Opinion
NO. 2015-CA-001830-MR
09-29-2017
MARK WAGNER APPELLANT v. LAURA WAGNER APPELLEE
BRIEFS FOR APPELLANT: Mark A. Wagner, Pro Se Louisville, Kentucky BRIEF FOR APPELLEE: Laura L. Wagner, Pro Se Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE DOLLY W. BERRY, JUDGE
ACTION NO. 11-CI-504367 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; ACREE AND JONES, JUDGES. ACREE, JUDGE: We must determine if the Jefferson Family Court wrongfully held appellant Mark Wagner in contempt for failing to provide insurance for his children, as required per a previous court order. We find no error and affirm.
FACTS AND PROCEDURE
Mark and appellee Laura Wagner married in 1991. They had two children: Cailey Wagner, born September 10, 1994, and Keegan Wagner, born October 10, 1996. Mark filed for divorce in December 2011. At that time, both children were minors, though Cailey was on the cusp of emancipation.
Through court-ordered mediation the parties reached a marital settlement agreement. Relevant to the issues before us, the parties agreed to joint custody and that child support would not be set on the assumption that both parties would spend substantial time with Keegan. That agreement also provided that Mark "shall provide health insurance for the parties' infant/child/children. This shall continue as long as it is available through his/her employment and/or further Order of Court. - includes Cailey." (R. 37). The agreement further provided that the parties were to equally divide the "[u]ncovered medical expenses of the child." Exhibit A to their agreement stated: "Parties note Cailey is 17 and will be attending college in the fall." (R. 46). The family court adopted the parties' agreement and entered the agreed order of record on April 30, 2012.
The family court entered a decree of dissolution in May 2012. In August 2012, Laura filed a motion to set child support, claiming Mark had not been spending a substantial amount of time with Keegan. The family court granted her motion. Utilizing an AOC-152 form, entered January 29, 2013, the family court ordered Mark to pay $718.91 per month in child support and be responsible for 72% of the cost of extraordinary medical expenses incurred on Keegan's behalf. Section 3 of that form related to health insurance was left blank.
In November 2014, Mark unilaterally chose not to include the children on his employment-based health insurance plan for 2015. Instead, he enrolled the children in free Medicaid health coverage through Kentucky's Health Insurance Exchange (Kynect), effective January 1, 2015. However, a few months later the children were declared ineligible for Medicaid coverage because Mark had failed to provide Laura's income information during the enrollment process. The children's Kynect insurance was terminated in March 2015, retroactive to January 2015.
Officials determined the combined household income for Laura, Cailey, and Keegan was too high, disqualifying the children for Medicaid coverage.
Laura filed a motion to hold Mark in contempt for removing the children from his employer's insurance policy in violation of the family court's April 2012 order. The family court entered an order in May 2015 scheduling a contempt hearing. That order included a handwritten notation requiring Mark to immediately place the children on his insurance policy. Mark's employer allegedly found the handwritten notation unacceptable and, because the January 2013 AOC-152 form did not address health insurance, allegedly declined to reinstate the children on Mark's insurance plan. The family court entered another order in July 2015 stating Mark "shall immediately place the children on his insurance policy if they are not already covered presently by him." (R. 103). Armed with this order and a revised AOC-152 form also ordering Mark to provide and maintain health insurance for the children, Mark re-enrolled the children on his employer's health insurance plan effective September 2015.
In the meantime, a contempt hearing was held in August 2015. Mark testified that during the November 2014 enrollment period he determined that his children were not eligible for his employer's healthcare coverage because coverage was only available for Mark's dependents, and neither child qualified as his dependent. He stated he could not in good conscience declare the children as his dependents when they were not. However, willing and desiring to continue providing medical insurance, Mark testified he purchased insurance for each child through Kynect. The enrollment process, according to Mark, asked for each child's income, but did not inquire about total household income.
Laura testified Mark never consulted her about changing the children's health insurance, and that they were without insurance from January 2015 through August 2015. During this time, Cailey incurred medical bills totaling $1,042.17. Laura asked the family court to order Mark to reimburse 100% of the expenses paid by Laura and/or Cailey for Cailey's medical care during the uninsured period. Laura also sought attorney's fees incurred as a result of the contempt motion.
By order entered October 29, 2015, the family court found Mark to be in contempt. It ordered Mark to reimburse Laura for 100% of the medical bills that the children incurred while they were uninsured, and awarded Laura attorney's fees. From this order, Mark appeals.
