APPELLANT v. KIMBERLY ANN STEELE APPELLEE

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Court of Appeals of Kentucky.

john kevin steele APPELLANT v. KIMBERLY ANN STEELE APPELLEE

NO. 2010–CA–000432–MR

Decided: January 13, 2012

BEFORE:  ACREE, MOORE AND NICKELL, JUDGES. BRIEF FOR APPELLANT:  George R. Carter Louisville, Kentucky BRIEFS FOR APPELLEE:  Bryan Gowin Louisville, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

John Kevin Steele appeals a variety of rulings of the Shelby Family Court concerning the dissolution of his marriage to Kimberly Ann Steele and the ensuing battles over child support and custody.   For the following reasons, we affirm.

Facts and procedure

John and Kimberly married in 1975.   Twelve children were born of the marriage. Double The parties began divorce proceedings in 2003, and the family court entered a limited divorce decree in 2004, dissolving the marriage but reserving the remaining issues for subsequent adjudication.   Following contentious proceedings concerning division of the marital property, child custody, child support obligations, and maintenance, the family court entered an order disposing of the remaining issues on November 19, 2007.   That order was affirmed by this Court in a prior opinion, Steele v. Steele, No.2008–CA–000130 (Ky.App. March 5, 2010). Double

Subsequent to that opinion, the parties filed various and separate motions seeking to modify and/or enforce the existing order.   Specifically, John sought modification of the custody arrangement with respect to one child, award of additional visitation with all the minor children, modification of his child support obligation, and issuance of a domestic violence order against Kimberly.   Kimberly moved to suspend John's visitation with the minor children or, alternatively, to require that all visitation be supervised;  she also filed a motion for contempt, assessment of sanctions pursuant to Kentucky Rules of Civil Procedure (CR) 11, and attorney fees.

The family court conducted two hearings on the outstanding matters and permitted the parties to file simultaneous briefs.   On December 9, 2009, the family court entered its “Findings of Fact, Conclusions of Law & Order,” ruling as follows:

 John was not entitled to a modification of the custody order because he failed to demonstrate that the child's environment caused serious endangerment of her physical, mental, moral, or emotional health, as required by Kentucky Revised Statute (KRS) 403.340.

 Modification of the visitation arrangement was not in the children's best interest.  KRS 403.320.

 Based upon the emancipation of one of the children (four remained minors in Kimberly's custody), and the court's calculation of John's gross income, his child support obligation was reduced to $338 per week.

 Kimberly was entitled to the payment of attorney fees in the amount of $8,000, based upon the parties' financial disparities in accordance with KRS 403.220 and John's numerous violations of CR 11.

 John was not entitled to entry of a domestic violence order against Kimberly.

 John was in contempt of court for failing to pay child support and maintenance as ordered and failing to maintain health insurance for the minor children, also as ordered.   The family court ruled that John could purge the contempt finding by becoming current on his financial obligations to Kimberly and by paying all of the children's reasonable medical expenses.   The court further stated it could find “no good cause” why John would be unable to make child support payments.

The order also contained a finality recitation as authorized by CR 54.02:  “There being no just cause for delay[,] this is a final and appealable Order.”

Disagreeing with the outcome, John filed a CR 59.05 motion to amend the December order.   Doing so rendered the order interlocutory and therefore not susceptible to appeal until the court ruled on the motion.  Atkisson v. Atkisson, 298 S.W.3d 858, 866 (Ky.App.2009) (citing Johnson v. Smith, 885 S.W.2d 944, 947 (Ky.1994)) (“Upon the filing of a timely CR 59.05 motion, a ‘final judgment’ is converted into an interlocutory judgment until the motion is adjudicated.”);  CR 54.01.   John nevertheless tendered a notice of appeal on January 8, 2010, though the family court had yet to rule on the CR 59.05 motion and would not do so until January 21, 2010.   The parties continued to litigate their other disputes before the family court.

Among the issues addressed by the family court during this time was John's ongoing failure to pay child support.   The circuit court conducted a contempt hearing, at which the uncontroverted evidence was that between August 18, 2009 Double , and February 3, 2010, John made no child support payments to Kimberly.   Between February 3 and the date of the contempt hearing, February 18, 2010, John made two payments, one of $285 and one of $235.   Following the hearing, the family court entered the following order:

Having considered testimony, arguments of counsel, and this Court's prior Order of 12/9/09, it is hereby Ordered that:

1. For previously found contempt, the Court sentences Mr. Steele to 180 days in the county jail.   Mr. Steele shall have work release.

2. If Mr. Steele either satisfies his arrearage or shows good faith by paying child support and maintenance for 6 weeks in a row, then the Court will consider conditionally discharging the balance of this Sentence.

3. Based upon its Dec. '09 findings, Mr. Steele's motion to proceed in forma pauperis on appeal is also denied.

4. Mr. Steele's motion challenging jurisdiction of the Court is denied.

5. There being no just cause for delay, this is a final and appealable order.

John filed a notice of appeal, dated March 5, 2010, which purported to appeal only the February 18, 2010 order.

There were then two appeals before this Court, the instant appeal, No.2010–CA–000432, and John's attempted appeal from the December 2009 order, No.2010–CA–000433.   Kimberly filed a motion to dismiss No.2010–CA–000433, arguing that it was interlocutory because John had filed his notice of appeal before the family court had ruled on the motion to amend.   A separate panel of this Court granted Kimberly's motion and dismissed No.2010–CA–000433, finding John had failed to file a timely notice of appeal of the December 2009 order.

John nevertheless addressed in his brief in the instant appeal matters which were disposed of by the Court's dismissal of No.2010–CA–000433.   We must therefore dispense with those arguments before turning to the order John correctly appealed.

The family court's order of December 9, 2009 is not properly before the Court

Pursuant to CR 54.02, “a trial court dealing with multiple claims or multiple parties in a single action [may] grant a final judgment as to fewer than all of the claims or parties upon a determination that there is no just reason for delay.”  Watson v. Best Financial Services, Inc., 245 S.W.3d 722, 723 (Ky.2008).   Accordingly, “[i]f the trial court grants a final judgment upon one or more but less than all of the claims or parties, that decision remains interlocutory unless the trial court makes a separate determination that ‘there is no just reason for delay.’ ”  Id. at 726.   If the decision finally resolves one or more claims and includes the requisite recitation of finality, it must be appealed within thirty days, if at all.   See Hagg v. Kentucky Utilities Co., 660 S.W.2d 680, 681 (Ky.App.1983).

In the instant case, the family court made such a finding in its December 9, 2009 order, which disposed of all of the issues necessary to the dissolution action.   Thereafter, the only remaining matter was John's continued failure to comply with the child support order.   If John wished to appeal the December 2009 order, he was required to file his notice of appeal within the thirty-day period after the date on which his CR 59.05 motion was denied.  Id. He did not.   Because John failed to appeal the December 2009 order at the appropriate time, and pursuant to this Court's previous dismissal of No.2010–CA–000433, we have no authority to address the matters contained therein.   See Stewart v. Kentucky Lottery Corp., 986 S.W.2d 918, 921 (Ky.App.1998).   John cannot use the appeal now before us to revive issues and arguments whose time has come and gone.   Therefore, we shall not consider the arguments in John's brief that address matters resolved by the December 2009 order.

Entry of the February 18, 2010 contempt order was not manifestly unjust

Contempt is “the willful disobedience of or the open disrespect for the court's orders or its rules.”  Meyers v. Petrie, 233 S.W.3d 212 (Ky.App.2007) (citation omitted).   Every court has the inherent power to punish for contempt.  Newsome v. Commonwealth, 35 S.W.3d 836, 839 (Ky.App.2001).   “[W]hen a court seeks to punish conduct that has already occurred or to vindicate its authority, the appropriate sanction is criminal contempt.”   Meyers, 233 S.W.3d at 215.   Because the family court's February 18, 2010 order imposing a sentence for contempt was designed to punish John for his repeated refusal to comply with its order of child support, it was criminal in nature.

Under ordinary circumstances, a trial court's contempt rulings are reviewed for abuse of discretion.  Arnett v. Meade, 462 S.W.2d 940, 948 (Ky.1971).   The family court's ruling in the instant case, however, is not subject to the ordinary standard of review because John failed to properly present any such argument to this Court.   The argument John presents in his brief only addresses the finding of contempt in the December 2009 order which has become final and is no longer appealable.   No argument in his brief makes any mention of the February 2010 order which imposed the sentence for that contempt;  the February 2010 order is the only order which is properly before us for review.

Given John's failure to present in his brief even a single argument susceptible to appellate review, we are not required to consider his appeal at all.  CR 76.12(8).   Out of an abundance of caution, however, we have considered the record in light of his brief and the issues raised in his prehearing statement Double for error amounting to manifest injustice.   See Elwell v. Stone, 799 S.W.2d 46, 48 (Ky.App.1990).

In Lewis v. Lewis, 875 S.W.2d 862, 864 (Ky.1993), the Supreme Court reiterated its holding in Clay v. Winn, 434 S.W.2d 650 (Ky.1968), that “the trial judge should make a finding of fact on the question of the ability to pay and any further contempt proceedings should be limited to those amounts which the delinquent [obligor] is found to be able to pay.”  Lewis, 875 S.W.2d at 864 (citing Clay, 434 S.W.2d at 652 and Spurlock v. Noe, 467 S.W.2d 320 (Ky.1971)).   We conclude that the family court complied with this rule.   In the December 9, 2009 order of civil contempt, the family court found John was able to pay child support as ordered;  the “further contempt proceedings” conducted in February 2010 were “limited to those amounts which [John had previously been] found to be able to pay.”  Lewis, 875 S.W.2d at 864.   In any event, the record does not reflect that John presented this argument to the family court;  therefore, it was never preserved.

We also find no error amounting to a manifest injustice in the admission of evidence of the supersedeas bond.   Generally, evidence which is relevant is admissible.   Kentucky Rules of Evidence (KRE) 402.   Evidence which is otherwise relevant may be excluded on the basis that its potential for prejudice outweighs its probative value.  KRE 403.   Our concerns about the prejudicial nature of evidence are greatly reduced when the finder of fact is the judge rather than a jury.   It was John's position at the February 2010 contempt hearing that he was unable to pay Kimberly any money for child support.   The existence of money which had been made available for his use – in this case the supersedeas bond – was therefore made relevant to the family court's inquiry.   The family court was free to believe the evidence or to reject it.   There is no reason to believe evidence of the bond had any prejudicial effect whatsoever, and we are aware of no other evidentiary rule which mandates its exclusion.

We find no error in the family court's February 18, 2010 order sentencing John to 180 days for contempt that constitutes manifest injustice.

Conclusions

John's attempted appeal of the family court's December 9, 2009 order is not properly before us.   His remaining arguments regarding the family court's order finding him in contempt and sentencing him to 180 days' imprisonment have not persuaded us that he suffered a manifest injustice.   The family court's order of February 18, 2010, is therefore affirmed.

ALL CONCUR.

ACREE, JUDGE: