DANIEL JAMES v. MYRA JANE BREWER NOW GABBARD (2011)

Daniel W. James appeals from an order of the Laurel Family Court holding him in contempt and ordering him to pay child support or be jailed for 179 days.   After careful review, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

James and his former wife, Myra Jane Brewer (now Gabbard), were divorced by a decree of dissolution entered by the Laurel Circuit Court on May 29, 1998.   In the separation agreement, which was incorporated into the decree, James, an attorney, agreed to pay child support for their two children in the amount of $1,750 per month, child care costs not to exceed $820 per month for a four-week month or $1,025 per month for a five-week month.

While James claims that in December 2001, the parties entered into a verbal agreement reducing his child support obligation to $1,000 per month, during a time that Gabbard was seriously ill, he never filed any pleading to modify the original order.   Shortly thereafter, again during the time Gabbard was seriously ill, James contends that they entered into another agreed order, which stated that he would owe no child support arrearage and his child support would be suspended as long as he did not seek custody of the children.   But when James attempted to submit this agreed order, the Laurel Circuit Court held that the submission was defective.   James never attempted to correct the deficiencies.   Further, the record of the case contains no such agreed orders.

Although Gabbard filed a motions regarding child support in 2005, this case involves Gabbard's 2009 motion to re-docket the case and hold James in contempt for failure to meet his child support obligations.   James's counsel acknowledges receiving notice of a hearing about the motion to re-docket the case on July 6, 2009, but no one appeared on James's behalf.   The court then entered an order re-docketing the case for July 14, 2009, and sent notice to James's counsel.   Thus, James had seven days to prepare for the hearing.   Instead, on July 13, 2009, the day prior to the scheduled hearing, James faxed the court a notice of unavailability and a motion to continue the matter.   No response, pleadings, or affidavits were attached to this motion addressing the motion for contempt.   An attorney, Kenneth Sizemore, did stand in for James.   The court, however, denied the motion to continue and heard testimony regarding the motion for contempt.

On July 22, 2009, the family court entered two orders - a judgment on child support arrearages and an order for contempt.   Based on James's not paying any child support since 2005, it determined that James owed $171,500 in past due child support.   The court also held him in contempt, and ordered him to serve a 179-day sentence in the detention center.   The family court, however, provided that James could purge his contempt by paying $30,000 toward the child support arrearage as well as the July and August child support payments plus Gabbard's attorney fees.   On August 3, 2009, James filed a motion to alter, amend, or vacate the July 22 nd order.   The court set a hearing on James's arguments and the purge issue for September 1, 2009.   Again, James asked for a continuance and another hearing on these issues was set for September 15, 2009.   Next, James requested a continuance until September 28, 2009, but the court overruled this motion for a continuance, heard the matter, overruled the motion to alter, amend, or vacate and imposed a 179-day jail sentence.   James then appealed the July 22, 2009, and September 23, 2009 orders.   During the pendency of the appeal, James made a motion to our Court for intermediate relief pursuant to Kentucky Rules of Civil Procedures (CR) 76.33.   The Court granted the motion for intermediate relief and stayed the September 23, 2009 order, requiring James to serve 179 days until the final decision of this Court.

STANDARD OF REVIEW

“When a court exercises its contempt powers, it has nearly unlimited discretion.”  Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky.App.2007) (citing Smith v. City of Loyall, 702 S.W.2d 838, 839 (Ky.App.1986)).   As such, 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.”  Id. (citing Com. v. English, 993 S.W.2d 941, 945 (Ky.1999)).

ISSUE

James makes several arguments to support the proposition that the court erred in its order of contempt and judgment of child support.   First, he asserts that the contempt motion was not properly before the court because it was attached as an exhibit to the motion to re-docket.   Second, he argues that he was denied his right to due process because he received less than five days notice of the contempt hearings, his motions to continue were denied, and the court gave little or no consideration of his motion to alter, amend or vacate at the purge hearing.   In his recitation of the facts, James also discusses problems with receiving the pertinent motions and orders at his correct address.   Third, James claims that the family court did not take into consideration his ability to pay the purge amount by the date ordered or permit him to present evidence about that issue.   Gabbard maintains that the court's orders were not in error, disputes all James's contentions, and requests that the Court of Appeals affirm the Laurel Family Court's decision.   We now turn to the issues herein.

ANALYSIS

1. Civil contempt

It has long been recognized that the courts of this Commonwealth have the inherent power to punish individuals for contempt.  Newsome v. Com., 35 S.W.3d 836, 839 (Ky.App.2001).   The Kentucky Supreme Court has defined contempt as the willful disobedience of or the open disrespect for the court's orders or its rules.  Id. Contempt falls into two categories:  civil and criminal.   Here, we are concerned with civil contempt, which is distinguished from criminal contempt by the purpose for imposing the punishment and not by the punishment itself.  A.W. v. Com., 163 S.W.3d 4, 10 (Ky.2005).   If a court is seeking to coerce or compel a course of action, then the appropriate sanction is civil contempt.  Id. In the situation at hand, we have an individual who has failed to pay his child support and chronically been absent from scheduled court hearings.   Given the purpose of civil contempt, it appears to be an apt penalty.

