Opinion
NO. 2016-CA-000798-MR
04-06-2018
PAULA OSTER APPELLANT v. ALAN OSTER APPELLEE
BRIEF FOR APPELLANT: Paula Oster, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Allen McKee Dodd Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DOLLY W. BERRY, JUDGE
ACTION NO. 06-CI-503122 OPINION
AFFIRMING
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BEFORE: CLAYTON, COMBS, AND D. LAMBERT, JUDGES. LAMBERT, D., JUDGE: Paula Oster, acting pro se, brings this appeal of an order by the Jefferson Circuit Court imposing sanctions against her for contempt. She asks us to vacate that order based on her allegations that the trial court abused its discretion. After examining the record, we find no abuse of discretion, and consequently, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
This dispute arises out of the custody arrangement following the parties' divorce. Paula and Alan Oster divorced in Massachusetts in 2005, with the Massachusetts court awarding Paula sole custody of their two minor sons. Alan remarried after the divorce and relocated to Louisville for a medical fellowship at the University of Louisville. Paula and their sons moved to Louisville shortly thereafter. Alan registered the Massachusetts divorce decree with the Kentucky courts in 2006. In 2008, a domestic violence order ("DVO") was entered against Paula on behalf of the children. At that time, the trial court awarded sole custody to Alan, and permitted Paula only supervised contact with the children. A subsequent DVO was entered in 2009, which forbade Paula from all contact with the boys.
This Court affirmed the second DVO on appeal. Oster v. Oster, 2009-CA-000135-ME and 2009-CA-001444-ME (Ky. App. 2012).
This prohibition remained in effect until an order entered in 2011 permitted Paula to contact the boys only under the supervision of a mental health professional. During a hearing on the first of many of Paula's motions to reinstate parenting time, her therapist (at the time) testified that she had not made much progress in her treatment for her mental health issues. He testified that Paula is exceedingly difficult to treat due to her disbelief that she needs treatment. The boys' therapist testified that unless Paula could prove she had made progress with her own treatment, he could not recommend Paula be permitted any unsupervised contact.
The record indicates Paula has been diagnosed with borderline personality disorder, major depressive disorder, obsessive compulsive disorder, and mood disorder, among others.
As Paula continued to seek reunification before the trial court, her new therapist issued a report to the court on April 3, 2015, which noted specific instances during Paula's calls with the boys that upset the children (asking them if "everything was okay," if they were getting enough to eat, variety of their diet, etc.). In this report, the therapist made specific recommendations, limiting their contact to weekly, five-to-ten-minute, audio-only telephone conversations, to be supervised by the therapist personally. The trial court included this language from the report in an order entered on August 10, 2015, specifically ordering that "Ms. Oster needs to comply w/recommendations." The therapist issued another report on August 19, 2015, which noted Paula's failure to adhere to the voice-only recommendation (by using the video features of her phone and the boys' phones) as well as exceeding the recommended time limitations. The trial court issued its last order directly on the issue of Paula's contact with the boys on September 14, 2015, again dictating that Paula comply with all court orders and recommendations by the therapist.
Alan moved for contempt on February 9, 2016, citing Paula's repeated violation of the limitations placed on her contact with her sons. During the hearing, testimony established that Paula had been sending text messages to the boys—including 93 messages sent to the younger son in a single night. Paula's own testimony in the hearing acknowledged the trial court's prior order and further acknowledged the therapist's recommendations; that the mode of communication be limited to voice calls, that the length of such conversations be limited to 5-10 minutes, and that those conversations were to be supervised by a therapist.
Paula seems to dispute this number in her brief, notwithstanding the fact that these 93 messages were introduced into the record.
The trial court entered an order finding Paula in contempt of court on April 26, 2016. As a sanction for the non-compliance, the court ordered Paula to pay Alan's attorney's fees expended in his attempts to obtain her compliance. The trial court set this amount at $6,363.73. This appeal ensued.
II. ANALYSIS
A. STANDARD OF REVIEW
The Kentucky Supreme Court succinctly defined contempt of court as "willful disobedience toward, or open disrespect for, the rules or orders of a court." Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996). Kentucky law recognizes a trial court's "inherent power to punish individuals for contempt[.]" Crowder v. Reardon, 296 S.W.3d 445, 450 (Ky. App. 2009) (citing Newsome v. Commonwealth, 35 S.W.3d 836 (Ky. App. 2001)). Moreover, the power to impose sanctions for contempt has been described by prior courts as "nearly unfettered." Id. (citing Smith v. City of Loyall, 702 S.W.2d 838 (Ky. App. 1986)). Thus, appellate courts will only reverse a trial court's order imposing contempt which demonstrates an abuse of discretion under the familiar definition set forth in Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999): whether the trial court demonstrated conduct that is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles."
B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY
FINDING PAULA IN CONTEMPT
Paula asserts a litany of alleged abuses by the trial court. First, she contends that she lacked knowledge that any order prohibited her from contacting her children using text messaging. Next, she argues that trial court failed to recognize her good faith belief that her children were possibly at risk of physical or emotional harm. Third, she argues that the trial court, in placing a time limit on the hearing, prevented her from introducing the testimony of her sons regarding that possibility of harm. Fourth, she argues that the trial court erred in relying on the testimony of the children's therapist, Nicole Begg, Ph.D. Her fifth argument is that the trial court failed to make findings of fact regarding the parties' relative finances before awarding attorney fees to Alan. Her sixth argument merely restates her second.
1. PAULA HAD KNOWLEDGE OF VALID AND EFFECTIVE ORDERS
ENTERED BY THE TRIAL COURT
Paula's first argument, that she did not know any order prevented her from contact with her sons by text message, is ostensibly based on her reading of Burge. "In order to obtain a contempt conviction, it must be proven that the defendant had knowledge that a valid court order prohibiting the conduct was in effect." Id. at 812 (citing U.S. v. Dixon, 509 U.S. 688, 701, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)). While this reading is generally correct, it has no bearing on the facts at issue in this appeal. In fact, Paula's contention, that she lacked any knowledge that any order precluded her from contacting her sons via text message, is clearly refuted in the record.
At the contempt hearing, Paula testified that she was aware of the recommendations found in the report of her then-current reunification therapist, that all contact between herself and her sons was to be supervised by said therapist. She further testified that she was aware of the three orders which incorporated those recommendations both by reference and by explicitly including the recommendations into their text. She did not deny having contact with the boys in a manner outside those recommendations, and instead argued that she had a good faith belief that the boys' well-being was under threat.
Given the testimony, we can find no abuse of discretion as it relates to Paula's first argument.
2. THE TRIAL COURT DID HEAR PAULA'S GOOD FAITH ARGUMENT
Paula asserts that the trial court violated KRS 403.240(3) when it refused to consider her good faith argument. However, KRS 403.240 only "codifies the common law position that a failure of one party to fulfill his obligation does not relieve the other party of his obligation with respect to either child support or visitation rights." Stevens v. Stevens, 729 S.W.2d 461, 462 (Ky. App. 1987). The statute provides that it should be considered contempt of court in the event a party fails to comply with a decree, temporary order, or injunction, without good cause. KRS 403.240(3) defines "good cause" as a reasonable belief that a possibility exists that the physical or mental well-being of the child is threatened.
Paula is thus attempting to assert a statutory defense that does not apply in the instant situation. The orders at issue in this case were effectively denials of motions to modify visitation. The applicability of KRS 403.240's good faith defense, which applies to decrees, temporary orders, and injunctions, is dubious.
More importantly, however, is the fact that Paula's position is once again refuted by the record. The trial court noted, in its discussion of the content of the text messages, that the very same exchanges which caused her to believe the children were at risk also had the effect of upsetting them. Paula presented this argument before the trial court at the hearing on February 9, 2016, and the trial court simply found it to lack merit.
The trial court noted that in the messages from Paula to her younger son, she expressed concerns that: he might have melanoma from sitting out in the sun by the pool, he might be suffering adverse consequences of high chlorine levels in the pool water, that he might have genital warts from inappropriate touching by others she presumed to have occurred, that he might have diabetes or heart disease based on family history, and he might be dehydrated.
We cannot conclude the trial court abused its discretion as it relates to this issue. Even if KRS 403.240 applies, given the totality of the facts, the trial court, as the sole fact-finder was free to find that her belief was not reasonable.
3. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN PLACING
A TIME LIMIT ON THE HEARING
Paula contends that the trial court failed to conduct a full and fair hearing on her contempt by limiting the hearing to 90 minutes, and permitting the testimony of Dr. Begg to take up more than 60 minutes of that time. The Supreme Court upheld a trial court's time limit on a custody modification hearing in Addison v. Addison, 463 S.W.3d 755 (Ky. 2015). A trial court "clearly has the power to impose reasonable time limits on the trial of both civil and criminal cases[.]" Id. at 762 (citing U.S. v. Reaves, 636 F.Supp. 1575 (E.D.Ky. 1986)). As a corollary to that power, the trial court also has the discretion to "control... the amount of evidence produced on a particular point." Id. (quoting Washington v. Goodman, 830 S.W.2d 398 (Ky. App. 1992)).
So long as the time limits are not unreasonable, we cannot reverse on that basis. Hicks v. Commonwealth, 805 S.W.2d 144, 151 (Ky. App. 1990). The purpose of the contempt hearing was to establish two things: whether she knew there was a valid court order in place and whether she violated the terms of the order. These facts were developed in that time, as well as Paula's assertion of a her statutorily based defense which failed.
Paula also argues that the trial court's time limits affected her ability to present her defense by excluding the testimony of her sons. Whether the trial court wishes to allow a child witness to testify is entirely within its discretion. Addison at 764. KRS 403.290 allows children to testify, but as the Addison Court noted, its terms are permissive rather than mandatory. Moreover, the trial court has great discretion in sparing the boys from having to testify in favor of one parent and against the other. "The elementary principles of humanitarianism are so strongly against the placing of a child between its parents that we feel a trial court should have a wide latitude in protecting the child." Parker v. Parker, 467 S.W.2d 595, 597 (Ky. 1971).
We cannot conclude, on the facts here, that the trial court acted unreasonably in limiting the time for the hearing, or in precluding the testimony of the parties' minor sons.
4. THE TRIAL COURT RELIED ON MORE EVIDENCE THAN DR.
BEGG'S TESTIMONY
Paula contends that the trial court erred in relying on Dr. Begg's testimony. Paula's argument superficially cites KRS 403.240 without further elaboration and relies on an apparent attempt to invoke KRE 602. She maintains that it was error for the trial court to rely on Dr. Begg's testimony "on behalf of the children despite her expressed lack of knowledge as to the details surrounding the behaviors of the children and the events leading to the actions of others to investigate the circumstances." However, this position ignores the fact that other corroborating evidence was presented in the hearing.
"Deciding which witness to believe is within the sound discretion of the family court as fact-finder; we will not second-guess the family court, which had the opportunity to observe the parties and assess their credibility." Hunter v. Mena, 302 S.W.3d 93, 98 (Ky. App. 2010). Dr. Begg testified that the boys had received text messages from Paula, which is a matter about which she may have lacked personal knowledge. But Dr. Begg's testimony was corroborated both by the introduction of those text messages themselves and by Paula's own testimony. The trial court's order reflects a contemplation of all of these items in the record, not just Dr. Begg's testimony. Therefore, we cannot conclude the trial court abused its discretion in relying on evidence other than what Paula would have liked.
5. THE TRIAL COURT WAS NOT REQUIRED TO MAKE FINDINGS
RELATING TO THE PARTIES' ASSETS WHEN IMPOSING ATTORNEY
FEES AS A SANCTION
Paula argues that the trial court abused its discretion in failing to make factual findings regarding the parties' financial circumstances when awarding Alan attorney fees. She cites KRS 403.220 to support her position. However, that provision does not apply to this situation.
"[T]he fee shifting authorized under KRS 403.220 is not intended primarily to be punitive or sanctioning. It is intended [...] to ensure that dissolution and child-custody proceedings are fair and not skewed in favor of the party in the financially superior position." Rumpel v. Rumpel, 438 S.W.3d 354, 364 (Ky. 2014).
On the other hand, contempt sanctions are intended to be punitive or coercive, having the target effect of ensuring submission to a court's authority and compliance with its orders. The trial courts are thus vested with "nearly unlimited discretion" as to when and how to impose sanctions. Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky. App. 2007)(citing Smith v. City of Loyall, supra). The trial court simply imposed a sanction upon Paula equaling the attorney fees expended by Alan in obtaining her compliance with the trial court's orders. This was consistent with other Kentucky law regarding sanctions, albeit in the discovery context, where the consequence of a failure to abide by a court order is to "pay the reasonable expenses, including attorney's fees, caused by the failure[.]" CR 37.02(3).
III. CONCLUSION
Having reviewed the record, we can find no abuse of discretion in the trial court's ruling. We therefore affirm.
COMBS, JUDGE, CONCURS.
CLAYTON, JUDGE, CONCURS AND FILES A SEPARATE OPINION. CLAYTON, JUDGE: I write separately to address whether KRS 403.240 applies in this case. As stated by the majority, the statute applies "only to decrees, temporary orders, and injunctions." The order regarding visitation is temporary in that Paula may file a motion with the court for reconsideration. Further, KRS 403.320 which concerns the visitation of minor children uses the terms decree and orders interchangeably. For example, KRS 403.320(1) states: "...the court shall issue orders which are specific to the...conditions...of scheduling visitation..." Paragraph 3 of the statute reads that "The court may modify an order granting or denying visitation right...". However, paragraph 4 states that "...any court-ordered modification of a child visitation decree..." (Emphasis added).
As defined in Black's Law Dictionary (10th edition 2014): "An order is the mandate or determination of the court upon some subsidiary or collateral matter arising in an action, not disposing of the merits, but adjudicating a preliminary point or directing some step in the proceedings." 1 Henry Campbell Black, A Treatise on the Law of Judgments § 1, at 5 (2d ed. 1902). (Emphasis added).
If this is a final order of the court, it is tantamount to a decree. A decree has been defined as:
Traditionally, a judicial decision in a court of equity, admiralty, divorce, or probate — similar to a judgment of a court of law... 2. A court's final judgment. 3. Any court order, but esp. one in a matrimonial case.Black's Law Dictionary (10th edition 2014).
Additionally, as the family court noted, once the moving party makes a prima facie case, 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).
It is hard to believe that if a parent had a good-faith basis for not complying with an order, such as their child being in danger, there would be no avenue for relief. The controlling principle in visitation and custody cases is the best interest of the child. Endangerment of the child is a proper consideration for the court. Although I believe that the family court should be affirmed because it determined that a danger to the children was not shown, I do not believe that the family court, as a court of equity, could not have relied upon KRS 403.240 to determine whether a good-faith basis existed to be relieved from sanctions arising from contempt of court. BRIEF FOR APPELLANT: Paula Oster, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Allen McKee Dodd
Louisville, Kentucky