THOMAS HOLLARS v. MARILYN PHILLIPS, FORMER WIFE OF THOMAS HOLLARS; JACKELYN DEROSSETT, HUMAN RESOURCES, SOCIAL INSURANCE; LARRY W. PARMAN, HEARING OFFICER, HUMAN RESOURCES, SOCIAL INSURANCE; AND CABINET FOR HUMAN RESOURCES, DEPARTMENT FOR SOCIAL INSURANCE
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RENDERED: April 30, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001700-MR
THOMAS HOLLARS
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE WILLIAM T. CAIN, JUDGE
ACTION NO. 95-CI-000621
v.
MARILYN PHILLIPS, FORMER WIFE
OF THOMAS HOLLARS;
JACKELYN DEROSSETT,
HUMAN RESOURCES, SOCIAL INSURANCE;
LARRY W. PARMAN, HEARING OFFICER,
HUMAN RESOURCES, SOCIAL INSURANCE;
AND CABINET FOR HUMAN RESOURCES,
DEPARTMENT FOR SOCIAL INSURANCE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
This is an appeal by Thomas Hollars (Hollars)
from a judgment of the Pulaski Circuit Court entered May 21,
1998, affirming the decision of the Commonwealth of Kentucky
Cabinet of Human Resources Department of Social Services
(Cabinet) of August 10, 1995, setting Hollars’ child support
arrearage at $28,647.46.
We affirm.
On November 17, 1974, Hollars was ordered by the Lorain
County, Ohio Common Pleas Court to pay $20.00 per week per child
for his two infant children, Vicki, born March 7, 1971, and
Tanya, born March 23, 1974.
The Cabinet determined that between
April of 1975 and October of 1991, Hollars was $28,647.46 in
arrears for child support.
The Cabinet issued an order to
withhold a workers’ compensation award to Hollars’ employer,
National Security Incorporation, on March 7, 1995.
The Cabinet
further issued a letter to Hollars showing his child support
arrearage to be $28,647.46, which was received by him via
certified mail on March 14, 1995.
The letter further notified
Hollars of his right to appeal the decision, to bring witnesses
to the hearing and to be represented by counsel.
Hollars
exercised his right to appeal the decision in a timely fashion.
However, he chose not to bring witnesses with him nor to be
represented by counsel at the July 20, 1995, hearing.
Present at the July 20, 1995, hearing were Hollars;
Jackelyn DeRossett (DeRossett), Senior Child Support Specialist;
Marilyn Phillips (Phillips), Hollars’ ex-wife; and Larry W.
Parman, Hearing Officer.
DeRossett presented evidence to the
Hearing Officer on behalf of the Cabinet and Phillips.
Hollars
presented evidence on his own behalf and was given the
opportunity to question DeRossett concerning her testimony.
On
August 10, 1995, the Hearing Officer issued a decision setting
Hollars’ arrearage at $28,647.46 based upon the evidence
presented at the hearing.
Hollars exercised his right to appeal
that decision to the Pulaski Circuit Court and chose, at that
time, to hire an attorney.
The August 10, 1995, decision was
affirmed by the trial court on May 21, 1998.
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On June 9, 1998,
the trial court denied Hollars’ motion to alter, amend of vacate
the May 21, 1998, decision.
This appeal followed.
Hollars raises three issues on appeal: (1) the Cabinet
denied Hollars procedural due process; (2) the decision of the
Cabinet was not supported by substantial evidence of record; and
(3) the actions of the Cabinet were arbitrary and capricious and
constituted an abuse of discretion.
Hollars claims that he was denied procedural due
process because he was not told orally at the hearing of his
right to counsel and his right to cross-examine witnesses.
He
alleges that he is “functionally illiterate” and that the written
notice he received concerning his right to be represented by
counsel at the hearing was insufficient to satisfy procedural due
process.
Further, he claims that he “had no concept of the
probative force of evidence, the method of presenting evidence,
or the method of challenging evidence.
The Hearing Officer
should have explained orally his right to have counsel present
and should have afforded him the opportunity and right of crossexamination.”
The components of procedural due process in the context
of an administrative hearing are well settled in the
Commonwealth:
In order that the requirements of due process
of law be satisfied, the litigant must be
afforded procedural due process as well as
substantive due process. This includes a
hearing, the taking and weighing of evidence,
if such is offered, a finding of fact based
upon consideration of the evidence, the
making of an order supported by substantial
evidence, and, where the party’s
constitutional rights are involved, a
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judicial review of the administrative action.
(Citations omitted).
Kentucky Alcoholic Beverage Council Board v. Jacobs, Ky., 269
S.W.2d 189, 192 (1954); Bentley v. Aero Energy, Inc., Ky. App.,
903 S.W.2d 912 (1995).
First, we are unclear as to what disability, if any,
Hollars suffers.
