Divorce Law Journal

Criminal Contempt for Violation of Statute and FCRPP and Standard of Review: Ky Supreme Court Published Opinion

CABINET FOR HEALTH AND FAMILY SERVICES V. J.M.G., ET AL.

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.

 

Published Family Law Opinion from Ky Court of Appeals:Burden of proof that child support has been paid rests on obligors

SALLEE V. SALLEE

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

Contempt Affirmed for Failure to Submit to Genetic Testing to Determine Paternity, J.K. v. N.J.A., el al, Ky Court of Appeals

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

           

Stephen Stinson v. Tracy Stinson, Ky Court of Appeals, Contempt When Domestic Violence Order Not Served

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.

 

Howard v. Howard, Ky. S. Ct., Discharge of Marital Debt, Modification of Child Support Upon Continued Underemployment, Contempt, Attorney Fees

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.

 

Lanham v. Lanham, Ky COA, Civil v. Criminal Contempt, Findings re Civil Contempt

Lanham v. Lanham

2009-CA-001025-MR

Published:  Affirmed

County: Crittenden

Wife appealed from TC order holding her in contempt for failing to comply with divorce decree and order, arguing that she was denied due process and TC abused its discretion by failing to make specific finding that she had ability to comply with order; CA entered show cause order as to why Wife’s appeal should not be dismissed for Wife’s failure to name an indispensable party, the trial judge.

 

FACTS:

Parties’ MSA provided that Ex-Wife was to pay two separate bills.  Ex-Wife failed to pay the bills and the creditors began to pursue Ex-Husband for payment.  Ex-Husband filed motion for contempt and for restraining order against Ex-Wife, asking TC to restrain Ex-Wife from spending a Social Security back payment award which would be forthcoming to her, until the bills were fully paid or until a hearing could he held.  TC granted restraining order motion and scheduled hearing on contempt motion.  At the hearing, Ex-Wife claimed that she had only received $3,000 of the $20,000 Social Security payments and that those funds were needed to pay her medical bills.  TC scheduled another hearing and instructed Ex-Wife to provide a letter from her disability attorney with the status of her claim and a letter from the creditors regarding what amounts of payments they would accept. At the subsequent hearing, she provided a letter from the Social Security Administration re the status of her claim, but provided nothing from the creditor.  TC scheduled another hearing for Ex-Wife to show cause why she should not be held in contempt.  At the 3^rd hearing, she provided inconsistent testimony as to the amount of her monthly expenses, as to how much income she had outside of the back payments, and as to when she would receive her back pay installment payments (including disclosing a payment that was not but should have been disclosed to TC during 1^st hearing).  Ex-Wife stated she did not think she had to use Social Security payments to pay debts because she had other bills in her name.  She also admitted taking 2 vacations, and that she funded one with her Social Security money.  TC held her in contempt, imposing a 180 day sentence, probated on condition that she not spend any further back payment checks, that she give H’s counsel authorization to contact Social Security re her back payment checks and that she notify him upon receipt of the next check, and that she keep the court informed of her address and telephone number.  

 

Ex-Wife appealed, asking that the matter be treated as a criminal matter with expedited briefing; CA denied motion to treat as criminal matter but granted expedited briefing motion; CA also issued show-cause order to dismiss for failure to name an indispensable party, the trial judge.

 

ANALYSIS:

Failure to name judge as indispensable party:

CA noted that there is no rule or requirement to name a judge in a contempt appeal; but even if there was, as in a writ action, it would not be fatal to the action to fail to name the judge. 

 

Civil v. Criminal Contempt:

Civil contempt is failure to follow court’s orders in a civil action for the benefit of opposing party and its intended effect is to coerce compliance with orders; criminal contempt is party’s action that offends TC by obstructing justice or bringing disrespect to TC and its intended effect is to punish disrespect.  CA held that TC held Ex-Wife in civil, not criminal, contempt. 

 

Abuse of Discretion for lack of due process and failing to make a specific finding that Ex-Wife had ability to conform to Order:

CA held that TC did not abuse its discretion as Ex-Wife was in contempt in part for failure to bring documentation to court, which had nothing to do with her ability to pay; her counsel did not raise the defense of indigence; and even if he had, failure to make findings thereon would have been harmless as the record did not support such a defense.

 

TC affirmed.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

Family Law From Kentucky Supreme Court This Month

No published family law opinions were rendered. Discretionary review was granted in Cabinet for Health and Family Services v. Ivy. Our digest of the Court of Appeals opinion is here.  

Ivy v. Cabinet for Health and Family Services, et al, Ky COA, Child Support, SSI, Contempt

Ivy v. Cabinet for Health and Family Services, et al, 2009-CA-001279-ME

Issue:  Disabled SSI recipient held in contempt and ordered to pay child support or go to jail.

Published:  Reversed

County:  McCracken

Renee Ivy appeals from Order of McCracken Family Court holding her in contempt and ordering her to pay child support or go to jail for 30 days.  Court of Appeals reversed.

Ivy gave birth to D.G. on February 20, 2008 and on February 22, 2008 Larry Barnes filed a petition to establish paternity and child custody.  Ivy and Barnes were not married or in a relationship.  Ivy was in a relationship with Jonathan Knighten when D.G. was born.

On April 14, 2008, the trial court awarded joint custody to Ivy and Barnes and designated Barnes primary residential custodian.  Ivy was not awarded primary residential custodian of the infant because of her history of mental health issues such that she could have been declared disabled by the Social Security Administration with a representative payee appointed to handle her financial affairs.

On May 15, 2008, pursuant to the April Order, Barnes filed a notice of filing of petitioner’s wage information in which he said Ivy received gross income in 2008 of $637.00 from Social Security disability benefits.  The court used that amount to calculate Ivy’s child support and entered an Order setting child support at $106.00 per month.  Ivy did not request reconsideration or file an appeal.

At a hearing on August 26, 2008, Ivy testified that she was able to drive an automobile and also that she was pregnant.  At subsequent hearings, she testified that she had given birth to another child and that her bipolar condition was being controlled with medication.

On June 16, 2009 family court held a hearing on a motion to hold Ivy in contempt for failure to pay child support as ordered.  Kenneth Anderson of the county public guardian’s office, the official agency of the Social Security Administration appointed to provide assistance to Ivy, testified that she required supervision and her benefits are paid into a fiduciary account.  Anderson reported that Ivy’s income was $647.00 per month.  After disbursements for her rent and utilities, Ivy receives the balance, usually between $25.00 and $50.00 per month.  Ivy testified that she had no other income from which to pay child support.

The family court found that Ivy was capable of performing some work and her failure to make child support payments constituted contempt of court.  Her child support was reduced to $60.00 per month and an additional $5.00 to be applied to arrearage.  Ivy appealed.

Ivy argued that her due process rights were violated when the court failed to make a finding about her ability to pay, when the evidence was overwhelming that she had only $25.00 to $50.00 per month after payment of bills.  Citing Lewis v. Lewis, 875 SW2d 862 (Ky. 1993) the Court of Appeals noted that civil contempt charges must be related to the amount the defendant is able to pay and that it is unfair to compel the doing of an impossible act.  Since Ivy has only $25.00 to $50.00 per month for personal expenses, it is impossible for her to pay $60.00 per month in child support and $5.00 in arrearages.  The trial court’s finding was arbitrary, unfair, and an abuse of discretion.

The Commonwealth argued that since Ivy could drive a car or mow the yard, she could work to support her child.  The Court of Appeals disagreed, however, because Ivy had been denied custody of the child because of her disability and needed a representative payee to manage her finances.

Finally, since holding even a minimum wage job would generate sufficient income to disqualify Ivy for SSI benefits, a court order requiring Ivy to pay child support or else be in contempt essentially forces Ivy to forgo disability benefits.  Because the evidence established her disability and entitlement to benefits, the Order was arbitrary, unfair and an abuse of discretion.

The Order of McCracken Family Court holding Ivy in contempt and requiring her to pay child support was reversed because it was an abuse of discretion and in error. 

Judge Caperton, in a separate opinion, dissented, stating that “one who has the children incurs the obligation and owes support accordingly.”

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

A.C. v. Com., Ky COA, Due Process, Contempt, Juvenile Status Offenders

A.C. v. Com., 2009-CA-000714-ME  

Published:   Vacating, Remanding, and Denying Motion to Dismiss

County: JESSAMINE

 

Child appealed FC’s order finding her in contempt of court for violation of juvenile probation.

 

FACTS:

Parents filed “beyond control” juvenile complaint against Child in 2007, and Child requested formal hearing.  A proceeding occurred as a result of the Complaint, but evidence was not taken and the record does not reflect that Child admitted to being beyond control.  FC nonetheless found that Child was beyond control of her parents and entered a “Juvenile Status Offender Order” finding Child to be a status offender.  Child was ordered to serve 1 year of probation per the terms of the Order, which would end in June 2008.  During the probationary period, Cabinet filed a DNA petition with regard to Child, alleging physical and emotional abuse and neglect of Child by Mother and Stepfather.  During one of the early proceedings in the DNA case, Stepfather stated that Child needed to leave the home or he would.  In Child’s presence, FC asked Mother who she would choose.  When Mother failed to choose, FC placed Child with Father, ordered no contact with Stepfather, and allowed Mother supervised visitation.  At adjudication hearing, FC found Child to be abused and continued previous visitation orders.  DNA case was closed in September 2008.  Nonetheless, a March 2009 summons was issued to Father, requiring him to bring Child to court, and Cabinet filed a Motion to Review in the DNA action.  A hearing was heard on the Motion to Review, but FC focused on a contempt charge for alleged violations of her probation, despite the fact that the probationary period had expired.  Child had received no notice that the proceeding would address an alleged violation of her probation.  Child was not allowed counsel during this proceeding, despite the presence of all other counsel.  No evidence was introduced at this hearing and Child did not admit to the allegations against her.  FC admonished Child, revoked her probation, and order her placed with DCBS for no more than 30 days. 

 

ANALYSIS:

CA found that FC, amongst many other procedural irregularities, failed to hold a hearing on the original “beyond control” complaint as required for FC to find Child to be a Status Offender.  However, since no appeal was taken from that Order, CA was without jurisdiction to reverse the Order. 

 

CA further found that Child was not provided written notice of the specific grounds constituting her alleged probation violation prior to appearing in court. Furthermore, pursuant to KRS 610.265(3)(d) and KRS 610.060(2)(a), FC erred when it heard arguments from the Cabinet, the County Attorney, the GAL, and the attorneys for Child’s parents for more than five minutes during the hearing without Child’s counsel being present to represent her. However, Child was given the opportunity to speak with her attorney prior to FC finding her in contempt for violating the terms of her probation. Nonetheless, no evidence was taken on the alleged violations, and Child did not admit to them. FC also failed to provide a written statement as to the “evidence” it relied upon in support of its finding of contempt and its decision to revoke her probation.  Accordingly, the proceeding which led to Child’s detention was replete with due process violations. The order of March 12, 2009, must be vacated because FC had no jurisdiction to hold her in contempt once the 2007 status offense action expired pursuant to the terms of Child’s probation. 

 

FC’s Order vacated.

 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

 

 

 

Buddenberg v. Buddenberg, Ky COA, Domestic Violence Order, Contempt

Buddenberg v. Buddenberg  2009-CA-000274-MR

Issue:  Domestic Violence Order

Published:   Affirming in Part, Vacating in Part, and Remanding

County: Laurel

 

Husband appealed from DVO entered by family court (FC), prohibiting him from any contact with Wife and Children for three years, and from criminal contempt for willful violation of EPO. 

 

FACTS:

Husband and Wife lived in Ohio with Children, three girls ages 10, 6, and 4.  Wife moved to Kentucky with Children and filed for EPO.  In the Petition, Wife alleged that Husband had made threats against her, that he had  a pending criminal complaint regarding inappropriate communication with a 13 year old girl, that he had incestuous relationship with siblings as a child, and that he had been fired due to inappropriate internet contact with a young girl.  EPO was issued and scheduled a hearing, which was subsequently rescheduled because Husband had not been served.  After hearing FC granted a DVO on behalf of Wife and Children, gave temporary custody of Children to Wife, and directed that Husband have no contact due to his past misconduct. However, FC specified that custody and visitation orders could be modified by Ohio court in pending dissolution action. Finally, without making specific findings, FC held Husband in contempt of court for his violation of the EPO. On appeal, Husband argued that there was no evidence warranting DVO with respect to Children, that the extension of the DVO for three years was unreasonable given the pending dissolution action in Ohio, and that FC erred by holding him in contempt because he did not attempt to contact Wife or Children after he was personally served with the EPO.

