Opinion
NO. 2010-CA-002070-MR
07-06-2012
FRANK LASWELL APPELLANT v. CRISTY LASWELL APPELLEE
BRIEF FOR APPELLANT: Jason Rapp Lexington, Kentucky BRIEF FOR APPELLEE: Denise Brown Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE ELISE GIVHAN SPAINHOUR, JUDGE
ACTION NO. 99-CI-00449
OPINION
VACATING AND REMANDING
BEFORE: CLAYTON, STUMBO AND TAYLOR, JUDGES. CLAYTON, JUDGE: Frank and Cristy were divorced in 1999. They are the parents of one child, a daughter, born on June 9, 1997. Since the divorce, the child has lived primarily with her mother. Visitation or parenting time is governed by a November 2001 court order. Therein, Frank's parenting time is delineated as one in which he has time during the child's summer vacation, Christmas vacation, and such other reasonable times that Frank chooses to travel and visit the child.
Frank now lives in North Dakota, and Cristy lives in Texas. In fact, Cristy's employment has involved several job transfers, which necessitated she and the child moving to several new locations. Cristy's most recent job transfer was in 2010 when she was transferred from Wisconsin to Texas. As a result of that job transfer, on April 2, 2010, the child went to stay with Frank in North Dakota. She was to complete the school year in North Dakota and then stay for an extended summer visit. The variation in the parenting time was designed so that Frank would have more parenting time and Cristy would have time to get settled in Texas. In August, the child was to return to her mother in Texas and start a new school year. On August 3, 2010, Frank took the child to the airport. The child, however, got off the airplane and refused to get back on it. Frank immediately informed Cristy about the child's refusal to get on the plane.
Following this event, the parties remained in contact. Both initiated court actions. On August 16, 2010, Frank made a motion in the North Dakota court to modify custody and visitation and allow the child to remain in North Dakota full-time. The North Dakota court issued an unsigned order that the child was to remain in North Dakota and not be removed without an order of the court. Cristy was served with this order on August 18, 2010. On that same day, August 18, 2010, prior to Cristy's being served with the North Dakota order, she filed a motion in the Bullitt Family Court to hold Frank in contempt and to have their daughter returned to her custody immediately, particularly since the child was to begin school in Texas on August 23, 2010. The original child custody order stated that the child was to be returned before the beginning of school.
On August 23, 2010, the Bullitt Family Court entered an order stating that the child was to be returned immediately to Cristy and also set a September 27, 2010, contempt hearing based on Frank's actions. Inopportunely, Frank was not served with notice of Cristy's motion until after the August 23, 2010, motion hour where the order was issued. After the issuance of the order, Cristy, with her husband, went to North Dakota to retrieve the parties' daughter and bring her to Texas.
A contempt hearing was held in Bullitt Family Court on September 27, 2010, at which both parties were present. After the hearing, on October 6, 2010, the family court entered an order that held Frank in contempt and ordered him to pay $5,890.80 in expenses to Cristy. The sum was devised as follows:
Tickets to North Dakota $1,584.78
Rental car $ 333.02
Quality Inn (2 nights) $ 306.58
Beaver Creek Inn $ 90.95
Flightline, Inc. $ 813.75
Wingate Hotel $ 161.72
North Dakota attorney fees $ 350.00
Kentucky attorney fees $2,250.00Frank now appeals from the October 6, 2010, order.
Total $ 5,890.80
When a court exercises its contempt powers, it has nearly unlimited discretion. Smith v. City of Loyall, 702 S.W.2d 838, 839 (Ky. App. 1986). Consequently, we will not disturb a court's decision regarding contempt absent an abuse of its discretion. "The test for abuse of discretion is whether the trial [court's] decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted). According to Frank, the family court's contempt proceeding was improper and violated his due process rights. In contrast, Cristy argues that the family court properly exercised its contempt powers and did not abuse its discretion.
Before providing an explanation of the contempt powers of courts, we note that "trial court[s] [have an] inherent power to punish individuals for contempt, and [ample] discretion in issuing contempt citations." Kentucky Ret. Sys. v. Foster, 338 S.W.3d 788, 800 (Ky. App. 2010). "Contempt is the willful disobedience toward, or open disrespect for, the rules or orders of a court." Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996). It can be classified as civil or criminal. Civil contempt is when someone fails to follow a court order to do something. Id. Criminal contempt is when a person disobeys a court order out of disrespect for the rules or orders of court.
In order to know whether the contempt is civil or criminal, the United States Supreme Court has said that "[i]t is not the fact of punishment, but rather its character and purpose, that often serve to distinguish between the two classes of cases." Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 441, 31 S. Ct. 492, 498, 55 L. Ed. 797 (1911). "[C]ivil contempt is [intended] to coerce, rather than punish." Blakeman v. Schneider, 864 S.W.2d 903, 906 (Ky. 1993); Shillitani v. U.S., 384 U.S. 364, 370, 86 S. Ct. 1531, 1535, 16 L. Ed. 2d 622 (1966). A criminal contempt order, on the other hand, is designed to punish. Burge, 947 S.W.2d at 808. Consequently, criminal contempt seeks to punish conduct which has already occurred rather than to compel a course of action. In essence, the purpose of the punishment distinguishes civil from criminal contempt so that if the court's purpose is to punish, the sanction is criminal contempt, and if the court's purpose is to compel an action, the sanction is civil contempt. Commonwealth ex rel. Bailey v. Bailey, 970 S.W.2d 818, 820 (Ky. App. 1998). In the case at bar, given that the child had been returned to her mother at the time of the contempt hearing, the court did not need to compel any action on the part of the father. Hence, the only purpose of the contempt order was to punish Frank and, thus, it must be criminal contempt.
Criminal contempt is further refined by ascertaining whether it is direct or indirect. 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 [since] the elements of the offense are matters within the personal knowledge of the court." Burge, 947 S.W.2d at 808 (citations omitted). Whereas contempt committed outside the presence of the court is indirect contempt and requires a hearing and the presentation of evidence to establish a violation of the court's order. Id. Moreover, "[i]t may be punished only in proceedings that satisfy due process." Id. (citations omitted). The case at bar was indirect contempt.
The next issue to address is the due process requirements for an indirect criminal contempt case. Because this case falls within the criminal purview, it requires the attendant procedural due process protections. As noted by the Kentucky Supreme Court, in Riley v. Gibson, 338 S.W.3d 230, 235 (Ky. 2011), even though criminal contempt hearings are not within the Sixth Amendment realm of criminal prosecutions, these hearings must still meet the due process requirement of the Fourteenth Amendment. (Citations omitted).
First, criminal contempt cases require that all the elements be proven beyond a reasonable doubt. Brannon v. Commonwealth, 162 Ky. 350, 172 S.W. 703 (1915). Further, evidence necessary for a finding of "[c]ontempt [must show] willful disobedience toward, or open disrespect for, the rule or orders of a court." Burge, 947 S.W.2d at 808. Also, to comport with due process, Frank must have notice and an opportunity to be heard. Id. at 805.
Lastly, with regard to the right to a jury trial, the Kentucky Supreme court has stated that "[i]f a court intends to punish a defendant for criminal contempt with a serious fine . . . or confinement in excess of six months, there must be a trial by jury." Riley, 338 S.W.3d at 237. Thus, it is obvious that if the punishment is confinement in excess of six months, the contemnor is entitled to a jury trial. In addition, it states that if the court intends to punish the individual contemnor with a serious fine, then he or she is also entitled to a jury trial.
The determination of whether a fine is serious is made "within the context of the risk and possible deprivation faced by a particular contemnor." Int'l Ass'n of Firefighters, Local 526, AFL-CIO v. Lexington-Fayette Urban County Gov't, 555 S.W.2d 258, 260 (Ky. 1977). In Brockman v. Commonwealth, 185 S.W.3d 205, 208 (Ky. App. 2005), which was cited by Frank, it was determined that a potential fine of $825 was not petty and the defendant therein was entitled to a jury trial on whether he was guilty of indirect criminal contempt. Since the Court in Brockman decided that a $825 fine was not petty, plus Frank's financial situation herein, we conclude that $5,890.80 is a serious fine. Consequently, since Frank faced a potential fine of $5,890.80, he was entitled to a jury trial on whether he was guilty of indirect criminal contempt.
In sum, although Frank was provided with certain due process rights including notice and the opportunity to be heard, he was not provided the opportunity to have a jury trial, which is necessary in cases of indirect criminal contempt where confinement is in excess of six months or the fine is serious. Accordingly, the trial court abused its discretion by not providing Frank with an opportunity to have a jury trial. Hence, the order of the Bullitt Family Court holding Frank in contempt of court is vacated and remanded for a jury trial.
ALL CONCUR. BRIEF FOR APPELLANT: Jason Rapp
Lexington, Kentucky
BRIEF FOR APPELLEE: Denise Brown
Louisville, Kentucky