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Mayham v. Spencer

Commonwealth of Kentucky Court of Appeals
May 31, 2019
NO. 2017-CA-001720-MR (Ky. Ct. App. May. 31, 2019)

Opinion

NO. 2017-CA-001720-MR

05-31-2019

EDGAR ROBERT MAYHAM APPELLANT v. BETTY L. SPENCER APPELLEE

BRIEF FOR APPELLANT: Edgar Robert Mayham, pro se Rosenberg, Texas BRIEF FOR APPELLEE: No brief filed


NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE TARA HAGERTY, JUDGE
ACTION NO. 14-CI-502496 OPINION
AFFIRMING

** ** ** ** **

BEFORE: JONES, LAMBERT AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: Edgar Robert Mayham appealed from a September 22, 2017 order of the Jefferson Family Court finding that he failed to pay maintenance in the amount of $250 in the month of February 2017, as required by the marital property settlement agreement between Mayham and Betty Lou Spencer. He argues that the family court erred because it was not disputed that he paid maintenance in February and the only allegation made was that he missed payments in March and April. While we agree that the family court mistakenly found Mayham did not pay maintenance in February, that error was harmless because the parties agreed, through counsel, that Mayham was obligated to pay the missing March payment.

At the outset we note that Mayham is pro se. In his notice of appeal, Mayham states that he is appealing from a September 22, 2017 order. In that order, the family court found that he missed a February 2017 maintenance payment owed to Spencer. Inexplicably, he then requests "an order to demand action from Judge Hagerty or to transfer my Vacate QDRO due to Omission Order and Judicial Notice of Facts and Law to another judge or court for review and signature." Upon review of the record, we discovered that on April 12, 2017, the family court entered an order denying Mayham's motion for the court to terminate his maintenance to Spencer as set forth in the parties' marital settlement agreement and to amend the Qualified Domestic Relations Order (QDRO) so that he receives his full benefits. That order was not appealed and, at the hearing on the Spencer's motion for contempt, counsel stated the QDRO was not an issue. Therefore, our review is limited to the only issue properly before this Court, specifically, the family court's finding that Mayham failed to pay maintenance in February 2017.

Presumably, because of the small amount of money at issue and the cost of hiring appellate counsel, Spencer did not file an appellee brief. Although this Court has several options available under Kentucky Rules of Civil Procedure (CR) 76.12(8)(c) when no appellee brief is filed, exercising those options is discretionary with this Court. Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky.App. 2007). Given that the family court clearly did not commit reversible error, we opt not to penalize Spencer for failing to file a brief. --------

On April 17, 2017, Spencer filed a motion for contempt for failure to pay maintenance against Mayham asking for a common law judgment on a maintenance arrearage and for attorney's fees. In an affidavit attached to her motion, Spencer stated Mayham had not paid maintenance "since February."

The family court held a hearing on the matter. Spencer appeared with counsel. Mayham did not appear, but his counsel appeared and informed the family court that Mayham was in Texas and available by telephone. After Mayham's counsel gave the family court a number at which Mayham could be reached, the family court dialed that number twice to reach Mayham. However, both attempts failed because Mayham did not answer.

At that juncture, Mayham's counsel explained that although Mayham sent the March payment to Spencer, it appeared she did not receive it and, because he sent it in cash, Mayham could not prove it was sent. The parties then agreed that Mayham could pay the $250 over a period of two or three months. Therefore, the only issue that remained was whether Mayham should be held in contempt and be obligated for Spencer's attorney's fees in bringing the contempt motion.

The family court entered a written order in which it found that although it is was "baffled" by Mayham's method of paying his maintenance by sending cash to Spencer in the mail, it did not find that Mayham was in contempt. It then ordered Mayham to "pay the $250.00 owed to [Spencer] for the missed maintenance payment in February 2017 within sixty days[.]" The family court denied Spencer's motion for attorney's fees.

We have reviewed the hearing on the contempt motion. Although there was some initial confusion as to whether Mayham missed the February payment or the March payment, that confusion makes no difference. The parties ultimately agreed that he missed one payment and was obligated to pay $250 for that missed month. The family court's mistaken statement that he missed the month of February instead of March is not a basis for reversal.

Mayham's belief that the finding he was not in contempt is inconsistent with the finding that he was in arrears is mistaken. "Contempt is the 'willful disobedience of—or open disrespect for—the rules or orders of a court." Crowder v. Rearden, 296 S.W.3d 445, 450 (Ky.App. 2009) (quoting Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996). Merely being in arrears in maintenance is not a basis for contempt without an element of willfulness in the nonpayment. Here, the evidence was that for two years Mayham made all maintenance payments and there was evidence that he mailed the missing payment but that it was not received. Unfortunately, Mayham's cash payments made it impossible to prove his payment resulting in his obligation to pay $250. There was nothing inconsistent in the family court's findings.

The order of the Jefferson Family Court is affirmed.

ALL CONCUR. BRIEF FOR APPELLANT: Edgar Robert Mayham, pro se
Rosenberg, Texas BRIEF FOR APPELLEE: No brief filed


Summaries of

Mayham v. Spencer

Commonwealth of Kentucky Court of Appeals
May 31, 2019
NO. 2017-CA-001720-MR (Ky. Ct. App. May. 31, 2019)
Case details for

Mayham v. Spencer

Case Details

Full title:EDGAR ROBERT MAYHAM APPELLANT v. BETTY L. SPENCER APPELLEE

Court:Commonwealth of Kentucky Court of Appeals

Date published: May 31, 2019

Citations

NO. 2017-CA-001720-MR (Ky. Ct. App. May. 31, 2019)