Opinion
NO. 2013-CA-001149-ME NO. 2013-CA-001229-ME
04-11-2014
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND ANGELA M. FERGUSON APPELLANTS v. RODERICK D. CALDWELL APPELLEE
BRIEF FOR APPELLANT: Lily K. Patteson Justin Wayne Young Louisville, Kentucky BRIEF FOR APPELLEE: J. David Niehaus Louisville, Kentucky
NOT TO BE PUBLISHED
APPEALS FROM JEFFERSON CIRCUIT COURT
HONORABLE DONNA DELAHANTY, JUDGE
ACTION NOS. 02-J-501192 & 04-J-501294
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. CLAYTON, JUDGE: This is an appeal from the denial of a Motion for Contempt in Jefferson Circuit Family Court. Based upon the following, we affirm the decision of the trial court.
BACKGROUND INFORMATION
A Motion for Contempt of Court was filed against the Appellee, Roderick D. Caldwell, on October 12, 2009, based upon an Order of Child Support entered by the trial court on November 13, 2009. The motion asserted that Caldwell had failed to pay child support for his children with the Appellant, Angela Ferguson. The motion also asserted that Caldwell had paid only $7,356.73 to Ferguson during the period of April 13, 2010, through September 24, 2012, when he should have paid $10,240.00.
On April 9, 2013, Caldwell appeared before the trial court and pleaded not guilty to the contempt motion. The trial court then appointed a public defender for Caldwell and scheduled a hearing for April 30, 2013. On that date, Caldwell requested a continuance of the contempt hearing to allow him to make additional timely weekly payments. The Commonwealth did not object, and the trial court continued the hearing.
On June 4, 2013, a contempt hearing was held before the trial court. The Commonwealth argued that Caldwell had not purged himself of the contempt and had, in fact, fallen even further behind in making his child support payments. At the hearing, Caldwell testified that he worked at Frisch's restaurant attending to the drive-through area. He also testified that he was under two other orders for child support in addition to the one at issue. The trial court found as follows:
The court takes judicial notice that Defendant has a current weekly child support obligation of $40.67 pursuant to a child born December 15, 2000 and a current
child support obligation of $50 per week pursuant to a child born March 27, 1998. Adding together the obligation to pay weekly child support for all four children results in arrears in the instant case for a weekly total child support obligation of $160.67 in child support and $10.00 toward arrears in the instant case for a weekly total child support due of $170.67. Defendant testifies that he works every hour that he is offered at his current employment and does work a 35 hour week unless his hours are cut. The Kentucky Child Support Guidelines assume a forty hour workweek, but were not applied to the Defendant to arrive at the current child support obligation, rather the parties made an agreement which has turned out to be impossible to meet on a minimum wage salary, even considering a forty hour work week.
Based upon these findings, the trial court found that Caldwell was not in contempt. Ferguson then appealed the trial court's finding.
STANDARD OF REVIEW
Our court reviews opinions regarding child support matters for abuse of discretion. Commonwealth v. Ivy, 353 S.W.3d 324, 329 (Ky. 2011). In determining whether there was an abuse of discretion, we must determine whether the trial court's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). With this standard in mind, we examine the ruling of the trial court.
DISCUSSION
We first address Caldwell's argument that the Commonwealth does not have the right to appeal this decision because this case arises from a criminal action. We disagree. This is an action arising from a civil contempt matter. In Commonwealth, Cabinet for Health and Family Services v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011) the court held that:
Contempt sanctions are classified as either criminal or civil depending on whether they are meant to punish the contemner's noncompliance with the court's order and to vindicate the court's authority and dignity, or are meant to benefit an adverse party either by coercing compliance with the order or by compensating for losses the noncompliance occasioned. Gormley v. Judicial Conduct Commission, 332 S.W.3d 717, 725-26 (Ky. 2010). Since this proceeding was meant to coerce Ivy's compliance with her child-support obligation and not to punish her, it was civil in nature.This action was meant to coerce Caldwell's compliance; therefore, this was a civil proceeding.
The Commonwealth's first argument is that the trial court was required to impute full-time employment to Caldwell and that it should be at least at the minimum wage of $7.25. The Commonwealth points us to the case of Gossett v. Gossett, 32 S.W.3d 109, 112 (Ky. App. 2000), in support of its position. In Gossett, a panel of our Court held that a trial court could impute more than one job if there had been a history of the spouse having two jobs. There is nothing in this case, however, that indicates Caldwell held more than one job in the past or that he was underemployed. It was certainly not an abuse of discretion for the trial court to hold that he was not.
The Commonwealth next contends that the trial court improperly credited Caldwell for latter-born children. It argues that Kentucky law does not allow obligors to receive credit for child support payments toward latter-born children when calculating the support order of prior-born children. Kentucky Revised Statutes 403.212(2)(g)(3) permits a deduction for support paid only toward "prior-born children who are not the subject of a particular proceeding." The Commonwealth asserts that the trial court's following reference "may have been considered" if it found that Caldwell was not in contempt:
The court is not going to find [you] in contempt today. I am finding that he doesn't earn enough money to make sufficient payments on a timely basis, and so he is not in contempt, he still owes the money. Mr. Caldwell, you have a great many children to pay child support for and from your testimony today that your income is insufficient to meet your child support payments.
There is only supposition on the part of the Commonwealth that latter-born children were considered, however, in the decision. This is clearly not an abuse of discretion by the trial court.
The Commonwealth's final contention is that the trial court improperly found Caldwell was entitled to the defense of impossibility in its finding of June 4, 2013. It argues that the record shows that Caldwell failed to take reasonable steps to ensure he was not underemployed and the record was sufficient to establish it was not impossible for him to comply. We disagree. The Commonwealth did not provide sufficient evidence that Caldwell was underemployed or that, given his skill set and employment history, he could have been employed for more hours at a higher rate of pay.
We hold that the trial court did not abuse its discretion in denying the motion for contempt filed by the Commonwealth. Thus, we affirm the decision of the trial court.
ALL CONCUR. BRIEF FOR APPELLANT: Lily K. Patteson
Justin Wayne Young
Louisville, Kentucky
BRIEF FOR APPELLEE: J. David Niehaus
Louisville, Kentucky