Opinion
NO. 2019-CA-000437-MR
04-24-2020
ROBERT C. THOMAS APPELLANT v. PAMELA R. THOMAS APPELLEE
BRIEF FOR APPELLANT: C. Thomas Hectus Louisville, Kentucky BRIEF FOR APPELLEE: Gretchen C. Avery Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE TARA HAGERTY, JUDGE
ACTION NO. 17-CI-500912 OPINION
AFFIRMING
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BEFORE: COMBS, KRAMER, AND K. THOMPSON, JUDGES. COMBS, JUDGE: Robert C. Thomas appeals a post-dissolution order of the Jefferson Family Court entered in this divorce action dissolving his marriage to Pamela R. Thomas. Robert argues that the family court erred by finding him in contempt "for his destructive and spiteful behavior in contravention of the parties' settlement agreement." We affirm.
Pamela and Robert Thomas married in Jefferson County in 1975. They separated in February 2017, and Pamela filed a petition for dissolution of the marriage. After mediation, the parties executed a property settlement agreement on November 16, 2017. As part of the agreement, Pamela agreed to the dismissal of an emergency protective order; Robert agreed to remain 500 feet away from both Pamela and her property. Exceptions to the restriction on the couple's contact were to be limited to the exchange of property pursuant to the terms of the property settlement agreement. The family court's decree of dissolution was entered on November 30. It incorporated the terms of the parties' property settlement agreement.
On December 4, 2017, Robert filed a motion to show cause why Pamela should not be held in contempt. In his motion, Robert outlined a series of harangues that he alleged he had suffered as he attempted to collect his possessions from Pamela. Robert claimed that he was ultimately unable to gather all his things and sought to recover his travel costs and his attorney's fees in filing the motion.
On December 5, 2017, Pamela filed a similar motion. She alleged that Robert had failed to abide by the parties' property settlement agreement by removing from her home many items designated as hers alone. The family court scheduled a hearing for February 23, 2018.
On February 5, 2018, Pamela filed a motion requesting an order permitting her full access (over the course of two days) to the real property awarded to Robert so that she might collect her personal property therefrom. By order entered on February 16, 2018, Pamela was given authority to enter Robert's home and garage to gather her things. Robert was ordered not to interfere with removal of the designated property. By order entered on February 22, 2018, Robert was given similar access to Pamela's home and garage. Pamela was ordered not to interfere with Robert's removal of his property.
Following the hearing conducted on February 23, 2018, the family court ordered the parties to execute certain quitclaim deeds. Pamela was ordered to prepare a list of personal property that she wanted to remove from a barn and/or storage facility at Robert's property.
On March 27, 2018, Robert filed a further motion to show cause why Pamela should not be held in contempt. Following a hearing conducted on April 30, 2018, the family court ordered that Robert be permitted to remove an excavator designated as his from Pamela's real property. The court observed that it had been "shocked by the childish and spiteful behavior" of the parties. On July 31, 2018, Pamela filed another motion to show cause why Robert should not be held in contempt.
On August 14, 2018, the family court conducted a hearing on the parties' cross-motions for contempt. After hearing from the parties, the court concluded that Robert felt shorted by the terms of the parties' property settlement agreement and "sought to punish Pamela by removing, damaging, or destroying as much property as he could." It rejected Robert's justification of his removal of a utility sink, shelving, overhead garage-door openers, electric switches from ceiling fans, electric outlets, circuit breakers, and stairs from Pamela's barn as disingenuous. It found that Robert had acted willfully and in bad faith and held him in contempt. As a sanction, the family court ordered Robert to pay Pamela's attorney's fees. In addition, Robert was ordered to pay for the repair of an exterior barn door and the turf and driveway adjacent to the barn. He was ordered to pay the costs of replacing the overhead garage-door openers and the costs of repairing the circuit box. Finally, Robert was to pay for the professional inspection, cleaning, and repair (if necessary) of the pontoon boat and recreational vehicle awarded to Pamela. The court ordered Pamela to undertake a search for and turn over to Robert some legal documents; ethernet tools and TV parts; his grandmother's jewelry and some collectible figurines; a model tractor; a dinosaur egg; and some unspecified tools, parts, and supplies. The court rejected Robert's allegation that Pamela was in contempt of any court order. The court designated its order as final and appealable. The family court denied Robert's motion to alter, amend, or vacate. This appeal followed.
On appeal, Robert argues that the family court's order of December 26, 2018 "flies in the face of any concept of 'finality' of the [Property Settlement Agreement] and the Decree." He contends that he took from Pamela's home and barn only those things that he reasonably believed were his under the terms of the property settlement agreement and that the family court erred by concluding that he had acted in bad faith and by holding him in contempt. He argues that the court erred by leaving the calculation of Pamela's alleged expenses to her "unbridled discretion," and by failing to find Pamela in contempt. We disagree.
The courts of the Commonwealth have inherent power to punish individuals for contempt. Newsome v. Commonwealth, 35 S.W.3d 836, 839 (Ky. App. 2001). The Supreme Court of Kentucky has defined contempt as the willful disobedience of or the open disrespect for the court's orders or its rules. Id.
Contempt falls into two categories: civil and criminal. Civil contempt is distinguished from criminal contempt not by the punishment meted out but by the purpose for imposing the punishment. A.W. v. Commonwealth, 163 S.W.3d 4 (Ky. 2005). An individual who has refused to abide by a court's order has committed civil contempt. Newsome, 35 S.W.3d at 839. An individual has committed criminal contempt where his conduct has shown disrespect for the court's procedures; has obstructed the administration of justice; or has brought the court into disrepute. A.W., 163 S.W.3d at 11 (Cooper, Justice, dissenting). Criminal contempt includes those acts that obstruct the court's process or degrade its authority. When a court seeks to coerce or compel a course of action, the appropriate sanction is civil contempt. Id. However, when a court seeks to punish conduct that has already occurred or to vindicate its authority, the appropriate sanction is criminal contempt. Id.
When a court exercises its contempt powers, it has nearly unlimited discretion. Smith v. City of Loyall, 702 S.W.2d 838 (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." Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky. App. 2007) (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted)).
Robert willfully defied the court's orders by entering Pamela's property without the required notice and by removing, damaging, and destroying her property. Robert's behavior degraded the court's authority and demonstrated disrespect for the family court, and it concluded that Robert's conduct constituted criminal contempt. The court was not bound to accept Robert's testimony indicating that he uninstalled and removed overhead garage-door openers, electric switches, circuit breakers, and electrical outlets from Pamela's property only because he believed that the items belonged to him under the terms of the parties' property settlement agreement. The court's conclusion that this testimony was disingenuous and unconvincing is entirely reasonable.
Courts have a duty to protect their authority and dignity against contemptuous conduct. Marcum v. Commonwealth, 272 Ky. 1, 113 S.W.2d 462 (1938). When a court utilizes its contempt powers, its punishment should be reasonably related to the nature and seriousness of the offender's contemptuous behavior. Meyers, 233 S.W.3d at 216 (citing U.S. v. Conole, 365 F.2d 306, 308 (3d Cir. 1966)).
When the family court concluded that Robert's behavior was contemptuous, it was not rewriting or interpreting provisions of the parties' property settlement agreement. Instead, it was properly exercising its contempt powers. The family court's order requiring Robert to pay the attorney's fees incurred to bring the issue to the court's attention was a mild punishment. We conclude that this was not an abuse of discretion. Nor did the family court err by failing to find Pamela in contempt. We can find no authority indicating that a court is ever compelled to make such a finding under any circumstance.
Finally, there is no reason to presume from the family court's order that the costs incurred by Pamela to repair the barn door, the turf, and the driveway adjacent to the barn; to replace the overhead garage-door openers and to repair the circuit box; and the professional inspection, cleaning, and repair (if necessary) of Pamela's pontoon and R.V. would not be subject to the court's oversight. We reject Robert's assertion that these costs were improperly left to her "unbridled discretion."
Because the Jefferson Family Court did not abuse its discretion, its order is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: C. Thomas Hectus
Louisville, Kentucky BRIEF FOR APPELLEE: Gretchen C. Avery
Louisville, Kentucky