Opinion
NO. 2013-CA-002092-MR
01-29-2016
KENNETH ROBERT AVERILL APPELLANT v. KARI LEANN AVERILL APPELLEE
BRIEF FOR APPELLANT: Kenneth Averill, Pro Se Paducah, Kentucky BRIEF FOR APPELLEE: Kari Averill, Pro Se Murray, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CALLOWAY CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE ROBERT DAN MATTINGLY, JR., JUDGE
ACTION NO. 09-CI-00563 OPINION
AFFIRMING BEFORE: JONES, TAYLOR, AND THOMPSON, JUDGES. TAYLOR, JUDGE: Kenneth Robert Averill brings this pro se appeal from orders entered in the Calloway Circuit Court, Family Court Division, on October 21, 2013, and October 23, 2013, denying several of his motions related to custody and time-sharing of the parties' minor child and award of attorney's fees in connection therewith upon motion by Kari. For the reasons stated, we affirm.
Kenneth and Kari Leann Averill were divorced by an interlocutory decree of dissolution entered by the McCracken Circuit Court in December of 2005. Since the divorce, the parties have been engaged in continuous and tumultuous post-decree proceedings, mostly looking to virtually every aspect of the custody and time-sharing arrangement for their minor child. In November 2009, the case was transferred to Calloway Circuit Court, Family Court Division, where the post-dissolution litigation has continued.
In a previous appeal to this Court (Appeal No. 2012-CA-001782-ME), the background for the parties' discontent was briefly summarized by another panel of this Court:
Kenneth Robert Averill filed the appeal in Appeal No. 2012-CA-001782-ME, pro se, from a September 20, 2012, order of the Calloway Circuit Court, Family Court Division, denying his motion to modify time-sharing and ordering him to pay attorney's fees. The present appeal was filed on December 11, 2013, during the pendency of the earlier appeal. Normally, a circuit court loses jurisdiction to hear matters in the case while an appeal is pending. However, the court retains continuing jurisdiction to hear matters in domestic cases that are supplemental or ancillary to custody or time-sharing issues. See Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011).
This dissolution action originated in McCracken Family Court, where a petition for dissolution of marriage was filed in April 2005. On January 25, 2007, the McCracken Family Court awarded the parties joint custody of their minor son, Nolan, who was born on September 7, 2000. Kari was named as the primary residential custodian. In November [2009], the case was transferred to the Calloway Family Court upon Kari's move from Paducah with Nolan. We note that the certified record does not contain any of these documents. Rather, the abbreviated record begins with Kenneth's pro
se motion to modify timesharing, the subject of this appeal.
By Opinion rendered February 14, 2014, during the pendency of the present appeal herein, this Court affirmed an order of the Calloway Circuit Court, Family Court Division, (family court) entered September 20, 2012, denying Kenneth's motion to modify time-sharing.
The court reversed in part regarding an award of attorney's fees to Kari Leann Averill. --------
As noted, while Appeal No. 2012-CA-001782-ME was pending before this Court, the parties continued to file various motions in the family court below. By order entered October 21, 2013, the family court ruled upon various pending motions. Specifically, in the October 21 order, the family court denied Kenneth's motion to have Kari examined by a psychologist, his motion for a complete custody evaluation, his motion to strike Kari's motions, his motion to prohibit Kari's family from entering the courthouse, and his motion to compel Kari to completely answer his discovery request. The family court also denied Kenneth's motion to find Kari in contempt for changing the location of the exchange of their child for time-sharing. The family court concluded Kari had just cause to require Kenneth to meet at the police station for the exchange.
As to Kari's motions that were also pending at that time, the family court granted her motion to prospectively change the time-sharing exchange location to the Murray City Police Department or the Paducah City Police Department. The family court also granted Kari's motion to require Kenneth to submit to two drug screens. The court ordered that Kenneth's failure to submit to the drug screen within eight hours of the request would constitute good cause for Kari to deny Kenneth further visitation until the matter could be addressed by the court. The family court also granted Kari's motion for contempt related to Kenneth discussing details of the pending court action with their child which had been expressly prohibited of both parties by the family court judge. The court sentenced Kenneth to thirty days in the Calloway County Jail, of which 26 days were conditionally discharged.
Subsequently, by order entered two days later on October 23, 2013, the family court granted Kari's motion for attorney's fees and awarded Kari $2,000 toward her attorney's fees incurred in this round of the litigation. This appeal followed.
First, Kenneth contends that the family court erred by awarding Kari attorney's fees of $2,000. Kenneth asserts there was no basis for such an award. Kari had requested fees totaling $2,895.00.