Hollars provided no proof to the trial court
regarding his claim of being “functionally illiterate.”
We know
that upon receiving the Cabinet’s letter notifying him of the
$28,647.46 arrearage and his right to appeal, he timely exercised
that right.
He also represented himself at the July 20, 1995,
hearing where he testified and presented evidence to the Hearing
Officer.
Without proof to the contrary, we cannot say that
Hollars is “functionally illiterate.”
Hollars was notified in writing of his right to appeal
the Cabinet’s decision and his right to be represented by counsel
at the hearing and present evidence.
He chose to exercise his
right to the appeal but declined to hire legal counsel.
If he
was hoping to save money by representing himself at the hearing
instead of hiring counsel, it appears this was a costly decision
on his part.
Hollars cites no authority for the proposition that
the Hearing Officer was required to orally notify him of his
right to counsel and indeed this Court has been unable to find
any authority to support his contention.
Further, although the Hearing Officer did not
specifically state at the hearing that Hollars had the right to
cross-examine witnesses, the record is clear that not only was he
given that opportunity but that he exercised that right when he
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questioned DeRossett and the Hearing Officer.
Although the
Hearing Officer could have outlined Hollars’ rights more
thoroughly at the hearing, we believe the requirements of
procedural due process were satisfied in this instance.
Hollars also argues that his ability to understand the
weight and probative value of evidence was a denial of procedural
due process.
He argues that the “fundamental flaw of the hearing
given to [him] in this case is that he was not aware of the
nature of the issues involved, nor the underlying facts until the
hearing had already commenced.”
(emphasis in original).
As such
he argues he was denied a “meaningful” opportunity to be heard.
We find Hollars’ argument in this regard completely without
merit.
Appellant admitted he was aware from the letter that he
could have an attorney present.
He chose not to be represented
although he was aware that the hearing was to contest the
arrearage.
Moreover, he presented his “evidence” relative to
that issue and cross-examined the witness on this matter.
Hollars next argues that the Cabinet’s decision was not
supported by substantial evidence of record.
“The test of
whether evidence is ‘substantial’ is ‘whether taken alone or in
the light of all the evidence’ it has sufficient probative value
to induce conviction in the minds of reasonable men.”
Blankenship v. Lloyd Blankenship Coal. Co., Ky. App., 463 S.W.2d
62 (1970).
The Cabinet based its decision on the following
evidence:
(1) The Ohio child support order;
(2) The Cabinet’s calculations of payments
and arrearages,
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(3) A copy of the history and type of
payments made by Hollars;
(4) The testimony of DeRossett, Senior Child
Support Specialist;
(5) The testimony of Hollars; and
(6) The arrearage statements presented by
Hollars.
We believe this evidence has sufficient probative value to induce
conviction in the minds of reasonable men.
The Cabinet’s
decision was clearly supported by substantial evidence of record.
In contravention of the trial court’s order of
November 18, 1995, Hollars attached affidavits to his appeal that
were not presented at the administrative hearing.
The trial
court did not consider these affidavits in reaching its decision
in accordance with Com. Transp. Cabinet Dept. Of Vehicle
Regulation v. Cornell, Ky. App.,, 796 S.W.2d 591 (1990), which
held that “on factual issues...a circuit court in reviewing the
agency’s decision is confined to the record of proceedings held
before the administrative body and is bound by the administrative
decision if it is supported by substantial evidence.”
omitted).
(citations
Since we found that the Cabinet’s decision was
supported by substantial evidence of record, we did not take
Hollars’ affidavits into consideration in reaching our decision.
Finally, Hollars argues that the Cabinet’s decision was
arbitrary and capricious and constituted an abuse of discretion.
The test for arbitrariness is well stated in Cornell:
The court should first determine whether the
agency acted within the constraints of its
statutory powers or whether it exceeded them.
Second, the court should examine the agency’s
procedures to see if a party to be affected
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by an administrative order was afforded his
procedural due process. The individual must
have been given an opportunity to be heard.
Finally, the reviewing court must determine
whether the agency’s action is supported by
substantial evidence. If any of these three
tests are failed, the reviewing court may
find that the agency’s action was arbitrary.
Id. at 594 (citations omitted).
Hollars does not argue that the
Cabinet exceeded its statutory powers and we have already
determined that Hollars was afforded procedural due process and
that the Cabinet’s decision was supported by substantial evidence
of record.
Thus, we cannot say that the Cabinet’s decision was
arbitrary or capricious or constituted an abuse of discretion.
For the foregoing reasons, the decision of the trial
court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Michelle Ross Altobella
Somerset, KY
Graddy Johnson
Office of General Counsel
Frankfort, KY
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