reasons for failure to pay child support before the Court may revoke a conditional discharge based upon failure to pay, the Court is not required to imagine such reasons do exist “if the party charged with the violating conditions fails to assert proof of bona fide attempts to pay or fails to explain why his nonpayment was not willful.” Finally, the Court found that revocation of the conditional discharge was not a critical stage in the proceedings at which Father had a right to be present.

Digested by: Emily T. Cecconi

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“A court may only hold a child in contempt of court to enforce a valid court order previously issued by the court. KRS 610.010(11). It is manifestly unjust to subject a juvenile to sanctions for contempt, especially confinement in a detention facility, when the status offense case against her was effectively terminated without the entry of a valid written order regulating her future conduct. Additionally, the Breathitt Family Court found that C.S. committed “the public offense” of contempt of court even though the Juvenile Code is clear that contempt of court is not a public offense.”

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Trial court held Father in contempt, after hearing, for failing to pay child support. Trial court ordered incarceration of Father unless he purged the contempt by paying half of the overdue child support arrearage. Father appealed arguing on appeal that the court “erred by incarcerating him for contempt and setting a purge amount beyond his current ability to pay.” However, after filing his notice of appeal, half of Father’s overdue arrearage was paid, therefore, the Court of Appeals determined the contempt order was purged and the issue on appeal was moot.

Digested by Elizabeth M. Howell

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In the midst of a lengthy dependency, neglect, and abuse, case the family court held CHFS in contempt for failure to file the required case progress report per KRS 620.240 and failure to immediately obtain a pretrial conference date per FCRPP 34(1).

The Supreme Court begins its opinion with a lengthy explanation clarifying difference between civil and criminal contempt. Civil contempt is generally a sanction sought by the adverse party and subject to purgation through compliance. On the other hand, criminal contempt is imposed primarily to vindicate the authority of the court. Typically, a criminal contempt sanction is only appropriate if there is proof that a lawful and reasonably specific order was willfully violated.

The Supreme Court goes on to clarify that there could be a situation in which absent a specific duty set forth in a court order, a rule or statute creates a duty enforceable by contempt holding, “Where a rule or a procedural statute creates a duty clearly applicable to the instant proceeding and the obliged party violates the duty under circumstances that could reasonably be thought to show beyond a reasonable doubt that the violation was willful or openly disrespectful, then criminal contempt may well be an appropriate sanction.”

In Kentucky, show cause orders are typically used to initiate both criminal and civil contempt proceedings. The Supreme Court addresses the due process requirements a court must consider when exercising its power of criminal contempt. The court has nearly unlimited discretion in using contempt to assure court proceedings are orderly and proper. When a petty contemptuous action is committed in the court’s presence, notice and the opportunity to be hard are enough to satisfy due process concerns. Alternatively, if an alleged contemptuous action occurs outside of court, or is ambiguous, the show cause hearing should be conducted with the “safeguards constitutionally guaranteed for ordinary criminal trials.”

The Supreme Court also addresses the standard of review Appellate Courts should use for contempt. The standard of review used by the Court of Appeals in this case, granting the trial court nearly unlimited discretion, was not appropriate. When a court imposes substantial criminal penalties, the ordinary criminal judgment standard of review should be used by Appellate Courts.

Ultimately, the Supreme Court holds that the trial court’s order did not clearly apply the beyond a reasonable doubt standard, there was not sufficient evidence of willful violation of FCRPP 34(1), and there was insufficient evidence of a willful violation of KRS 620.240. Therefore, the Supreme Court remands the matter to the trial court for additional proceedings.

Family law and civil practitioners should note that in its dicta the Supreme Court urges the bench and bar to “become more mindful of criminal contempt’s constitutional ramifications.”

Digested by Elizabeth M. Howell

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The Appellate Court vacated and remanded the Family Court’s denial of a Motion for Contempt for Father’s failure to pay child support. The Family Court incorrectly placed the burden of proof on the Mother/obligee to prove an arrearage was owed. Once the child support obligation is established, the child support obligor, in this case Father, carries the burden of proof. The Family Court also failed to make the findings of fact required by CR 52.01.

Digested by Elizabeth M. Howell

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Published: Affirming

J.K. v. N.J.A.; Honorable Linda Bramlage,
Boone County Family Court Judge; and Honorable Bailey Taylor, 2012-CA-000897-ME

Published: Affirming

County: Boone

ISSUE:
Whether a man, with whom Mother admits having an affair and living with for
about fifteen months-until mere days before Child’s birth-is entitled to know
whether Child is his biological son.

