THOMPSON, JUDGE

NOT TO BE PUBLISHED APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE A. CHRISTINE WARD, JUDGE
ACTION NO. 13-CI-502075 OPINION
AFFIRMING

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BEFORE: DIXON, NICKELL AND THOMPSON, JUDGES. THOMPSON, JUDGE: Jeffrey L. Pettingill appeals from the Jefferson Family Court's order entered on March 17, 2017, finding him in contempt for failing to pay his portion of extraordinary medical expenses for L.P. (child) incurred by child's mother, Sara Y. Pettingill, and awarding attorney fees.

Jeffrey and Sara married in 2010 and child was born in 2012. The following year, Jeffrey and Sara separated and Sara petitioned for dissolution. In 2013, a limited decree of dissolution was entered with the issues on property dissolution, custody, and child support reserved for further proceedings.

On July 11, 2013, a domestic violence order (DVO) was entered protecting Sara and child from Jeffrey, which was affirmed on appeal by the Court of Appeals and the Kentucky Supreme Court. Pettingill v. Pettingill, 480 S.W.3d 920 (Ky. 2015). This DVO was renewed on April 11, 2016, and is in effect until April 10, 2019. Pettingill v. Pettingill, No. 2016-CA-000589-ME, 2017 WL 651990 (Ky.App. 2017) (unpublished) (dismissing appeal).

On June 25, 2015, an order was entered regarding custody, child support and extraordinary medical expenses. Sara was granted sole custody of child with Jeffrey having supervised visitation. On August 9, 2013, an order was entered making Jeffrey responsible for 53.2% of all extraordinary medical expenses.

On December 15, 2015, Sara filed a motion for contempt against Jeffrey for failing to pay child support from September through December 2015, and requesting attorney fees. Although Jeffrey became current on child support before the hearing on the motion, on May 3, 2016, the family court awarded attorney fees of $337.50.

On July 19, 2016, Sara filed a motion for contempt against Jeffrey for failing to pay child support due for part of May and all of June and July 2016, and requesting attorney fees. A hearing was held on this motion on July 27, 2016. While in court that day, Sara's counsel presented Jeffrey, pro se, with a copy of receipts for claimed expenses for child from 2015 through July of 2016.

On August 3, 2016, the family court granted Sara's motion for contempt for failing to pay child support. The family court noted that despite Jeffrey having an annual income of $140,000, he failed to pay the previously awarded attorney fees within thirty days as ordered and failed to pay child support as ordered. The family court ordered Jeffrey to pay his arrearages within fifteen days and set up a wage assignment. The family court indicated it would award attorney fees upon appropriate proof.

On September 19, 2016, after Jeffrey failed to pay the extraordinary medical expenses and childcare expenses detailed from Sara's receipts, Sara filed a motion for contempt and for attorney fees. Sara attached receipts for doctor and dentist appointments, prescription medication, over-the counter medication, school fees, childcare expenses and swimming lessons. Sara attached a spreadsheet detailing these expenses which totaled $2,084.54.

On November 4, 2016, Jeffrey's new counsel entered an appearance.

At the hearing on the motion held on February 15, 2017, Jeffrey opposed the motion on the basis that his previous counsel told him he did not have to pay these expenses and that he was under no obligation to pay these expenses before the family court set out a procedure for how these expenses would be requested and when and how he should pay them. He also challenged certain expenses as not being properly reimbursable as extraordinary medical expenses. However, Jeffrey did acknowledge his duty to pay the medical bills and stated he was attempting to contact his insurance company about the medical bills.

On March 17, 2017, an order was entered granting Sara's motion for contempt. The family court determined that Jeffrey was responsible for paying his percentage of child's extraordinary medical expenses including vitamins and over-the-counter medication necessary to maintain child's health, but agreed with Jeffrey that school fees, summer camp expenses and swim lessons were not properly reimbursable as extraordinary medical expenses pursuant to Kentucky Revised Statutes (KRS) 403.211(a). The family court made a ruling on whether each expense was properly reimbursable and set out in a spreadsheet the reimbursable expenses which totaled $1,348.27.

The family court concluded Sara met her burden of proving contempt because she previously provided Jeffrey with copies of the medical expenses in court and he acknowledged that he failed to pay his portion of the medical expenses tendered.

