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L.E.G. v. Commonwealth ex rel. T.S.

Commonwealth of Kentucky Court of Appeals
Apr 12, 2019
NO. 2017-CA-001972-MR (Ky. Ct. App. Apr. 12, 2019)

Opinion

NO. 2017-CA-001972-MR

04-12-2019

L.E.G. APPELLANT v. COMMONWEALTH OF KENTUCKY, EX REL, T.S. APPELLEE

BRIEFS FOR APPELLANT: Joseph A. Tutro Assistant Public Advocate Covington, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky


NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE DAWN M. GENTRY, JUDGE
ACTION NO. 07-J-00470 OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

** ** ** ** **

BEFORE: KRAMER, LAMBERT, AND NICKELL, JUDGES. LAMBERT, JUDGE: L.E.G. (the Father) appeals from the Kenton Circuit Court's order finding him in contempt for failure to pay child support. The Father argues that the contempt order constituted an abuse of discretion in both its purge amount and duration. After a thorough review of the record, we affirm in part, reverse in part, and remand the matter for further findings.

The Father's paternity was established in November 2007, six months after the birth of J.M.S (the Child). In the judgment of paternity, the Father was held responsible for 50% of the Child's pre-natal, birthing, and post-natal care ($3,183.23, for which he was ordered to make payments of $75.00 until that amount was satisfied), and $75.00 for the paternity test. Child support was established in March 2008 at $195.00 per month, with an additional $40.00 toward the Father's arrearage on the birthing expenses.

The Father made very few payments over the years. Meanwhile, he became a parent to three more children. He was held in contempt in 2008, 2011, and 2015, for failing to pay child support in this case. At one point his arrearages totaled over $21,000.00, but the Child's mother agreed to waive more than $15,000.00 of that amount, with no future payments due. When the current show cause petition was filed against the Father in July 2017, his total adjusted arrearages were approximately $6,300.00.

At the contempt hearing, held in November of that year, the Father testified about his employment and monthly expenses, stating that there was very little money for which to satisfy his obligations to the Child. He stated that he believed that the matter had been resolved, which was his explanation for not making any further payments. His paycheck was being garnished for two of his other three children, and he reasoned that, if he still owed for this Child, there would have been a garnishment for her support as well. The Father acknowledged his lengthy history with the court system on this and other matters. His attorney requested that, if sentenced, the term should be conditionally discharged with a nominal purge amount.

After closing arguments by both parties, the Kenton Family Court found the Father in contempt and ordered that the Father be sentenced to 180 days, with 174 days conditionally discharged if the Father remained current on his $195.00 per month child support arrearages. The Father was ordered to serve six days in jail with a purge amount of $495.00 due in ten days. Failure to pay the purge amount would result in the Father serving those six days on weekends.

On appeal, the Father first argues that the circuit court abused its discretion in setting the purge amount of $495.00, which he states was unattainable for him. Our standard of review is found in Commonwealth, Cabinet for Health & Family Services v. Ivy, 353 S.W.3d 324 (Ky. 2011):

A trial court, of course, has broad authority to enforce its orders, and contempt proceedings are part of that authority. Lewis v. Lewis, 875 S.W.2d 862 (Ky.1993). KRS 403.240, moreover, provides that a party's noncompliance with a support or custody decree "shall constitute contempt of court," and shall be addressed as such. We review the trial court's exercise of its contempt powers for abuse of discretion, Lewis, 875 S.W.2d at 864, but we apply the clear error standard to the underlying findings of fact. Blakeman v. Schneider, 864 S.W.2d 903 (Ky. 1993).
Ivy, 353 S.W.3d at 332. The Father does not contest the arrearage amount owed, nor that he failed to make regular monthly payments. He merely asserts that he was unable to pay and that he had requested a nominal purge amount. Yet he offered no proof of inability to pay other than his own testimony. There was no documentary evidence of his income or expenses placed into the record.
Once the moving party makes out a prima facie case, a presumption of contempt arises, and the burden of production shifts to the alleged contemnor to show, clearly and convincingly, that he or she was unable to comply with the court's order or was, for some other reason, justified in not complying. 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. Dalton v. Dalton, 367 S.W.2d 840 (Ky.1963). The alleged contemnor must offer evidence tending to show clearly that he or she made all reasonable efforts to comply. Id. If the alleged contemnor makes a sufficient showing, then the presumption of contempt dissolves and the trial court must make its determination from the totality of the evidence, with the ultimate burden of persuasion on the movant.
Ivy, 353 S.W.3d at 332 (emphasis ours). However, it was incumbent upon the trial court to make a finding regarding the contemnor's ability to pay.
Where, as here, the contempt proceeding is civil, the sanction may serve either to coerce the contemnor to comply with a court order, to compensate a party for losses caused by the contempt, or both. United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947). Coercive sanctions, such as daily fines or incarceration, are punishments imposed until the contempt is purged by compliance with an order. For the punishment to retain its civil character, 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. Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); Lewis v. Lewis, 875 S.W.2d at 862. The contemnor bears the burden of proving his or her inability to meet the purge condition, but in imposing that burden the court should be mindful of the contemnor's overriding interest in not being required to perform an impossible act. Lewis, 875 S.W.2d at 864. The court has broad discretion to fashion compensatory remedies, but they must be based on evidence of actual loss. United Mine Workers.
Ivy, 353 at 334-35. "[T]he purge condition of a coercive order must be something presently within the contemnor's ability to perform." Ivy, 353 S.W.3d at 335. We therefore reverse on the issue of the purge amount and remand it to the circuit court for findings regarding the Father's ability to pay, based on the evidence before it.

The Father secondly insists that the circuit court erred in setting the conditional discharge because he "had no present ability to perform future obligations and a purge condition must be something presently within a contemnor's ability to perform," citing Ivy at 335. We cannot agree. It was within the circuit court's broad discretion to fashion a remedy, including "imprisonment for past non-compliance." Id.

The judgment of the Kenton Circuit Court is affirmed in its finding of contempt and in setting the duration of the conditional discharge, but reversed and remanded for further findings regarding the Father's ability to pay the purge amount.

KRAMER AND NICKELL, JUDGES, CONCUR IN RESULT ONLY. BRIEFS FOR APPELLANT: Joseph A. Tutro
Assistant Public Advocate
Covington, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Joseph A. Beckett
Assistant Attorney General
Frankfort, Kentucky


Summaries of

L.E.G. v. Commonwealth ex rel. T.S.

Commonwealth of Kentucky Court of Appeals
Apr 12, 2019
NO. 2017-CA-001972-MR (Ky. Ct. App. Apr. 12, 2019)
Case details for

L.E.G. v. Commonwealth ex rel. T.S.

Case Details

Full title:L.E.G. APPELLANT v. COMMONWEALTH OF KENTUCKY, EX REL, T.S. APPELLEE

Court:Commonwealth of Kentucky Court of Appeals

Date published: Apr 12, 2019

Citations

NO. 2017-CA-001972-MR (Ky. Ct. App. Apr. 12, 2019)