FACTS:

Mother
gave birth to Child May 16, 2011. Mother claims that her Ex-Husband, with whom
she plans to remarry, is the father and listed him as such on Child’s birth
certificate. Despite an order from the Family Court compelling Mother to
undergo genetic testing for herself and Child, neither was tested due to
Mother’s maneuverings.  The
Family Court entered an order following a hearing on a paternity complaint by
Putative Father.

The Family Court found Mother in contempt of multiple  orders from the Family Court, which ordered
her to submit herself and Child to genetic testing by a later date or serve 180
days in jail. Mother refused to comply with the Family Court’s orders.

 ANALYSIS:

 Mother alleged that she and Child
should not have been ordered to complete the genetic testing because no state
action was involved; Putative Father did not qualify as such under KRS 406.21
and could not challenge paternity; Ex-Husband was presumed to be Child’s father
because Child was born less than five months before the parties’ divorce; the
Family Court’s order violated Mother and Child’s constitutional right to
privacy; and the Family Court should not have ordered the maximum contempt penalty
for Mother’s failure to comply with the court’s order.

 KRS Chapter 406 is the means by
which courts determine fatherhood. While a child born during lawful wedlock may
be presumed to be the husband’s child under KRS 406.11, that presumption is
rebuttable, so that a legal finding of paternity is not denied to a putative
father. KRS 406.091(2) mandates genetic testing upon a request of a party
supported by an affidavit. Putative Father in this case made such a request,
and it was the Family Court’s duty to order the genetic testing. Mother should
have requested written findings of fact and conclusions of law from the Family
Court regarding whether Putative Father qualifies as a putative father under
the statute and whether he had standing to assert a claim of paternity.
However, Putative Father presented sufficient evidence on the record that he
had sufficient access to Mother to make him Child’s father. Mother and Putative
Father lived together at the time of conception and engaged in sexual relations,
and Putative Father was present when Mother took a pregnancy test, which was
subsequently confirmed by a doctor. Mother told Putative Father repeatedly that
he was Child’s father during the pregnancy, and Putative Father provided Mother
with food, shelter, clothing and medical care during the pregnancy. Putative
Father also opposed abortion and adoption options when they were presented by
Mother. Thus, Putative Father had standing to challenge paternity and request
genetic testing. Holding otherwise would deny Putative Father the right to
prove his claim of paternity and deny Child the right to develop a relationship
with his biological father. Furthermore, Mother offered no proof that would
exclude Putative Father as a potential father of Child, especially since she
told an Ohio family court in proceedings with Ex-Husband that she was not
pregnant.

 Mother was ordered to complete
genetic testing on herself and Child on four separate occasions and violated
each order. The 180 day jail sentence for contempt was completely appropriate.
Her attempts to halt Putative Father’s claims and the fact that she could have
purged the contempt by complying with the Family Court’s order was sufficient
to uphold the sentence. Digested
by: McKenzie Cantrell, Attorney, of counsel, Diana L. Skaggs + Associates

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No.
2011-CA-001312-MR

Published:  Opinion reversing

County:     Barren

Stephen Stinson appeals from an order of
Barren Family Court holding him in contempt of an amended domestic violence
order for violating the no contact or communication provision.

Stephen
Stinson v. Tracy Stinson

No.
2011-CA-001312-MR

Published:  Opinion reversing

County:     Barren

Stephen Stinson appeals from an order of
Barren Family Court holding him in contempt of an amended domestic violence
order for violating the no contact or communication provision.

A decree dissolving the parties’
marriage was entered in November, 2009. 
In September, 2009, Tracy sought a DVO because Stephen’s telephone
calls, text messages, and other threats caused her to fear for her safety and
that of her children.  The court entered
an emergency protection order and scheduled a hearing the next month.

After the hearing on October 5, 2009, a
DVO forbidding Stephen from having any contact with Tracy was entered, to be
effective until October 5, 2012.  Stephen
was also required to complete domestic violence counseling and an alcohol and
drug education program and to provide the court with certificates of completion
by July 1, 2012.  He did not file the
certificates of completion.

Pursuant to the order entered October 5,
2009, the court reviewed the matter on August 17, 2010 with neither party
appearing in court. Stephen was held in contempt for failure to comply with the
terms of the DVO and he was sentenced to ten days in jail, suspended on
condition that he file the certificates by April 1, 2011.  The matter was set for review on May 10,
2011.  In a separate order, the court
entered an amended DVO providing for the new date for completion of the
programs and extending the amended DVO until October 5, 2012.  Two attempts to serve Stephen were returned
as undeliverable.

On February 25, 2011 Tracy filed a
domestic violence show cause order after she received a threatening letter from
Stephen.  Both parties appeared, without
counsel, on March 18, 2011.  The court
allowed Stephen to file an affidavit of indigency and subsequently appointed
the DPA to represent him.

At the rescheduled show cause hearing
held June 24, 2011, Stephen argued that since he had not been served with the
amended DVO, he could not be held in contempt for violating its terms, and that
the allegedly contemptuous behavior occurred after expiration of the original
DVO.  After hearing testimony from the
parties, the court found Stephen in contempt. 
He was sentenced to ten days in jail, suspended on the condition that he
purge himself of contempt by complying with the amended DVO.  This appeal followed.

Stephen contests entry of the original
DVO pursuant to the palpable error rule of RCR 10.26, arguing that Tracy failed
to establish that domestic violence had occurred or was likely to occur in the
future.  The Court of Appeals held that
Stephen’s failure to file a timely appeal from the original DVO precluded him
from contesting the original DVO in this appeal.

Stephen further argued that he could not
be held in contempt for failing to comply with the amended DVO because he was
never served.  Notice and service
requirements apply to all orders of protection issued pursuant to KRS 403.715
and KRS 403.785.  Until an individual has
been served with an amended DVO or notified of its existence and terms, there
can be no finding of a violation of its terms. 
Therefore, the June 24, 2011 contempt order was improperly entered and
must be reversed.

Digested by
Sandra G. Ragland, Diana L. Skaggs + Associates.

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No. 2009-SC-000442-DG on review of COA No. 2008-CA-001059-MR

Published:  Affirmed

County:     Laurel 

Howard v. Howard

No. 2009-SC-000442-DG on review of COA No. 2008-CA-001059-MR

Published:  Affirmed

County:     Laurel 

        The questions presented in this case include 1) whether a trial court could enforce through its contempt powers, an obligation to pay a creditor on a marital debt after the obligor received a post-decree bankruptcy discharge and his former wife failed to institute an adversary proceeding in bankruptcy court; 2) whether a motion for modification of child support was properly denied when child support established in divorce decree was based upon parent’s imputed income as a result of a finding of voluntary underemployment; and 3) an award of attorney fees.

        The parties’ divorce decree provided for joint custody of their minor child with husband required to pay child support calculated from his recent history of earnings as a federal prison guard.  Husband testified that the parties agreed he should quit his job at the prison because the wife was also employed there as a guard.  The wife denied making such an agreement.

        The decree also assigned to husband liability for a National City loan on a Dodge Durango which had been repossessed by the time of the decree.

        A little more than a year after the decree, husband filed a motion to reduce child support claiming changed circumstances, including health problems, inability to locate correctional work and filing for bankruptcy.  Wife countered with motion for attorney fees and to hold husband in contempt for failure to pay the debt on the repossessed Durango.  Wife acknowledged she received notice of the bankruptcy and that she did nothing to challenge discharge of the debts.  Husband admitted that under the decree, he was responsible for the Durango debt.

        The trial court found husband to be in contempt for failure to pay the debt on the Durango, denied his motion to modify child support, and ordered him to pay $500 of wife’s attorney’s fees.

        The Court of Appeals affirmed on all issues, as did the Supreme Court.

        With respect to child support modification, the court found that the standard for modification was not met because his affidavit did not definitively establish a material and continuing change of circumstances post-decree.  The court explained that KRS 403.212(2)(d) specifically states that a parent may be voluntarily unemployed or underemployed without finding that the parent intended to avoid or reduce the child support obligation.  In order to prevail, husband needed to show a material, substantial, and continuing change of circumstances existing post-decree which made him less capable of attaining his former income level than existed at the time of the decree.  The trial court did not find the requisite showing, the Court of Appeals agreed, and the Supreme Court affirmed.

        The trial court held husband in contempt for his failure to pay the loan on the Durango.  The bankruptcy statute was amended in 2005 to provide that a Chapter 7 discharge does not discharge a debtor from an obligation incurred in the course of a divorce or separation.  In addition, since state court has concurrent jurisdiction to determine the dischargeability of a debt, Kentucky state courts have jurisdiction to determine whether the husband’s obligation on the Durango was discharged in his bankruptcy.

        Following BAPCPA amendments to the bankruptcy statutes, a non-support divorce debt is excepted from discharge and there is no requirement that a spouse or child participate in the bankruptcy for the debt to be excepted from discharge.  Husband’s payments on the loan were part of the division of marital property and debts, even though in this case there was no hold harmless provision.

        Finally, the trial court is not required to make findings on financial resources when awarding attorney’s fees.  The statute requires only that the trial court must simply consider the parties’ finances before awarded fees.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

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