Opinion
NO. 2017-CA-000247-MR
04-27-2018
CHRISTINE TAYLOR APPELLANT v. ROBERT TAYLOR APPELLEE
BRIEFS FOR APPELLANT: Jennifer S. Nicholson London, Kentucky BRIEF FOR APPELLEE: Liddell Vaughn Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LAUREL FAMILY COURT
HONORABLE STEPHEN M. JONES, JUDGE
ACTION NO. 04-CI-00551 OPINION
AFFIRMING
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BEFORE: CLAYTON, DIXON, AND MAZE, JUDGES. CLAYTON, JUDGE: Christine Taylor appeals from a Laurel Family Court order and final judgment finding Christine and her former husband, Robert Taylor, in contempt of court for failing to adhere to their separation agreement and from an order of the same court denying her motion to recuse. Christine argues that the trial court lacked jurisdiction to order her to deed property to Robert; erred in not awarding her damages and funds under the terms of the separation agreement; made insufficient efforts to secure Christine and Robert's daughter, Casey, as a trial witness; and finally, abused its discretion in failing to recuse from the case.
Christine married Robert Taylor in 1964. On November 9, 2004, the Laurel Circuit Court entered a final decree of dissolution of the marriage which incorporated a separation agreement executed by the parties. The agreement contained multiple provisions for the division of personal property and assigned numerous tracts of real property to Christine and Robert respectively. One of the tracts, consisting of 101 acres on American Greetings Card Road, belonged to Christine and Robert jointly and was subject to a property loan. Section 7(b) of the separation agreement disposed of the property as follows:
This property is occasionally referred to as the "Lynch property" in the record, although it is not clear whether the Lynch property comprises the entire 101 acres or only a portion of that tract. This opinion will refer only to the 101 acres as it is described in the separation agreement. We make no ruling regarding the extent of the Lynch property. --------
The respondent [Robert] shall be the sole owner of . . . 101 acres on American Greetings Card Road and shall assume sole liability for debt on same to Cumberland Valley National Bank. Respondent shall see that petitioner's [Christine's] name is removed from said loan.
If respondent defaults on a single payment on property loan #50111874, he will forfeit all interest in said property and petitioner will assume loan and take possession and ownership of said 101 acres.
According to Christine, Robert defaulted on the loan and she consequently made several payments on the 101 acres. As proof, she submitted copies of several checks she had written to the Cumberland Valley National Bank, each in the amount of $922.04, dating from February 2005 to September 2007.
Over five years later, on December 18, 2009, Robert was indicted for four counts of criminal possession of a forged instrument for allegedly forging the signatures of Christine and their daughter, Robin, on four deeds to tracts of property named in the separation agreement, including the 101 acres. The criminal case was resolved by Robert's agreement to restore the four deeds to the names they bore prior to the forgery. The agreed order of dismissal, entered on September 10, 2010, provided that the case was dismissed without prejudice unless certain conditions were met. It stated in pertinent part:
As a condition of said dismissal, the defendant [Robert] shall execute any and all documents necessary to restore title to any deeds subject to these criminal proceedings. It is acknowledged and agreed that by executing these documents, the defendant does not waive any claims to ownership of these properties and however reserves any and all equitable rights to adjudicate any and all claims to enforce the agreement and subsequent Judgment entered between Christine Taylor and the defendant, Robert G. Taylor in the Laurel Circuit Family Court; case number: 04-CI-551. Upon compliance with this agreement, this dismissal shall be with prejudice.
On October 14, 2010, Robert deeded the 101 acres to Christine in her sole name. He later maintained that he did this in error and that his name should also have been on the deed, as it was at the time of the execution of the separation agreement.
On March 23, 2011, Robert moved the circuit court to hold Christine in contempt for failing to comply with the terms of the separation agreement. He asked the court to compel her to quitclaim property to him as provided in the agreement and requesting attorney's fees and costs. Christine responded by filing a motion to hold Robert in contempt. The matter was scheduled for trial. On October 26, 2011, the trial court entered an agreed order continuing the motions until re-noticed on a later date by either of the parties.
The record shows no further activity in the case for almost four years, when Robert filed a motion on June 1, 2015, to re-docket the matter for further proceedings to enforce the dissolution separation agreement. According to Christine, Robert delayed filing the motion until a different judge, who was allegedly more favorably disposed to Robert, was sitting on the case.
