Opinion
2024-CA-0379-MR
10-18-2024
HEATHER KIMMEL APPELLANT v. MICHAEL BENJAMIN KIMMEL AND ELIZABETH BARBER APPELLEES
BRIEF FOR APPELLANT: HEATHER KIMMEL, PRO SE CRESTWOOD, KENTUCKY
NOT TO BE PUBLISHED
APPEAL FROM OLDHAM FAMILY COURT HONORABLE DOREEN S. GOODWIN, JUDGE ACTION NO. 20-CI-00168
BRIEF FOR APPELLANT: HEATHER KIMMEL, PRO SE CRESTWOOD, KENTUCKY
BEFORE: ACREE, CETRULO, AND A. JONES, JUDGES.
OPINION
CETRULO, JUDGE
This is a pro se appeal by appellant Heather Kimmel ("Heather") from a finding of contempt by the Oldham Family Court. Following a hearing, the family court found Heather in contempt for violating a previous court order. As a sanction for contempt, the family court ordered Heather to pay the attorney fees of appellee Michael Kimmel ("Michael") in the amount of $1,800.00. This appeal followed. Having conducted a review of the record, we affirm in part but vacate the order below in part.
FACTUAL BACKGROUND
These parties have had a lengthy and contentious divorce proceeding. In 2020, they entered into an agreed settlement which was incorporated into a final divorce decree. However, that agreement did not put an end to their many disputes. The parties share two minor children, and the record reveals that Heather became employed as a "trauma therapist" following their divorce. This employment has largely consisted of her recording podcasts and posting on social media about her prior trauma and related experiences. Those activities led Michael to request the family court to order Heather to remove social media posts that pertained to and/or disparaged him.
In response, Heather did not deny the posts but argued that her TikTok account, "Triumph over Trauma" was her business and this business focused on helping others involved in relationships with narcissistic personalities. In further response to the motion, Heather denied the children had any access to her social media accounts and essentially pledged to not use Michael's name or to reference their past relationship in the future. In September 2022, the family court ruled on Michael's motion with an order specifically instructing Heather to remove social media posts in which she referenced her ex-husband by name, inference, or otherwise, so as to make him easily identifiable.
Several months later, Michael filed this motion for contempt asserting that Heather was continuing to violate the order and requesting attorney fees as a sanction. Thereafter, both parties had changes in representation and other motions were filed and noticed for subsequent dates. However, a hearing was scheduled for October 19, 2023, and both parties appeared, although Heather was unrepresented.
At that hearing, the discussion centered around the motions scheduled to be heard that day as opposed to other motions which would be heard at a later date. Following discussion and review of the record, the family court asked if the parties agreed that the only motions to be heard were the contempt motion filed by Michael and a motion by Heather to set child support. The parties appeared to agree with this assessment, and testimony proceeded.
Michael testified Heather continues to disparage him on TikTok, referring to her "abusive ex-husband"; "domestic violence in her prior marriage"; and her "narcissistic ex." Michael testified she had only ever been married to him, thus making him identifiable to others in the community. He also claimed that at times you could hear the children's voices in the background. After considerable technical difficulties, Michael played some of the videos for the court. He primarily based his testimony upon a spreadsheet he had prepared regarding more than 362 posts on TikTok. For her case, Heather did not deny the videos but simply stated she did not use his name and the children could not hear her posts, even though the children could be heard in the background on at least a couple of the recordings played for the court. Heather also defended that Michael's actions had "triggered" her into making some of the postings, and she did not believe they were in violation of the earlier order since she did not use his name.
At the conclusion of the hearing, the family court asked Michael's counsel for an affidavit of her fees. Counsel indicated she did not have it but would provide one. The family court gave her seven days to do so. We have reviewed the entire record on appeal and did not locate any affidavit or fee bill/invoice for Michael's attorney. The motion itself did not include any amount for fees, and there was no testimony about fees at the hearing.
On February 27, 2024, the family court issued an order finding Heather in contempt for violating the September 2022 order. The court noted that its focus was not only on preventing acquaintances of the parties from reading or hearing the posts which rendered Michael identifiable, but also on protecting the children. The court specifically found that the children could be heard in the background while Heather was talking about her ex-husband. The order further awarded child support (which is not a subject of this appeal), and ordered Heather to pay $1,800.00 in Michael's attorney fees, for her contempt. This appeal followed.
STANDARD OF REVIEW
As an initial matter, our Supreme Court has defined contempt as "the willful disobedience toward, or open disrespect for, the rules or orders of a court." Cabinet for Health and Family Services v. J.M.G., 475 S.W.3d 600, 610 (Ky. 2015) (internal quotation marks and citations omitted). All courts have the authority to sanction contempt and to "insist upon respect for its processes and compliance with its rulings and judgments." Id. at 611 (citations omitted). Thus, "[t]he power of courts to punish" is implicit in the judicial function, "a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law." Id. (internal quotation marks and citations omitted).
We review the family court's imposition of civil contempt "for abuse of discretion, but we apply the clear error standard to the underlying findings of fact." Crandell v. Cabinet for Health &Fam. Servs. ex rel. Dilke, 642 S.W.3d 686, 689 (Ky. 2022) (internal quotation marks and citations omitted). "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).
