Opinion
NO. 2017-CA-001971-MR
05-24-2019
J.N.H. APPELLANT v. COMMONWEALTH OF KENTUCKY, EX REL, CABINET FOR HEALTH AND FAMILY SERVICES APPELLEE
BRIEFS FOR APPELLANT: Julia K. Pearson Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE DAWN M. GENTRY, JUDGE
ACTION NO. 12-J-01799-001 OPINION
REVERSING AND REMANDING
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BEFORE: COMBS, DIXON, AND GOODWINE, JUDGES. DIXON, JUDGE: Appellant, J.N.H., appeals from an order of the Kenton Circuit Court finding her in contempt for failure to pay child support and sentencing her to six months in jail, with five months conditionally discharged on the condition that she make monthly payments as ordered. For the reasons set forth herein, we reverse and remand for further proceedings.
Appellant is the biological mother of J.S., who was born in 2010. J.S. was removed from Appellant's custody in 2012 due to Appellant's drug abuse. J.S. was ultimately placed in the permanent custody of Appellant's sister and brother-in-law. In February 2014, Appellant was ordered to pay monthly child support of $206.00 and a monthly arrearage payment of $20.00. In June 2015, Appellant was found to be in contempt for failure to pay child support. The court sentenced Appellant to six months in jail, conditionally discharged for two years as long as Appellant paid monthly support as ordered.
In June 2017, the Commonwealth filed a motion requesting that Appellant be ordered to show cause why she should not be held in contempt for failing to comply with the February 2014 child support order. The court appointed counsel to represent Appellant, and a contempt hearing was held on November 8, 2017. Appellant stipulated to the Commonwealth's arrearage calculation of $5,738.27, which also reflected that she had made no payments in a year. Appellant testified on her own behalf and acknowledged that she had a serious drug addiction. At the beginning of the year, she had been employed as a temporary worker through a staffing agency but lost the job in April due to her drug use. She also stated that she had previously relied upon her father for money, noting he would usually give her $100.00 per week for cleaning his business. Appellant acknowledged that she typically spent the money from her father on drugs and cigarettes. Appellant testified that her mother knew the manager of Taco Bell, and she believed she could get a job at Taco Bell upon her release from custody. At the conclusion of the hearing, the family court held Appellant in contempt for her failure to pay her support obligation and sentenced her to six months in jail, with thirty days to serve and five months being conditionally discharged for two years, so long as Appellant remained current on her monthly payment obligations. To purge herself of the thirty-day jail sentence, Appellant could enter and complete an inpatient drug treatment program.
On appeal, Appellant does not dispute the court's finding of contempt based upon her failure to pay the child support obligation. Appellant contends that the trial court erred in imposing a conditional sentence of incarceration if she failed to remain current on her payment obligations in the future. Appellant asserts she had no present ability to perform the future obligations, and the court's order failed to provide her with an opportunity to purge the contempt.
We are mindful that a trial court has broad authority when exercising its contempt powers; consequently, our review is limited to a determination of whether the court abused its discretion. Kentucky River Community Care, Inc. v. Stallard, 294 S.W.3d 29, 31 (Ky. App. 2008). "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).
"Contempt may be either civil or criminal, depending upon the reason for the contempt citation." Crowder v. Rearden, 296 S.W.3d 445, 450 (Ky. App. 2009). "Civil contempt consists of the failure of one to do something under order of court, generally for the benefit of a party litigant." Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996). "[T]he defining characteristic of civil contempt is the fact that contemnors carry the keys of their prison in their own pockets." Campbell v. Schroering, 763 S.W.2d 145, 148 (Ky. App. 1988) (internal citations and quotation marks omitted). When a court levies punishment for civil contempt, "the contemnor must, at the time the sanction is imposed, have the ability to purge the contempt by compliance and either avert the punishment or at any time bring it to an end." Commonwealth, Cabinet for Health and Family Services v. Ivy, 353 S.W.3d 324, 334-35 (Ky. 2011). A court cannot use its contempt power to compel a contemnor to do an impossible act, and the court must make a factual finding regarding the actual ability of the contemnor to pay the obligation. Lewis v. Lewis, 875 S.W.2d 862, 864 (Ky. 1993).
Appellant argues that the court's order failed to provide her with an opportunity to purge the contempt because she had no present ability to perform the future obligation of making monthly support payments.
The remedy fashioned by the court for Appellant's contempt was a six-month jail sentence, with thirty days to serve. The court provided a purge condition for the thirty-day jail sentence—enrolling in and completing an inpatient rehabilitation program. The remainder of her sentence was conditionally discharged for two years, as long as Appellant stayed current on her monthly payment obligations. The record reflects, however, that the trial court failed to make any factual findings regarding Appellant's present ability to pay her obligations. See id. We reiterate, when a court levies punishment for civil contempt, "the purge condition of a coercive order must be something presently within the contemnor's ability to perform." Ivy, 353 S.W.3d at 335. Here, since there was no determination that Appellant had the present ability to perform her obligations, she was denied a true opportunity to purge the contempt; consequently, the court erred by imposing a conditionally discharged five-month jail sentence based upon Appellant's future compliance with the support order. Id. We reverse the court's contempt order and remand this matter for determination of an attainable purge condition based upon specific findings of Appellant's present ability to pay her obligations.
For the reasons stated herein, the order of the Kenton Circuit Court is reversed, and this matter is remanded for further proceedings consistent with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Julia K. Pearson
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky