Opinion
NO. 2014-CA-001505-MR
01-13-2017
CHASITY HOWLETT APPELLANT v. CURTIS HOWLETT APPELLEE
BRIEFS FOR APPELLANT: Karen Shuff Maurer Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Anne W. McAffe Shepherdsville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BULLITT CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE ELISE GIVHAN SPAINHOUR, JUDGE
ACTION NO. 12-CI-01157 OPINION
VACATING AND REMANDING
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BEFORE: J. LAMBERT, TAYLOR, AND THOMPSON, JUDGES. TAYLOR, JUDGE: Chasity Howlett brings this appeal from a July 25, 2014, Order of the Bullitt Circuit Court, Family Court Division, finding her in contempt for failure to pay child support and sentencing her to 179 days in the Bullitt County Detention Center. For the reasons stated, we vacate and remand.
Chasity and Curtis Allen Howlett were married on December 30, 2001. Two children were born of the marriage - a daughter on July 22, 2002, and a son on February 17, 2008. During the marriage, Allen became unemployed, and Chasity worked outside the home. On October 3, 2012, Allen filed a petition for dissolution of marriage in the Bullitt Circuit Court. Allen also filed a motion requesting that the parties be awarded joint custody of their two children, that he be designated the primary residential parent, and that Chasity be ordered to pay child support.
The Notice of Appeal identified appellee as Curtis Howlett. However, the record below indicates and the parties acknowledge that appellees' proper name is actually Curtis Allen Howlett and he is commonly referred to as Allen. Therefore, in this opinion we will refer to appellee as Allen.
On January 29, 2013, the family court entered a temporary order awarding the parties joint custody of the children, granting Chasity time-sharing and ordering the parties to exchange financial information for calculating child support. By order entered April 2, 2013, Chasity was ordered to pay child support of $636.00 per month retroactive to October 4, 2012, which totaled approximately $4,452. Less than three weeks later, on April 24, 2013, Allen filed a motion to hold Chasity in contempt for failure to pay that child support. Allen alleged that Chasity had failed to pay child support as ordered and Chasity responded with a motion to recalculate child support as Allen had gained employment. The family court conducted a hearing, and by order entered July 31, 2013, denied Chasity's motion to reduce child support and again reserved ruling on the issue of contempt. The parties were further ordered to exchange updated financial information for purposes of calculating child support.
The findings of fact, conclusions of law, judgment and decree of dissolution of marriage were subsequently entered on December 2, 2013. Therein, the family court awarded the parties joint custody and designated Allen as the primary residential parent. Chasity was granted time-sharing with the children every other weekend from Friday afternoon until Monday morning and every other Wednesday overnight. The court modified Chasity's child support obligation, reducing the amount to $391.15 per month retroactive to September 4, 2013.
In December 2013, the family court conducted a hearing upon Allen's motion to hold Chasity in contempt. In its December 16, 2013 order, the family court found Chasity in civil contempt for her failure to pay child support and calculated the total amount of child support due of $8,560 and the arrearage to be $7,050.60. The family court reserved imposing penalty for Chasity's contempt and, instead, directed Allen's counsel to prepare a wage garnishment. The garnishment was to include the current support of $391.15 per month plus $75.00 toward the arrearage amount.
Allen Howlett had filed another motion to find Chasity in contempt for failure to pay child support on October 16, 2013. The hearing was not conducted until December 12, 2013, and the resulting order was entered December 16, 2013.
On April 9, 2014, Allen filed another motion to have Chasity held in contempt for her failure to pay child support. The family court conducted a hearing on July 22, 2014. Chasity testified that she had paid an additional $2,226.72 in child support since the court's December 16, 2013, order. She further testified that the wage garnishment was in effect until she lost her job as a home health care aide when her patient died. After the garnishment ceased she had made other payments directly to Allen. Chasity also stated that since losing her job she was pursuing employment and had interviewed for a position at a hospital the previous day. The family court gave Chasity credit for $1,558 Allen owed her to equalize their division of marital property. The family court then calculated Chasity's current child support arrearage to be $6,584.93.
By order entered July 25, 2014, the family court found Chasity to be in contempt for failure to pay child support, sentenced her to serve 179 days in the Bullitt County Detention Center, and set the purge amount at $6,584.93. Subsequently, by order entered August 1, 2014, the family court found Chasity to be indigent and, thus, appointed her counsel. Appointed counsel filed a motion on August 12, 2014, requesting the court to set a reasonable purge amount or to conditionally discharge the balance of Chasity's 179-day sentence. The family court denied the motion but did order that Chasity be permitted "to engage in job search and work release." This appeal follows.
Chasity contends the family court erred by failing to set a reasonable purge amount when it found her in contempt and sentenced her to serve 179 days in the detention center. Chasity asserts that the family court "put the keys to Chasity's prison door out of her reach." Chasity's Brief at 7.
It is well-established that a trial court has the authority to utilize contempt proceedings to enforce its orders. Lewis v. Lewis, 875 S.W.2d 862 (Ky. 1993). In fact, a trial court possesses almost unfettered discretion in its exercise of contempt power. Lanham v. Lanham, 336 S.W.3d 123 (Ky. App. 2011). And, we will not disturb a lower court's use of its contempt powers absent an abuse of discretion. Id. However, it has also been recognized that a trial court's "power of [civil] contempt cannot be used to compel the doing of an impossible act." Lewis, 875 S.W.2d at 864 (citation omitted). While this Court is mindful that trial courts are frequently faced with an onerous task of dealing with parents delinquent in their child support obligations, it is incumbent upon the court to make proper findings of fact. Following a hearing, the trial court must determine whether the contemnor possesses the present ability to pay and must make a specific finding to that effect. Lanham, 336 S.W.3d 123. Simply put, the court must make a finding that the contemnor has the ability to satisfy the judgment before incarceration can be ordered for failure to pay child support. Id.
We do not intend this opinion to be "construed as limiting the use of imprisonment as a legitimate tool for the enforcement of child support orders" but rather to provide guidance to the trial court in an effort to prevent improper incarceration. See Lewis v. Lewis, 875 S.W.2d 862, 864 (Ky. 1993). --------
In this case, the family court conducted a hearing upon Allen's motion to find Chasity in contempt for failure to pay child support. A review of the recorded proceedings reveals that the court heard testimony from both parties regarding the amount of child support paid and the amount alleged to be outstanding. Chasity testified some payments had been made through wage garnishment until she lost her job. Chasity also testified that she was applying for jobs in the health field and had scheduled at least one interview. The court failed, however, to make any finding of fact regarding Chasity's ability to pay the purge amount of $6,584.93. Without making this finding of fact, the trial court failed to determine whether Chasity possessed the ability to comply with its contempt order. See Lewis, 875 S.W.2d 862. Hence, we must vacate the July 25, 2014, contempt order imposing the 179-day sentence and remand for the family court to determine whether Chasity possessed the ability to pay the purge amount of $6,584.93 and make specific findings regarding the same.
For the foregoing reasons, the Order of the Bullitt Circuit Court, Family Court Division, is vacated and this case is remanded for proceedings consistent with this Opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Anne W. McAffe
Shepherdsville, Kentucky