On appeal, Heather asserts that Michael failed to introduce the order which she had allegedly violated; that he failed to properly present the content of all of the postings; and that the evidence was insufficient to support the finding of contempt. She also alleges she did not have prior notice of the fact this was set for contempt on October 19 as the notice of hearing went to prior counsel who had withdrawn.
The motion was filed several months prior to the hearing and Heather was represented at that time. The motion was properly noticed and served upon her counsel of record in accordance with the Rules of Civil Procedure. Moreover, she did not complain of lack of notice of the contempt motion at the hearing, and we will not address a claim that was not presented below. "[A] party is not entitled to raise an error on appeal if he has not called the error to the attention of the [family] court and given that court an opportunity to correct it." S.T. v. Cabinet for Health & Fam. Servs., 585 S.W.3d 769, 777 (Ky. App. 2019) (citing Little v. Whitehouse, 384 S.W.2d 503, 504 (Ky. 1964)).
At the outset, we note that Heather has filed this brief pro se and further that Michael has failed to file a brief at all. As stated in the Rules of Appellate Procedure ("RAP") 31(H)(3):
If the appellee's brief has not been filed within the time allowed, the court may: (a) accept the appellant's statement of the facts and issues as correct; (b) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (c) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case.However, this Court can "decline to exercise any of the options listed in RAP 31(H)(3)." Hamilton v. Milbry, 676 S.W.3d 42, 44 (Ky. App. 2023). We have elected to review the entire record on appeal, noting deficiencies in the appellant's pro se brief as well as the lack of any appellee brief. Based upon our review, we affirm the family court's finding of contempt, but vacate the award of attorney fees as the record before us requires that action.
In a civil proceeding for contempt, the party seeking sanctions bears the burden to show by clear and convincing evidence that the other party has violated a valid court order. See generally, e.g., Roper v. Roper, 242 Ky. 658, 47 S.W.2d 517 (1932). Once the moving party makes aprima facie case, a presumption of contempt arises, and the burden shifts to the alleged contemnor to show, clearly and convincingly, that she was unable to comply with the court's order or was, for some other reason, justified in not complying. See generally Clay v. Winn, 434 S.W.2d 650 (Ky. 1968). This burden is a heavy one and is not satisfied by mere assertions of inability to comply. Dalton v. Dalton, 367 S.W.2d 840, 842 (Ky. 1963).
In this case, Heather did not attempt to justify her actions, but simply denied that the references to her ex-husband, without naming him specifically, were a violation of the prior order. We disagree. The prior order specifically precluded posts that rendered Michael easily identifiable. Michael's testimony that he was Heather's only ex-husband provided the context for the family court to find a violation of that previous order. There was also sufficient evidence presented with the videos played for the court to support the finding of a violation, and the court was not required to hear all of the recordings.
Heather also argues on appeal Michael did not present the actual prior order in his motion before the family court, and neither the prior order nor the separation agreement specifically prohibited her from discussing or disparaging Michael in the presence of the children. However, the family court had entered the previous order and it was contained within the record before the court. There was no requirement for it to be introduced as an exhibit in support of the motion, which alluded to the wording of the earlier order. The family court found a clear violation of the prior order as it pertained to actions and comments that rendered Michael "identifiable."
As to the discussions in the presence of the children, the family court did not find Heather in contempt on that basis, but simply expressed concern for the children as they could be heard and were clearly nearby during the recording of some of those videos. Such a concern expressed by the family court is certainly warranted and not an abuse of discretion.
Likewise, the remedy of attorney fees was within the scope of the contempt authority and discretion granted to the trial court. See Commonwealth, Cabinet for Health &Fam. Servs. v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011). Heather argues that attorney fees cannot be awarded in the absence of a statutory or contractual basis for such an award. See White v. Sullivan, 667 S.W.2d 385, 389 (Ky. App. 1983). However, our Courts have upheld attorney fee awards in contempt proceedings and as a sanction in circumstances where "the integrity of the court is at stake." Seeger v. Lanham, 542 S.W.3d 286, 295 (Ky. 2018); Bell v. Commonwealth, Cabinet for Health &Fam. Services, 423 S.W.3d 742, 749 (Ky. 2014). We have specifically held that an award of attorney fees is a proper sanction for contempt. Kentucky Retirement Systems v. Foster, 338 S.W.3d 788, 803 (Ky. App. 2010).
Still, if a party seeks compensation and sanctions for the violation, in the form of a monetary award, "it must [] prove the amount." Ivy, 353 S.W.3d at 332 . Here, the family court provided Michael's attorney with an opportunity to present proof of the damages being sought. There was no testimony at the hearing as to those damages, and the record does not provide any support for the award of $1,800.00 in attorney fees. With no brief on behalf of Michael or his counsel, and nothing in the record to support the award, we cannot affirm awarding this amount.
Accordingly, we AFFIRM the Oldham Family Court Order finding Heather in contempt, but vacate the award of $1,800.00.
ALL CONCUR.