Christine moved to recuse the judge on the grounds that he had ex parte contact with Robert as evidenced by comments made in two recorded phone calls between Robert and their son, Jim. In these conversations, Robert stated in reference to the judge, "He give me an early date. He give me a date this month . . . he says he ain't - he says that he won't womp around. He says this thing's going to get going . . . we're going to take these cases through fast." Robert stated that he had waited until "that woman" (the previous circuit judge) got out of office "and now's the time to go to court." He told Jimmy, "I've got the edge now," and "I bet a million dollars against one hundred dollars that I win that family court case, I've done won it . . . You know when the administration changes like governors and things that changes a lot of things and Judges changes and if you're on the right 'string' you change with them and that's what court is all about." He stated, "Chris missed her boat when she didn't force me into that courtroom when that woman was Judge." He reported that the judge told him, "It doesn't make any difference if it's in your and her name or her name herself. I can make the decision whose it is." Robert reported that he replied, "That's all that matters, Judge." He stated, "I'm damned if we didn't do some ridin' and some talkin'." Robert stated, "they buy votes with friends, they buy votes - the years with favors." He reported that he "goes up there and takes a hand full of visits [tickets] up there to the Judge." He said he told the judge, "I hate to bring you all of these up here," and the judge replied, "It looks like votes to me, Taylor."
The trial court denied the motion to recuse on October 14, 2015. Robert thereafter filed five motions to enforce the agreement and three motions for the return of personal property. Christine objected on jurisdictional grounds and argued that she was the sole owner of the 101 acres because she had made several debt payments on the property and the separation agreement provided that if Robert defaulted on a single payment Christine took ownership of the property.
On November 18, 2015, the trial court entered an order directing full enforcement of the separation agreement, directing the parties to deliver personal property that was awarded to them by the agreement within ten days and to execute deeds for real property as stated in the separation agreement within thirty days. Christine filed a motion to vacate the order, a motion for a restraining order and a motion to stay the order. The trial court entered an order staying its prior order and granted the restraining order.
On January 15, 2016, Christine asked the trial court to hold Robert in contempt for initiating a separate lawsuit regarding four tracts of property she was awarded in the separation agreement. Christine alleged that Robert had prevented the award of the four tracts by improperly using the power of attorney of their daughter, Casey. She also filed a motion to dismiss Robert's motion to enforce the separation agreement, arguing that the property he sought was deeded to her six years after the divorce was final as part of the criminal proceedings, that the family court lacked jurisdiction and authority to order her to deed it back to him, that the 101 acres was not marital property, and that the property belonged to her because he had defaulted on his payments.
A bench trial was held on February 2, 2016, and March 14, 2016. Christine had subpoenaed Casey, who failed to appear.
On April 14, 2016, the trial court entered an order holding both parties in contempt and incarcerating them for 179 days, probated on the condition that within ten days, Robert pay Christine $4,388.16 and Christine execute quitclaim deeds to Robert on five tracts of property, including the 101 acres, listed in the separation agreement. Robert was given six months to remove his personal property from the Blue Warehouse or any other property owned by Christine. Christine filed a motion to alter, amend or vacate and for additional findings. A hearing was held on the motion. The trial court issued an order explaining the breakdown of the $4,388.16 award as consisting of $700 for the Kwiatowski property and four payments of $922.04 each paid by Christine on the 101 acres. This appeal by Christine followed.
When we review a judgment following a bench trial, the trial court's 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." Kentucky Rules of Civil Procedure (CR) 52.01. A factual finding is not clearly erroneous if it is supported by substantial evidence, which is defined as evidence which has sufficient probative value to induce conviction in the mind of a reasonable person. Gosney v. Glenn, 163 S.W.3d 894, 898-99 (Ky. App. 2005). The trial court's conclusions of law, however, are reviewed de novo. Id.
Contempt is defined as "the willful disobedience of or the open disrespect for the court's orders or its rules." Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky. App. 2007) (citing Newsome v. Commonwealth, 35 S.W.3d 836, 839 (Ky. App. 2001)). "In a civil contempt proceeding, the initial burden is on the party seeking sanctions to show by clear and convincing evidence that the alleged contemnor has violated a valid court order." Commonwealth, Cabinet for Health and Family Serv. v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011). "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." Id. (citing Clay v. Winn, 434 S.W.2d 650 (Ky.1968).
"When a court exercises its contempt powers, it has nearly unlimited discretion." Meyers, 233 S.W.3d at 215 (citing Smith v. City of Loyall, 702 S.W.2d 838, 839 (Ky. App. 1986)). A trial court's decision regarding contempt will not be disturbed absent an abuse of its discretion. Id. "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
Christine argues that the trial court erred in ordering her to quitclaim the 101 acres described in section 7(b) of the separation agreement to Robert because she continued to make payments on the property loan following the divorce and consequently was entitled to keep the property under the express terms of the separation agreement. Alternatively, she contends that Robert's conveyance of the property to her in October 2010 pursuant to his agreement with the Commonwealth Attorney's office divested the trial court of jurisdiction over the property by rendering it no longer marital.
Robert claims that the conveyance was made in error because the deeds were prepared with the intent of restoring the properties back to the named title holders, he and Christine, immediately prior to the alleged forgery. He further argues that if Christine had complied immediately with the separation agreement and quitclaimed the property, the 101 acres would not have been at issue in the 2010 criminal action, because the property would have been in his sole name well before then. He argues that allowing Christine to keep the 101 acres would reward her for her dilatoriness and refusal to comply with the final decree.
The family court was acting in its discretionary capacity in a civil contempt proceeding after finding that both parties had violated the separation agreement incorporated into the final judgment. Its order returns the parties as closely as possible to the situation as it existed immediately following the entry of the final judgment in 2004. The court's action was fully in conformity with Kentucky Revised Statutes (KRS) 403.180(2), which provides that the terms of a separation agreement, "except those providing for the custody, support, and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties . . . that the separation agreement is unconscionable."
Here, the trial court expressly found that the separation agreement was not unconscionable and ordered its enforcement. KRS 403.180(5) specifies the "[t]erms of the agreement set forth in the decree are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms." The family court is not permitted to deviate from these terms. In Bailey v. Bailey, for example, the family court was found to have acted erroneously based on the plain language of KRS 403.180 when it applied principles of equity in interpreting the parties' separation agreement. The Court held that the terms of the separation agreement should have been enforced as contract terms. Bailey v. Bailey, 231 S.W.3d 793, 797 (Ky. App. 2007).
Moreover, the change in title to the 101 acre property resulting from the settlement of the criminal case did not remove the property from the family court's jurisdiction. KRS 23A.100(1)(a) and (e) provides that the family court retains jurisdiction in cases involving dissolution of marriage and equitable distribution of property in dissolution cases. If, for example, Robert had improperly conveyed marital property to a third party, Christine's contractual rights under the separation agreement would be unimpeded. Robert would still be subject to the family court's jurisdiction and responsible to Christine for damages or other equitable relief as the other party to the separation agreement. The situation is clearly distinguishable from Farrar v. Farrar, No. 2013-CA-000180-MR, 2014 WL 7012609 (Ky. App. Dec. 12, 2014), opinion not to be published, an opinion of this Court relied upon by Christine. In Farrar, a panel of this Court held that the trial court may have lacked case-specific jurisdiction to modify the property provisions of a final dissolution decree because it failed to make findings under CR 60.02 to justify reopening the judgment. The trial court in the case before us did not modify the separation agreement; it found the parties in contempt for failing to follow its terms and ordered its enforcement.
Secondly, Christine argues that the trial court erred in not awarding her funds under section 11 of the separation agreement, which states that Robert
agrees to remove all equipment, vehicles, parts, buses, trucks, and all other personal property items not owned by the petitioner under the terms hereof from all real property granted to the petitioner herein by July 30, 2004. Respondent shall also remove the L&N Train Caboose from petitioner's property by July 30, 2004 and remove
the barn and clean up the lot behind Casey Owen's home by September 30, 2004. Respondent agrees to pay petitioner rent of $400.00 per month if the aforereferenced personal property is not removed by July 30, 2004.
The trial court ordered Robert to remove his personal property from Christine's property within 120 days but did not order the payment of the rent. Christine argues that the trial court's enforcement of the agreement was piecemeal, in that the court followed its terms strictly in regard to Christine but leniently towards Robert. But substantial evidence was also presented at trial that Christine and Casey did not comply with the terms of the separation agreement which thereby prevented Robert from accessing his property. Under these circumstances, the trial court's decision not to impose the rent payments on Robert was not an abuse of discretion.
Finally, Christine alleges that the trial proceedings were irregular and that the family court should have recused itself from the case. She describes as "disturbing" what she characterizes as the family court's insufficient attempts to secure Casey as a witness and alleges that the judge lulled Christine into thinking he was trying to force Casey to appear when in fact he had no intention of doing so. She contends that Casey's testimony was critical to her case because Robert claimed Casey prevented him from following the separation agreement by not allowing him on the property to take the barn down or clean up and that Casey had paid off the Kwiatkowski property for him.
The family court sent a deputy to Casey's house on the first day of trial when she did not appear in response to a subpoena. When the deputy reported that there appeared to be someone at home who was not answering the door, the trial court directed the deputy to return. The record contains a criminal summons for contempt of court issued after the first day of trial ordering Casey to appear for the next day of trial which was scheduled over one month later.
