Opinion
NO. 2015-CA-001636-MR NO. 2015-CA-001957-MR NO. 2016-CA-000831-MR NO. 2016-CA-001760-MR
05-11-2018
ZACKARY E. MCKEE APPELLANT v. ELIZABETH MILLS APPELLEE
BRIEFS FOR APPELLANT: Richard I. Williams, Jr. Louisville, Kentucky ORAL ARGUMENT FOR APPELLANT: Bethanni Forbush-Moss Louisville, Kentucky BRIEF FOR APPELLEE: Justin R. Key Sarah A. Huyck Jeffersonville, Indiana ORAL ARGUMENT FOR APPELLEE: Justin R. Key Jeffersonville, Indiana
NOT TO BE PUBLISHED APPEALS FROM JEFFERSON CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE A. CHRISTINE WARD, JUDGE
ACTION NO. 15-CI-500306 OPINION
AFFIRMING APPEAL NOS. 2015-CA-001636-MR, 2015-CA-001957-MR, AND 2016-CA-001760-MR AND AFFIRMING IN PART, VACATING IN PART, AND REMANDING APPEAL NO. 2016-CA-000831-MR
** ** ** ** **
BEFORE: J. LAMBERT, NICKELL, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Zackary E. McKee brings Appeal No. 2015-CA-001636-MR from September 2, 2015, and September 23, 2015, orders of the Jefferson Circuit Court, Family Court Division. McKee also brings Appeal No. 2015-CA-001957-MR from October 7, 2015, and November 17, 2015, orders of the Jefferson Family Court. McKee also brings Appeal No. 2016-CA-000831-MR from April 29, 2016, May 4, 2016, and May 17, 2016, orders of the Jefferson Family Court. McKee lastly brings Appeal No. 2016-CA-001760-MR from October 21, 2016, and November 4, 2016, orders of the Jefferson Family Court. Because these appeals involve the same parties and related subject matter, they have been consolidated for appellate review. We affirm Appeal Nos. 2015-CA-001636-MR, 2015-CA-001957-MR, and 2016-CA-001760-MR; we affirm in part, vacate in part, and remand Appeal No. 2016-CA-000831-MR.
McKee and Elizabeth Mills had a child together, E.M. and were parties to a paternity action (Action No. 11-J-504983) in the Jefferson Circuit Court, Family Court Division. Eventually, the parties reached an agreement as to all issues, and the agreement was incorporated into a September 5, 2014, order in the paternity action.
Zackary E. McKee and Elizabeth Mills were never married.
Subsequently, on February 2, 2015, Mills filed a petition for custody and child support. Mills stated that both she and McKee exercised joint custody of E.M. Mills sought child support from McKee, sought to claim E.M. as a dependent for tax purposes, and requested modification of child custody. As a result, McKee filed a motion seeking reimbursement of past child care expenses as well as allocation of future child care expenses. Mills then filed a motion to compel McKee to comply with the September 5, 2014, order entered in the paternity action concerning health insurance and payment of medical expenses for E.M. Mills requested the court hold McKee in contempt of court for his failure to abide by the terms of the September 5, 2014, order. After hearings upon the above motions, McKee filed a motion seeking a ruling from the court and/or for recusal of Family Court Judge A.C. Christine Ward, who has presided over this action from its inception. In support of recusal, McKee affirmed:
Judge A. Christine Ward serves as a Judge of the Jefferson Circuit Court, Family Court Division Six.
6. The facts and history of this case reasonably leads to the possibility that a bias and or prejudice is afoot, in general or under KRS 26A.015, due to Your Affiants status as a staff attorney, gender, race or a combination thereof or a private bias that a parent spouse's income shall not be considered in any capacity.August 17, 2015, McKee Affidavit at 1.
7. Your affiant does not seek to allege baseless claims but said biases are not always explicit but can but [sic] implied in light of the facts and these facts are unsavory.
By order entered September 2, 2015, the family court denied McKee's motion for recusal. McKee then filed a Kentucky Rules of Civil Procedure (CR) 59.05 motion to vacate and a CR 52.02 motion for additional findings. The family court denied both motions by order entered September 23, 2015; however, the court noted that the action would not be held in abeyance pending McKee's application for recusal with the Chief Justice of the Kentucky Supreme Court. McKee filed a notice of appeal (Appeal No. 2015-CA-001636-MR) in the Court of Appeals from the September 2, 2015, and September 23, 2015, orders.