 

ANALYSIS:

DVO as to Children:

CA acknowledged Wife’s legitimate concerns as to Children’s safety with Husband due to allegations in record that Husband engaged in “inappropriate” contact with juvenile girls, Husband admitting to sending inappropriate text messages to a 13-year old girl, Husband having  been fired from his employment due to viewing of pornography and sending inappropriate “chat” messages to juvenile girls, and Husband admitting that he had engaged in inappropriate contact with his sisters while he was a teenager. CA nonetheless found that there was no substantial evidence that Husband’s behavior meets the standard for granting a DVO with respect to the children, because there were no allegations that Husband has ever engaged in any inappropriate conduct toward his daughters and his actions involving other children did not rise to the level suggesting that he presents any imminent danger to his own children, and those concerns are better addressed as part of the custody proceedings in the dissolution action.  However, FC had jurisdiction to make emergency custody award to Wife in her DVO, which Husband did not contest.  CA therefore did not disturb custody and visitation orders.

DVO Three Year Duration: 

Once the court made a finding that grounds existed for entry of a DVO as to Wife, it had the authority to fix a period for the DVO to be effective for up to three years.  There are no statutory factors to be met in determining the duration of the DVO. CA held that while the evidence might have supported a shorter duration for the DVO, FC did not abuse its discretion. 

Criminal Contempt for EPO Violation:

CA noted that FC did not make any specific findings supporting its conclusion that Husband had intentionally violated the no-contact provisions of the EPO, and that there is no clear evidence in the record concerning when Husband was personally served with the EPO.  An EPO is not effective until the sooner of the time of personal service or when the respondent is given notice of the existence and terms of the order by a peace officer or the court.  TC might have concluded due to Husband’s contradictory testimony as to when he was served with the EPO that he made contact with the children after service. However, FC did not make such a finding.  Without definitive evidence that Husband had been served before he attempted to call the children, CA held that FC could not find beyond a reasonable doubt that Husband willfully violated the terms of the EPO.  CA also held that Husband’s mother’s contact did not amount to a willful violation of the EPO. Though EPOs and DVOs are typically interpreted to preclude both direct and indirect contact, including contact by third parties, this was not specified in the EPO.  Moreover, Wife informed FC that she expected that she had no objection to Husband’s mother’s contact.  CA held that even if Husband requested the contact, such did not amount to a willful violation of the EPO under the circumstances.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

 

Crowder V. Rearden, Ky COA, Civil Contempt

Crowder v. Rearden, __ S.W.3d __ (Ky. App. 2009)

    This is a companion appeal to Rearden v. Rearden, No. 2006-CA-002362-MR. 

   

Kimberly Joy Crowder, formerly Rearden, appealed from two orders, in which the trial court found her in contempt for failure to cooperate with the sale of the marital residence and for failure to pay her portion of the mortgage.  The trial court sentenced her to thirty days in jail.  She only served five days with work release and the remainder of the time was probated for two years.  Crowder also appealed the denial of her motion to alter, amend or vacate the contempt orders.  On appeal Crowder argued that 1) the court jailed her solely for nonpayment of the mortgage without determining her ability to pay, 2) her failure to comply with court orders was not the result of disrespect, but rather impossibility, and 3) the court did not require the husband to mitigate his damages. 

    COA affirmed, finding that the trial court was more than patient with Crowder and did not abuse its discretion in finding her in contempt for failing to obey multiple orders.  Crowder was found in contempt for failure to comply with a myriad of court orders, not just nonpayment of the mortgage.  The original order requiring her to pay the mortgage was based on a review of her finances as submitted in the mandatory case disclosure.  Crowder never challenged that order and allowed it to become final.  She also made three full mortgage payments on the residence.  Thus, the record shows she had the ability to pay.

The Court found Crowder’s mitigation of damages argument ironic at best.  She claims that the husband should have paid the mortgage to avoid having the house fall into foreclosure and damage his credit rating.  She made the argument while offering no proof that the husband could access enough funds to pay the full mortgage himself, the same thing she criticized the trial court for doing when holding her in contempt.  Crowder also failed to cite any case law that demonstrates a party is required to mitigate damages so a former spouse could avoid being held in contempt.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates