Opinion
NO. 2013-CA-000277-MR
05-01-2015
ROBERTO VAZQUEZ APPELLANT v. LEAH CHRISTINE VAZQUEZ APPELLEE
BRIEF FOR APPELLANT: Maureen Sullivan Louisville, Kentucky BRIEF FOR APPELLEE: Dawn Lonneman Blair Elizabethtown, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LARUE CIRCUIT COURT
HONORABLE JOHN DAVID SEAY, JUDGE
ACTION NO. 11-CI-00176
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; JONES AND J. LAMBERT, JUDGES. JONES, JUDGE: The Appellant, Roberto Vazquez, appeals the decision of the Larue Circuit Court in a dissolution case. On appeal, Roberto argues that the trial court erred when it refused to supply him with a Spanish-speaking interpreter to assist him in these dissolution proceedings. Based upon our review of the record, we do not believe the trial court abused its discretion. There was ample evidence to support the trial court's conclusion that Roberto has a sufficient enough command of the English language that he was able to effectively communicate with the court. Accordingly, for the reasons more fully explained below, we AFFIRM.
I. FACTUAL AND PROCEDURAL HISTORY
Roberto and the Appellee, Leah Christine Vazquez, were married on April 20, 1996. Roberto and Leah had two minor children, K.V. and N.V. The parties resided in Larue County during their marriage. On August 19, 2011, Leah filed a Petition for Divorce, moving for temporary custody and child support. Roberto responded to the petition by counsel. The case was assigned to the Domestic Relations Commissioner (DRC), Robert K. Rowe.
The parties were present for hearing before Commissioner Rowe on October 10, 2011. The case was passed to motion hour before the Circuit Court on October 17, 2011. At motion hour on October 17, 2011, Roberto's attorney, Ronald Mather, moved to withdraw. Leah's counsel advised the Court that she believed Roberto would need an interpreter. The Court ordered a Spanish-language interpreter for the next hearing with DRC, on October 24, 2011. The Court also allowed Mr. Mather to withdraw as Roberto's counsel.
On October 24, 2011, the temporary custody hearing was held before the DRC with an interpreter present to assist Roberto. Nevertheless, during the entire hearing, Roberto proceeded to answer many questions that were posed to him in English as well as to testify in fluent English. After entering a temporary order regarding the parties' property, the DRC set another hearing date for the custody, parenting time and child support issues, which was scheduled for November 14, 2011. This date was then rescheduled for December 12, 2011.
On December 12, 2011, Roberto appeared with his attorney and the interpreter. Roberto's attorney, Ron Mather, again withdrew from representation, citing a breakdown in communication. The DRC continued the matter to be heard before the trial court on December 19, 2011. On this date, Leah and her counsel, as well as the interpreter appeared, but Roberto failed to appear.
The trial court entered a dissolution decree on December 20, 2011, and a temporary custody and support order on December 21, 2011, wherein Leah was granted temporary sole custody, Roberto was granted visitation in accord with the Larue County Local Rules of Visitation, and child support was set. Roberto filed a motion to alter, amend, or vacate the decree. The Larue County Attorney filed a motion to intervene for the collection of child support.
A hearing was held on February 20, 2012. At this hearing Roberto again asked for an interpreter. The trial court responded that at the last hearing they had an interpreter, however Roberto failed to appear. The trial court went on to explain the matter of the Commonwealth's motion to intervene for child support purposes. The February 20, 2012 hearing resulted in an order permitting the County Attorney to intervene and a denial of Roberto's motion to alter, amend, or vacate.
On March 19, 2012, the trial court held a hearing on child support. Roberto appeared with an elderly female "volunteer interpreter" who told the trial court, "[h]e understands English, he doesn't understand legal terms." The trial court determined that the woman was not a certified interpreter and told her that she could not assist Roberto. The trial court proceeded with the hearing and entered orders of child support and referred the parties to mediation.
On May 22, 2012, the trial court entered an order directing Roberto to show cause why the court should not hold him in contempt for failure to pay child support. Thereafter, Roberto retained new counsel, Tyler Birdwhistell, who entered his appearance on June 7, 2012.
On July 16, 2012, at the rescheduled child support hearing, Roberto's counsel orally moved for an interpreter, or, in the alternative, a hearing on the need for an interpreter at the child support hearing; the trial court refused, making no specific findings. Roberto then filed a motion to reduce his child support and signed an affidavit which was entirely in English. His child support was reduced by order entered October 8, 2012.
On November 5, 2012, at motion hour, Roberto's counsel Mr. Birdwhistell moved to withdraw; however, he had prepared and tendered witness and exhibit lists. Leah's counsel stated that she was not in a position to object; that the parties were divorced; that all other issues were pending; she (counsel) had a new job and would be leaving her practice soon; and that the case had been pending over a year. The trial court granted the counsel's motion to withdraw. The court set trial for six weeks later, December 17, 2012.
Both counsel Birdwhistell (prior to the withdrawal motion being granted) and Roberto again asked for a "translator." The trial court refused, stating: "[t]he court is to provide an interpreter for any party who cannot speak and understand the English language . . . . You have been here several times and I don't think I've had any problem communicating with you." The trial court went on to say, "I don't believe that you meet the standards . . . . I don't have any problems understanding you."
The final hearing took place on December 17, 2012. Roberto appeared pro se. He told the Court that he had been trying to get a lawyer and asked for "more time." Leah objected to any extensions. The trial court denied the motion and proceeded. Shortly thereafter, Roberto interrupted asking for a interpreter again and, "another month to find a lawyer...I don't know why he quit." The trial court denied Roberto's request and proceeded with trial. Roberto made one final attempt to request a delay and an interpreter. The trial court again denied his request.
Both parties appeared and participated in the hearing. Roberto called the parties' daughter as a witness. He then proceeded to ask her questions in English, which she answered. In addition to the parties and their daughter, the trial court heard from Leah's parents, a neighbor and their son's teacher. Based on the testimony and other evidence of record, on January 8, 2013, the trial court entered findings of fact and conclusions of law, granting Leah custody, with Roberto to have visitation consistent with the local rules; granting Leah the marital residence and her retirement, without division; and crediting Roberto with approximately 50 acres of land he had allegedly purchased in Mexico with marital money. The tendered findings did not make reference to Roberto's language difficulties.
This Appeal followed.
II. STANDARD OF REVIEW
A trial court's decision whether to appoint an interpreter is reviewed for abuse of discretion. Duroff v. Commonwealth, 34 232 S.W. 47, 49 ( Ky. 1921). "[T]he test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky. 2004)(quoting Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (2000)). Further, pursuant to CR 52.01, due regard shall be given to the trial court to judge the credibility of the witnesses.
III. ANALYSIS
Kentucky Revised Statutes (KRS) 30A.410 states as follows:
(1) The court in any matter, criminal or civil, shall appoint a qualified interpreter or interpreters, to be paid out of the State Treasury, for the following categories of persons, whether they are parties, jurors, or witnesses: (a) Persons who because of deafness or hard of hearing: 1. Use sign language, such as pidgin, signed English, American Sign Language or gestures; or 2. Are oral/aural and use interpreters and assistive technology, as their primary mode of communication; (b) Persons who cannot communicate in English; and (c) Any other person who
has, in the opinion of the court, another type of disability which will prevent him from properly understanding the nature of the proceedings or substantially prejudice his rights.
(2)Upon request of the person for whom the interpreter is appointed, or on the court's own motion, an interpreter may be removed for inability to communicate with the person, or if for reasonable cause another interpreter is so desired by the person for whom the interpreter is appointed, or because the services of an interpreter are not desired by the person.
The Kentucky Rules of Administrative Procedure, Part IX Section 4, closely mirror the requirements of KRS 30A.410 as to when an interpreter must be appointed. Part IX Section 9 (9) governs the circumstances under which a Court may remove an interpreter because the person is ineligible to receive interpreter services:
Pursuant to KRS 30A.400(3), if the eligibility of the person to receive the services of an interpreter is challenged, the judge may, for good cause shown, hold a hearing to determine the bona fide need for interpreting services. If it is determined that the person is not entitled to interpreting service, then no portion of these rules shall apply to said person.
When a person does not request an interpreter but appears to have limited ability to communicate in English, the court will conduct a brief voir dire in order to evaluate the extent to which the person speaks and understands English and determine whether or not an interpreter is needed.
The trial court first addressed the question of Roberto's need for an interpreter at the February 20, 2012 hearing. Roberto appeared in court and requested an interpreter. The trial court then had the following discussion with Roberto:
Judge: You sound like you're doing very well.
Roberto: I'm trying the best I can, like I said this case has been so far to her way. I have all the evidence right here that she has been cheating and domestic violence and affair....
Judge: Your problem does not seem to be with the language, it seems to be that you do not have an attorney to represent you.
Roberto: Yeah like I said I need someone to speak English and they can explain you everything because you won't understand me.
Judge: I've understood everything you said so far.
Roberto: I can try if you understand, I can try.
Judge: Does anyone here not understand?... No.
Roberto again appeared before the court on March 19, 2012, with a friend or suspected volunteer interpreter. This friend told the court that Roberto speaks English very well. The trial court responded:
He understands perfectly well. He understands the English language fine. He has problems with the legal terms, as anyone would who's not an attorney. I've advised Mr. Vasquez repeatedly that he needs to hire an
attorney if he wants someone to discuss legal terms with him. But I've had no trouble with him understanding anything I've said.
In response to the trial court's questions about child support, Roberto stated: "She's making much money than what I make, and it's too much what she ask me for. And that's why I need to hire a lawyer." This following exchange then occurred between the trial court and Roberto:
Judge: You still have the right to do that...
Roberto: I don't understand...Can she translate
Judge: You understand what I am saying.
Roberto: It is very hard. I was not born in this country.
Judge: Well you speak very well.
The trial court went on to explain to Roberto as to why the volunteer interpreter could not assist in court as she was not certified. It appears from review of the record that Roberto understood what the trial court was saying, although he was unsatisfied with the way things were going.
Shortly after this hearing, Roberto hired an attorney who filed a motion to review child support, and who asked to address whether an interpreter would be appointed. At the hearing on July 16, 2012, the trial court again addressed the issue of whether an interpreter was necessary. The trial court found that Roberto needed no interpreter, stating:
The only standard I am aware of is in the Supreme Court rules and it says the court shall provide a translator if a
party does not have an understanding of the English language . . . . . Based upon the experience the court has had with Mr. Vazquez in previous proceedings, the court believes he does have an understanding of the English language. He appeared to understand what the court was saying to him to the extent that he did not agree with what I was saying to him, but in order to disagree he had to understand, and the Court could very clearly understand what he was saying to the Court.
The trial court again formally addressed Roberto's need for an interpreter and concluded that Roberto had an adequate understanding of the English language and overruled Roberto's motion for an interpreter.
Having reviewed the record, we believe that the trial court correctly referenced the standard set out in KRS 30A.410 in making its determination that Roberto did not need an interpreter. While the trial court did not quote verbatim from statute, its statements evince that it applied the correct standard in evaluating Roberto's request. The record indicates that the trial court meaningfully considered and addressed this issue on multiple occasions. After having an opportunity to both communicate with and observe Roberto in court on multiple occasions, the trial court concluded that an interpreter was not necessary because Roberto was able to communicate in English.
While Roberto's English is not perfect, he was in fact able to communicate in English with the trial court. The record reflects that Roberto had a sufficient command of the English language to understand and meaningfully participate in the court proceedings. He clearly comprehended that issues related to child support, custody and division of property were at issue and that the trial court would make decisions related to those issues after hearing all the evidence.
Lastly, we agree with the trial court that any real deficiency in this case was created not because of a language barrier, but rather by Roberto's pro se status. Even native English speakers often have some difficulty understanding legal terminology. We believe the trial court was sympathetic with Roberto, and to the extent possible, attempted to make sure that he understood the legal proceedings as it would no doubt do with any pro se litigant. We do not see any evidence from the record to support Roberto's need for an interpreter in this case. Accordingly, we do not believe that the trial court abused its discretion.
IV. CONCLUSION
For the reasons set forth above, we affirm the Larue Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Maureen Sullivan
Louisville, Kentucky
BRIEF FOR APPELLEE: Dawn Lonneman Blair
Elizabethtown, Kentucky