Christine contends that the trial court should have issued a warrant for Casey or ordered her deposition. She does not provide citations to any case law which supports imposing such a duty on the trial court. Moreover, during the lengthy period between the first and second days of trial, there is no indication that Christine made any attempt to ascertain whether Casey would appear, or to secure her deposition.
As proof of the irregularity of the proceedings and the family court's need to recuse, Christine points to Robert's statements in the recorded telephone conversation with his son that he was confident the outcome of the case would be favorable to him, that he had discussed the case with the judge and the judge had told him he could order any transfer of a deed regardless whose name was on it. She further points to the trial court's order of November 18, 2016, which directed full enforcement of the separation agreement, thus granting Robert his requested relief without a hearing. When Christine asked for the order to be set aside, the judge noted on his docket sheet that the motion to vacate was overruled but in fact only stayed the effectiveness of the order. She claims this notation shows that the initial order was intentional and the trial court had already decided to rule in Robert's favor. She also presents as evidence of the judge's bias his comment after the first day of trial that he believed both parties had violated the original agreement and the order of the court, and that this was a clue as to what his ruling would be.
We set forth a recent overview of the standards for judicial disqualification from the Kentucky Supreme Court:
Under both our Code of Judicial Conduct and Kentucky Revised Statutes (KRS) Chapter 26A, "a judge shall disqualify in a judicial 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.'" Alred v. Commonwealth, 395 S.W.3d 417, 430 (Ky. 2012) (quoting SCR [Rules of the Supreme Court] 4.300 Canon 3(E) and citing KRS 26A.015(2)(a) and (e)); see also, Stopher v. Commonwealth, 57 S.W.3d 787, 794 (Ky. 2001); Petzold v. Kessler Homes, Inc., 303 S.W.3d 467, 471 (Ky. 2010). "'The burden of proof required for recusal of a trial judge is an onerous one. There must be a showing of facts of a character calculated seriously to impair the judge's impartiality and sway his judgment.'" Alred, 395 S.W.3d at 430 (quoting Stopher, 57 S.W.3d at
794). The inquiry is meant to be "an objective one, made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances." Id. (citations omitted). We review recusal decisions for abuse of discretion. Minks v. Commonwealth, 427 S.W.3d 802, 806 (Ky. 2014) (citing Hodge v. Commonwealth, 68 S.W.3d 338, 345-46 (Ky. 2001)).Grubb v. Smith, 523 S.W.3d 409, 428 (Ky. 2017), reh'g denied (Aug. 24, 2017), opinion modified on denial of reh'g (Aug. 24, 2017).
When, as in this case, a party alleges that the judge had a personal relationship with the opposing party that caused him to prejudge the case, we are directed to consider the intensity of the relationship:
At one end of the intensity continuum, . . . is the judge's complete unfamiliarity with a lawyer, a witness[,] or a litigant, except in a judicial setting. [In that situation,] [n]o recusal is required. On the other extreme is a judge's close personal relationship with a lawyer, a party[,] or a witness, such as a family member or a spouse. Recusal [in that situation,] is required under Canon 3E(1). At some point between these two extremes, a judge and a participant in a case may have such a close social relationship that a judge should disclose the relationship to attorneys and parties in a case and, if need be recuse.Id. (internal citations omitted).
Even assuming that Robert's account to his son of his conversations with the judge are accurate, the judge's comments do not evidence a relationship close enough to warrant recusal. The judge's alleged comment to Robert that he would get an early court date and get the cases through quickly, does not suggest he was planning to rule in Robert's favor. His comment that it is within the judge's power to decide title to property is accurate. His casual comment that tickets look like votes to him does not suggest an inappropriately close social relationship with Robert.
The judge's remark after the first day of trial that he believed both parties had violated the separation agreement was also not evidence of bias. Indeed, a trial judge is not required to recuse himself from a proceeding even if he has unambiguously expressed an opinion on the merits of the case prior to any hearing so long as there is "no reason to believe the court's decision was based on any bias or animosity towards [the party]." Storer Communications of Jefferson County, Inc. v. Oldham County Bd. of Educ., 850 S.W.2d 340, 343 (Ky. App. 1993). The judge's remark assigns blame equally to both parties and does not indicate any particular animosity to Christine or bias in Robert's favor. The trial court's denial of the motion to recuse was not an abuse of discretion.
For the foregoing reasons, the order and final judgment finding Christine and Robert in contempt of court, and the order denying Christine's motion to recuse, are affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Jennifer S. Nicholson
London, Kentucky BRIEF FOR APPELLEE: Liddell Vaughn
Louisville, Kentucky