Opinion
NO. 2013-CA-000084-MR
05-09-2014
FRANK YORK APPELLANT v. AMANDA YORK BOGARD APPELLEE
BRIEFS FOR APPELLANT: Frank York, Pro se Shepherdsville, Kentucky BRIEF FOR APPELLEE: Dean H. Sutton Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 11-CI-00193
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES. ACREE, CHIEF JUDGE: Frank York appeals from a Bullitt Circuit Court order holding him in contempt of court for failing to pay child support. We affirm.
Frank and Amanda York were married in 2000; they have one minor child born in 2003. The couple separated in 2010, and Frank filed a petition for legal separation in 2011. They participated in mediation and reached a full resolution of their case. On July 5, 2011, the parties and their attorneys signed an agreed order making the mediation agreement an order of the court. The agreement provided that the child was to reside with Frank Mondays through Thursdays, and with Amanda Fridays through Sundays. Frank receives a monthly Social Security disability check; due to Frank's disability, the child also receives a Social Security check in the amount of $536. Frank is the representative payee for the child. The agreed order called for Frank to pay to Amanda one-half the amount of the child's check every month, after paying a small premium on an insurance policy for the child. This payment was henceforth characterized by the parties as child support.
Six days after entry of the order, Frank filed a pro se motion disputing his child support obligation, stating that he had the child "about 57% of the time." Amanda moved the court to dismiss Frank's motion, for amendment of the parenting schedule, and to hold Frank in contempt of court for violating the terms of the agreed order. Frank filed another motion with a letter attached from the Office Manager of the Elizabethtown Social Security Administration which stated that under federal law, the circuit court did not have the authority to order Frank to use or direct payment of the child's Social Security benefits, and that if Frank did so, he could violate his duties as a representative payee.
On November 22, 2011, following a hearing, the trial court entered an order which held in pertinent part that Frank had voluntarily entered into an agreement to pay a sum of money, and that he had ample resources available through separate employment to pay the sum of money agreed upon outside the Social Security benefits he received for the child. The trial court also denied his pro se motion for a modification of custody, finding that he had failed to set forth any of the statutory grounds for such a modification. The trial court refused to hold Frank in contempt for refusing to make the payments, however, on the grounds that he had relied on the letter from the Social Security administrator.
Frank filed a motion for reconsideration and to modify child support on the basis that Amanda was now employed; Amanda filed a motion seeking to have him held in contempt for violating the November 22 order. On January 13, 2012, the trial court entered an order finding that the child support arrangement was the result of a mediated agreement negotiated by both parties and their separate counsels; that at the time the agreement was signed, Frank was aware that Amanda would be seeking employment; and that both parties had knowingly agreed to deviate from the guidelines when the agreement was mediated. The trial court accordingly denied Frank's motion for modification of child support, and ordered him to begin complying with the order, and to pay Amanda $842 in arrears.
On February 6, 2012, Frank filed a notice of appeal from the November 22, 2011 and January 13, 2012 orders. The appeal was never prosecuted, however, and on March 26, 2012, Frank filed a motion to dismiss the appeal, which was granted by this Court on May 9, 2012.
On April 17, 2012, the county attorney filed a motion on behalf of Frank and the Commonwealth Cabinet for Health and Family Services, to intervene, modify child support and establish an arrearage and repayment plan. Amanda filed another motion to hold Frank in contempt of court for failing to comply with the agreed order. On October 12, 2012, the trial court entered an order denying the Commonwealth's motion to modify on the grounds that the court had already addressed the identical issues in its order of January 13, 2012, and the Commonwealth had set forth no new evidence other than that the arrangement deviated from the guidelines.
On December 20, 2012, following a hearing, the trial court issued an order finding Frank in contempt of court for failing to pay child support. The court calculated that Frank owed Amanda $1,415 through December 2012. He was sentenced to ninety days in the Bullitt County Detention Center, but was given the opportunity to purge himself of the contempt by paying Amanda $310 on December 5, 2012, and by paying the balance of $1,105 on December 7, 2012. This appeal by Frank followed.
