Opinion
NO. 2015-CA-000570-MR
02-03-2017
JONATHAN RAY GILLAND APPELLANT v. AMY ANNE GILLAND APPELLEE
BRIEF FOR APPELLANT: Karen E. Woodall Marion, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CALDWELL CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL, III, JUDGE
ACTION NO. 13-CI-00139 OPINION AND ORDER
DISMISSING
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BEFORE: ACREE, JONES, AND VANMETER, JUDGES. JONES, JUDGE: The Appellant, Jonathan Ray Gilland, brings this appeal to challenge an order of civil contempt entered against him by the Caldwell Circuit Court. The Appellee, Amy A. Gilland, has not filed a response. After this appeal was filed, Jonathan purged himself of the amounts he was ordered to pay to Mrs. Gilland as part of the contempt order. Accordingly, we have determined that this appeal must be dismissed as moot.
Judge Laurance B. VanMeter concurred in this opinion prior to being elected to the Supreme Court of Kentucky. Release of this opinion was delayed by administrative handling.
I. Background
Amy and Jonathan Gilland were married on August 24, 1991. They divorced on April 22, 2014. The parties entered into a Property Settlement Agreement, which the circuit court approved and accepted in an order entered on November 24, 2014. Under the terms of the Agreement, Jonathan was required to make several payments to Amy, including a payment of $525,000 (to be paid in three yearly installments of $250,000, $150,000 and $125,000, with the first yearly installment being due on December 1, 2014), weekly maintenance, and monthly child support until the parties' youngest child turned eighteen.
Jonathan's first yearly payment of $250,000 was due to be paid to Amy on December 1, 2014, less than two weeks after the court entered the property settlement agreement and less than a month after Jonathan had agreed to its terms. Jonathan failed to make this payment. He told Amy the reason for his failure to do so was that his loan applications were denied and he had been unable to sell his businesses. Amy responded to the missed payment by moving to have Jonathan held in contempt. Following a hearing, the circuit court entered an order granting a civil judgment to Amy with interest at the statutory rate of 12%.
Like the trial court, we find it somewhat perplexing why Jonathan would not have been aware of these facts less than a month earlier when he agreed to make the payment to Amy as part of the property settlement agreement both Jonathan and his counsel signed. --------
After Jonathan failed to satisfy the civil judgment, Amy once again moved to hold him in contempt. On March 17, 2015, the trial court entered an order which found Jonathan in civil contempt. The order sentenced him to incarceration for thirty days, but suspended the sentence provided that Jonathan made the full $250,000 payment by March 31, 2015. Jonathan moved for reconsideration, which was denied. On April 7, 2015, after a hearing on the motion for reconsideration at which Jonathan argued that he simply did not have the financial means to make the payment at this time, but could pay a smaller sum of $50,000, the court issued a bench warrant and Jonathan was arrested and jailed. Bail was set at $250,000. After Jonathan filed this appeal, we granted his motion for emergency relief. We ordered him to be released from custody and stayed further enforcement of the contempt order until resolution of his appeal.
While this appeal was being briefed, Jonathan was able to sell his interest in one of the businesses he co-owned. Jonathan used the funds from the sale to pay all three yearly installments due to Amy, the attorneys' fees he was ordered to pay to Amy's attorney, and all maintenance due to Amy through the end of 2017. It appears that Jonathan's next payment to Amy is not due until January of 2018.
II. Analysis
It is well established that a trial court has inherent power to enforce its judgments by means of the incarceration of a person who is found in contempt of a lawful order of the court. Lewis v. Lewis, 875 S.W.2d 862 (Ky. 1993). However, contempt power is an extraordinary use of a court's authority and carefully circumscribed. Id. The power of contempt cannot be used to compel the doing of an impossible act. Rudd v. Rudd, 214 S.W. 791 (Ky. 1919). In support enforcement cases, family courts are required to make findings of fact concerning a defendant's ability to pay his support obligation. Clay v. Winn, 434 S.W.2d 650 (Ky. 1968). The court can find a defendant in civil contempt only where the defendant is found to have a present ability to pay the obligation. To avoid civil contempt, "[a]n inability to comply must be shown clearly and categorically by the defendant, and the defendant must prove that he took all reasonable steps within his power to insure compliance with the order." Blakeman v. Schneider, 864 S.W.2d 903, 906 (Ky. 1993) (citing Campbell Cty. v. Kentucky Corr. Cabinet, 732 S.W.2d 6 (Ky. 1989)).
Jonathan asserts that the trial court erred in holding him in contempt and sentencing him to incarceration. His assertion is based on his contention that the trial court failed "to accept the undisputed proof of Jonathan's inability to pay the installment," thereby depriving Jonathan of his personal liberty. Before delving into the factual adequacy of the trial court's order, we must consider whether a case or controversy still exists. It is clear from the record that Jonathan satisfied all his outstanding obligations to Amy. Indeed, after selling his business, Jonathan paid Amy the sums already due her plus all maintenance payments for the remainder of 2016 and maintenance for the year 2017. Thus, it appears that this matter has become moot.
"A case becomes moot when a rendered judgment 'cannot have any practical legal effect upon a then existing controversy.'" Norton Hosps., Inc. v. Willett, 483 S.W.3d 842, 845 (Ky. 2016) (quoting Benton v. Clay, 233 S.W. 1041, 1042 (Ky. 1921)). "The general rule is, and has long been, that 'where, pending an appeal, an event occurs which makes a determination of the question unnecessary or which would render the judgment that might be pronounced ineffectual, the appeal should be dismissed.'" Morgan v. Getter, 441 S.W.3d 94, 99 (Ky. 2014) (quoting Louisville Transit Co. v. Dep't of Motor Transp., 286 S.W.2d 536, 538 (Ky.1956)).
Because Jonathan has purged himself of the amount he was ordered to pay, he is no longer subject to incarceration or other penalties under the contempt order he asks us to reverse. Reversing the circuit court's contempt order would have no practical effect in this case. Therefore, on the face of this appeal, we must conclude that Jonathan's claim is moot. This conclusion requires us to determine whether dismissal is appropriate.
While dismissal is the general response to a moot appeal, there are certain exceptions where we will review an issue that is technically moot such as: 1) where collateral consequences are still present such as a continuing loss of civil rights; 2) where the adverse party's voluntary cessation has mooted the appeal; 3) cases that are capable of repetition, yet evading review; and 4) cases of exceptional public importance. See Morgan, 441 S.W.3d at 99-100.
The only exception advanced by Jonathan in his brief is that this issue could arise again in the future if he misses a maintenance payment. Since Jonathan prepaid his maintenance through 2017, it will be some time before this issue could reassert itself. If the general issue does arise, it will almost certainly involve different amounts and different circumstances. We have no reason to suspect that if Jonathan did find himself before the circuit court on a contempt motion that the court would disregard the rather well established requirements set out by our Supreme Court in Lewis, supra, and more recently by the United States Supreme in Turner v. Rogers, 564 U.S. 431, 131 S. Ct. 2507, 2511, 180 L. Ed. 2d 452 (2011). We cannot issue an advance ruling directing the circuit court how to apply that well-established law at this point in time. Suffice it to say, we are confident that should it be called upon to do so, the circuit court will weigh the evidence and make appropriate written findings that support its conclusions. If it fails to do so, Jonathan can seek redress at that time. See Lete v. Lete, No. 2007-CA-001419-MR, 2008 WL 3550544, at *3 (Ky. App. Aug. 15, 2008) ("Imprisonment for contempt, is not inherently too short in duration to be fully litigated prior to its cessation.").
In essence what Jonathan seeks is a declaration from this Court that the circuit court cannot incarcerate him in the future for civil contempt if he lacks the ability to pay as he claims he did in this case. This is an advisory opinion, which we cannot give to him. If the issue of contempt arises in the future, the circuit court will have to consider the unique facts and circumstances that exist at that time and apply those circumstances to the law. At this time, however, we cannot, give Jonathan the relief he seeks. See Nordike v. Nordike, 231 S.W.3d 733, 739 (Ky. 2007) ("The Court will not render advisory opinions or consider matters which may or may not occur in the future.").
III. Order
There being no justiciable controversy, IT IS HEREBY ORDERED THAT THIS APPEAL IS DISMISSED AS MOOT.
ALL CONCUR. ENTERED: February 3, 2017
/s/ Allison Emerson Jones
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: Karen E. Woodall
Marion, Kentucky