Opinion
NO. 2018-CA-001024-MR
07-05-2019
T.H. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: John Gerhart Landon Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andrew Beshear Attorney General of Kentucky Galen C. Myers Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 15-J-01466 OPINION
VACATING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND KRAMER, JUDGES. CLAYTON, CHIEF JUDGE: T.H. appeals from the Kenton Family Court's order finding T.H. in contempt of court for failure to pay child support as ordered and sentencing her to 90-days' incarceration. For the foregoing reasons, we vacate the family court's order and remand the matter for further proceedings in accordance with this opinion.
BACKGROUND
T.H. gave birth to a child ("Child") in January of 2011. Child was subsequently removed from T.H.'s home by the Cabinet for Health and Family Services and placed in the Commonwealth's custody. In May of 2016, T.H. was ordered to pay $173.00 per month in child support and $20.00 per month towards her arrears. No indication in the record exists as to how the trial court arrived at this amount, nor did T.H. contest or appeal the family court's child support order.
Subsequently, in November of 2016, upon application from the Commonwealth, the family court entered an order that T.H. show cause why she should not be held in contempt for failing to pay child support as ordered, and the trial court scheduled a hearing for January of 2017. T.H. appeared at the January 2017 contempt hearing, entered a denial, was appointed counsel, and obtained a continuance for the hearing until March of 2017. T.H. failed to appear at the March 2017 hearing and the family court entered a bench warrant for T.H.'s arrest.
T.H. was later arrested and appeared before the trial court in August of 2017 with counsel. At that point, T.H.'s counsel indicated that T.H. was receiving Supplemental Security Income ("SSI") payments and had mental health issues. T.H.'s counsel requested a continuance to explore the foregoing issues and to see if T.H. could obtain a signed statement of disability. The family court agreed and continued T.H.'s contempt hearing until November of 2017.
At the November 2017 hearing, T.H.'s counsel indicated that T.H.'s mental health facility no longer signed statements of disability. Counsel therefore requested another continuance in order to request funds for an expert who could testify as to T.H.'s mental health disabilities. The trial court continued T.H.'s contempt hearing until January of 2018. At the January 2018 hearing, T.H.'s counsel explained that, while the additional funds for the mental health assessment had been received, T.H. had not kept the appointment with the doctor to obtain the assessment. Counsel indicated that T.H.'s initial mental health diagnosis had been made a number of years before and discussed obtaining a release of medical records to give to T.H.'s doctor.
At that time, the family court expressed its frustration with T.H. and indicated that its history with her had been one in which she consistently failed to do what the family court requested. The family court stated that it would grant one more continuance of T.H.'s contempt hearing, but that a contempt hearing would be held on the next hearing date regardless of whether T.H. had obtained the necessary information concerning her alleged disability.
On February 14, 2018, T.H. appeared with counsel for her contempt hearing, at which hearing T.H. testified that she had never worked and that the only income she received was $750.00 in SSI benefits, which she had been receiving since she was 13 years of age. Additionally, T.H. testified that her receipt of SSI benefits stemmed from her diagnoses over the years with bipolar disorder, paranoid schizophrenia, and four other disorders that she could not recall. T.H. also testified that she had been hospitalized at two different hospitals, that she had not graduated from school, and that she took six different medications, including one for depression. T.H. further testified that she lived with her mother and was dependent upon her for daily activities, and that her mother was the payee for her SSI benefits.
Moreover, T.H. introduced a letter from the Social Security Administration dated February 16, 2018 stating that, as of January 2018, T.H. was receiving $750.00 per month in SSI payments. However, the letter also listed T.H.'s birthday as May of 1991, but stated that she was entitled to SSI payments "as a disabled child." T.H. introduced no evidence as to her expenses or her assets at the hearing, nor did she introduce, other than her own testimony, any other evidence of mental illness or disability.
