Opinion
2023-CA-1411-MR
08-30-2024
SHELLEY MARIE STACY (F/K/A SHELLEY MARIE WILSON) APPELLANT v. BLAKE ADAM WILSON; DANNY RAY JACKSON; AND E.C.W., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: James H. Wren, II Williamsburg, Kentucky BRIEF FOR APPELLEES: Thomas Vallandingham Owensboro, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM OHIO CIRCUIT COURT HONORABLE BENJAMIN D. MCKOWN, JUDGE ACTION NO. 22-CI-00305
BRIEFS FOR APPELLANT: James H. Wren, II Williamsburg, Kentucky
BRIEF FOR APPELLEES: Thomas Vallandingham Owensboro, Kentucky
BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.
OPINION AFFIRMING
ACREE, JUDGE:
Appellant, Shelley Marie Stacy, appeals the Ohio Circuit Court, Family Division's order finding her in contempt. We affirm.
BACKGROUND
Stacy and appellee, Blake Wilson, were awarded joint custody of their minor child, E.C.W., with equal parenting time on a week-to-week basis. In September 2023, Wilson filed a motion for contempt alleging Stacy violated the custody order's time-sharing arrangement by failing to return E.C.W. The next month, Wilson filed an emergency motion for E.C.W.'s physical custody. His supporting affidavit alleged he still had not seen his son.
Stacy's response failed to directly address this allegation. Instead, she alleged her perceived impediments to exchanging custody, including travel, illness, and that she was in the process of weaning the child. Stacy also claimed E.C.W. was "established" in her home and the Perry County community, despite also indicating she had just moved to Perry County the previous month.
The family court conducted a hearing on the emergency motion and entered an order directing Stacy to immediately relinquish physical custody of E.C.W. to Wilson. The family court's order also stated: "At the conclusion of the October 25, 2023 hearing, after the Court made an oral ruling that [Stacy] would be required to immediately relinquish physical possession of the child to [Wilson], [Stacy] indicated that she would not abide by the Court's order." Trial Record ("TR") at 236. So, the family court set a hearing to review and confirm Stacy's compliance with the order. Apparently, the family court did not take up Wilson's motion for contempt at that time, but subsequently entered a show cause order. Stacy's attorney filed a motion to withdraw, alleging "a conflict [had] arisen between the parties." TR at 243.
On October 27, 2023, Wilson filed another motion for contempt. His supporting affidavit alleged that, rather than comply with the family court's order, Stacy refused to return the child and in addition had filed a request for an emergency protective order ("EPO") against him. The family court entered another show cause order and set the matter for a hearing in early November. The family court also entered an order stating it intended to take up Stacy's counsel's motion to withdraw only at the conclusion of the contempt hearing.
On November 9, 2023, the family court conducted consecutive hearings on the EPO and then the motion for contempt. Although the EPO action is not part of the record on appeal, the Video Record ("VR") indicates the family court dismissed that action, noting Stacy filed it after entry of the order to return E.C.W. to Wilson and orally finding she did so to avoid complying with that order. VR 11/9/23 at 3:51:00.
At the outset of the contempt hearing, Stacy's counsel moved for a continuance to allow her to obtain new counsel. Stacy's counsel stated she did not believe she could properly represent Stacy who disregarded counsel's advice that she not file the petition for an EPO. The family court overruled the motion, citing, among other things, pro se motions filed by Stacy that "put off" Wilson's attempts to have her "withholding of the child" addressed, and reasoning that it could not allow Stacy's "continuous loss of attorneys" to result in further delay. VR 11/9/23 at 4:02:50. This "loss of attorneys" continues in this Court.
After filing a reply brief on Stacy's behalf, her subsequent trial counsel and appellate counsel here filed a motion to withdraw "due to the Appellant's behavior and directions to counsel in the underlying original action." Stacy v. Wilson, No. 2023-CA-1411-MR, Motion to Withdraw (Ky. App. May 16, 2024). That motion incorporated a simultaneously filed motion to withdraw in the family court. See Johnson v. Commonwealth, 17 S.W.3d 109, 113 (Ky. 2000) ("except with respect to issues of custody and child support in a domestic relations case, the filing of a notice of appeal divests the trial court of jurisdiction to rule on any issues while the appeal is pending"). In the family court motion, Stacy's counsel averred that Stacy directed appellate counsel to "(a) . . . refuse or at least be reluctant to pay the Guardian Ad Litem for current billing or future billing, and (b) for counsel to embark on a litigation strategy for the final hearing that would necessarily require this counsel to violate CR 11. Wilson v. Stacy, No. 22-CI-00305, Motion to Withdraw (Ohio Cir. Ct. May 16, 2024). Counsel agreed to pay the guardian ad litem "out of his own pocket" and to "stand as surety to pay the GAL fees already incurred." Id. This Court granted counsel's motion.
Ultimately, the family court found Stacy in criminal contempt and ordered that she be jailed for 180 days, with 30 days to be served immediately, and the remainder to be probated on the condition that Stacy follow court orders. As Stacy was being taken into custody, Stacy exclaimed: "I disrespect this court even more." VR 11/9/23 at 4:50:30.
Both Stacy's counsel and the guardian ad litem for E.C.W. furnished briefs reflecting confusion regarding the nature of contempt generally, as well as with the family court's finding of contempt, with both asserting the family court's finding included "components" of both civil and criminal contempt. However, "[c]ontempts are either civil or criminal." Gordon v. Commonwealth, 133 S.W. 206, 208 (Ky. 1911) (emphasis added). The family court made an oral finding that Stacy was in criminal contempt: "I find that beyond a reasonable doubt - I want that to be clear - to the extent the standard I believe for a criminal contempt is 'beyond a reasonable doubt,' I do make that finding." When the finding was reduced to writing, the word "criminal" was omitted, but nonetheless indicated a finding of contempt "beyond a reasonable doubt."
ANALYSIS
Stacy's sole argument for reversing the contempt order is that the family court abused its discretion in denying her motion for a continuance to obtain new counsel. She alleged this led to ineffective assistance of counsel. Based on the alleged combination of family court error and trial counsel failings, she claims the finding of criminal contempt should be vacated. However, Stacy does not cite a single authority pertaining to a trial court's discretion to grant or deny a motion for a continuance, in contravention of RAP 32(A)(4)'s requirement that an appellant's opening brief contain "citations of authority pertinent to each issue of law." Instead, Stacy exclusively discusses case law pertaining to ineffective assistance of counsel claims.
Kentucky Rules of Appellate Procedure.
Pursuant to RAP 10(B), "the failure of a party to substantially comply with the rules is ground for such action as the appellate court deems appropriate[.]" Insofar as Stacy presents this as an appeal based on the denial of a motion for a continuance, given that Stacy declines to furnish us with any legal authority pertaining to disposition of such motions, we choose not to address this argument. Instead, we are left to review her claim of ineffective assistance of counsel.
But that also presents a problem. Although Stacy furnishes us with ample authority regarding ineffective assistance claims, she fails to make any "reference to the record showing whether the issue was properly preserved for review[,]" which, again, contravenes RAP 32(A)(4). This rule also requires an appellant to show us where in the record we can find proof she provided the family court an opportunity to address her claim of error before this Court is entitled to review it. She merely says her claim of error "has been preserved for appellate review by virtue of the recitation of finality[.]" Brief for Appellant at p. 18. Stacy's counsel misapprehends the rule. Whether an order is final and appealable has no bearing on whether a particular issue has been properly preserved.
"If a party fails to inform the appellate court of where in the record his issue is preserved, the appellate court can treat that issue as unpreserved." Ford v. Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021). And while "it is neither the function nor the responsibility of this Court to scour the record to ensure an issue has been properly preserved for appellate review[,]" Gasaway v. Commonwealth, 671 S.W.3d 298, 311 (Ky. 2023), our review of the record does not indicate Stacy raised any ineffective assistance of counsel claim in family court. We therefore treat Stacy's claim of ineffective assistance of counsel as unpreserved.
Beyond even that, "[a]s a general rule, a claim of ineffective assistance of counsel will not be reviewed on direct appeal from the trial court's judgment, because there is usually no record or trial court ruling on which such a claim can be properly considered." Humphrey v. Commonwealth, 962 S.W.2d 870, 872 (Ky. 1998). Although such claims are typically brought pursuant to our Kentucky Rules of Criminal Procedure ("RCr"), specifically RCr 11.42, we see no reason to depart from this reasoning in the context of contempt proceedings.Stacy's claim of ineffective assistance of counsel is unpreserved, and "claims of ineffective assistance of counsel are best suited to collateral attack proceedings, after the direct appeal is over, and in the trial court where a proper record can be made." Humphrey, 962 S.W.2d at 872. Consequently, we decline to consider this argument.
We failed to locate any case law discussing the applicability, or inapplicability, of our Rules of Criminal Procedure to contempt proceedings. We likewise failed to locate any case law discussing ineffective assistance of counsel claims in the context of contempt proceedings. While Rule 42 of the Federal Rules of Criminal Procedure provide for criminal contempt proceedings, "Our Rules of Criminal Procedure do not include an equivalent of the federal rule or provide otherwise for criminal contempt procedures. Our practice, rather . . . remains more informal[.]" Cabinet for Health and Family v. J.M.G., 475 S.W.3d 600, 613 (Ky. 2015).
Having dispatched Stacy's sub-arguments that the family court should have granted a continuance and that her counsel was ineffective, we address the substance of the order from which she takes this appeal - the contempt order. Having failed to comply with RAP 32(A)(4) regarding a preservation statement, we elect to undertake a manifest injustice review of the contempt order.
"Criminal contempt is conduct which amounts to an obstruction of justice, and which tends to bring the court into disrepute." Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996) (internal quotation marks and citation omitted). See also Gormley v. Judicial Conduct Commission, 332 S.W.3d 717, 726 (Ky. 2010) (criminal contempt "is when a person disobeys a court order out of disrespect for the rules or orders of court"). Civil contempt consists of the failure of one to do something under order of the court, generally for the benefit of a party. Id. "The difference between the two is in the court's purpose in imposing its sentence. If the purpose is to punish, the sanction is for criminal contempt." Schroering v. Hickman, 229 S.W.3d 591, 593 (Ky. App. 2007) (citing Burge, 947 S.W.2d at 808). Obviously, here, the family court meant to punish Stacy for her courtroom behavior.
The family court found Stacy in criminal contempt, which "is conduct that demonstrates disrespect toward the court, obstructs justice, or brings the court into disrepute." Ky. River Cmty. Care, Inc. v. Stallard, 294 S.W.3d 29, 31 (Ky. App. 2008). It is uncontroverted that Stacy did not comply with the family court's October 25, 2023, order to immediately relinquish physical custody of E.C.W. to Wilson. It is uncontroverted that Stacy indicated in open court her intention to disobey the family court's order, demonstrating both disrespect and an intent to obstruct justice. It is little wonder then that, upon her subsequent noncompliance, the family court did not find Stacy's excuses credible and made a finding of criminal contempt. As if to validate the family court's finding, as she was being taken into custody, Stacy exclaimed: "I disrespect this court even more." Not only has no manifest injustice occurred, the family court's finding of criminal contempt is amply supported by the record.
Stacy's indication she would not comply with the family court's order would have justified a finding of direct criminal contempt. See Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996) ("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"). The family court apparently chose to overlook Stacy's affront to its dignity, and instead gave Stacy an opportunity to comply. Although due process requirements attach once a court declines summary punishment, see Schroering v. Hickman, 229 S.W.3d 591, 594 (Ky. App. 2007), the family court was not obligated to overlook this affront in the subsequent contempt hearing.
CONCLUSION
We affirm the Ohio Circuit Court, Family Division's November 16, 2023, contempt order.
KAREM, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.