Opinion
NO. 2017-CA-001584-MR
03-06-2020
RAYMOND EVANS APPELLANT v. APRIL (EVANS) HESS APPELLEE
BRIEFS FOR APPELLANT: Carl E. Knochelmann, Jr. Covington, Kentucky BRIEF FOR APPELLEE: Michael J. McMain Florence, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE FAMILY COURT
HONORABLE LINDA R. BRAMLAGE, JUDGE
ACTION NO. 09-CI-01869 OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES. GOODWINE, JUDGE: Raymond Evans ("Raymond") appeals from an order of contempt entered by the Boone Family Court. The family court found Raymond in contempt for failure to pay child support to April (Evans) Hess ("April"). On appeal, he contests the family court's failure to recuse; and argues (1) the arrearage was incorrectly calculated; (2) he was unable to pay the purge amount; (3) the family court erred in denying his motion to continue; and (4) the Boone Circuit Court Clerk should have provided him a free copy of the video record. After thorough review of the record and applicable legal authority, we affirm.
This case was assigned to our April 2020 merits panel on December 27, 2019. Prior to submission to us, briefing was delayed for over a year due to the parties' repeated requests for continuances and extensions of time to file their respective briefs.
BACKGROUND
This case has a complex procedural history, which this Court summarized in an opinion addressing three prior appeals:
Raymond and April were married for eighteen years and lived in Montana with their five children. On April 14, 2009, they filed a joint petition for the dissolution of the marriage in Montana. Seven days later, they filed a joint parenting plan, which the Montana court accepted and made part of the final decree dissolving the marriage. On July 15, 2009, Raymond filed an emergency motion for interim parenting order, a temporary restraining order, a motion for a show cause order, and a motion to amend the parenting plan. The Montana court denied these motions, but set a date for a settlement conference. April moved to Kentucky and filed a petition for the Kentucky courts' recognition of the foreign divorce, custody, and child support order, on August 5, 2009. In this petition, she also requested "the Decree of Shared Parenting be modified." She moved the Montana court to decline jurisdiction on September 4, 2009.
At that point parties began simultaneously litigating the issue of jurisdiction in both states. Raymond filed a response to the petition on September
23, 2009, and moved the Kentucky trial court to dismiss the petition for lack of subject-matter jurisdiction on October 16, 2009. The Montana court granted April's motion and declined to continue exercising its exclusive jurisdiction over the matter in an order entered on December 22, 2009. Specifically, the Montana court ceded its jurisdiction to Kentucky on the basis that Montana was, at that point, an inconvenient forum. Raymond withdrew his motion to dismiss in Kentucky on January 8, 2010, following the Montana court's ruling on April's motion.
Having established Kentucky as the state with jurisdiction over the subject matter, the parties proceeded to extensively litigate the issues of custody and child support, filing multiple motions and conducting multiple hearings. Raymond filed two different motions for contempt in February of 2010, and a third motion for contempt along with a motion to modify custody and parenting time on March 29, 2010. All of these were denied by the trial court. Raymond also filed a motion for custody on September 28, 2011, which he amended on October 27, 2011. He also moved to modify child support on November 11, 2011.
This litigation culminated in an order, following multiple hearings, issued by the trial court on April 17, 2013. This order denied Raymond's motions to award him sole custody of the parties' four minor children, denied his motion for joint custody of the parties' four minor children, and awarded April sole custody of the parties' four minor children. The same order also directed Raymond to pay child support, calculating the amount based on an income of $181,870.00 annually for Raymond for 2011, 2012, and thereafter, and for April an annual income of $40,406.00 for 2011, and $49,570.95 for 2012. The trial court designated this order as final and appealable. Raymond then filed a motion to alter, amend, or vacate, which the trial court denied on November 15, 2013. On that same day, the trial court
also granted April's motion for attorney fees and expert witness fees. Raymond filed the notice for the first appeal on December 9, 2013.
