Opinion
NO. 2012-CA-000568-ME
05-17-2013
JOHN STEPHEN TELEK APPELLANT v. SAMANTHA DAUGHERTY, (NOW TAYLOR) APPELLEE
BRIEF FOR APPELLANT: Carl E. Knochelmann, Jr. Covington, Kentucky BRIEF FOR APPELLEE: Samantha B. Taylor, Pro Se Cincinnati, Ohio
NOT TO BE PUBLISHED
APPEAL FROM KENTON FAMILY COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 00-CI-00155
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES. LAMBERT, JUDGE: Thirteen years ago, John Telek initiated the underlying petition for custody and child support regarding his son, J.T., against J.T.'s mother, Samantha Daugherty (now Taylor). This is the fifth appeal taken by him in the course of this action. In this appeal, John contends that the Kenton Family Court erred in calculating child support and in holding him in contempt and that the family court should have recused. Finding no error, we affirm.
We shall spend some time detailing the factual and procedural history of this case, specifically related to the multiple appeals filed by John, as this history factors into our ability to review the issues raised in the present appeal.
John and Samantha never married, but were in a relationship that ended in January 1998. They have one son in common, J.T., who was born on August 16, 1997. He is now fifteen years old. On January 24, 2000, John filed a verified petition seeking custody of J.T. as well as child support. Shortly thereafter, John and Samantha moved the court to enter an agreed order that John was J.T.'s biological father. By a later agreed order, the parties agreed on a temporary basis to share joint custody of J.T., and John was to pay Samantha $520.00 per month in child support. The order noted that the cost of daycare was incorporated into the child support payment and that Samantha was to pay the daycare costs directly. The record does not contain a child support worksheet detailing the calculation of the amount ordered to be paid, but the order indicated that the amount was based upon Samantha's monthly income of $2,400.00 and her anticipated increase to $2,700.00, and John's gross earnings of $25,000.00 per year. On February 5, 2001, following a custody hearing the previous November, the court ordered joint custody, named Samantha as the primary residential parent, and provided parenting time for John. In addition, the court ordered John to pay Samantha $883.08 per month in child support, based on an income of $50,000.00 per year for John and $27,500.00 for Samantha. The calculation also included $455.00 per month for daycare costs and $95.58 per month in health insurance. Once J.T. entered school, a subsequent agreed order was entered on August 12, 2002, setting up vacation and parenting time, and modifying child support to $520.00 per month as of May 1, 2002. John was also ordered to pay an additional $20.00 per week toward his child support arrearage.
Throughout the proceedings, the parties have continually argued and litigated issues concerning custody, payment of child support, parenting time, how J.T. was being raised, J.T.'s relationship with Samantha's (now former) husband, and J.T.'s sports and school activities. The family court appointed a guardian ad litem (GAL) to represent J.T.'s interests in 2005. As time went by, the rancor between the parties escalated and John's child support arrearage continued to grow. A February 6, 2003, filing included a statement that his arrearage amount totaled $10,494.54 as of the end of January 2003 and was in excess of $16,000.00 by 2011. John has been held in contempt of court and sent to jail numerous times for failing to pay child support and other violations of the custody orders. In 2009, Samantha filed a petition for a domestic violence order (DVO) after an incident at J.T.'s football practice. The DVO was later reversed because the facts were insufficient to sustain it. See Daugherty v. Telek, 366 S.W.3d 463 (Ky. 2012); Telek v. Daugherty, 376 S.W.3d 623 (Ky. App. 2012).
John's first appeal was filed on November 13, 2008 (appeal No. 2009-CA-002149-ME). This appeal was taken from five orders entered between July and October 2008, which addressed whether John and Samantha should have shared parenting time, child support, irregularities in the proceedings, the court's directive that the parties enroll in the Family Wizard software program, contempt orders, and the award of attorney fees to Samantha's attorney. This Court rendered a decision affirming on April 2, 2010. See Telek v. Bucher, 2010 WL 1253473 (Ky. App. 2010)(2008-CA-002149-ME). In the opinion, this Court held that the family court did not commit any error or abuse its discretion in denying John's motion for a 50/50 parenting time schedule, noting the absence of any willingness on John's part to cooperate with or respect Samantha; in denying John's motion to reduce his child support obligation without completing a child support worksheet or any findings; in finding no showing of a material change in circumstances; or in finding John in contempt for violating guidelines for telephone contact with J.T. This Court further held that the family court did not act outside of its authority by requiring the parties to participate in parenting coordination with Dr. Jean Deters or in ordering the parties to purchase Family Wizard for $100.00 per year. Regarding this issue, the Court stated:
Telek contends that the software is unnecessary and not in the best interests of the child. The guardian ad litem argues that the software is a critical tool in assisting the court to supervise and enforce its custody determinations. Among other things, the software provides time-stampedId. at *5. The opinion became final upon the Supreme Court of Kentucky's denial of John's motion for discretionary review on November 10, 2010.
documentation regarding the parties' communication, allows the guardian ad litem and the trial court to monitor the parties' communications, provides interactive family scheduling and information management, and provides secure storage of medical history and emergency contacts. In light of the high degree of conflict present in this case, we agree with the guardian ad litem that the family court was within its authority and discretion to order the use of this software. As set forth above, along with parenting coordination, the Family Wizard software assists the trial court in supervising its orders and reducing excessive litigation through the facilitation of effective communication between the parties.
While the first appeal was pending, the proceedings below continued. Both parties filed motions to hold the other party in contempt for various reasons, including John's failure to pay child support, to enroll in Family Wizard, and to not interfere with Samantha's decisions. In August 2009, Samantha filed a petition for a DVO against John, which was granted in October 2009 in a separate case, as detailed above. By order entered August 27, 2009, the family court held John in contempt for failing to pay child support and arrearage amounts, for interfering with Samantha's parenting time, and for allowing his Family Wizard subscription to expire. The court sentenced John to time in jail, most of which was conditionally discharged. In addition, the court questioned whether joint custody could continue and instructed the GAL to file a motion requesting the court to review the custody arrangement. John filed his second notice of appeal in this case from the August 27, 2009, order on September 15, 2009 (appeal No. 2009-CA-001683-ME).
Shortly thereafter, the GAL filed a motion to modify custody, pursuant to the family court's instruction. John objected to the motion and moved the family court judge to recuse based upon bias and prejudice. The family court held a hearing on the motion on January 12, 2010. At the beginning of the hearing, the family court remarked that the motion to recuse had been filed the day before and denied the motion without discussion. By order entered January 14, 2010, the family court memorialized its oral ruling denying the motion to recuse and also denied John's motion to dismiss the GAL's motion to modify due to lack of standing. On March 5, 2010, the family court entered an order including its findings of fact and conclusions of law related to custody, and opted to treat an earlier motion by Samantha as a motion to modify custody. The court considered the parties' long history of disputes regarding custody, care, and control of the child, and ultimately awarded sole custody of J.T. to Samantha. In the same order, the court again denied the motion to recuse. The parties filed motions to alter, amend, or vacate, which the family court denied by orders entered May 4 and June 1, 2010. By separate order entered June 1, 2010, the court ruled on several outstanding motions including the modification of parenting time, permission to coach J.T.'s baseball team, contempt, and attorney fees. The court set up vacation times and approved John's request to coach J.T.'s team. The court also found John in contempt for failing to timely pay child support for December 2009 and February 2010 and ordered him to pay $350.00 in attorney fees on behalf of Samantha within thirty days. On June 30, 2010, John filed a notice of appeal from the August 27, 2009; January 14, 2010; March 5, 2010; May 4, 2010; May 20, 2010; and June 1, 2010, orders (appeal No. 2010-CA-001283-ME).
This is the same order that was appealed in appeal No. 2009-CA-001683-ME.
The disputes between the parties continued, leading to motions regarding telephonic communications with J.T., contact with Samantha's employer, child support, Facebook communications, and chaperoning a school trip. In September 2010, the GAL filed a motion to address many of these concerns, which the court ruled on in an order entered December 21, 2010. In December 2010, John filed a motion to amend the amount of child support owed to reflect the current earnings of the parties, noting that he had just started a job at FedEx. He also requested reimbursement for unincurred daycare expenses that had accrued to date, arguing that J.T. had not been in daycare since August 2002. In the motion, John stated that pursuant to the February 5, 2001, order, he was to pay 65% of the $105.00 weekly daycare costs, beyond his calculated child support payment. At the hearing held January 7, 2011, the parties discussed the child support amount and whether it included daycare costs. While John thought the current amount of support he paid included $255.00 to cover his portion of daycare expenses, Samantha pointed out that the original support amount was raised in 2001, then reduced in August 2002; in other words, the third order reduced the amount of support John owed because daycare had ended.
The family court ruled on the pending motions in an order entered January 20, 2011. Regarding child support, the court found that John earned $2,035.00 per month working full-time at FedEx and that Samantha earned $4,167.00 as a counselor at Newport Middle School. The court mentioned John's claim that he had been in a "money crunch" for several months and had been evicted, but recognized that he still lived at the same address and had not paid child support when he started with FedEx in November 2010. In addition, the court noted that John's arrearage amount exceeded $16,000.00. Based upon these findings, the court ordered John to pay $320.07 per month in child support effective December 9, 2010, and to be responsible for 33% of J.T.'s unreimbursed medical, dental, vision, and extracurricular activities expenses. John was also ordered to pay $175.00 per month against the arrearage amount. The court found that John had violated his conditional discharge and sentenced him to twelve days in jail. The court awarded Samantha an attorney fee of $500.00, to be paid within thirty days. The court also found John in contempt for failing to pay the previous $350.00 fee award. The court declined John's request to credit him for unincurred daycare expenses, stating: "A review of the Orders indicate that the initial child support order ordered an amount per month and indicated that it did include daycare expenses. However, the order that was entered in August of 2002, set the child support at $520.00 per month and makes no mention that daycare is included in the order." Finally, all communication between John and Samantha was to take place via Family Wizard.
John filed a motion to alter, amend, or vacate that order, in which one of the issues he raised addressed whether the child support amount set in 2002 included daycare expenses. By separate motion, John argued that being sentenced to jail time for his inability to pay child support was unfair and unreasonable. By order entered February 16, 2011, the court denied the pending motions to alter, amend, or vacate, but corrected the days remaining on John's conditional discharge. John filed his fourth notice of appeal on March 18, 2011, from the orders entered October 19, 2010; December 21, 2010; January 20, 2011; and February 16, 2011 (appeal No. 2011-CA-000524-ME).
At this juncture, we shall move to the procedural history of the three expedited appeals that were pending in the Court of Appeals by this time in the process. During the course of these appeals, John sought multiple extensions of time to file his appellate briefs and filed motions to consolidate, to hold the cases in abeyance, for intermediate and emergency relief, and to supplement the record. The appeals were consolidated in March 2011, and the consolidated brief was due to be filed on May 31, 2011. After a series of orders granting John's motions to abate, this Court denied John's motion to stay the appeal and ordered him to file a brief by January 5, 2012. John filed a motion to clarify and hold the appeals in abeyance, which was denied on January 9, 2012. The Court ordered John to file his brief by February 8, 2012, and warned that John's "failure to file the brief in the time given shall result in referral of the appeals to a panel of this Court to consider dismissing the appeals." On February 9, 2012, John filed another motion to supplement the record and for additional time to file a brief. In an order entered March 13, 2012, the Court denied the motion to supplement and ordered John to file a brief within fifteen days (March 28th), warning that John's "failure to file a brief in substantial compliance with CR [Kentucky Rules of Civil Procedure] 76.12 within 15 days of the date of entry of this order shall result in the dismissal of the three above-captioned appeals." (Emphasis in original).
On March 22, 2012, John filed a fifth notice of appeal (the above-styled appeal), and on March 27, 2012, he moved to consolidate the new appeal with the three pending ones and for extension of time to file a brief. By order entered May 1, 2012, a three-judge panel of this Court dismissed the three consolidated appeals, and denied the motion to consolidate as moot. In the order, the Court set forth the procedural history of the appeals and stated that the appeals were being dismissed "for failure to prosecute the appeals in substantial compliance with the Rules of Civil Procedure." The Court denied John's motion to reconsider the order of dismissal, and the Supreme Court denied John's motion for discretionary review on February 13, 2013. The dismissal order became final on February 25, 2013.
Accordingly, John is procedurally barred from raising any of the issues that were either previously decided or were included in the dismissed appeals in the present appeal.
We shall now return our attention to the procedural history below. On June 1, 2011, less than three months after John filed his fourth notice of appeal, Samantha filed a motion to modify custody to grant John sole custody of J.T. and for a review of child support. In the affidavit attached to the motion, Samantha stated that she had "been the focus of obsessive harassment and hostility" by John for more than ten years, causing her stress and costing her "unconscionable amounts of money." She did not believe she could obtain any relief through the court system. Regarding John's child support arrearage, she asked that her support payments be suspended until the arrearage was paid in full and that any portion of J.T.'s expenses assigned to her be deducted from the arrearage amount. She also indicated that she would be changing jobs and losing her health insurance. By agreed order entered September 7, 2011, the family court awarded sole custody of J.T. to John and set up a parenting time schedule. The issue of child support was reserved.
On September 23, 2011, the family court held a hearing on the child support issue. By this time, John's child support arrearage was $16,369.92. John did not object to this amount being correct. Regarding the parties' current income, the court indicated that it would need to take sworn testimony from the parties. However, John had not filed his 2010 tax return, and Samantha stated that John had kept his job at FedEx for only three weeks. Samantha's income had been significantly reduced; she started a new job in mid-June. However, she was willing to have the court use John's prior income and base her income on her current paycheck stub. The court asked Samantha about how she was paid, and she explained that she was paid 60% of what she billed for each client. When John asked that the parties be sworn, the court responded that they "would get to that." John, in turn, reminded the court that Samantha had earned $50,000.00 per year when she worked for Newport Middle School and asked if the court planned to use that amount in the calculation. The court indicated that the parties could return to litigate that issue if they found something different. Samantha stated that her monthly earnings were $2,061.00 and suggested that John's monthly income should be $2,035.00. The court asked the parties, "Are we going to go with these numbers?" In response, John's attorney stated, "Okay, judge, we'll do that." Samantha's attorney filled out the child support worksheet, received approval from John's attorney, and gave the form to the court. Based upon this calculation, the family court ordered Samantha's child support obligation to be $291.00 per month.
Turning to the arrearage issue, the court first calculated that Samantha's child support obligation for the next four years, until J.T. reached the age of eighteen, would be $4,092.00 per year. John contended that he needed cash flow as the parent with custody and suggested that he pay $175.00 per month towards the arrearage and that his obligation would survive J.T.'s eighteenth birthday. Samantha disagreed, pointing out that John would not pay his own child support obligation, even if it meant going to jail, and would not pay once J.T. turned eighteen. She reminded the court that she had lived through a decade of child support issues and had raised J.T. almost exclusively without child support. John had never contributed to extracurricular activities, medical expenses, or any extra expenses that had come up for J.T.
The court indicated that it needed a printout from the child support office to get the exact amount of John's arrearage as of September 7, 2011, the date John was awarded sole custody. Regarding the legal issue of how to address the arrearage, John's attorney agreed that no evidence was necessary, and the court stated that it was within its discretion as to how to address the issue. The family court gave Samantha a dollar-for-dollar credit for her $291.00 per month child support obligation. The court also made Samantha responsible for 51% of unreimbursed medical, dental, vision, and extracurricular expenses, but provided her with a $600.00 per year credit on those expenses. This would result in a zero balance on John's arrearage at the end of four years. In making this decision, the court indicated that it was the fairest result in light of the fact that Samantha would have been receiving 12% interest on the arrearage amount had the arrearage been reduced to a judgment, which she would not be receiving under this ruling, making this more favorable to John. The family court entered an order on November 8, 2011, memorializing its oral ruling and indicating that John's arrearage was $16,433.93, less any unaccounted credits awarded to him.
John filed a motion to alter, amend, or vacate the November 8, 2011, order, arguing that the court should have imputed income to Samantha and that the ruling was based upon unsworn assertions that Samantha was working part-time. He also requested that the court reduce the arrearage credit to allow him some cash flow. Samantha moved the court to hold John in contempt due to his interference with her parenting time, calling the police to her house, refusing to use Family Wizard, and failing to pay the earlier $500.00 attorney fee award. The court held a hearing on December 6, 2011, at which John continued to argue that the court should have used Samantha's old income and provided him with cash flow, thereby abusing its discretion, because the result was not in J.T.'s best interest. The court denied John's motion, noting that John had accrued one of the largest arrearage amounts on the docket and that John could not produce information about his own income because he had failed to file his taxes. The court denied the motion to alter, amend, or vacate both orally and by order entered December 28, 2011. The court also scheduled a hearing on Samantha's motion for contempt, which was to be held January 27, 2012. In his response to Samantha's motion, John argued that he could not afford Family Wizard without cash to pay for it and that it was not an effective program. He noted that the attorney fee issue was on appeal, but also argued that he did not have the ability to pay the fee. By separate motion, John moved the family court to eliminate the requirement that the parties communicate only through Family Wizard, but permit them to use text messages and regular e-mail, noting the change in circumstances since the original order was entered.
At the January 27, 2012, hearing, the family court considered Samantha's motion first. After the court swore in the parties, Samantha reported that she had never received the attorney fees that John was to have paid by January 20, 2011; John stated this issue was on appeal. She also reported that John said he was no longer going to use Family Wizard and that the account had been suspended. Furthermore, she asked that John not interfere with her parenting time. On cross-examination, Samantha stated that she still wanted to use Family Wizard, noting that it included time stamps when messages were read, permitted the parties to note expenses, and allowed more control for communication. She also noted that this was on appeal. On examination by Samantha, John testified that he was self-employed and could not afford Family Wizard. However, he reported that he still had two jobs; one at FedEx and another one at the Newport Independent School system. John objected to additional parenting time for Samantha on Thursdays, believing that would not be in J.T.'s best interest and that it was too soon for her to change her mind. He also did not agree with J.T. going to Samantha's former husband's house.
On examination by his attorney, John reported that he was not getting any hours at either of the two jobs he had, noting one was seasonal and the other was a fill-in position. He discussed the income he made during November and December when he was working, and that he also performed carpentry contracting work. He had moved to Anderson Township to live with a family member because he had been evicted from his apartment in Edgewood. John testified that he did not pay the attorney fee award, stating that he had bills to pay, child support to pay, and had to repay money he had borrowed from family members. Regarding Family Wizard, John stated that his annual subscription ended in October, and he did not have the money to pay the renewal fee. He stated that he had full custody of J.T. at that time and had been receiving no support. John denied that Family Wizard provided any benefit, stating that Samantha rarely used it and only occasionally responded to his messages. He stated that Family Wizard provided nothing that a regular e-mail account could not do and was difficult to access. He then detailed his problems with Samantha's former husband. The GAL stated that Family Wizard was cumbersome to use, but he was cut off from monitoring the parties' communication without it.
At the conclusion of the testimony, the court issued its ruling on the record. The court declined to change the parenting time, noting that the deal between the parties had only recently been made. However, the court indicated it believed the change in custody was a mistake and reluctantly signed the agreed order, noting that now John was "armed" with the authority of custody to do whatever he wanted, which is what he had done throughout the proceedings. Regarding Family Wizard, the court held John in contempt for not renewing the program, noting that John had appealed this issue to the Court of Appeals and the ruling had been affirmed. John had asked the family court to cancel the program several times, all of which were denied. The program only cost $110.00 per year, and the GAL needed Family Wizard to monitor the parties' communications. The court ordered John to renew the subscription by next Friday, or he would be jailed. On the issue of attorney fees, the court stated that the requirement that John pay as ordered had not been stayed by the appeal as no bond had been set. The court found that John's income showed he could have paid it, held him in contempt for failing to pay, and ordered him to pay the fee award by Friday. The court also issued rulings regarding interference with Samantha's parenting time, ordering the parties to not call the police about disputes between them, but rather file motions with the court. The court also found that John had interfered with Samantha's parenting time by picking up J.T. at Chris Bucher's house. However, the court did not find John in contempt for either of these violations. The court awarded Samantha attorney fees in the amount of $500.00 and ordered John to pay the fees in thirty days. Based upon these rulings, John agreed that his motion was moot. The court denied his request for attorney fees.
The court issued its findings of fact and order memorializing its rulings on February 8, 2012. Specifically related to the contempt findings, the court found that "[i]t is clear under the evidence regarding [John's] finances regarding household expenses and income through 2011 that he had the funds to pay the [attorney fee award] order." The court also noted that John had taken "the law into his own hands and in effect overruled this Court's decision and dropped the [Family Wizard] program." For his contempt, John was sentenced to thirty days in the county jail, with twenty-seven days discharged on the condition that he re-enroll in Family Wizard by a certain time. He was also sentenced to thirty days in jail for failing to pay the attorney fee award, with twenty-three days discharged on the condition that he pay the attorney fees in full by February 3, 2012, at 5:00 p.m. The order also directed that neither party was to ever call the police about disputes between each other related to any issue in the case. Instead, the parties were directed to file an appropriate motion with the court.
On February 10, 2012, Samantha moved the court to revoke John's conditional discharge for his failure to pay the $500.00 attorney fee award. John responded to the motion, explaining that the funds had been given to his attorney prior to the deadline to be placed into the escrow account, and that a check had been mailed to Samantha. John also filed a motion to alter, amend, or vacate the February 8, 2012, order in which he continued to dispute the benefit of Family Wizard. He asked the court to make specific findings concerning how he had the ability to pay the subscription fee in addition to his other court-ordered expenses. John also argued that the award of $500.00 in attorney fees was excessive and the request was not supported by an affidavit from Samantha's attorney.
The court held a hearing on the pending motions on February 21, 2012. At the hearing, the parties discussed the payment of the $500.00 attorney fee award pursuant to the conditional discharge order. They also discussed whether John had subscribed to Family Wizard. In a docket order entered February 21, 2012, the court ordered John to pay Samantha's attorney $200.00 in fees within thirty days. John moved to alter, amend, or vacate the order awarding fees, arguing that the payment of the fees had been stayed by his previous motion and because it had been entered without a hearing or any findings of fact. The court denied the pending motions by docket order entered March 6, 2012.
This appeal from the February 8, 2012, and the February 21, 2012, orders now follows. John did not list the March 6, 2012, order in his notice of appeal.
In his brief, John raises three arguments: 1) the family court erred in calculating child support; 2) the family court erred in finding him in contempt; and 3) the family court should have recused from the case. Samantha, proceeding pro se, has filed a brief in response.
The first issue this Court shall address is John's argument related to child support. John contends that the family court erred in failing to give him a credit against his arrearage for all unincurred day care expenses, in failing to base Samantha's child support obligation on her total income, and in giving Samantha a dollar-for-dollar credit against his arrearage.
In general, our standard of review in child support issues is well-settled in the Commonwealth:
Our review of child support awards is governed by the abuse of discretion standard. Plattner v. Plattner, 228 S.W.3d 577, 579 (Ky. App. 2007). Discretion is abused only when a trial court's decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001). We will disturb a trial court's findings of fact only if they are clearly erroneous. Wilhoit v. Wilhoit, 521 S.W.2d 512, 513 (Ky. 1975).Holland v. Holland, 290 S.W.3d 671, 674 (Ky. App. 2009).
Here, we must reject John's arguments related to the family court's ruling on child support. His argument that he should receive a credit for unincurred daycare expenses was ruled on by the family court in the January 20, 2011, order, which was one of the orders appealed by John in the fourth appeal (appeal No. 2011-CA-000524-ME). That appeal was dismissed by this Court, along with two other appeals, in May 2012, and the dismissal became final upon the denial of John's motion for discretionary review in February 2013. Therefore, John is procedurally barred from seeking review of this ruling, and we reject his attempt to bootstrap the issue into the current appeal.
Similarly, we reject John's argument related to Samantha's income. He contends that her income was based upon unsworn assertions that she was only working part-time. However, a review of the September 23, 2011, hearing reveals that the family court specifically sought approval from John's attorney to use $2,061.00 as Samantha's current monthly income, and his attorney specifically stated on the record that he was alright with using that amount and approved the completed child support worksheet which included that amount. Therefore, John has failed to preserve this issue for our review, and we shall not consider that argument.
Finally, John argues that the family court abused its discretion in providing Samantha with a dollar-for-dollar credit against her child support obligation, arguing that this was not in J.T.'s best interest. Again, we do not perceive any abuse of discretion on the part of the family court, in light of the large amount of arrearage that was owed to Samantha, meaning that when she had sole custody, she was forced to raise J.T. without the benefit of a regular child support payment from John.
For his second argument, John contends that the family court erred in finding him in contempt for failing to maintain his Family Wizard subscription or pay the $500.00 attorney fee award without making supportable findings that he had the ability to pay those costs, and for ordering him to never call the police.
Contempt is the willful disobedience toward, or open disrespect for, the rules or orders of a court. "Contempts are either civil or criminal." Gordon v. Commonwealth, 141 Ky. 461, 463, 133 S.W. 206, 208 (1911). Civil contempt consists of the failure of one to do something under order of court, generally for the benefit of a party litigant. Examples are the willful failure to pay child support as ordered, or to testify as ordered. While one may be sentenced to jail for civil contempt, it is said that the contemptuous one carries the keys to the jail in his pocket, because he is entitled to immediate release upon his obedience to the court's order. Campbell v. Schroering, Ky.App., 763 S.W.2d 145, 148 (1988).Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996). Regarding a court's contempt power, in Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky. App. 2007), this Court stated:
When a court exercises its contempt powers, it has nearly unlimited discretion. Smith v. City of Loyall, 702 S.W.2d 838, 839 (Ky. App. 1986). Consequently, we will not disturb a court's decision regarding contempt absent an abuse of its discretion. "The test for abuse of discretion is 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) (citations omitted).John also cites to Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011), to argue that before a party may be held in contempt for the nonpayment of money, the court must make specific findings regarding that person's ability to pay and intent to disregard an order of the court. However, we note that Marshall addressed the revocation of probation or conditional discharge from a conviction for flagrant nonsupport, based upon the failure to pay child support.
First, we reject John's attempts to argue that he should not be required to use Family Wizard. As the family court pointed out, John's multiple requests to end the requirement that the parties use this program had continually been denied, and the Court of Appeals upheld the family court's order in the first opinion. Furthermore, we disagree with John's assertion that the family court ignored the facts when it found that he had sufficient funds to pay either the Family Wizard subscription fee of $110.00 per year or the $500.00 attorney fee award. In his response to Samantha's interrogatories, John sets forth the amounts he was earning during 2011, and while some months showed little income, some months showed that he had earned several thousand dollars. Therefore, we hold that substantial evidence of record supports the family court's finding that John had sufficient funds to pay both the Family Wizard subscription fee and the attorney fee award, and therefore the court did not abuse its discretion in holding John in contempt. Based upon this ruling, we also uphold the family court's award of an additional $200.00 in attorney fees. We also note that one of the rulings John appealed in the fourth appeal was the denial of his motion in which he questioned whether he could be sentenced to jail time for his inability to pay child support.
We also decline to find any abuse of discretion in the family court's order that the parties were not to call the police. The family court specifically stated that the parties were not to call the police "about disputes between themselves regarding any issue in this case." Such an order would prevent a repetition of John calling the police over an iPod during a parenting exchange with Samantha.
For his last issue, John requests that we review the family court's order denying his motion to recuse. Again, this issue is not properly before this Court, as the orders ruling on this motion were the subject of John's third appeal, appeal No. 2010-CA-001283-ME, which was dismissed in May 2012. We also note that John never sought recusal through a motion to the Supreme Court of Kentucky.
For the foregoing reasons, the orders of the Kenton Family Court are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Carl E. Knochelmann, Jr.
Covington, Kentucky
BRIEF FOR APPELLEE: Samantha B. Taylor, Pro Se
Cincinnati, Ohio