2. Child support

Parents have an obligation to support their children.  Jewell v. Jewell, 255 S.W.3d 522, 524 (Ky.App.2008) (recognizing the longstanding policy of imposing a duty on parents to support their children).   As noted above, an individual who has refused to abide by a court's order has committed civil contempt.  Newsome, 35 S.W.3d at 839.   Moreover, “willful failure to pay child support as ordered” is an example of civil contempt.  Com. v. Burge, 947 S.W.2d 805, 808 (Ky.1996).   The evidence of James's consistent failure to meet his child support obligations supports the family court's finding of contempt.   And this Court will not disturb the exercise of a lower court's contempt power absent an abuse of discretion.

3. Contempt was properly before the court

We find James's contention that the issue of contempt was not properly before the court to be meritless.   At the initial hearing on July 6, 2009, the family court determined only the issue of re-docketing, but the court, based on its own power, stated that it wanted to hear the contempt issue on July 14, 2009.   James has admitted that he had notice that the contempt issue would be heard at the July 14 th hearing.   Additionally, James did not object to the contempt hearing;  rather, he filed a motion for a continuance.   Contempt was properly before the court.

4. Denial of James's motions for continuances

Even though James observes that the trial court has discretion concerning continuances, he asserts that the trial court abused its discretion in denying his motions for continuances and cites to Snodgrass v. Com., 814 S.W.2d 579 (Ky.1991), for the idea that the court should consider seven factors before deciding whether to grant James's request for a continuance.   The pertinent quotation is as follows:

Factors the trial court is to consider in exercising its discretion are:  length of delay;  previous continuances;  inconvenience to litigants, witnesses, counsel and the court;  whether the delay is purposeful or is caused by the accused;  availability of other competent counsel;  complexity of the case;  and whether denying the continuance will lead to identifiable prejudice.

Id. at 581.   Notably, the language itself highlights the discretion of the court in determining whether to grant a continuance.   Plus, the language does not mandate that all factors must be delineated in the court's decision as to whether to grant a continuance.   Finally, we disagree that the court did not consider these factors in deciding to deny the continuances.   The record is replete with James's routine and frequent requests for continuance, Gabbard's appearances at hearings when James did not show up and, James's blatant refusal to pay his child support regularly.   Notwithstanding these factors, James, as an attorney and officer of the court, is well aware of the importance of timely and conscientious actions in the courts.   And, he cannot plead ignorance of the system.   Finally, based on his legal knowledge, we are not persuaded by James's argument that he did not have time enough to prepare a defense for failure to pay $171,500 in child support.   We find no error in the court's denial of his motions for continuance.

5. Due process

We have already observed that the courts of this Commonwealth have the inherent power to punish individuals for contempt.   See Newsome, 35 S.W.3d 836.   James claims that his due process rights were violated with the imposition of an order of contempt since he was not present at the hearing.

Due process requires the offender be afforded a jury trial when the contempt is equated with a serious crime;  i.e., that of a fine greater than five hundred dollars ($500) or of incarceration for more than six (6) months.   See Miller v. Vettiner, 481 S.W.2d 32 (Ky.1972), Bloom v. State of Ill., 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (U.S.Ill.1968), and Grant v. Dortch, 993 S.W.2d 506 (Ky.App.1999).   But when the existence or non-existence of a contempt, civil or criminal, requires the resolution of a factual issue, the trial court may itself resolve that issue upon the basis of a hearing in which the alleged offender is afforded a fair opportunity to present a defense.   If the court does proceed in this manner, it may not in such a case inflict a fine greater than $500 and incarceration for more than six months.  Vettiner, 481 S.W.2d at 35.   In the case sub judice, the court ordered James to pay his child support and child support arrearages and sentenced him to 179 days in jail.   Given that the court ordered no fines and sentenced him to less than six months, a factual hearing was sufficient to ascertain whether contempt was appropriate.

The issue then becomes whether James was given a fair opportunity to be heard since he was not present at the contempt hearing.   Significantly, James had notice, and then sent another attorney to request a continuance, which the court denied.   James had an opportunity to present a defense at the hearing which he did not attend or have counsel appear on his behalf.   He had the opportunity to be heard but ignored it.   He had the obligation to pay child support and did not.

We believe that pursuant to Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (U.S.Conn.1971), which requires that a person be afforded a “meaningful opportunity to be heard.”   James had such an opportunity but did not avail himself of the opportunity.   Thus, his due process rights were not violated.

6. James's ability to pay

James claims that, even if the contempt order is valid, the court erred by not considering his ability to pay the purge amount at this hearing.   But, clearly, the court was aware of James's profession as a practicing attorney in the Commonwealth.   Moreover, James never provided responsive pleadings or testimony at the hearing or persuasive information in his brief that it would be impossible for him to pay the purge amount.   Lastly, the court did not order him to pay the full amount of the arrearage but roughly one-fifth of the amount within thirty days of the order.   The test for abuse of discretion is whether a court's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.   Here, we do not find under the circumstances of this case that the court abused its discretion in determining the amount to be paid by James to purge the contempt.   He is a practicing attorney, who never filed a motion for modification of child support, never attempted to establish his inability to pay child support, provided no evidentiary information establishing any child support payments, and rarely, if ever, paid child support since 2005.

Because James failed to demonstrate that the trial court abused its discretion, we affirm the trial court's orders of July 22, 2009, and September 23, 2009, in which it held James in contempt.

ALL CONCUR.

CLAYTON, JUDGE: