Opinion
NO. 2015-CA-001269-MR
01-13-2017
WILLIAM K. FULMER II APPELLANT v. COMMONWEALTH OF KENTUCKY, EX REL. CHRISTINE WILLIAMS APPELLEE
BRIEF FOR APPELLANT: Thomas L. Rouse Erlanger, Kentucky BRIEF FOR APPELLEE: Howard L. Tankersley Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 08-CI-04113 OPINION
AFFIRMING
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BEFORE: COMBS, J. LAMBERT, AND VANMETER, JUDGES. LAMBERT, J., JUDGE: William K. Fulmer II appeals the Kenton Circuit Court's finding of contempt for failure to pay child support and ordering him to serve forty-hours' community service in lieu of five-days' jail time with the remaining eighty-five day sentence conditionally discharged for a period of two years. We affirm.
Judge Laurence B. VanMeter concurred in this opinion prior to being elected to the Kentucky Supreme Court. Release of this opinion was delayed by administrative handling.
William and Christine were married in 1995 and are the parents of three children (born in 1996, 1998, and 2002). William is an attorney, and Christine is a registered nurse. Christine filed for dissolution of marriage on December 30, 2008, alleging inter alia that the parties had separated in September of that year. Apparently William and Christine attempted to reconcile because the record is silent until William's response filed on March 30, 2010. The parties later stipulated that they separated two weeks prior to William's response to the petition for dissolution. William had legal representation at the outset of the proceedings, but he ultimately represented himself throughout most of the dissolution. He has legal counsel now.
The Kenton Circuit Court entered its decree of dissolution ending the parties' marriage on May 20, 2011. Its findings of fact, conclusions of law, and order of dissolution were entered several months later. Issues decided at that time that are pertinent to this appeal included the following: Christine was awarded sole custody of the three children; and both parties were held equally responsible for child support (although Christine was given a credit for carrying health, vision, and dental insurance for herself and the children) with William, as non-custodial parent, ordered to pay $945.48 per month to the Kenton County Office of child support. The child support was a lump sum due, not a per child assessment.
William filed a timely notice of appeal (No. 2011-CA-001650-MR), but the Court of Appeals dismissed this appeal in June 2012, after William failed to file a brief (in spite of a ten-day warning entered prior to the dismissal). William again filed an appeal (No. 2012-CA-001463-MR) from a July 16, 2012, finding of contempt, but that appeal was dismissed by this Court as untimely taken.
In January 2015 William was brought before the Kenton Circuit Court for failing to pay child support. His arrearage totaled upwards of $3,000.00. William not only had fallen behind in his monthly payments but he had also reduced by roughly one-third the amount of the payments because the eldest child had graduated from high school and turned eighteen. William had not filed a motion for reduction of support payments. He had instead made the calculation on his own although he insisted that he had written a letter to the child support office but never received a response. The record contains no verification of this allegation. The Kenton County Attorney filed a motion to intervene and pursue the arrearage on Christine's behalf. This motion was granted. Counsel for William filed a motion to reduce child support on March 25, 2015.
On May 27, 2015, a lengthy hearing was held for the purpose of addressing the arrearage and William's motion to reduce child support; both parties testified. The appellant stated that he is currently suspended from practicing law because of his failure to pay bar dues and to maintain the mandatory continuing legal education (CLE) credits. He received further sanctions (an additional six-months' suspension to run consecutively with the previously imposed one) for failing to diligently represent a client. Kentucky Bar Association v. Fulmer, 439 S.W.3d 746 (Ky. 2014). William was ordered to return the client's retainer and seek treatment with KYLAP (the Kentucky Lawyers Assistance Program). By the time of the hearing, William had not followed up with KYLAP other than to make two phone calls which he claimed were not returned. (There is no verification in the record that William had made these phone calls.) He had not paid his bar dues and he had not satisfied his CLE requirements.
William testified to a litany of physical ailments ("collapse of endocrine system," "cervical spinal stenosis," "herniation of three discs," "sleep apnea," "hypertension," to name a few) which he claimed kept him from being able to work. His daily existence, he stated, consisted of attending to his personal hygiene and watching YouTube channels on his computer. William stated that his "mind-numbing pain" and total loss of "temporal awareness" leave him incapacitated. He has not filed tax returns for many years (even though he had income as recently as 2013). His sister supports him financially. He claimed to have no bank account, no credit cards, no cable television, and no cell phone except the one that his sister provided him. William has had no contact with his children since May 2011 because they are "confrontational" and they "attack" him.
The trial court addressed the issue of child support first. The court found that William's lack of employment, including his suspension from the practice of law, was entirely caused by matters within his control. The trial court also found that William's reliance on medical impairment as an excuse for unemployment was unsupported by reliable evidence. Thus the trial court did not reduce William's imputed income although it did increase Christine's (she had recently been employed in a new position at a significantly higher salary).
The trial court went on to entertain and grant William's motion for a reduction in child support, but applied same retroactively to the date of the formal filing of the motion, not to the date of the child's emancipation (which is when William began sua sponte to reduce his obligation). The trial court set William's child support at $673.54 per month. William stipulated to the arrearage amount, viz., $4058.60 as of April 30, 2015. William was found in contempt for failure to pay child support. The trial court's findings (made from the bench) were reduced to a written order and entered on June 9, 2015. The contempt sentencing hearing was set for thirty days later (July 8, 2015). William was warned to satisfy the arrearage in advance of the sentencing hearing.
At the sentencing hearing, the trial court imposed the sentence stated in paragraph one of this opinion. Although William paid the arrearage, he had only done so immediately prior to the hearing. The trial court, because of William's history of noncompliance with court orders (not only before the family court but also before the Kentucky Bar Association and Kentucky's appellate court system), imposed the ninety-day sentence (with five days probated for community service and the remaining eighty-five days conditionally discharged for two years based on William remaining current with his support payments). William appeals.
William first argues that the trial court erred in its failure to apply the reduced support payment retroactively to the oldest child's emancipation. We disagree for two reasons. We initially state the obvious:
Child-support awards may be modified only as to installments accruing after notice of the motion for modification and then "only upon a showing of a material change in circumstances that is substantial and continuing." KRS 403.213(1). As with the original determination of a child support award, the decision whether to modify an award in light of changed circumstances is within the sound discretion of the trial court. Price v. Price, 912 S.W.2d 44 (Ky. 1995); Rainwater v. Williams, 930 S.W.2d 405 (Ky. App. 1996).Snow v. Snow, 24 S.W.3d 668, 672 (Ky. App. 2000). William's motion to modify the award was made on March 25, 2015, the date which the trial court recognized in its modification application. William's argument that the modification should have been automatic - that the facts and circumstances of Price, supra, and the statutory language in KRS 403.213(1) do not apply in this situation - is not convincing. The child support award set by the trial court after the dissolution of the Fulmers' marriage was a lump sum (not a per-child) amount. It was not the parties' clear intent that the payment amount should automatically adjust as each child became emancipated. See Pecoraro v. Pecoraro, 148 S.W.3d 813 (Ky. App. 2004).
Kentucky Revised Statutes.
Bennett v. Bennett, 2010-CC-001016-ME, 2011 WL 2548791 (Ky. App., June 10, 2011), cited by both parties, was denied review and ordered not to be published by the Kentucky Supreme Court on September 14, 2011, in No. 2011-SC-000402-DE. Therefore, the parties are precluded from relying upon this citation. --------
We also find that the trial court acted within its discretion in imposing the civil contempt sentence. KRS 403.240(2) provides:
The failure of either party, without good cause, to comply with a provision of a decree or temporary order or injunction, including a provision with respect to visitation or child support shall constitute contempt of court, and the court shall remedy the failure to comply."[T]he terms of the trial court's order of conditional discharge set forth following its finding of contempt made it abundantly clear how Appellant could avoid further incarceration and 'purge' himself of that finding. Thus, this argument also must fail." Batton v. Commonwealth ex rel. Noble, 369 S.W.3d 722, 726 (Ky. App. 2012). Although William contends that he is being punished for an impossibility, namely, future conduct, such is not the reality of the matter. The trial court clearly set out, after its finding of contempt, the terms of the conditional discharge. Should William fail to meet those terms and face a revocation of his conditional discharge, he will be afforded all procedural safeguards at that time. See Commonwealth v. Marshall, 345 S.W.3d 822, 833-834 (Ky. 2011), and its progeny.
The orders of the Kenton Circuit Court are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Thomas L. Rouse
Erlanger, Kentucky BRIEF FOR APPELLEE: Howard L. Tankersley
Covington, Kentucky