An award of attorney's fees in a dissolution proceeding is governed by KRS 403.220, which provides:
The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.It is well-established that an award of attorney's fees is entirely within the discretion of the family court. Tucker v. Hill, 763 S.W.2d 144 (Ky. App. 1988). And, although the family court is required to consider the financial resources of the parties, it is not required to make specific findings of fact regarding same. Hollingsworth v. Hollingsworth, 798 S.W.2d 145 (Ky. App. 1990).
In this case, on September 10, 2013, the day before the originally scheduled hearing on the parties' pending motions, Kenneth called the family court and requested a continuance due to a "health emergency." The court continued the September 11, 2013, hearing until October 17, 2013, and directed Kenneth to provide proof of his "health emergency." The court subsequently determined that Kenneth did not provide adequate evidence that he had an "emergency" related to his health. And, in its order of October 21, 2013, the family court held Kenneth in contempt for discussing the court action with the parties' child. The court limited the award to $2,000, awarding those fees associated with the unnecessary court continuance caused by Kenneth and his contemptuous behavior in communicating with the parties' child regarding these proceedings. All of the fees awarded were supported by Kari's affidavit and specifically were related to the pending post-decree motions and proceedings. Given the circumstances of this case, we do not believe the family court abused its discretion by awarding Kari $2,000 of her attorney's fees incurred in these proceedings.
Kenneth next contends that the family court erred by denying his motion to find Kari in contempt. Kenneth particularly asserts that the family court should have found Kari in contempt for unilaterally modifying the exchange location to the police station for the time-sharing visits with their child.
A family court has "nearly unlimited discretion" in the exercise of its contempt power. Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky. App. 2007). As a result, we will not disturb a family court's ruling in contempt proceedings absent an abuse of discretion. Id. An abuse of discretion occurs where a court's decision is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id. at 215 (citation omitted).
In the case sub judice, Kari testified that based upon Kenneth's appearance, including a burn on his face, she feared he had reverted to using methamphetamine. She also feared for the safety of her child and concluded that the police station was the safest location for the exchange with Kenneth. The family court believed that Kari had good reason to change the exchange location to the police station. Given Kenneth's previous drug abuse history, his recent submission of a diluted drug screen, and the court's knowledge of the combative behavior of the parties, we do not believe the family court abused its discretion by denying Kenneth's motion to find Kari in contempt for unilaterally changing the time-sharing exchange location for their son to the police station.
Kenneth finally asserts that the family court did not exhibit the "cold neutrality" that should be afforded every litigant. Essentially, Kenneth contends that the family court harbored a bias against him and, as such, should have recused from hearing the case. Kenneth's Brief at 13. Kenneth specifically argues:
Having presented himself on several occasions, [Kenneth] no longer feels the "cold neutrality" that he is entitled to in the [Calloway] Family Court. The situation has appeared to worsen since [Kenneth] appealed said court in Case No. 2012-CA-001782-ME. In that matter, the higher Court found that the [Calloway] Family Court abused its discretion in imposing sanctions on Ken[neth] and reversed said decision.
. . . .
Kenneth's Brief at 13-15.Such actions are far from the impartial and disinterested traits of the Office described in Dotson [v. Burchett, 201 S.W.2d 697 (Ky. 1945)]. The message has been sent that if [Kenneth] finds himself in the [Calloway] Family Court, he will pay attorney fees and be incarcerated.
KRS 26A.015 requires a judge to recuse if he has a "personal bias or prejudice" against a particular party or "has knowledge of any other circumstances in which his impartiality might reasonably be questioned." KRS 26A.015(2); Stopher v. Com., 57 S.W.3d 787 (Ky. 2001); Supreme Court Rule 4.300, Canon 3E(1). The party seeking recusal has the burden of proof upon the issue of bias or prejudice. Stopher, 57 S.W.3d 787. And, a party's mere belief that the judge will not provide "a fair and impartial" tribunal does not constitute sufficient grounds for recusal. Id. at 794-95 (citing Webb v. Com., 904 S.W.2d 226 (1995)). If a motion for recusal is not immediately made upon discovery of the basis for the disqualification, the issue is deemed waived. Bussell v. Com., 882 S.W.2d 111 (Ky. 1994).
In this case, Kenneth makes a general allegation in his appellate brief that the family court judge is biased against him, presumably because the court had previously ruled against Kenneth in these proceedings. However, Kenneth has only stated a mere belief and has not provided any basis for such belief. Moreover, Kenneth did not file a motion in the action below asserting grounds for recusal or otherwise raise the issue before the family court during the proceedings. As a result, Kenneth effectively waived any argument as to recusal of the judge. Accordingly, we attach no merit to this claim of error. See Bussell, 882 S.W.2d 111.
We deem any other contentions of error to be moot or without merit.
For the foregoing reasons, the orders of the Calloway Circuit Court, Family Court Division, are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Kenneth Averill, Pro Se
Paducah, Kentucky BRIEF FOR APPELLEE: Kari Averill, Pro Se
Murray, Kentucky