Thereafter, the family court entered an order adjudicating of the substantive issues on October 7, 2015. Relevant to these appeals, the family court denied McKee's motion to require Mills pay one-half of child care costs. The family court also concluded that McKee must provide E.M. with medical insurance under the terms of the September 5, 2014, order. In conformity with a private written agreement of the parties, the family court also determined that McKee owed Mills $2,101.50, representing one-half of McKee's 2014 tax refund.
Being dissatisfied with the order, McKee filed a CR 59.05 motion to vacate and a CR 52.02 motion for additional findings of fact. By order entered November 17, 2015, the family court issued additional findings of fact but denied the CR 59.05 motion. Also, on November 17, 2015, the family court rendered an order holding that McKee "shall advance $1,000 to [Mills] so that she may defend herself on appeal." McKee filed a notice of appeal (Appeal No. 2015-CA-001957-MR) in the Court of Appeals from the October 7, 2015, order and the three orders entered on November 17, 2015.
Thereafter, McKee filed an affidavit seeking the designation of a special judge pursuant to Kentucky Revised Statutes (KRS) 26A.020 citing bias of the family court judge. By Order entered December 17, 2015, Chief Justice John D. Minton of the Kentucky Supreme Court declined to appoint a special judge.
On March 8, 2016, Mills filed a motion to hold McKee in contempt of court for failing to comply with the mandates of the family court's October 7, 2015, order. Particularly, Mills asserted that McKee failed to pay her $2,010.50, representing one-half of his 2014 tax refund, and $1,000 in attorney's fees. Then, on April 13, 2016, McKee filed a notice of bankruptcy filing under Chapter 7 of the United States Bankruptcy Code and argued that all debts owed to Mills were subject to discharge thereunder. One day later, on April 14, McKee filed another motion seeking the recusal of the family court judge. Therein, McKee claimed that recusal was mandated:
1. It is my belief that Judge Christine Ward will not afford me a fair and impartial trial (or proceedings) in this case. Specifically, and as more fully described below, Judge Ward has:
• Opinioned as to her discomfort (impartiality, bias, and prejudice) against me.
• Falsified testimony/evidence.
• Is prohibiting me from accessing and has denied me access to the courts.
• Hired a personal friend of mine as her Staff Attorney.
• Not disclosed the relationship between her staff attorney and myself.
• Displayed a clear inability to render a fair judgment; by acting in bad faith, creating egregious errors and engaging in a pattern of misconduct.
• Created a "standing order" prohibiting me access to the Courts.
. . . .
10. The court is biased and prejudiced. There is something wrong with allegedly recording a child from
behind but not with falsifying sexual and abusive allegations. It is because of who is doing the act and not the act itself. This court is biased and prejudiced against [McKee] because he is a lawyer, African-American and a man.
11. At V/R 15:17 December 21, 2015[,] the court states: "and I will tell Mr. key [sic] that is it my understanding that [McKee] also approached my staff attorney this morning and wanted to play the video for her and wanted to have her contact the court and she needed to contact her judge so that I would know what is going on. Then later in the morning I advised her that I would let court administration know that this could not happen and [McKee] needed to be advised that he could not approach my staff attorney and try to talk to her about the pending case."
12. The court should and in fact is mandated to recuse based on the ex-parte or inappropriate communication it revealed on the record. Beginning at V/R: 17:23 December 21, 2105[,] the court by is actions begins nodding in the affirmative and at 17:28 gestures in agreement with [McKee's] argument that the inappropriate communication is only relevant to the court recusing.
13. The court by its on [sic] statements and being upset about the communication cannot continue to be impartial. At V/R-16:48-December 21, 2015[,] the court states "well [McKee] its been very very clear I think its been very very clear [sic], I have made it clear when I am on the record in here I am not engaging my staff attorney to do any work in this case. You have mentioned her name many times in your motions and you are putting her in a very awkward situation. An uncomfortable situation to try and approach her and talk about your case." But as illustrated below under number 25 this is not true and contrary to what the court has previously stated.
. . . .
24. Based on the unfortunate and unusual circumstances I describe below, I am convinced that Judge Ward cannot, afford a fair and impartial trial (or proceedings) to me due to bias and prejudice against me as a lawyer/staff attorney, male, and African American. Therefore, I am asking this Court, by authority of KRS 26A.020, for this Court to recuse.
25. Judge Ward issued an order on September 2, 2015[,] and September 23, 2015[,] refusing to recuse. During the (August 31, 2015-V/R-12:03:08), attached as exhibit 3, Judge Ward states:
Well let me address this first of all and [McKee] knows this but I'll address this on the record so that both parties are aware um that when this case went under submission Ms. Eisenmeyer was not my staff attorney um and so but at that point I was using a floater staff attorney Lloyd Vest who is present and so um but at this point I have decided that it is probably not a good idea to have any of our staff attorneys working on this case so from her [sic] forward, although Mr. Vest did provide initial work on this case, from this point forward I will be the only person to work on this case and so I do, once Mrs. [sic] Eisenmeyer was hired she made it known to me that she went to school with [McKee] and I, from that point I knew that absolutely she would not work on this case at all and your client knows that and has been advised of that. (Emphasis added).
26. Judge Ward further states at (8/31/2015 - V/R-12:04:14):
With regard to the recusal issue that was um certainly uh, the parties knew that [McKee] worked as a staff attorney, there was no motion made to recuse the Court at this
time, at that time the Court would have loved to have uh somebody to have made that motion because it is not necessarily a comfortable position to be in but certainly um at this point the Court uh has heard the proof on this case, the Court does believe that I can be impartial in rendering an opinion. (Emphasis added).
. . . .
36. It is my belief that Judge Ward falsified Liz's testimony (evidence) from the May 15, 2015[,] hearing. I have attached the video recording from the May 11 and May 15, 2015[,] hearings. See exhibit 3. Liz testified during the May 15, 2015[,] hearing. I believe that I am not requesting for this Court to make a legal analysis but only a determination as to whether Liz's testimony as stated by Judge Ward exist in the record because it does not.
. . . .
Verified Motion for Recusal at 1-22.
66. I believe Judge Ward has issue with me being a staff attorney/lawyer. It is my firm belief that Judge Ward shows a clear inability to render a fair judgment by acting in bad faith, creating egregious and engaging in a pattern of misconduct. Therefore, Judge Ward is not wholly free, disinterested, or impartial. Moreover, in justifying why Liz took E.M., to the E.L.C. Judge Ward states "it was not a bad thing for [Liz] or the child." See P.1 However, in the Court's October 7, 2015, P.8 when I requested the same finding Judge Ward "declined to make such a finding a conclusion."
By order entered April 29, 2016, the family court denied McKee's motion for recusal. And, by order entered May 4, 2016, the family court determined that the payments of $2,020.50 and $1,000 to Mills were nondischargeable debts in bankruptcy and were exempt from the bankruptcy stay. Additionally, the family court found McKee in contempt for his failure to pay Mills $2,010.50 and $1,000 in compliance with orders dated October 7, 2015, and November 17, 2015. The family court also held that "as further remedy" for contempt, Mills would be entitled to claim E.M. as a dependent for the 2016/2017 tax years. The court also ordered all fees to be paid within thirty days. Pursuant to a CR 59.05 motion, the family court rendered a May 17, 2016, order concluding that the "April 29, 2016 order is a final and appealable order with no just cause for delay." McKee then filed a notice of appeal (Appeal No. 2016-CA-000831-MR) in the Court of Appeals from the April 29, 2016, May 4, 2016, and May 17, 2016, orders of the family court.
Subsequently, by a July 5, 2016, motion, Mills requested another contempt hearing because McKee failed to comply with the court's May 4, 2016, order. Mills argued that the court should incarcerate McKee due to his "repeated willful violations" of previous court orders. In response, McKee maintained that his debts to Mills were discharged by his Chapter 7 bankruptcy and that the court did not specify when the $2,010.50 and $1,000 obligations must be paid to Mills. Following a hearing, the family court rendered an Order Regarding Contempt on October 21, 2016. Therein, the court found that McKee had "willfully violated" court's orders and was in contempt of court. The court noted that Mills had expended $500 in legal fees in relation to the present contempt proceeding and ordered McKee to pay her same. Also, the court ordered McKee to pay Mills $1,000 in attorney's fees relating to his latest appeal. The court then scheduled a hearing to consider incarcerating McKee for contempt.
By order entered November 4, 2016, the court observed that McKee had substantially complied with the court's orders and had "purged himself of contempt." McKee then filed a notice of appeal (Appeal No. 2016-CA-001760-MR) in the Court of Appeals from the October 21, 2016, and November 4, 2016, orders. These appeals follow.
Considering the interrelated facts and issues presented herein, we will address the four appeals simultaneously.
Appeal Nos. 2015-CA-001636-MR, 2015-CA-001957-MR,
2016-CA-000831-MR AND 2016-CA-001760-MR
McKee initially contends that the family court erred by denying his motion for retrospective and prospective child care expenses. Specifically, McKee points out that due to work he needed child care during the day for E.M. and enrolled E.M. in the ELC program at the University of Louisville. McKee argued that such child care expenses were reasonable and necessary per KRS 403.211(6). McKee asserts that the family court committed reversible error by not allocating such child care expenses between Mills and himself.
KRS 403.211(6) provides:
The court shall allocate between the parents, in proportion to their combined monthly adjusted parental gross income, reasonable and necessary child care costs incurred due to employment, job search, or education leading to employment, in addition to the amount ordered under the child support guidelines.Under KRS 403.211(6), the court is required to allocate between the parties reasonable and necessary child care costs that are work related. And, "[t]he allocation of child care expenses is in the nature of a prepayment or reimbursement of the share of actual costs[.]" Olson v. Olson, 108 S.W.3d 650, 652 (Ky. App. 2003).
In its October 7, 2015, order, the family court determined that the child care expenses were not reasonable and necessary:
[McKee] urged the Court to find that it is in the child's best interest to remain in childcare, and therefore, conclude that out of home childcare is necessary. The Court declines to make such a finding and conclusion. Having reviewed that evidence, the Court is unable to conclude that [McKee's] child care expenses were necessary. [Mills] testified that she is, and has been, available and willing to care for [E.M.] during [McKee's] work hours, at no cost to [McKee]. Although she did not contest the child's attendance at the facility after [McKee's] attendance at the facility after [McKee] enrolled the child, she did not believe it was necessary for the child to attend preschool. The Court was not convinced by [McKee's] arguments that [Mills'] testimony could not be trusted due to unproven past allegations. It is not uncommon for parties who have a child together out of wedlock to distrust each other, and this often leads to high conflict and litigation surrounding parenting, as they often have a very minimal foundation for relationship. The Court found her testimony consistent and reliable, and found no reason to doubt her sincerity and truthfulness.October 7, 2015, Order at 8.
The Court concludes paid child care was not, and is not, necessary in this instance when the child could have remained, and can remain, in the care of his mother during [McKee's] work hours. . . .
Upon review of the family court's order, we cannot say that the court's decision was clearly erroneous or was an abuse of discretion. The family court found that Mills was not employed and could provide care to E.M. at no cost during McKee's work hours. Considering our deferential standard of review, we are of the opinion that the family court did not commit reversible error by deciding that the child care expenses were neither reasonable nor necessary as required under KRS 403.211(6).
McKee next asserts that the family court erred by finding him in contempt of court for failure to add E.M. to his employee sponsored health insurance plan. McKee acknowledges that a September 4, 2014, order of the family court mandated him to provide E.M. with health insurance coverage upon attaining employment. Nevertheless, McKee maintains that equity prevents enforcement of the order because Mills' husband could provide E.M. employer-sponsored health insurance at no cost.
It is uncontroverted that McKee was ordered to provide E.M. with health insurance coverage once employed and that McKee is now employed. And, McKee admits to being able to add E.M. to his health insurance plan. Nonetheless, McKee argues that it was inequitable for the court to require him to provide E.M. health insurance when Mills's husband could do so at no cost. However, McKee fails to set forth a specific equitable principle that would justify the relief sought. Moreover, the September 5, 2014, order requiring McKee to provide E.M. health insurance incorporated the parties' agreement on this issue. So, McKee agreed to cover E.M. with health insurance upon attaining employment, then refused to do so. Upon the whole, we cannot conclude that the family court erred in finding McKee in contempt.
McKee also maintains that the family court erroneously concluded that the $1,000 awarded for appellate attorney's fees was not subject to the bankruptcy stay and was excepted from discharge thereunder. McKee maintains that the attorney's fee award is not a domestic support obligation and, thus, is not excepted from Chapter 7 bankruptcy.
The Kentucky Supreme Court has recognized that a state court possesses "concurrent jurisdiction [with federal courts] under 28 [United States Code] U.S.C. § 1334(b) to construe the discharge [in bankruptcy] and determine whether a particular debt is or is not within the discharge." Howard v. Howard, 336 S.W.3d 433, 442 (Ky. 2011) (quoting Sunbeam Corp. v. Dortch, 313 S.W.3d 114, 115-16 (Ky. 2010)). So, it is said that "state courts have concurrent jurisdiction to determine the dischargeability of a debt." Howard, 336 S.W.3d at 442 (quoting In re Stabler, 418 B.R. 764, 770 (BAP 8th 2009)). Under 11 U.S.C. § 523, domestic support obligations are nondischargeable debt obligations and are excepted from discharge in bankruptcy proceedings. Howard, 336 S.W.3d 433; Trimble v. Trimble, 511 S.W.3d 392 (Ky. App. 2016); see also 16 Louise Everett Graham and James E. Keller, Kentucky Practice - Domestic Relations Law, § 18:5 (2017).
In its May 4, 2016, order, the family court concluded that the attorney fee award was excepted from discharge as it was inextricably intertwined with a domestic support obligation:
As this matter is a custody action, the only matters at issue are either support related or issues of parenting time. The two orders at issue in this contempt are both related to support of the child. The October 7, 2015, was issued pursuant to the Court finding the parties had reached an agreement to allow [McKee] to claim the child as a dependent on his 2014 tax return in exchange for [McKee] paying [Mills] one-half of the return he was to receive. Unlike in a divorce case, where such orders are sometimes entered as consideration of an overall property award, in a custody action, such an agreement clearly was a negotiation between the parties related to support of the child. The November 17, 2015[,] Order was entered to give [Mills] the attorney fees needed to defend [McKee's] appeal of a prior Court Order related to his obligation to pay child support. Therefore, the Court concludes both orders relate to domestic support obligations and are exempted from the stay provisions of 11 U.S.C.A. § 362 (a) by the provisions set out in 11 U.S.C.A. § 362(b). . . .May 4, 2018, Order at 5-6. Upon review of the applicable case law and statutory law, we agree with the family court's reasoning and conclude that the $1,000 award of attorney fees is a nondischargeable obligation. Thus, the family court did not err by so concluding.
McKee also asserts that the family court judge erred by denying his motion to recuse. McKee argues that "the totality of the proceedings tends to demonstrate judicial bias." McKee Brief at 20. McKee maintains that the family court should have recused as her impartiality may be reasonably questioned. In particular, McKee contends:
The totality of the trial court's actions in the case demonstrate a clear pattern of bias against [McKee]. First, Judge Ward's staff attorney was a good friend of McKee's, a fact of which Judge Ward was aware. McKee went to a law school with the staff attorney and worked closely with her on cases. As discussed above, Ward made various findings of facts that did not conform to the evidence presented to the Court, including the finding that McKee did not "need" childcare for E.M. while he was working in spite of Mills' direct testimony to the contrary and the finding that Mills was willing and able to watch E.M. during McKee's work hours. Mills' testimony elicited from Judge Ward's independent questioning was mischaracterized to conform to the ruling - the line of questioning leads the court to a conclusion that was never set forth by either party on direct or cross-examination. (Citations omitted.)McKee's Brief at 22-23.
Other findings which bring Judge Ward's impartiality into question include her finding that McKee had a history of using his legal education to exercise power over Mills, while failing to recognize Mills' documented history of making unsubstantiated claims of abuse against McKee. With respect to subsequent contempt hearings, the trial court summarily rejected McKee's equitable defenses and in fact implemented punitive measures against him instead of crafting a proper remedy that would allow McKee to purge himself of contempt. Judge Ward also seemed to disapprove of McKee's filing of bankruptcy, in noting that there were costs associated with filing the bankruptcy which hampered his ability to pay. . . .
KRS 26A.015 provides, in relevant part:
(2) Any justice or judge of the Court of Justice or master commissioner shall disqualify himself in any proceeding:
(a) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings, or has expressed an opinion concerning the merits of the proceeding;
. . . .
KRS 26A.015(2)(a) and (e). And, Canon 3E(1) of the Code of Judicial Conduct set out in Rules of the Supreme Court (SCR) 4.300 reads, in part:
(e) Where he has knowledge of any other circumstances in which his impartiality might reasonably be questioned.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding[.]