Frank argues that he should not have to pay the amount of child support specified by the settlement agreement because their child sleeps at his residence four nights per week and at Amanda's residence three nights per week. He argues that requiring him to pay Amanda an amount equivalent to one-half of the child's Social Security check is an impermissible deviation from the child support guidelines.
These arguments are barred from our consideration because the order from which Frank is appealing did not address any of these issues. Frank failed to appeal from the earlier orders of November 22, 2011, January 13, 2012, and October 12, 2012, which did address the child support issue and the validity of the settlement agreement. These orders have now become final. See Kentucky Rules of Civil Procedure (CR) 73.02. The order from which he is appealing did not address modification issues, or in any way question the terms of the settlement agreement. "It is an unvarying rule that a question not raised or adjudicated in the court below cannot be considered when raised for the first time in this court." Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011) (internal citation omitted). Although the trial court certainly did consider these issues on numerous earlier occasions, and entered orders accordingly, the order from which he appeals is concerned only with ruling on the motion to find Frank in contempt of court.
Thus, the scope of our review is limited to considering whether the trial court abused its discretion in finding Frank in contempt of court, and ordering him to pay the child support arrears. "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999) (internal citations omitted).
In a civil contempt proceeding, the initial burden is on the party seeking sanctions to show by clear and convincing evidence that the alleged contemnor has violated a valid court order. If the party is seeking compensation, it must also prove the amount. Once the moving party makes out a prima facie case, a presumption of contempt arises, and the burden of production shifts to the alleged contemnor to show, clearly and convincingly, that he or she was unable to comply with the court's order or was, for some other reason, justified in not complying. This burden is aCommonwealth, Cabinet for Health and Family Serv. v. Ivy, 353 S.W.3d 324, 332-333 (Ky. 2011).
heavy one and is not satisfied by mere assertions of inability. The alleged contemnor must offer evidence tending to show clearly that he or she made all reasonable efforts to comply. If the alleged contemnor makes a sufficient showing, then the presumption of contempt dissolves and the trial court must make its determination from the totality of the evidence, with the ultimate burden of persuasion on the movant.
There was no dispute that Frank had violated numerous court orders directing him to pay to Amanda a monthly sum equivalent to one-half of the child's Social Security check, minus the insurance deduction, in accordance with the terms of the agreed order. The question then becomes whether Frank was able to overcome the presumption of contempt by showing with clear and convincing evidence that he was unable to comply with the order, or had made reasonable efforts to comply. At the contempt hearing, Frank presented evidence of his monthly income and monthly expenditures. He receives a Social Security disability check in the amount of $1,012 per month and the child's Social Security check in the amount of $556 per month; he is employed part-time as a security officer for twelve hours on Saturdays, earning $195 every two weeks. He testified that his total expenses for the month are $1,594.
The trial court made oral findings regarding Frank's ability to pay. While the court acknowledged that the sums were not small to Amanda and Frank, Frank's own testimony demonstrated that he had adequate income to comply with the court's orders. The court noted Frank's claim that he was not paying Amanda because he needed the funds for himself, but then noted that Frank's expenses included a claim of $70 for television, $85 for cable and $35 for phones. The court stated that "whether [these expenses] are or are not necessary is a matter of opinion." The court concluded, "This has been a problem with you paying her since day one, and I'm tired of it."
In light of the fact that Frank's own testimony shows that his income is sufficient to cover his expenses, and the court's finding that some of his expenses included items that are not universally accepted as necessities, we conclude that the trial court did not abuse its discretion in imposing a penalty on Frank for repeatedly disobeying its orders.
Accordingly, the order of the Bullitt Circuit Court holding Frank in contempt of court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Frank York, Pro se
Shepherdsville, Kentucky
BRIEF FOR APPELLEE: Dean H. Sutton
Louisville, Kentucky