STANDARD OF REVIEW
This Court will only reverse a finding of contempt if the trial court abused its discretion in imposing the sentence. Lanham v. Lanham, 336 S.W.3d 123, 128 (Ky. App. 2011). "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). However, "we apply the clear error standard to the underlying findings of fact." Cabinet for Health and Family Services v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011). We are mindful of the broad contempt powers enjoyed by the courts. Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky. App. 2007).
ANALYSIS
Mark argues the family court erred in finding him in contempt. He asserts the family court erred or abused its discretion: (1) by failing to find Mark established good cause for dropping the children from his employer's insurance policy; (2) by failing to recognize Mark is not obligated to provide medical insurance past emancipation; (3) by failing to acknowledge a qualified medical child support order (QMCSO) did not exist; (4) by misconstruing the record and testimony; and (5) by incorrectly invoking the Affordable Care Act.
As previously noted, the family court, by order entered October 29, 2015, found Mark to be in contempt for failing to provide insurance for the children. The court said in its order, in pertinent part:
The Court finds Mark in contempt for failing to maintain the children's insurance through his employer. The law now allows parents to cover adult children up until the time they are 26, and the parties' Agreed Order specifically states that Mark was to continue to provide Cailey's insurance, even though she was emancipated at the time of the agreement. Mark was responsible as long as the children were "eligible," and they were still eligible. The Court did not find Mark credible when he explained why he discontinued the children on his plan. Kynect would not have cost him anything, which the court believes to be his real motivation, but the children were not eligible for that plan due to Laura's income and because they were her dependents. Mark failed to disclose this information to Kynect.(R. 122).
Contempt is "the willful disobedience of or the open disrespect for the court's orders or its rules." Meyers, 233 S.W.3d at 215 (citation omitted). "Civil contempt, the focus of this appeal, is 'the failure . . . to do something under order of court, generally for the benefit of a party litigant.'" Crowder v. Rearden, 296 S.W.3d 445, 450 (Ky. App. 2009) (quoting Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996)). Civil contempt is designed "to coerce rather than punish." Blakeman, 864 S.W.2d at 906. The civil contempt process is composed of several separate yet interrelated steps.
First, the party seeking a contempt citation must establish by clear and convincing evidence that the alleged contemnor has violated a court order and, if also seeking compensation, the amount must be proven. If the court is persuaded, a presumption of contempt is created and the burden of production shifts to the alleged contemnor. Ivy, 353 S.W.3d at 332.
Second, the alleged contemnor has the opportunity to present clear and convincing evidence that he or she "was unable to comply with the court's order or was, for some other reason, justified in not complying. This burden is a heavy one and is not satisfied by mere assertions of inability." Id.
Third, upon a finding of civil contempt, the trial court then advances to the final step, fashioning a remedy. Id. 334. "Where, as 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.
In this case, the April 2012 order clearly required Mark to provide health insurance for both children, including Cailey, as long as it was available or until further orders of the court. The language of the order is clear. It is undisputed that, despite coverage still being available for both children through his employer, Mark unilaterally dropped them from his insurance in November 2014. Mark undoubtedly violated the April 2012 order.
Laura further established the amount she sought in compensation for Mark's contempt. Specifically, she submitted medical bills that Cailey incurred while uninsured, totaling $1,043.17; it appears Keegan incurred no medical expenses during the uninsured period.
Mark contends he did not violate the April 2012 order because he was never obligated to provide health insurance for either child in the first place. Specifically, Mark argues that, because the family court's order was not memorialized on form AOC-152, as required by Family Court Rules of Practice and Procedure (FCRPP), Section 9, he was under no legal duty to provide them health insurance. His argument is without merit.
FCRPP 9 provides, in relevant part:
An order directing the payment of child support shall be entered utilizing the AOC-152, Uniform Child Support Order and/or Wage/Income Withholding Order . . . and shall include the following: (a) the amount and frequent of the support payments; (b) [how the payment shall be made]; . . . (d) the party responsible for medical and other ordered expenses of the child(ren); and, (e) the social security numbers of the parties and the child(ren), CR 7.03 notwithstanding.FCRPP 9(2). The rule makes no mention of health insurance beyond perhaps the division of extraordinary medical expenses. FCRPP 9(d). It certainly does not require that the health insurance decision or designee be made on the AOC-152 form. Mark's argument that the circuit court's failure to enter an AOC-152 form directing Mark to provide health insurance for the children somehow renders void the August 2012 order, thereby negating his obligation to provide health insurance for his children, is simply nonsensical.
We are aware that the AOC-152 form includes a health insurance section, and best practices dictate that the section be filled out appropriately in each case to ensure clarity and conformity. --------
Advancing to the second step in the contempt process, Mark argues he was justified in not complying with the April 2012 order. He contends he established good cause for dropping the children from his employer's insurance, and that he was not obligated to provide medical insurance beyond emancipation.
Mark first argues that he established good cause for dropping the children from his employer's insurance. He points to KRS 403.240(2), which provides: "The failure of either party, without good cause, to comply with a provision of a decree or temporary order or injunction, including a provision with respect to visitation or child support shall constitute contempt of court, and the court shall remedy the failure to comply." He asserts that, as part of the insurance enrollment process in the fall of 2014, he was obligated to certify that Keegan and Cailey were his "dependents" eligible for insurance coverage. Mark states he was unable to do so in good conscience because the children resided with Laura and therefore were not his dependents. He admits the insurance information available through his employer was incorrect and misleading, as insurance availability extends to children of employees regardless of dependency, but this fact does not negate, Mark argues, his good cause at the time he elected not to retain employer-based health insurance for the children.
The family court found Mark's explanation for discontinuing coverage suspect and lacking credibility. The family court, operating as the fact finder in contempt proceedings, may make its own decisions regarding demeanor and truthfulness of witnesses, and may choose whom to believe. Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky. App. 2007). The family court appropriately exercised its discretion in this case.
Along these same lines, Mark contends the family court misconstrued his testimony in finding that Mark "dropped the children from his employer's insurance in November 2014 because he believed that the children were no longer eligible for coverage once they were over eighteen." He also asserts there is no factual support for the family court's finding that "Kynect would not have cost [Mark] anything, which the court believes to be his real motivation." We are unable to fully evaluate Mark's arguments because he failed to designate the August 2015 hearing as part of the circuit court record. The hearing is not available for our review. This reviewing court, as a matter of law, is required "to assume that any portions of record that are not designated support the findings of the trial court." Mifflin v. Mifflin, 170 S.W.3d 387, 388-89 (Ky. 2005).
Mark also asserts he was justified in not complying with the circuit court's April 2012 order because he was not legally obligated to provide health insurance beyond emancipation. The April 2012 order specifically provided that Mark was to retain Cailey on his employer-based health insurance as long as it was available or until further orders of the court. It was well known at that time that Cailey would soon turn 18 years of age and would be attending college in the fall. It is not uncommon for parents to provide health insurance for their children beyond the age of majority and emancipation. See KRS 403.211(7)(c). A fair reading of the April 2012 order reveals that Mark agreed to do so.
Even if Mark's legal obligation to provide Cailey health insurance ceased upon her emancipation, he may not unilaterally disobey a court order. See Price v. Price, 912 S.W.2d 44, 46 (Ky. 1995). It was incumbent upon him to file a motion to modify the April 2012 order to relieve him of the responsibility to provide Cailey's health insurance. See id. He did not file any such motion. To allow a parent to sua sponte ignore or modify a court's directive would diminish the innate authority of the courts, as well as fail to discourage parents to timely file motions to modify child support obligations.
Moving to the last step - the remedy - the circuit court ordered Mark to reinstate the children on his employer's insurance plan and to reimburse Laura $1,043.17 for the health care costs Laura and Cailey incurred as a result of Mark's contempt. Mark argues the circuit court erred in requiring him to pay for Cailey's extraordinary medical expenses. He points to the April 2012 order, which only required him to share in Keegan's uncovered medical expenses. There was never an obligation, Mark argues, for him to cover Cailey's out-of-pocket medical expenses.
Even accepting Mark's argument as true, we cannot say the circuit court erred in fashioning this remedy. Regardless of the April 2012 order, it was fully within the circuit court's broad discretion to order Mark to reimburse Laura and Cailey for the medical expenses incurred during the lapse of coverage as a sanction for Mark's contemptuous behavior. We think the circuit court's remedy rather fitting and certainly appropriate in light of its prior findings.
CONCLUSION
We affirm the Jefferson Family Court's October 29, 2015 order holding Mark in contempt.
ALL CONCUR. BRIEFS FOR APPELLANT: Mark A. Wagner, Pro Se
Louisville, Kentucky BRIEF FOR APPELLEE: Laura L. Wagner, Pro Se
Louisville, Kentucky