Opinion
NO. 2017-CA-001877-ME
01-31-2020
GREG DART APPELLANT v. LAUREN COMBS APPELLEE
BRIEF FOR APPELLANT: Jon R. Fritz Providence, Kentucky BRIEF FOR APPELLEE: Ralph D. Gibson Somerset, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PULASKI FAMILY COURT
HONORABLE MARCUS L. VANOVER, JUDGE
ACTION NO. 10-CI-00907 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; L. THOMPSON, JUDGE; AND BUCKINGHAM, SPECIAL JUDGE. BUCKINGHAM, SPECIAL JUDGE: Greg Dart appeals from two child support orders entered by the Pulaski Family Court in 2017. The first dismissed Dart's motion to modify his child support obligation as a CR 37.02 sanction, and the second determined his child support arrearage. We affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
Kentucky Rules of Civil Procedure.
Dart's counsel has chosen to challenge the proceedings and orders of the family court in terms of "lawlessness," "mockery of due process," "manifest injustice," "mind-boggling," and "illegal." Dart concludes by asking this Court "to apply Kentucky law to the good folks of Pulaski County." While we do not believe that such characterization of the Pulaski Family Court and its ruling is appropriate, we will "apply Kentucky law to the good folks of Pulaski County" and to Dart, who is a resident of Ohio.
Dart and Lauren Combs (the appellee) are the parents of a minor child born in 2009. The child was born in Kentucky, and Combs and the child continue to reside in Kentucky. Dart resides in Ohio, and Combs has had sole custody of the child for several years. There has been no visitation since 2010.
In April 2013, Dart was ordered to pay child support of $3,000 per month. The court stated in its order that "[t]his amount is an appropriate variation from the child support worksheet calculations based on the evidence submitted or failed to be submitted, at the final hearing or during this litigation." The court noted in its order that Dart had failed to attend a final hearing in August 2011, had failed to provide financial information that had been required by a local rule and that he had agreed to provide, and had been held in contempt. The court also found that Dart "has significant financial resources and is exercising a significant standard of living."
Further, the family court ordered that Dart was responsible for $1,500 per month child support from the birth of the child to April 1, 2013, and that he was to pay that either by lump sum or by adding $500 per month to his regularly ordered child support. This Court affirmed the family court's child support order in Dart v. Combs, No. 2013-CA-000876-ME, 2014 WL 4667276 (Ky. App. Sept. 19, 2014).
In August 2015, and again in April 2016, Dart filed motions for child support modification. Efforts by Combs to obtain discovery were unsuccessful due to Dart's noncompliance, including his failure to attend a deposition. In an order entered by the family court on August 29, 2016, the court stated: "Respondent shall comply with the orders of this Court or reap the sanction of having his motion to modify child support dismissed." Combs again noticed a deposition for Dart for October 3, 2016, but Dart again did not attend.
Combs filed a motion for sanctions for Dart's failure to attend the deposition, and on February 23, 2017, the court dismissed Dart's motion for child support modification as a sanction under CR 37.02. On that same day, the court entered an order establishing Dart's arrearage. Dart filed a motion to alter, amend, or vacate these orders, which the court denied in an order dated October 31, 2017. Dart's appeal of the two orders followed.
Dart filed this appeal in late 2017, and the case was given expedited status. Unfortunately, the disposition herein is significantly later. Among other things, delay was caused by Dart initially filing an unauthorized pleading, Dart twice moving this Court to be permitted additional time to file his brief, Dart filing a deficient brief, Combs moving this Court for additional time to file her brief, Dart moving this Court for additional time to file a reply brief, the election of Judge (now Justice) Shea Nickell to the Kentucky Supreme Court and the ensuing need to replace him on the panel, and finally the assignment of Special Judge David C. Buckingham to the panel in late December 2019.
Dart first argues that the family court erred in dismissing his motion as a CR 37.02 sanction. He contends that child support is always reviewable, that his ability to pay is relevant only to contempt proceedings, and that the court made insufficient findings.
CR 37.02(2) provides, in relevant part, that if a party fails to obey an order to provide or permit discovery, the court
may make such orders in regard to the failure as are just, and among others the following:
. . .
(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]
Our Supreme Court held in Turner v. Andrew, 413 S.W.3d 272 (Ky. 2013), as follows: "It is, of course, within a trial court's discretion to impose sanctions, even severe ones, against a party for failing to comply with discovery orders." Id. at 279. The Court also stated: "A trial court 'has broad discretion in addressing a violation of its order[s]' regarding discovery, and this Court reviews the trial court's determination of the appropriate sanction for abuse of that discretion." Id. (quoting Wilson v. Commonwealth, 381 S.W.3d 180, 191 (Ky. 2012)). The Court in Turner also held: "Without findings of fact, a meaningful appellate review of the propriety of discovery sanctions is seriously constrained[.]" Id.
Dart was noticed to appear for his deposition on June 29, 2016, and he was renoticed to appear on July 7, 2016, after he sought to avoid personally appearing and requested a video deposition. Dart failed to appear at the deposition on July 7, and Combs filed a motion for sanctions the following day. In an order entered on August 29, 2016, the court ordered Dart to "comply with the orders of this Court or reap the sanction of having his motion to modify child support dismissed."
Dart's reason for failing to attend the depositions was undoubtedly because there were warrants for his arrest for contempt of court due to his failure to appear in response to show-cause orders relating to his failure to pay child support.
Thereafter, Combs again noticed Dart to appear for his deposition on October 3, 2016. When Dart failed to appear, Combs then moved the court to impose sanctions, and a hearing was held in late February 2017. This hearing led the court to enter the two orders from which Dart appeals. The first dismissed his motion to modify his support, and the second established an arrearage amount.
In connection with his appeals, Dart asserts that the family court did not make relevant findings as required by this Court's holding in Toler v. Rapid American, 190 S.W.3d 348, 351 (Ky. App. 2006). Therein, this Court held that a trial court should not dismiss a party's claim for lack of prosecution unless the factors set forth in Ward v. Housman, 809 S.W.2d 717 (Ky. App. 1991), are first considered. Dart also cites Stapleton v. Shower, 251 S.W.3d 341, 343 (Ky. App. 2008), in support of this argument.
The authorities cited by Dart hold that the following six factors should be considered by the court prior to the imposition of sanctions: "(1) the extent of the party's personal responsibility; (2) the history of dilatoriness; (3) whether the attorney's conduct was willful and in bad faith; (4) the meritoriousness of the claim; (5) prejudice to the other party; and (6) the availability of alternative sanctions." Toler, 190 S.W.3d at 351 (citing Ward, 809 S.W.2d at 719).
Combs does not dispute the principles explained in the three cases cited by Dart. She contends, however, that none of those cases involved the dismissal of a request to modify child support and that those principles are not applicable to this case.
The family court herein elected to apply the principles in the cases cited by Dart and made findings concerning each of the six factors to be considered. Turning back to the holding of our Supreme Court in Turner, we again note that it was within the trial court's discretion to impose sanctions, "even severe ones," against Dart for his failure to comply with discovery orders. Turner, 413 S.W.3d at 279. We particularly note the family court's conclusion that
[w]hile alternative sanctions could be imposed on Respondent, the probability of achieving the Court's objective, to have Respondent comply with all orders of the Court and to pay his child support obligations, is highly unlikely given Respondent's continued patterns of disregarding the orders of the Court.We find no abuse of discretion in the CR 37.02(2) sanction imposed on Dart by the family court.
Dart also contends that he was entitled to have the court rule on his motion for modification regardless of whether or not he is ever deposed. He claims that the court erred in ruling that his motion could not proceed until Combs's counsel had the opportunity to depose him, citing in support KRS 403.213. Dart did not, however, elaborate or state why he believed that statute supports his argument, and we fail to see how it does so. In short, Dart has not demonstrated, to our satisfaction, the merits of his argument that Combs was not entitled to discovery by deposition prior to Dart's motion to modify being heard.
Kentucky Revised Statutes. --------
Dart next argues that all his contempt orders must be set aside and all warrants withdrawn. He maintains that a local rule required that he be served with the contempt motion and that he was not. Nevertheless, Dart did have counsel to represent him at the hearing, and there is nothing to indicate that Dart was not aware of the contempt proceedings.
He also asserts that no finding of contempt or warrant for arrest should have been entered without a finding by the court that he did not have the ability to pay the child support. In this regard the court had made findings as to Dart's ability to pay when it set the support amount initially. Thereafter, as show-cause orders placed the burden on Dart to show why he was not in contempt for nonpayment and Dart failed to respond, the court did not err in finding Dart in contempt and in issuing warrants for his arrest.
Finally, Dart argues that the family court's arrearage order "was, is and always will be unlawful" because there was no fact finding that he had the ability to pay. He cites Clay v. Winn, 434 S.W.2d 650 (Ky. 1968), in support of this argument. In that case the appellate court held that the inability to pay past due child support is a valid defense in a child support enforcement case. Id. at 652. Thus, Dart contends that the arrearage order must be reversed or vacated.
We have examined the order establishing arrearage dated February 2, 2017, and find no mention in that order of a finding of contempt. The order simply determines the arrearage amount. The arrearage amount and whether Dart was in contempt are separate determinations.
Dart's argument in this regard seems to be that the arrearage order is invalid because the initial child support orders were "unlawful" because he did not have the ability to pay them. As we have noted previously herein, the initial child support order was affirmed by the Court in its consideration of Dart's previous appeal. In short, we fail to see merit in Dart's argument that the arrearage order is erroneous or should be reversed or vacated.
For the foregoing reasons, the orders of the Pulaski Family Court are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Jon R. Fritz
Providence, Kentucky BRIEF FOR APPELLEE: Ralph D. Gibson
Somerset, Kentucky