The family court held:

Although there is not a specific Court Order in place regarding the procedure in which [Sara] should inform [Jeffrey] of medical expenses or a time limit of when they must be paid, the existence of medical receipts which are nearly two years old, indicate that [Jeffrey] had a reasonable time to satisfy his portion of the payments and the Court finds [Jeffrey's] explanation, that he was attempting to contact his insurance company regarding payment of these bills, was too little, too late, and did not satisfy his obligation under the Court's order.

As [Sara] met her burden of establishing a prima facie case of Contempt, [Jeffrey], as the contemnor, then has the burden to show clearly and convincingly he was

unable to comply with the Court's Order. This Court is familiar with these parties and the Court's knowledge of [Jeffrey's] history before the Court has informed the Court's conclusion that [Jeffrey] willfully and intentionally disobeyed the Court's Order by failing to pay his share of the medical expenses. He failed to show the Court that he was unable to comply. Therefore, [Jeffrey] is in contempt for failing to pay his portion (53%) of the medical expenses in the amount of $701.10.

Jeffrey was offered the opportunity to purge himself of the contempt by paying Sara $701.10 within fifteen days. The family court determined an award of attorney fees for the contempt motion was appropriate and stated it would consider a specific award upon the submission of an affidavit of attorney fees. The family court also specified the procedure by which submissions for extraordinary medical expenses would be conducted in the future, including how Sara should contact Jeffrey, how Jeffrey could properly object and what deadlines applied.

On appeal, Jeffrey argues that the family court erred as a matter of law because there was no order in place specifically setting out the manner and timing for obtaining reimbursement for child's extraordinary medical expenses and the existence of the domestic violence order between the parties "made the necessity of an articulated protocol indispensable." Jeffrey argues that the absence of such a protocol meant that the family court had no legal basis upon which to rest its finding "and by implication, the court's errant finding of contempt was also a finding that Jeffrey should have violated the court's no contact order."

"Civil contempt consists of the failure of one to do something under order of court, generally for the benefit of a party litigant." Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996). "[C]ourts have inherent power to impose a sanction for a civil contempt to enforce compliance with their lawful orders." Crowder v. Rearden, 296 S.W.3d 445, 450 (Ky.App. 2009).

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. If the party is seeking compensation, it must also prove the amount. 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. This 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.

The family court did not err in finding that Jeffrey was in contempt. Sara met her initial burden of showing by clear and convincing evidence that Jeffrey violated the family court's order that he pay his percentage of extraordinary medical expenses and proved the amount he owed through her receipts. Jeffrey acknowledged his obligation to pay his percentage of child's extraordinary medical expenses.

Jeffrey failed to meet his burden of production to show, clearly and convincingly, that he was unable to comply with the family court's order or was justified in not complying. It was undisputed that Jeffrey had the money to pay his portion of child's extraordinary medical expenses. Jeffrey failed to offer evidence that he made all reasonable efforts to comply with the court's order to pay his percentage of child's extraordinary medical expenses. While it may have been confusing for Jeffrey when he was pro se to determine how to appropriately reimburse Sara without violating the DVO because Sara was represented by counsel, Jeffrey could have contacted her counsel to arrange payment of the uncontested expenses or Jeffrey could have contacted the court for clarification regarding how to properly pay these expenses. Additionally, in the three months Jeffrey had counsel prior to the contempt hearing, any concerns Jeffrey may have had regarding violating the DVO in arranging payment could have been alleviated by having his counsel coordinate payment. It was appropriate for the family court to consider Jeffrey's past actions of failing to timely pay child support until motions for contempt were filed in deciding whether Jeffrey's failure to pay extraordinary medical expenses was willful. Therefore, the family court did not abuse its discretion by finding Jeffrey in contempt and ordering Jeffrey to comply with its prior order. The family court also acted appropriately by granting Sara's motion for reasonable attorney fees attributable to Jeffrey's contempt.

Accordingly, we affirm the Jefferson Family Court's order finding Jeffrey in contempt for failing to pay his portion of child's extraordinary medical expenses and awarding attorney fees.

ALL CONCUR. BRIEF FOR APPELLANT: William D. Tingley
Louisville, Kentucky BRIEF FOR APPELLEE: Bryan D. Gatewood
Louisville, Kentucky