Effective January 31, 2018, the Kentucky Code of Judicial Conduct was amended by Supreme Court Order and the provisions of Canon 3E are now set forth in Canon 2, Rule 2.11.
In its September 2, 2015, order, the family court rendered a detailed analysis of McKee's proffered reasons for recusal and rejected each reason:
[T]he Court made inquiry regarding any factual basis to support the motion as the motion [for recusal] alleges the Court was knowingly and intentionally violating provisions of KRS 454.350(4). The only grounds submitted to the Court in support of the motion to recuse were those set forth in [McKee's] affidavit alleging the Court has a bias or prejudice against [McKee] because he is a staff attorney, because he is a male, African-American, or a combination thereof or has a private bias
that a parent spouses' income shall not be considered in any capacity. (Footnote omitted.)September 2, 2015, Order at 1-2. Additionally, the Chief Justice of the Supreme Court of Kentucky also determined that McKee failed to demonstrate a disqualifying fact per KRS 26A.020. We, likewise, conclude that McKee has not demonstrated any bias or prejudice by the family court judge to require recusal under either KRS 26A.015 or SCR 4.300(3)E.
. . . .
All parties knew [McKee] was a staff attorney when this matter was heard and no motion to recuse was made at that time. The Court has now heard this matter and taken it under submission. [McKee] alleges the Court is somehow biased by the fact that a new staff attorney was hired by this Court, after the time of the hearing, who was a law school classmate of [McKee's]. The Court was aware of this potential conflict before the new staff attorney was hired and has never consulted with this staff attorney or requested work from this staff attorney on [McKee's] case. Further, since the filing of this motion, the Court has determined it best to not use any staff attorney assistance in this matter.
In conclusion, the Court finds no factual basis for the motion to recuse.
McKee next asserts that the family court committed reversible error by adopting Mills' proposed finding of fact and conclusion of law in violation of CR 52.01. McKee claims that the family court mechanically adopted Mill's proposed findings of fact and conclusions of law when it rendered the October 21, 2016, order. Additionally, McKee maintains that he did not receive notice that Mills had filed the proposed findings of fact and conclusions of law.
CR 52.01 reads:
In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment; and in granting or refusing temporary injunctions or permanent injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review except as provided in Rule 52.04. Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a commissioner, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41.02.A family court is generally not prohibited from delegating "the clerical task of drafting proposed findings of fact and conclusions of law under the proper circumstances[.]" Bingham v. Bingham, 628 S.W.2d 628, 629 (Ky. 1982). And, the family court is to exercise caution in its delegation to ensure that it "does not abdicate its fact-finding and decision-making responsibility under CR 52.01." Id. at 629. However, unless it is demonstrated that the findings of fact, conclusions of law, and order is not the product of the family court's deliberation, such order is sufficient to satisfy CR 52.01 and will not be disturbed on appeal. Id.
In the case sub judice, Mills filed a motion to hold McKee in contempt on July 5, 2016. A hearing on the motion was held on July 11, 2016, and the parties were in attendance. After the hearing, by order entered July 12, 2016, the family court determined that an extended hearing was necessary on the contempt motion and set it for October 5, 2016, at 2:00 p.m. In its October 21, 2016, order, the family court states that McKee failed to appear for the October 5, 2016, hearing, and it is from this hearing that the October 21, 2016, order emanates. Also, after entry of the October 21, 2016, order, McKee did not file a CR 59.05 or a CR 52.02 motion. In fact, the record demonstrates that McKee failed to raise this issue with the family court. Upon the whole, we conclude that McKee failed to demonstrate that the October 21, 2016, order was not the product of the family court's deliberation; thus, the family court did not violate CR 52.01.
McKee lastly maintains that the family court committed error by allowing Mills to claim E.M. as a dependent on her 2016 and 2017 income tax returns as punishment for contempt. McKee believes that the family court "exceeded its authority by modifying, sua sponte, the parties' prior agreement." McKee's Brief at 18. Additionally, McKee argues that the family court acted punitively to punish him and that such punitive remedy is improper in civil contempt.
In its May 4, 2016, order, the family court found McKee to be in contempt of court for his continued refusal to pay Mills $2,010.50, representing one-half of McKee's 2014 tax refund, and $1,000 in attorney's fees. The family court specifically held that "[a]s further remedy, . . . Mills . . . shall be allowed to claim the parties' child as a dependent on her taxes for the 2016 and 2017 tax years."