The trial court discussed its lengthy history with T.H., including its understanding that T.H. had a drug problem, and the lack of supporting evidence of any disabling mental conditions throughout said history. The trial court also noted that court records indicated that T.H. had made only one payment of $10 towards her child support obligation, that no evidence was produced to justify a finding of mental illness or disability, and that he needed an expert to determine whether T.H. was mentally ill. Moreover, the trial court found that, based on T.H.'s receipt of the $750.00 per month in SSI benefits, she had the ability to pay her child support obligation.
The family court found T.H. to be in contempt of court for failing to pay child support as ordered but did indicate that if T.H.'s income was only $750 a month, then the child support amount may be too high. The case was continued for sentencing until May of 2018, and the court requested that T.H.'s mother, as payee of T.H.'s SSI benefits, appear at the sentencing hearing. The family court also requested evidence of T.H.'s monthly expenses.
At the sentencing hearing, the trial court heard the unsworn testimony of T.H.'s mother, as payee, indicating that she and T.H. were living in an extended stay which cost $470.00 every two weeks. The Court ordered that T.H.'s mother, as payee, would have to pay T.H.'s child support obligation immediately after receipt of T.H.'s SSI benefits and before the payment of any other expenses. The trial court also entered a written contempt order sentencing T.H. to serve ninety days in the Kenton County jail, conditionally discharged for two years as long as T.H. remained current on the payment of her $173.00 per month child support obligation and the payment of an additional $20.00 per month towards the accumulated child support arrears. This appeal followed.
ANALYSIS
Before we reach the merits in this case, we must address what could potentially be a jurisdictional impediment in that T.H.'s notice of appeal named only the Commonwealth of Kentucky as Appellee and failed to name the Cabinet for Health and Family Services. Kentucky Rules of Civil Procedure (CR) 73.03 states that "[t]he notice of appeal shall specify by name all appellants and all appellees[.]" Further, this Court has held that "[f]ailure to name an indispensable party is grounds for dismissal of an appeal." R.L.W. v. Cabinet for Human Resources, 756 S.W.2d 148, 149 (Ky. App. 1988) (citing Yocom v. Franklin County Fiscal Court, 545 S.W.2d 296 (Ky. App. 1976)).
Cases rendered since R.L.W., however, have softened the effect of the R.L.W. holding under certain circumstances. In Blackburn v. Blackburn, 810 S.W.2d 55 (Ky. 1991), the Kentucky Supreme Court held that a notice of appeal was jurisdictionally adequate under CR 73.03 if it "contain[ed] a listing of parties sufficient to give the opposing party notice of the identities of the parties to the appeal." Id. at 56. The Blackburn Court began its analysis by noting that the purpose of pleadings was to provide fair notice to the opposite party, and when the conduct of the parties demonstrated that actual notice had been received, "the objective has been met so as to amount to substantial compliance." Id. Further, the Court in Blackburn noted that where the pleadings throughout the case had contained references to all the named Appellants and the issue regarding the parties to the appeal was never raised by the Appellants or Appellees throughout the case, the application of CR 73.03 need not be strenuously exercised. Id.
Similarly, in R.C.R. v. Com. Cabinet for Human Resources, 988 S.W.2d 36, 40 (Ky. App. 1998), this Court recognized that Blackburn had "relaxed the standards for compliance with CR 73.03[.]" In R.C.R., the children in a termination of parental rights action were not named in the notice of appeal as appellees. Id. However, the children were named in the caption of the notice of appeal as being the party "in the interest of" whom the appeal was filed. Id. Moreover, the children's guardian ad litem was served with copies of all relevant pleadings. Id. The Court concluded that the foregoing factors were "sufficient to confer upon this Court jurisdiction over the children, to provide the parties with fair notice of the appeal, and to identify the parties thereto." Id.
In the present case, although the Commonwealth of Kentucky was the only entity listed as the Appellee in this case, the Cabinet for Health and Family Services is clearly an agent of the Commonwealth of Kentucky. Moreover, the appropriate agencies or individuals of the Commonwealth were served with all applicable pleadings in the appeal and were provided with fair notice that the appeal had been filed. The Kenton County Attorney's Office, who had filed the initial verified application for a show cause order, was included in the Certificate of Service, and the Commonwealth filed a timely reply brief and never indicated any issues with notice or ability to conduct the appeal. Additionally, the Cabinet for Health and Family Services had no involvement in the contempt proceedings. The conduct of the parties throughout this case, as reflected by the record, leaves no doubt that the Appellees, as did the Appellants, fully understood the identity of all the parties to the appeal throughout the course of the appeal. Therefore, we find that T.H. sufficiently invoked the jurisdiction of this Court, despite the deficiencies in the notice of appeal.
T.H. makes three arguments on appeal: (1) that this Court should find that SSI payments should not be utilized in the calculation of child support under federal law, (2) that the trial court erred in essentially garnishing T.H.'s SSI benefits by ordering that the child support payments be made by T.H.'s payee before T.H. could receive the remainder of such payments, and (3) that the trial court erred by holding T.H. in contempt for failure to pay previously-ordered child support. As a preliminary matter, because we are vacating the trial court's order and remanding for further proceedings on the basis of the family court's error in holding T.H. in contempt, we decline to address T.H.'s first two arguments stated above.
Turning to T.H.'s argument concerning whether the trial court erred by holding T.H. in contempt for failure to pay previously ordered child support, we begin by noting that "[a] trial court . . . has broad authority to enforce its orders, and contempt proceedings are a part of that authority." Com., Cabinet for Health and Family Services v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011) (citing Lewis v. Lewis, 875 S.W.2d 862, 864 (Ky. 1993)). However, contempt power is an extraordinary use of a court's authority and is carefully constrained. Lewis, 875 S.W.2d at 864. The contempt power "cannot be used to compel the doing of an impossible act." Id. (citing Rudd v. Rudd, 184 Ky. 400, 214 S.W. 791, 796 (1919)). On appeal, the trial court's use of its contempt powers is reviewed for an abuse of discretion, while the trial court's findings of fact are reviewed for clear error. Ivy, 353 S.W.3d at 332 (internal citations omitted).
Generally:
[c]ontempt sanctions are classified as either criminal or civil depending on whether they are meant to punish the contemnor's noncompliance with the court's order and to vindicate the court's authority and dignity, or are meant to benefit an adverse party either by coercing compliance with the order or by compensating for losses the noncompliance occasioned.Id. (citing Gormley v. Judicial Conduct Commission, 332 S.W.3d 717, 725-26 (Ky. 2010)). Here, because the contempt proceeding was meant to coerce T.H.'s compliance with her child support obligation and not to punish her, it was civil in nature.
The burden in a civil contempt proceeding is initially "on the party seeking sanctions to show by clear and convincing evidence that the alleged contemnor has violated a valid court order[,]" as well as to prove any amounts sought in compensation. Id. (citing Roper v. Roper, 242 Ky. 658, 47 S.W.2d 517 (Ky. 1932)). Upon the movant's showing of the foregoing 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)). As stated in Ivy, "[t]his burden is a heavy one and is not satisfied by mere assertions of inability. The alleged contemnor must offer evidence tending to show clearly that he or she made all reasonable efforts to comply." Id. (internal citations omitted). Thereafter, upon a trial court's finding of civil contempt, the trial court must determine a remedy. Id. at 334. The Ivy Court stated that, "[w]here ... the contempt proceeding is civil, the sanction may serve either to coerce the contemnor to comply with a court order, to compensate a party for losses caused by the contempt, or both." Id. (internal citations omitted).
Therefore, the essential hallmark of civil contempt is that contemnors "carry the keys of their prison in their own pockets." Blakeman v. Schneider, 864 S.W.2d 903, 906 (Ky. 1993). As explained in Blakeman, "[i]f the contemnor absolutely has no opportunity to purge himself of contempt, then such imprisonment can be deemed punitive in nature and in the nature of a proceeding for criminal contempt." Id. Consequently, a trial court may find an individual in civil contempt only where that individual is found to have a present ability to pay the obligation. Clay, 434 S.W.2d at 652-53. As stated by the Court in Clay:
If [the contemnor] is unable to pay the entire amount then the trial court may properly determine if he is able to pay any portion thereof at the present time. After a proper determination of his ability to pay is made it should be clearly set forth in a finding of fact. Thereafter all contempt orders should be limited in their coverage to those amounts which the court has previously found are within the ability of [the defendant] to satisfy. The court may properly, in its discretion, if it finds [the contemnor] unable to satisfy the entire judgment at this time, order payments made on same over a period of time, which are within the ability of [the contemnor] to satisfy.Id. (emphasis added).
Additionally, in the specific context of an individual's receipt of SSI benefits, the Kentucky Supreme Court has stated that "if child support is to be demanded from the SSI benefit itself, there must be evidence clearly establishing . . . the recipient's ability to afford the support payment" before the family court may make a finding of contempt. Ivy, 353 S.W.3d at 333 (emphasis added). Further, the Ivy Court noted that courts in other jurisdictions "have held that SSI benefits themselves may support a finding that the recipient has the ability to pay child support, provided that the evidence clearly establishes that payment of the support would not deprive the recipient of the means to live." Id. (citations omitted) (emphasis added).
In this case, while the trial court found that T.H. had the ability to pay her support obligation, it was based solely on the fact that T.H. received $750.00 in SSI benefits each month. However, the trial court was not presented with evidence concerning T.H.'s other expenses and life necessities, and thus could not have made, and in fact did not make, any findings of fact as to T.H.'s actual present ability to pay the monthly child support amount to avoid jail time. It was incumbent upon the family court to make factual findings as to T.H.'s current financial circumstances and to then limit the contempt proceedings to those amounts that she was found able to pay before ordering incarceration. As stated in Clay, "[a]fter a proper determination of [the alleged contemnor's] ability to pay is made it should be clearly set forth in a finding of fact.'" Clay, 434 S.W.2d at 652 (emphasis added). A proper determination would take into account all of T.H.'s income and expenses, and not just T.H.'s SSI benefits, as well as whether the payment of child support at that level could deprive T.H. of the means to live.
Consequently, the Kenton Family Court contempt order is vacated and the matter is remanded for further proceedings. If T.H. is found to have the present ability to pay the court-ordered amount of $193.00, taking into account all areas of her income and expenses and not just her receipt of the $750.00 SSI benefits, the court may then find her to be in civil contempt. Alternatively, if the court finds that T.H. lacks the present ability to pay, the court may in its discretion determine a remedy to address the appropriate amount of child support owed.
COMBS, JUDGE, CONCURS.
KRAMER, JUDGE, DISSENTS AND FILES SEPARATE OPINION. KRAMER, JUDGE: I wholly agree with the majority opinion's analysis on the merits; however, because I disagree with the analysis of whether T.H.'s failure to name the Cabinet in the notice of appeal was fatal to this appeal, I do not think we ever get to the merits of this case. Pursuant to CR 73.03(1):
The notice of appeal shall specify by name all appellants and all appellees ("et al." and "etc." are not proper designation of parties) and shall identify the judgment, order or part thereof appealed from. It shall contain a certificate that a copy of the notice has been served upon all opposing counsel, or parties, if unrepresented, at their last known address.
In my view, the Cabinet's having the care of T.H.'s child makes it an indispensable party to this appeal. However, it was not named in the caption of the notice of appeal or listed in the body of the notice of appeal as a party. See Clark Equipment Co. v. Bowman, 762 S.W.2d 417, 419 (Ky. App. 1988). The failure to name an indispensable party in the notice of appeal is grounds for dismissing the appeal. See R.L.W. v. Cabinet for Human Resources, 756 S.W.2d 148, 149 (Ky. App. 1988). Accordingly, although I can sympathize with the plight of T.H. in her pursuit for due process in the contempt proceedings below, I believe the law compels dismissing this appeal based on binding and long-standing precedent. Accordingly, I dissent and would dismiss this appeal. BRIEFS FOR APPELLANT: John Gerhart Landon
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andrew Beshear
Attorney General of Kentucky Galen C. Myers
Assistant Attorney General
Frankfort, Kentucky