Opinion
NO. 2019-CA-000522-ME
02-14-2020
WHITNEY D. HARDIN APPELLANT v. DEREK M. BEGLEY APPELLEE
BRIEFS FOR APPELLANT: Crystal L. Osborne Lexington, Kentucky BRIEF FOR APPELLEE: Thomas P. Jones Beattyville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LEE CIRCUIT COURT
HONORABLE MICHAEL DEAN, JUDGE
ACTION NO. 18-CI-00140 OPINION
REVERSING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON AND L. THOMPSON, JUDGES. CLAYTON, CHIEF JUDGE: Whitney D. Hardin ("Whitney") appeals the Lee Circuit Court's order finding her in contempt and sentencing her to ten days in jail. Upon careful review of the record and applicable law, we believe a hearing is required in this case; therefore, we reverse and remand the matter for further proceedings in accordance with this opinion.
BACKGROUND
Whitney and Derek M. Begley ("Derek") were married on June 2, 2012, and Whitney filed a petition in Madison County for dissolution of the parties' marriage on November 21, 2017 (the "Divorce Petition"). Although neither party resided in Madison County, they agreed to file the Divorce Petition in Madison County.
The parties entered into a Settlement Agreement, dated November 22, 2017 (the "Settlement Agreement"), providing for joint custody of the parties' child, L.K.B. ("Child"), who was born on November 28, 2014. The Settlement Agreement designated Whitney as Child's primary residential custodian, and the Settlement Agreement provided for Derek's visitation with Child every other weekend. Additionally, Derek was provided visitation with Child every Wednesday while the parties lived within fifty miles of each other. Moreover, the Settlement Agreement provided that the parties would litigate any post-decree matters in Lee County, Kentucky.
The Madison Circuit Court subsequently entered a Decree of Dissolution on January 23, 2018 (the "Divorce Decree"), in which the court approved the Settlement Agreement and incorporated the Settlement Agreement into the Divorce Decree. Three days later, on January 26, 2018, Whitney filed with the Madison Circuit Court a Notice of Relocation to Maryville in Blount County, Tennessee (the "Notice") after accepting a new job in Knoxville, Tennessee. Derek did not object to the Notice, and, after Whitney's move to Tennessee in February of 2018, the parties continued to operate under the provisions contained in the Settlement Agreement concerning visitation, although they agreed to forego Child's Wednesday visits with Derek because of the distance.
In September of 2018, after Whitney and the Child had resided in Tennessee for approximately seven months, Whitney claimed that Child had reported to Whitney that Derek had put his tongue in Child's mouth and that Derek had been drinking beer and driving while Child was in the vehicle. On October 1, 2018, Whitney filed for, and was granted, an ex parte Temporary Order of Protection with the General Sessions Court of Blount County (the "Tennessee Order of Protection"). In her request for the Tennessee Order of Protection, Whitney stated that Derek had been drinking and driving with Child and had inappropriate contact with Child. The Tennessee court found that, pursuant to Tennessee Code Annotated ("TCA") §36-3-605(a), Child was under an immediate and present danger of abuse from Derek, ordered that Derek have no contact with Child, and suspended Derek's visitations with Child. At that point, Whitney terminated all of Child's visits with Derek.
Whitney additionally contacted the Kentucky Department for Community Based Services ("Kentucky DCBS") and, from September of 2018 to October 31, 2018, a Kentucky DCBS case worker, Dianna Nightingale, investigated Child's allegations against Derek. As part of the investigation, Child was interviewed by the Blount County Children's Advocacy Center ("Tennessee CAC"). At the interview, Child again told the interviewer that Derek stuck his tongue in Child's mouth and that it tasted terrible. Nightingale reviewed a transcript of this interview, although she did not review the video recording of such interview. Nightingale also personally interviewed Child, Derek, and Whitney. Thereafter, on October 31, 2018, the Kentucky DCBS sent a letter to Derek stating that the results of the investigation were that the accusations against Derek were unsubstantiated.
Meanwhile, throughout October and November of 2018, Derek filed motions in Madison Circuit Court to transfer venue of the matter from Madison Circuit Court to Lee Circuit Court, citing the parties' agreement in the Separation Agreement to litigate any post-Decree matters in Lee County; motions to show cause as to why Whitney should not be held in contempt of the Divorce Decree for failing to abide by the visitation schedule; and a motion to modify custody of Child to provide sole custody to Derek. Also in November of 2018, Whitney filed a request in Tennessee for emergency custody of Child, for a temporary restraining order against Derek, and for permanent custody of Child. Ultimately, the Madison Circuit Court transferred venue to the Lee Circuit Court by order dated December 6, 2018. As a result, Derek filed his motions with the Lee Circuit Court, including his motion for Whitney to show cause as to why she should not be held in contempt.
Thereafter, the Lee Circuit Court entered an order on January 10, 2019, that, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), codified at Kentucky Revised Statutes ("KRS") 403.800 et. seq., Kentucky had exclusive continuing jurisdiction over custody and visitation matters in the case. The Lee Circuit Court further set a hearing date for January 15, 2019 on Derek's motions, including the show cause motion. Moreover, the Tennessee court entered an order on January 11, 2019, agreeing that Kentucky had exclusive continuing jurisdiction over the custody and visitation issues in this matter.
On January 15, 2019, the Lee Circuit Court held a hearing on Derek's motions, which Whitney did not attend. Kentucky DCBS Worker Nightingale testified that, after interviewing all three parties, Child denied all his original allegations. She further testified that she could not substantiate Child's allegations of abuse because, even if such allegations were true, there was no evidence that the actions constituted sexual abuse because there was no evidence of sexual gratification. Additionally, she could not substantiate the allegations concerning Derek drinking and driving while Child was in the car because there was no specific evidence that Derek was actually driving.
Thereafter, the Lee Circuit Court, in an order dated January 18, 2019, "vacated" the Tennessee Order of Protection and reinstated Derek's visitation with Child as previously ordered. The trial court chose, however, not to hold Whitney in contempt during any period that the Tennessee Order of Protection was issued. The Tennessee Order of Protection eventually expired by its own terms on January 31, 2019.
Derek subsequently exercised his visitation with Child on the weekends of January 18, 2018 and February 1, 2018. Meanwhile, Child had begun therapy sessions with Shannon Lafollette, a therapist at the Tennessee CAC, in December of 2018. On February 11, 2019, Child reported to Lafollette that Derek drove with Child while drinking and that Derek had tried to put his tongue in Child's mouth three times. Lafollette conducted a touch survey with Child, and Child indicated that Derek touched him in his private areas and that such touching did not occur during bath time. Further, Lafollette stated that she did not believe that Child's allegations had been rehearsed or planned, and that most of Child's disclosures had come up randomly in their therapy sessions.
On February 14, 2019, a Tennessee Department of Children's Services ("Tennessee DCS") case manager, Victoria Ernst, interviewed Child at the Tennessee CAC. During this interview, Child disclosed that Derek had touched Child's private areas and, specifically, that Derek had inserted his finger into Child's anus. Ernst contacted Nightingale and expressed concerns regarding Child's safety. According to Ernst, Nightingale stated that Derek had previously denied all of Child's allegations and claimed that Child was being coached by Whitney. Nightingale stated that the Kentucky DCBS would execute a parenting plan with Derek, but that visits between Derek and Child would take place as ordered until Nightingale could complete another investigation.
As a result of Ernst's and Lafollette's concerns, on February 15, 2019 the Tennessee DCS filed with the Juvenile Court of Blount County, Tennessee (the "Tennessee Juvenile Court") a petition for a restraining order between Derek and Child (the "Tennessee DCS Petition") pending a hearing on the matter.
The Tennessee Juvenile Court granted the Tennessee DCS Petition that same day (the "Tennessee Restraining Order"). The Tennessee Restraining Order stated that it had jurisdiction over the action pursuant to TCA §37-1-103, which grants the Tennessee Juvenile Court exclusive original jurisdiction over dependency and neglect cases. Moreover, the Tennessee Restraining Order specifically stated that Whitney was barred from allowing any contact between Child and Derek. The Tennessee Juvenile Court also appointed a guardian ad litem ("GAL") for Child and set a preliminary hearing date for February 19, 2019. Whitney again terminated Child's visitation with Derek.
Although we do not have a record of the February 19, 2019 hearing regarding the Tennessee Restraining Order, from the Tennessee Juvenile Court's Preliminary Hearing Order it appears that the Tennessee Juvenile Court continued the preliminary hearing to March 8, 2019, so that Derek could be properly served in the matter. Further, the Tennessee Juvenile Court extended the Tennessee Restraining Order. Child's GAL was also at the February 19, 2019 hearing, and fully supported the entry and continuance of the protective order.
On February 25, 2019, Derek filed another motion with the Lee Circuit Court to show cause why Whitney should not be held in contempt for failing to comply with both the Divorce Decree and the trial court's January 18, 2019 order requiring visitation to continue as described in the Divorce Decree and Separation Agreement. On March 4, 2019, Whitney filed a verified response and argued that she did not have the ability to comply with the Kentucky trial court's order, as she would be in violation of the Tennessee Restraining Order. Whitney further argued that she had a "good cause defense" pursuant to KRS 403.240(3) and that she was in an impossible situation by having to choose which state's court order to comply with and which to violate, as the two orders were mutually exclusive.
On March 6, 2019, Derek's show cause motion came before the trial court at its regularly-scheduled motion hour. Derek and his counsel were present, as well as Whitney's counsel. The trial court heard brief arguments from both counsel and thereafter held Whitney in contempt for failing to comply with the trial court's visitation order, sentencing her to ten days in jail. Whitney's counsel requested a hearing so that Whitney could present witnesses to provide support for her good faith defense to contempt under KRS 403.240(3). Nevertheless, the trial court denied Whitney's counsel's request for a separate hearing and again stated that it was finding that Whitney was in contempt of the trial court's order of visitation. A warrant for Whitney's arrest was issued on March 7, 2019.
Whitney filed a timely notice of appeal of the trial court's order finding her in contempt, and a panel of this Court granted intermediate relief in the form of a stay of the order of contempt until resolution of this appeal.
ISSUES
The sole issue on appeal is whether the trial court erred by holding Whitney in contempt without a hearing and imposing a ten-day jail sentence.
ANALYSIS
a. Standard of Review
On appeal, a trial court's use of its contempt powers is reviewed by an appellate court for an abuse of discretion, while the trial court's findings of fact are reviewed for clear error. Commonwealth, Cabinet for Health and Family Services v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011) (citations omitted). An abuse of discretion occurs when a court's decision is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
b. Discussion
The Kentucky Supreme Court has stated that "[a] trial court . . . has broad authority to enforce its orders, and contempt proceedings are part of that authority." Ivy, 353 S.W.3d at 332 (citing Lewis v. Lewis, 875 S.W.2d 862 (Ky. 1993)). However, the contempt power is an extraordinary use of a court's authority and is carefully constrained. Lewis, 875 S.W.2d at 864.
A trial court's finding of contempt is categorized as either civil or criminal. Gordon v. Commonwealth, 141 Ky. 461, 133 S.W. 206, 208 (1911). Civil contempt is "meant to benefit an adverse party either by coercing compliance with the order or by compensating for losses the noncompliance occasioned." Ivy, 353 S.W.3d at 332 (citation omitted). The essential hallmark of civil contempt, therefore, 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 stated by the Kentucky Supreme Court in Blakeman, "a civil contemnor cannot be incarcerated beyond the opportunity to purge himself of his contempt." Id. Moreover, "[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.
In contrast to civil contempt, criminal contempt is "meant to punish the contemnor's noncompliance with the court's order and to vindicate the court's authority and dignity . . . [.]" Ivy, 353 S.W.3d at 332 (citation omitted). Along those lines, conduct that will result in a finding of criminal contempt is that "which amounts to an obstruction of justice, and which tends to bring the court into disrepute." Gordon, 133 S.W. at 208. As stated by a panel of this Court in Commonwealth v. Pace, "[w]hen contempt is criminal in nature, it is necessary for all elements of the contempt to be proven beyond a reasonable doubt. Evidence necessary for a finding of contempt must show willful disobedience toward, or open disrespect for, the rule or orders of a court." 15 S.W.3d 393, 396 (Ky. App. 2000) (citations omitted).
Further, as explained in Commonwealth v. Burge:
Criminal contempt can be either direct or indirect. A direct contempt is committed in the presence of the court and is an affront to the dignity of the court. It may be punished summarily by the court, and requires no fact-finding function, as all the elements of the offense are matters within the personal knowledge of the court. Indirect criminal contempt is committed outside the presence of the court and requires a hearing and the presentation of evidence to establish a violation of the
court's order. It may be punished only in proceedings that satisfy due process.947 S.W.2d 805, 808 (Ky. 1996) (citations omitted).
At first blush, the contempt involved in this case appears to be civil contempt, as the trial court found that Whitney failed to do something of which she was under court order to do, and the finding of contempt generally benefitted Derek. As previously stated, however, to be civil contempt, Whitney had to "carry the keys of [her] prison in [her] own pockets[,]" so to speak. Blakeman, 864 S.W.2d at 906. In its order, however, the trial court stated no purge with which Whitney could remove herself from contempt, and therefore she was potentially subjected to incarceration beyond any opportunity to purge herself from such contempt. The allegation of contempt involved herein was, by its very essence, criminal contempt, because nowhere did the trial court indicate the means by which Whitney could effectuate a purge of her contempt. At its core, the finding of contempt in this case was designed to punish rather than coerce - otherwise some means of purge would have been indicated in the trial court's order.
Therefore - and because such alleged criminally contemptuous behavior was indirect, as it did not occur in the presence of the trial court - the trial court was required to hold a hearing at which all the elements of the contempt were proven beyond a reasonable doubt. Pace, supra. As previously discussed, evidence necessary for a finding of contempt must show willful disobedience toward, or open disrespect for, the rule or orders of a court. Burge, supra. Additionally, behavior that has been found to evidence criminal contempt is that "which amounts to an obstruction of justice[.]" Gordon, 133 S.W. at 208.
In the case sub judice, we find that the trial court abused its discretion when it found that Whitney was in contempt and sentenced her to jail time without holding a hearing. The lack of a hearing is particularly concerning, as Whitney's counsel indicated that counsel would introduce at such hearing witnesses to and evidence of Whitney's good faith defense to contempt pursuant to KRS 403.240(3), which states:
Good cause not to comply with a provision of a decree or temporary order or injunction with respect to visitation shall include . . . reasonable belief by either party that there exists the possibility of endangerment to the physical, mental, moral, or emotional health of the child, or endangerment to the physical safety of either party . . . [.]
On one hand, Kentucky had continuing jurisdiction over the custody proceedings in this case under the UCCJEA, under which the definition of "child custody proceeding" expressly includes proceedings for neglect, abuse, and dependency in which the issues of legal custody, physical custody, or visitation may appear. See KRS 403.800(4). However, the Tennessee Juvenile Court has exclusive jurisdiction of proceedings involving dependency and neglect allegations involving residents of their state pursuant to TCA §37-1-103. Further, courts in Tennessee have temporary emergency jurisdiction "if the child is present in this state and . . . it is necessary in an emergency to protect the child because the child . . . is subjected to or threatened with mistreatment or abuse." TCA §36-6-219(a). Undoubtedly, a hearing was needed to examine the foregoing issues, particularly in the context of whether Whitney had good cause under KRS 403.240(3) not to comply with the Kentucky visitation order in the face of two facially conflicting orders from two state courts, both seemingly having jurisdiction of the specific allegations involved.
CONCLUSION
For the foregoing reasons, we reverse the Lee Circuit Court's judgment and remand with instructions to conduct a hearing to address Whitney's potential good faith defense to contempt under KRS 403.240(3).
ALL CONCUR. BRIEFS FOR APPELLANT: Crystal L. Osborne
Lexington, Kentucky BRIEF FOR APPELLEE: Thomas P. Jones
Beattyville, Kentucky