Our Supreme Court has defined contempt as "the willful disobedience toward, or open disrespect for, the rules or orders of a court." Com. v. Burge, 947 S.W.2d 805, 808 (Ky. 1997). Generally, contempt may be either civil or criminal:
Generally, sanctions imposed to benefit an adverse party-coercive sanctions, for example, or compensatory ones—are deemed civil and are sought and imposed through civil proceedings between the original parties, very often as part of the underlying cause. . . .Cabinet for Health and Family v. J.M.G., 475 S.W.3d 600, 611 (Ky. 2015). Thus, civil contempt is of two general varieties - (1) remedial (compensatory) civil contempt, which compensates a party for loss suffered as a result of the contemptuous conduct, and (2) coercive civil contempt, which forces a party to comply with a court order. Id. And, criminal contempt may be either direct or indirect. Direct criminal conduct is generally defined as conduct committed in the presence of the court, and indirect criminal contempt is conduct committed outside the presence of court. Burge, 947 S.W.2d 805. It has been observed that the "defining characteristic of civil contempt is the fact that contemnors" are said to "carry 'the keys of their prison in their own pockets[;]'" conversely, in criminal contempt, its central objective is punitive, that is to punish. Campbell v. Schroering, 763 S.W.2d 145, 148 (Ky. App. 1988) (quoting Shillitani v. United States, 384 U.S. 364, 368, 86 S. Ct. 1531, 1534, 16 L. Ed. 2d 622 (1966)); see also Kentucky Handbook Series - Trial Handbook for Kentucky Lawyers, § 12:2 (2017-2018 ed.).
Punitive sanctions, however—unconditional sanctions not subject to purgation through compliance with an order and imposed principally if not purely to vindicate the authority of the court—are deemed criminal. . . .
In this case, the evidence clearly demonstrates that McKee willfully disobeyed the October 7, 2015, order, requiring him to pay Mills $2,101.50, and the November 17, 2015, order, requiring him to pay Mills $1,000 in attorney fees. The family court found that McKee possessed the financial resources to pay the obligations. Thus, we cannot conclude that the family court's finding McKee in contempt of court was clearly erroneous or was an abuse of discretion. However, the more difficult question presented is whether the family court's punishment of such contempt was legally appropriate.
As a remedy for McKee's contempt, the family court specifically ordered that Mills, instead of McKee, could claim E.M. as a dependent for the 2016 and 2017 tax years. It is obvious that such "remedy" was neither remedial nor coercive; thus, it cannot be considered civil contempt. Rather, the purpose was to punish McKee for his maleficent conduct, so the contempt must be classified as criminal. While fines and imprisonment are proper punishments for criminal contempt, we harbor grave doubt as to the propriety of assigning the dependent child tax exemption to Mills as punishment. Moreover, the dependent child tax exemption may only be claimed by the custodial parent absent waiver by the custodial parent or sound reasons set forth by the court to do otherwise. See Adams-Smyrichinsky v. Smyrichinsky, 467 S.W.3d 767 (Ky. 2015).
The Kentucky Supreme Court noted that the custodial parent is "the parent with whom the child resides for the greater number of nights during the calendar year and the noncustodial parent is the parent who is not the custodial parent." Adams-Smyrichinsky v. Smyrichinsky, 467 S.W.3d 767, 781 (Ky. 2015) (quoting 26 C.F.R. § 1-152-4). --------
Therefore, we vacate the family court's orders that permit Mills to claim the dependent child tax exemption as punishment for McKee's contemptuous conduct. Upon remand, the family court may reconsider the appropriate punishment for McKee's contemptuous conduct and/or reconsider the proper assignment of the dependent-child tax exemption in conformity with Smyrichinsky, 467 S.W.3d 767.
For the foregoing reasons, we affirm Appeal Nos. 2015-CA-001636-MR, 2015-CA-001957-MR, and 2016-CA-001760-MR, and affirm in part, vacate in part, and remand Appeal No. 2016-CA-000831-MR for proceedings consistent with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Richard I. Williams, Jr.
Louisville, Kentucky ORAL ARGUMENT FOR
APPELLANT: Bethanni Forbush-Moss
Louisville, Kentucky BRIEF FOR APPELLEE: Justin R. Key
Sarah A. Huyck
Jeffersonville, Indiana ORAL ARGUMENT FOR
APPELLEE: Justin R. Key
Jeffersonville, Indiana