Opinion
NO. 2013-CA-000970-MR
01-15-2016
JIMMY RODRIGUEZ-ROMERO APPELLANT v. HON. DONNA DELAHANTY, FAMILY COURT JUDGE; THE COMMONWEALTH OF KENTUCKY; MS. ERIKA SOTO-ENRIQUE; AND ELLIE KERSTETTER APPELLEES
BRIEFS FOR APPELLANT: Katie L. Benward Karen Shuff Maurer Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE Commonwealth of Kentucky: Jack Conway Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky No Brief for Appellee Ellie Kerstetter No Brief for Appellee Erika Soto-Enrique
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DONNA DELAHANTY, JUDGE
ACTION NO. 10-J-502517 OPINION
VACATING AND REMANDING BEFORE: ACREE, CHIEF JUDGE; DIXON AND KRAMER, JUDGES. DIXON, JUDGE: Jimmy Rodriguez-Romero appeals from an order of the Jefferson Circuit Court holding him in contempt and ordering him to pay attorney's fees. We vacate and remand.
Erika Soto-Enrique initiated a paternity and child support action against Appellant in 2010; thereafter, he began paying child support through the Jefferson County Attorney's Child Support Division. In February 2012, the Commonwealth filed a motion to hold Appellant in contempt for failing to pay child support, and a hearing was scheduled for June 12, 2012. A public defender was appointed to represent Appellant, and Erika retained private counsel, Ellie Kerstetter. It appears from the record that the Commonwealth did not participate in the case after Erika retained counsel. Appellant did not speak English, and an interpreter assisted him during court proceedings. The court found Appellant in contempt and scheduled a sentencing hearing for September 18, 2012.
Although both are named Appellees, neither Erika nor Kerstetter filed an appellee's brief in this appeal.
The Commonwealth filed a motion to be dismissed as a party to this appeal, which Appellant agreed was procedurally appropriate. The motion was passed to this panel for consideration with the merits of the case, and we conclude it is proper to dismiss the Commonwealth as a party. The record clearly reflects the Jefferson County Attorney's office was not involved in the action once Erika retained private counsel, and this appeal relates solely to the court's order for Appellant to pay attorney's fees. --------
Appellant failed to appear for the hearing and counsel requested a continuance, unsure of the reason for Appellant's absence. The hearing was ultimately held the following week, and the judge imposed a sentence of ninety days' incarceration for contempt, conditionally discharged on the condition that Appellant pay his weekly child support obligation of $50.00 plus a $15 arrearage. From the bench, the court stated that it would order Appellant to pay $250.00 of Erika's attorney's fees because he missed the previous court date, and Appellant objected. Appellant argued his absence was due to his child's medical emergency and provided the court with records from Kosair's Children's Hospital.
On September 25, 2012, the court rendered its written judgment sentencing Appellant to ninety days in jail, conditionally discharged for two years. The court's written judgment included the condition that Appellant pay $50.00 per week in child support and $15 per week arrearage; however, the order did not include a condition ordering Appellant to pay attorney's fees.
On November 21, 2012, Kerstetter filed a motion asking the court to rule on the amount of attorney's fees Appellant owed to her based on the court's prior finding of contempt. On November 30, 2012, the court rendered a judgment ordering Appellant to pay $300.00 in attorney's fees to Kerstetter. Shortly thereafter, Kerstetter withdrew as Erika's counsel and filed a motion to hold Appellant in contempt for failing to pay attorney's fees as required by the order of November 30.
On February 5, 2013, the court, with only Kerstetter present, granted the contempt motion and ordered Appellant to pay a total of $600.00 in attorney's fees or be incarcerated for thirty days. Two months later, Kerstetter filed a motion to have Appellant incarcerated, as he still had not paid attorney's fees. The court held a hearing on the motion, and Appellant was present with a different attorney from the public defender's office. Appellant testified, through an interpreter, that he was unaware of the court's November 30, 2012, order imposing attorney's fees or the subsequent contempt order. According to Appellant, he believed the proceedings relating to his contempt for non-payment of child support concluded with the entry of the September 25, 2012, conditional discharge order, which set forth his weekly child support obligation.
In an order rendered April 30, 2013, the court held Appellant in contempt, imposed a sentence of ten days in jail, and ordered him to pay a total of $900.00 in attorney's fees. This appeal followed.
Appellant asserts the court was without authority to render the judgment of November 30, 2012, as it constituted an improper attempt to modify the terms of Appellant's sentence, by imposing additional sanctions of attorney's fees, two months after Appellant's final sentencing. We agree.
In Silverburg v. Commonwealth, 587 S.W.2d 241, 244 (Ky. 1979), the Kentucky Supreme Court explained:
Where the Criminal Rules do not provide a time, the Civil Rules shall apply. RCr 1.10. CR 59.05 provides that a judgment may be altered, amended or vacated within ten days after the entry of the final judgment. The order of June 21, 1976, was entered 38 days subsequent to the May 14, 1976, judgment. The court had lost jurisdiction of the case and the entry of the order modifying the sentence is void.
In the case at bar, the order imposing a ninety-day sentence, conditionally discharged for two years, became final ten days after it was entered on September 25, 2012. Two months later, the trial court was without authority to modify the terms of Appellant's sentence by ordering him to pay attorney's fees as an additional sanction for his prior contempt; consequently, the November 30, 2012, order was void. See id.
Appellant was bound only by the terms of the September 25, 2012, order sentencing him to a conditionally discharged sentence of ninety days, with the condition that he pay his weekly child support obligation. Because the November 30, 2012, judgment was void, Appellant could not subsequently be held in contempt for failing to comply with the void judgment. After careful review, we vacate the April 30, 2013, order holding Appellant in contempt for failing to pay attorney's fees.
For the reasons stated herein, we vacate the April 30, 2013, order of the Jefferson Circuit Court and remand this case for further proceedings consistent with this opinion. The Commonwealth's pending motion to be dismissed as a party to this appeal is granted.
ALL CONCUR. BRIEFS FOR APPELLANT: Katie L. Benward
Karen Shuff Maurer
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE
Commonwealth of Kentucky: Jack Conway
Attorney General of Kentucky M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky No Brief for Appellee Ellie Kerstetter No Brief for Appellee Erika Soto-
Enrique