The trial court granted a second motion for attorney fees in favor of April on January 14, 2014. Raymond filed a petition in this Court, seeking a writ of prohibition to prevent the enforcement of the trial court's orders. This Court denied the writ, in an unreported opinion entered on July 9, 2014. Raymond argued that the trial court had lacked jurisdiction to hear both issues concerned in the petition: child custody and child support. This Court explicitly determined that "the family court had subject-matter jurisdiction to entertain April's petition to register the Montana custody determination" and further that ". . . the family court properly exercised subject-matter jurisdiction over April's motion to modify the foreign child support order." Raymond appealed this Court's ruling to the Supreme Court, which dismissed it for failure to perfect the appeal.
On May 29, 2014, Raymond filed a motion for contempt, alleging that April had interfered with his parenting time by not allowing the children to see him. April filed a series of motions in June, including a motion for contempt, and a motion for supervised visitation, in which she contended that Raymond had harmed the welfare of the children by manipulating, abusing, or acting inappropriately with them. The trial court held seven hearings on these motions, spanning the entire month of July 2014.
During the hearing on July 1, 2014, April attempted to call the children's psychotherapist to the stand. The guardian ad litem appointed to represent the children objected to the testimony. The trial court overruled the objection and the psychotherapist gave testimony as to the content of the children's therapy sessions. The guardian ad litem later moved to strike the
testimony, citing Rule 507 of the Kentucky Rules of Evidence ("KRE"), which the trial court overruled. Consequently, the guardian ad litem filed notice of the second appeal.Evans v. Hess, Nos. 2013-CA-002072-ME, 2014-CA-001512-ME, and 2015-CA-000043-ME, 2016 WL 1389799, at *1-3 (Ky. App. Apr. 8, 2016), opinion not to be published (footnotes omitted).
The third appeal stems from an order issued by the trial court on April 6, 2014. That order found April in contempt for failure to abide by a prior order regarding Raymond's parenting time with the children. The trial court awarded Raymond attorney fees, but denied his request to modify child support, which he had made as the result of one of the minor children reaching age eighteen and switching residences from April's to Raymond's. The trial court also denied, as moot, Raymond's request to make up missed parenting time with the children. Raymond filed a motion to alter, amend, or vacate, the portions of that order denying the child support modification and his make-up parenting time. April filed a motion to alter, amend, or vacate, the portion of the order awarding Raymond attorney fees. She requested the trial court suspend her payment of Raymond's attorney fees. The trial court entered an order on December 11, 2014, which denied Raymond's motion, and granted April's motion. It is from the December order that Raymond appeals.
There, as a threshold matter, this Court held the family court had subject matter jurisdiction over the case prior to addressing the merits of the three appeals. As to the first appeal, this Court held the family court did not abuse its discretion in awarding April sole custody and in modifying Raymond's child support obligation. As to the second appeal, this Court held the family court abused its discretion in admitting testimony from the minor children's psychologist in violation of the psychotherapist-patient privilege under KRE 507. As to the third appeal, this Court held the family court did not abuse its discretion in denying make-up parenting time with Raymond, in denying Raymond's motion to review child support, and in staying April's payment of Raymond's attorney's fees as a sanction.
After this Court's opinion was rendered, the family court attended to some custody issues. We do not address them here as those orders are not the subject of this appeal.
Pertinent to this appeal, on October 18, 2016, April moved to hold Raymond in contempt for failure to pay child support, and the family court held a hearing on February 24, 2017. During the hearing, Raymond's counsel stipulated that he owed April $68,196.42 in arrearages. He argued he was unable to pay the ordered child support obligation of $2051 but provided no proof of change in income. The family court entered an order holding Raymond in contempt on March 3, 2017. The court found he owed $68,196.42 in arrears to April as of February 24, 2017. The court further found he never paid the full $2051 since the entry of the April 17, 2013 order and instead generally pays $1,400 per month. The court ordered Raymond to pay his monthly obligation of $2051, pay $400 per month toward his arrearage, pay April $1,000 in attorney's fees, and set a purge amount of $40,000 to be paid by August 27, 2017.
Raymond filed a timely motion to alter, amend, or vacate arguing, for the first time, the total amount of arrearage was incorrect despite stipulating to the figure during the hearing. He also argued he was unable to pay the $40,000 to purge himself of contempt but did not object to the purge amount during the hearing.
On August 16, 2017, eleven days before the deadline to pay the purge, April filed several motions. First, she filed a motion to continue the hearing on Raymond's motion to alter, amend, or vacate because Raymond failed to fully respond to discovery requests for income information. Second, April moved to hold Raymond in contempt for failure to comply with the March 3, 2017 order. She asserted Raymond failed to pay $400 per month toward his arrearage and failed to pay $1,000 in attorney's fees. Third, she filed a separate motion to hold Raymond in contempt for failure to comply with the April 17, 2013 order requiring him to pay 78% of uncovered medical expenses on behalf of the minor children. Fourth, April moved to compel Raymond to respond to her discovery request for his income information anticipating he would file a motion to modify his child support obligation. Fifth, she moved to hold Raymond in contempt for failure to reimburse her for 78% of the health insurance premiums incurred on behalf of the minor children. Raymond also filed a motion on August 16, 2017, to review his child support obligation and for joint custody. On August 18, 2017, the family court continued all motions aside from Raymond's motion to alter, amend, or vacate based on Raymond's agreement.
On August 21, 2017, six days before the purge deadline, Raymond moved to disqualify the family court judge, arguing she would not afford him a fair and impartial trial. He filed an affidavit under KRS 26A.020. On August 23, 2017, the Chief Justice of the Kentucky Supreme Court denied Raymond's request for disqualification. That same day, the family court held a hearing on Raymond's motion to alter, amend, or vacate and denied the motion.
Kentucky Revised Statutes.
On August 28, 2017, the day after the deadline to pay the purge, April filed a motion to incarcerate Raymond as he failed to pay the $40,000 purge. A hearing was set for September 14, 2017. On September 12, 2017, Raymond moved for a continuance, arguing opposing counsel did not contact his counsel to determine his availability prior to setting the hearing, that he was unavailable, and he needed four weeks to research and draft an appropriate response.
On September 13, 2017, the family court held a telephonic conference to address Raymond's motion to continue. Raymond's counsel participated. The family court orally denied Raymond's motion and entered its order that same day. In its written order, the family court noted that after orally denying the continuance, Raymond's counsel informed the court Raymond was out of town and could not attend the hearing.
The family court held the September 14, 2017 hearing on the motion to incarcerate Raymond as scheduled. Neither Raymond nor his counsel were present at the hearing. The family court found Raymond failed to pay any of the $40,000 purge amount and issued a bench warrant with a $40,000 cash bond. The family court noted Raymond had a pending felony flagrant non-support case, but that double jeopardy did not apply. This appeal followed.
On appeal, Raymond argues: (1) the family court judge is biased against him and should be disqualified from this case; (2) the arrearage owed was incorrectly calculated; (3) he was unable to pay the purge amount; (4) the family court abused its discretion in denying his motion to continue the hearing on April's motion for order of incarceration; and (5) the Boone Circuit Court Clerk failed to provide a free copy of the entire video record of this case.
APRIL'S MOTION TO STRIKE RAYMOND'S BRIEF
When Raymond filed his appellant brief, he included in Appendices F and G extrajudicial documents not in the record. Appendix F contains documents from a dependency, neglect, and abuse case that were not made part of the record below. Appendix G is an affidavit of Raymond outlining his conversation with employees of the Boone Circuit Court Clerk and their refusal to allow him to borrow a free copy of the entire video record of this case. Raymond references these documents throughout his brief. April responded with a motion to strike the entire brief for failure to comply with CR 76.12 or, alternatively, to strike the offending portions of his brief. April's motion was passed by the motions panel for consideration of the merits by this panel. We address this issue first.
Kentucky Rules of Civil Procedure. --------
CR 76.12(4)(c)(vii) governs the contents of a brief's appendix and prohibits "materials and documents not included in the record" from being "introduced or used as exhibits in support of briefs." CR 76.12(8)(a) allows, but does not require, a brief to "be stricken for failure to comply with any substantial requirement of this Rule 76.12." Here, we elect not to strike the entire brief but to disregard the portions of the brief that rely on the extrajudicial materials contained in the appendix. Thus, we will not consider Appendices F and G to Raymond's brief or the arguments based on them, which are found in Raymond's statement of the case, the second to last paragraph of Argument I, and throughout Argument V. As such, we grant April's motion to strike the offending portions of Raymond's brief by separate order.
ANALYSIS
First, Raymond argues the family court judge is biased against him and should be disqualified from this case. "[T]he standard for determining whether a motion to recuse is legally sufficient is whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial." Taylor v. Carter, 333 S.W.3d 437, 445 (Ky. App. 2010) (citing Dean v. Bondurant, 193 S.W.3d 744 (Ky. 2006)).
April argues Raymond's motion to disqualify the family court judge was untimely. The family court judge has presided over this case since its inception in 2009 and found Raymond in contempt on March 3, 2017. Raymond waited until August 21, 2017 to file a motion to disqualify the family court judge under KRS 26A.015 and an affidavit that the family court judge would not afford him a fair and impartial trial under KRS 26A.020. Raymond filed the motion and affidavit months after the family court judge found him in contempt and denied his motion to alter, amend, or vacate but approximately one week before the deadline to pay the purge. The Chief Justice of the Kentucky Supreme Court reviewed the affidavit and denied Raymond's motion for disqualification.
"If a party has knowledge of facts that would disqualify the judge, he 'must make known these facts at the outset and not wait until the judge has made a ruling against him before moving for disqualification.'" Mills v. Mills, 429 S.W.2d 852, 853 (Ky. 1968) (quoting Harrell v. City of Middlesboro, 287 S.W.2d 614, 615 (Ky. 1956)).
A motion to require a trial judge to vacate the bench must be made before the proceeds with the cause. Harrell v. City of Middlesboro, Ky., 287 S.W.2d 614 (1956). Also '* * * it must be made at once upon discovery of the facts upon which the disqualification rests; else it will be waived.' Noe v. Commonwealth, 267 Ky. 607, 103 S.W.2d 104 (1937). However, if the disqualifying information is later learned and the affidavit meets all other requirements and clearly shows that the movant acted expeditiously the judge must step aside.Bailey v. Bailey, 474 S.W.2d 389, 391 (Ky. 1971).
Raymond argues the family court judge has exhibited bias against him at least since 2011. He did not move for recusal of the family court judge after any of the alleged instances of bias. Raymond also alleges the family court judge was biased against him at the contempt hearing on February 27, 2017, when she awarded April attorney's fees, incorrectly calculated the arrearage owed to April, and ordered him to pay a purge of $40,000. Not only does Raymond fail to demonstrate how the family court's rulings against him demonstrate bias, his motion was untimely. The contempt hearing occurred six months before Raymond filed his motion and he does not allege that he later learned of the perceived bias. Raymond did not act expeditiously in filing his motion; therefore, Raymond waived the issue.
Second, Raymond argues the family court failed to allow him to introduce evidence that the child support arrearage was incorrectly calculated. Raymond stipulated that he owed a child support arrearage of $68,196.42 at the hearing. The family court entered an order of contempt finding he owed April that amount in arrears. Raymond then filed a motion to alter, amend, or vacate under CR 59.05 arguing the amount was incorrect. The family court denied his motion because he stipulated to the amount. We review the denial of a motion to alter, amend, or vacate for abuse of discretion. Ipock v. Ipock, 403 S.W.3d 580, 583 (Ky. App. 2013). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
For a court to grant a motion to alter, amend, or vacate, the movant must meet one of the following requirements:
First, the movant may demonstrate that the motion is necessary to correct manifest errors of law or fact upon which the judgment is based. Second, the motion may be granted so that the moving party may present newly discovered or previously unavailable evidence. Third, the motion will be granted if necessary to prevent manifest injustice. Serious misconduct of counsel may justify relief under this theory. Fourth, a Rule 59(e) motion may be justified by an intervening change in controlling law.Gullion v. Gullion, 163 S.W.3d 888, 893 (Ky. 2005) (citing federal law). CR 59.05 "cannot be used to raise arguments and introduce evidence that should have been presented during the proceedings before entry of judgment." Short v. City of Olive Hill, 414 S.W.3d 433, 441 n.7 (Ky. App. 2013) (citing Gullion, 163 S.W.3d at 893).
Raymond had the ability to present evidence of what he believed was the actual amount of arrearage owed at the contempt hearing. Instead, his attorney stipulated to the amount presented by April. He cannot now complain on appeal that no proof or no testimony was presented regarding the amount owed or complain about April's calculation when he stipulated to the amount. Raymond had the ability to make his own calculation before the hearing and failed to do so. As such, the family court did not abuse its discretion in denying Raymond's motion to alter, amend, or vacate the amount of arrears owed.
Third, Raymond argues the family court erred in finding him in contempt for non-payment of child support without showing he had the ability to pay the amount ordered. At the conclusion of the February 24, 2017 contempt hearing, the family court found Raymond in contempt for failure to pay his child support obligation and set a purge amount of $40,000 to be paid on or before August 27, 2017. Raymond did not object to the purge amount during the hearing. Instead, he raised the issue for the first time during the hearing on his motion to alter, amend, or vacate. Even then, Raymond presented no evidence to support this contention. His attorney merely argued he could not pay the purge without presenting any evidence to support his contention. Raymond bore "the burden of proving his . . . inability to meet the purge condition," but he failed to raise any objection to the $40,000 purge amount when the family court set the amount at the hearing. Commonwealth, Cabinet for Health and Family Services v. Ivy, 353 S.W.3d 324, 335 (Ky. 2011) (citing Lewis v. Lewis, 875 S.W.2d 862, 864 (Ky. 1993)). Again, Raymond may not use CR 59.05 to argue his inability to pay the purge amount as that argument should have been raised at the contempt hearing. Short, 414 S.W.3d at 441, n.7. As such, the family court did not abuse its discretion in denying Raymond's motion to alter, amend, or vacate as to the purge amount.
Fourth, Raymond argues the family court violated his right to due process by denying his motion for a continuance. In its March 3, 2017 order, the family court held Raymond in contempt and ordered him to pay a purge of $40,000 by August 27, 2017. Raymond did not pay the purge amount by that date and, the very next day, April filed a motion for an order of incarceration. The family court scheduled a hearing on September 14, 2017.
Two days prior to the hearing, Raymond filed a motion to continue it because he was unavailable. Raymond's counsel complained opposing counsel did not contact him to determine whether he was available for the hearing. Raymond's counsel further argued he needed four weeks to prepare for the hearing. The family court heard the argument on the motion from both parties' counsel via telephonic conference, a recording of which is not included in the record on appeal. The family court orally denied Raymond's motion, noting April's objection to the motion. The family court noted in its written order that after orally denying the motion, counsel informed the court that Raymond was out of town and unavailable for the hearing.
We review the denial of a continuance under the abuse of discretion standard. Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Thompson, 11 S.W.3d at 581 (citing English, 993 S.W.2d at 945).
Apart from arguing he was not given reasonable notice and opportunity to be heard, Raymond advances nothing of substance in support of his contention and fails to cite case law regarding the factors a trial court should consider in granting a continuance.
In determining whether to grant a continuance, the court must consider the following factors:
1) length of delay;
2) previous continuances;Guffey, 323 S.W.3d at 371 (quoting Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991)). Although the family court's order denying the motion for a continuance does not address these factors, the court did not abuse its discretion. First, Raymond requested a delay of four weeks to gather information and have witnesses present. The only issue before the court was whether or not Raymond paid $40,000 to April. A four-week continuance seems extensive for the issue presented. Second, the family court only granted one continuance during the pendency of this case. On August 18, 2017, based on the parties' agreement, the court granted a continuance of all motions except Raymond's motion to alter, amend, or vacate. Third, April did not file a written response to the motion and a recording of the telephonic conference is not included in the record on appeal, so there is nothing in the record specifically addressing inconvenience to April or her counsel. Fourth, there is no reference to Raymond purposefully delaying the hearing on the motion for incarceration. However, given that he faced incarceration for failure to pay the purge amount, it is foreseeable that Raymond would want to avoid entering the state to evade his arrest. Fifth, it appears that Raymond nor his counsel made an attempt to procure the availability of other competent counsel. The motion and order merely state that neither were available and make no mention of an attempt to send other counsel to the hearing. Sixth, the case was not complex. The only issue was whether Raymond paid $40,000 to purge himself of contempt. Seventh, Raymond has identified no real prejudice as a result of the denial of the continuance. He merely argues the family court should have been more accommodating.
3) inconveniences to litigants, witnesses, counsel, and the court;
4) whether the delay is purposeful or is caused by the accused;
5) availability of other competent counsel;
6) complexity of the case; and
7) whether denying the continuance will lead to identifiable prejudice[.]
At the September 14, 2017 hearing on April's motion to incarcerate Raymond, April testified Raymond failed to pay any of the $40,000 purge amount. Given the circumstances, it seems the family court would have entered the order to incarcerate Raymond even if he and his counsel had been present at the hearing. By failing to enter the state of Kentucky to attend the hearing, Raymond avoided incarceration. Based on our analysis of these factors, we hold the family court did not abuse its discretion in denying Raymond's motion for a continuance of the hearing.
Finally, Raymond argues he was precluded from having access to the video record on appeal in violation of CR 75.07(7) and CR 98(2)(a)(ii). On August 13, 2018, Raymond moved this Court to order removal of the entire record, including one copy of each of the electronically recorded proceedings since the inception of this case in 2009, from the Boone Circuit Court Clerk's office. In both his motion and appellate brief, Raymond argues $25 per DVD for a total of at least $875 is prohibitively expensive. He argues the circuit clerk should have permitted him to borrow a copy of the DVDs at no cost. April opposed the motion, arguing Raymond could have paid $25 for a copy of the hearings pertinent to this appeal. This Court denied Raymond's motion by order entered November 2, 2018.
Raymond's argument regarding the video record is nearly identical in his motion and brief. Not only have we determined Raymond's argument lacks merit, he fails to assert how this argument was preserved for appeal. Although Raymond takes issue with the Boone Circuit Court Clerk's denial of his request to borrow, at no cost, a copy of each electronically recorded proceeding from this case's inception in 2009, he never raised the issue with the family court. "It is axiomatic that a party may not raise an issue for the first time on appeal." Sunrise Children's Services, Inc. v. Kentucky Unemployment Insurance Commission, 515 S.W.3d 186, 192 (Ky. App. 2016) (citation omitted); see also Jones v. Livesay, 551 S.W.3d 47, 52 (Ky. App. 2018). As such, because we have already ruled on this issue and Raymond failed to preserve it below, we decline to further address his argument.
CONCLUSION
For the foregoing reasons, we affirm the contempt order of the Boone Family Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Carl E. Knochelmann, Jr.
Covington, Kentucky BRIEF FOR APPELLEE: Michael J. McMain
Florence, Kentucky