SARAH C. HUNTER AND CHRISTINA R. L. NORRIS v. FREDERICK C. REIGLE
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RENDERED: DECEMBER 6, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002383-MR
SARAH C. HUNTER AND
CHRISTINA R. L. NORRIS
v.
APPELLANTS
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE PATRICIA WALKER-FITZGERALD, JUDGE
ACTION NO. 98-FC-00691
FREDERICK C. REIGLE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: EMBERTON, CHIEF JUDGE, SCHRODER, TACKETT, JUDGES.
TACKETT, JUDGE:
Sarah C. Hunter appeals from an order of the
Jefferson Family Court alleging that the family court erred (1)
by failing to impose sanctions on her ex-spouse, Frederick C.
Reigle, despite holding him in contempt of court; (2) by failing
to award attorney fees; and (3) by referring Reigle’s motion to
reduce child support to the domestic relations commissioner.
Having reviewed the arguments of the appellant and finding no
error, we affirm.
The parties were married on June 20, 1981.
They had
one child during the marriage, Megan, born December 16, 1987.
On
May 13, 1992, a final judgment of divorce was entered by the
Superior Court of Morris County New Jersey, Chancery Division Family Part.
The Judgement incorporated a twenty-seven paragraph
Matrimonial Settlement Agreement dated April 17, 1992, which,
among other things, awarded the parties joint custody of Megan;
established alimony, child support, and visitation; and settled
distribution of property issues.
At the time of the final
judgment, Hunter and Megan were living in Kentucky, while Reigle
remained in New Jersey.
A long period of unusually acrimonious litigation began
in March 1994 when Reigle filed a motion concerning visitation
issues in Jefferson Circuit Court.
The issues litigated have,
either directly or indirectly, concerned Megan.
Much of the
early background of the case is irrelevant to the present appeal,
and we limit our review of the procedural history of the case to
the litigation leading up to the current appeal.
Earlier
litigation will be referred to as necessary in our discussion of
the issues raised by Hunter in this appeal.
As a result of allegations of phone harassment, on
January 15, 1997, the circuit court entered an order restricting
telephone contact between the parties.
On January 29, 1998,
Reigle filed a motion seeking an order permitting him to have
visitation with Megan on Presidents Day 1998.
Shortly
thereafter, Hunter filed a motion seeking to hold Reigle in
contempt of court for violating previous court orders restricting
telephone communication with Hunter, and requesting attorney fees
for the cost of bringing the motion.
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On April 2, 1998, Reigle filed a motion seeking to
prohibit Hunter from initiating professional services concerning
Megan without input and consultation with him.
The motion was
based upon the allegation that Hunter had engaged a therapist to
examine Megan without first consulting him.
In May 1997, Hunter
filed a motion seeking attorney fees for the cost of litigating
Reigle’s request for Presidents Day visitation on the basis that
Reigle’s motion for the visitation was frivolous and in bad
faith.
On February 4, 1998, an order was entered transferring
the case from Jefferson Circuit Court to Jefferson Family Court.
In June 1998, Hunter filed a motion for a medical child support
order seeking reimbursement for certain medical expenses not
covered by insurance; the motion also sought attorney fees for
the cost of bringing the motions.
On June 16, 1998, an order was
entered concerning medical child support issues.
On July 13, 1998, as a prerequisite to any additional
court proceedings, the family court entered an order requiring
the parties to attend mediation in an attempt to resolve some or
all of the outstanding issues.
On August 27, 1998, Hunter filed
a motion to require Reigle to have his Labor Day visitation with
Megan in Louisville in light of Megan’s attention deficit
disorder and scholastic needs.
The motion also sought attorney
fees for the cost of bringing the motion.
On October 8, 1999, Hunter again filed a motion seeking
a modification of visitation and a motion requesting that Megan
be allowed to continue treatment with a therapist originally
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retained by Hunter.
Hunter’s concern again was related to
scholastic issues.
On May 11, 2000, Hunter filed a motion
seeking to enforce the parties’ agreement concerning Megan’s
therapist.
The order also sought attorney fees for the cost of
bringing the motion.
On May 25, 2000, Hunter filed a motion to
establish summer vacation and to permit Megan to attend a summer
camp.
On July 6, 2000, Hunter filed a motion for
reimbursement of travel expenses and camp fees.
On July 18,
2000, the family court entered an order referring the motion to
the domestic relations commissioner.
On July 20, 2000, Reigle
filed a motion seeking to modify his child support obligation to
conform with the Kentucky Child Support guidelines.
On July 26,
2000, the family court entered an order referring the matter to
the domestic relations commissioner.
Hearings on the above motions on were held beginning
November 10, 1998, and continuing on March 10, 1999, and January
7 and 11, 2000.
In October and November 2000, counsel for Hunter
filed additional affidavits in support of attorney fees.
On February 12, 2001, the family court entered an order
addressing the outstanding issues.
Among other things, the order
held Reigle in contempt of court for violating the circuit
court’s January 15, 1997 order regarding telephone contact
between the parties; denied Hunter’s various motions for attorney
fees; and renewed the referral of Reigle’s motion to modify child
custody to the domestic relations commissioner. On February 22,
2001, Hunter filed a motion to alter, amend, or vacate pursuant
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to CR 59.
On October 2, 2001, the family court entered an order
making certain modifications to the February 22, 2001 order
regarding matters not relevant to this appeal.
This appeal
followed.
As a preliminary matter, Reigle contends that Hunter’s
brief should be stricken for her failure to comply with CR 76.12
(4)(c).
While Hunter’s brief, for the most part, failed to
provide appropriate citations to the record, she did file an
extensive volume of exhibits from the trial record, and we will
therefore address the appeal on the merits.
Nonetheless, we
remind counsel that all briefs submitted to this Court should
conform, in both content and form, to CR 76.12.
First, Hunter contends that the trial court erred by
finding Reigle to be in contempt of its order of January 15, 1997
restricting telephone communications between the parties without
imposing sanctions against Reigle.
The family court severely
reprimanded Reigle and specifically held that he had violated the
no telephone contact order.
Contempt is “the willful disobedience toward, or open
disrespect for, the rules or orders of a court.
either civil or criminal.
Contempts are
Commonwealth v. Burge, Ky., 947 S.W.2d
805, 808 (1996); Gordon v. Commonwealth, 141 Ky. 461, 133 S.W.
206, 208 (1911).
The purpose of civil contempt is to coerce the
contemnor into conforming his behavior in accordance with the
court's commandment.
Shillitani v. United States, 384 U.S. 364,
368, 86 S.Ct. 1531, 16 L.Ed.2d 622, 626 (1966);
Schneider, Ky., 864 S.W.2d 903, 906 (1993).
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Blakeman v.
Alternatively, there
is criminal contempt
punishment.
which is levied for the purpose of
The act of disobedience consists of doing something
which the court has prohibited.
Blakeman, at 906.
The family court’s opinion and order does not specify
whether its intent was to hold Reigle in civil or criminal
contempt; however, since Reigle was held in contempt for an act
of disobedience consisting of his past disregard of the court’s
orders, we construe the family court’s order as having held
Reigle in criminal contempt rather than civil contempt.
It is within a court's discretion whether to use its
contempt power, Smith v. City of Loyall, Ky. App., 702 S.W.2d
838, 839 (1986).
In the exercise of its contempt powers, the
court is vested with discretionary power on the matter of
imposing sanctions. Id.
The court’s discretionary power
necessarily includes the power to refrain from imposing sanctions
and fines in the face of compliance.
Id.
Inasmuch as the
discretion in the matter rests with the court imposing sanctions,
we will disturb its ruling only if there is an abuse of
discretion.
"Abuse of discretion in relation to the exercise of
judicial power implies arbitrary action or capricious disposition
under the circumstances, at least an unreasonable and unfair
decision.
sound."
...
The exercise of discretion must be legally
Sherfey v. Sherfey, Ky. App., 74 S.W.3d 777, 783 (2002)
(quoting Kuprion v. Fitzgerald, Ky., 888 S.W.2d 679, 684 (1994)).
In view of Reigle’s flagrant violation of the telephone
contact order and the court’s conclusion that his conduct “cannot
be excused,” it is paradoxical that the court did not impose
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sanctions.
However, Hunter brought the motion to hold Reigle in
contempt in February 1998, and the family court entered the
contempt order in February 2001.
The incidents precipitating the
contempt finding had occurred more than three years earlier, and
Hunter filed no additional contempt motions relating to telephone
contact subsequent to February 1998.
As Reigle appears to have
complied with the telephone contact order for the three years
prior to the contempt order, the trial court did not abuse its
discretion by imposing no sanctions against Reigle.
Next, Hunter contends that she was entitled to an award
of attorney fees on various grounds.
Hunter identified five
theories under which she was entitled to attorney fees:
(1) because the parties’ marital settlement agreement requires
the losing party to pay the attorney fees of the prevailing
party; (2) because Reigle’s obstructionist tactics directly
increased Hunter’s attorney fees; (3) because Reigle rejected
Hunter’s July 1999 offer of judgment regarding visitation, but
did not obtain a judgment at trial more favorable than her offer;
(4) because Reigle made no request for attorney fees yet the
family court weighed Hunter’s motions for attorney fees against
her uncooperative parenting and conduct; and (5) because a
significant disparity of income exists between the parties.
Hunter claims that she is entitled to attorney fees for
the cost of litigating her entitlement to reimbursement for fees
related to Megan’s attendance at a summer camp in the summer of
2000, and the cost of returning Megan to Louisville at the
conclusion of her June 2000 summer visitation with Reigle.
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In
support of her claim, Hunter relies upon paragraph twenty-six of
the parties’ marital settlement agreement, which provides as
follows:
In the event either party has to enforce the
terms of this Agreement, the defaulting party
shall be responsible for the counsel fees and
costs of the nondefaulting party.
Other provisions of the agreement required Reigle to pay 40
percent of the cost of Megan’s summer camp expenses and all of
the costs of travel related to visitation.
Hunter’s motion of
July 6, 2000, sought recovery of both Reigle’s share of the cost
of summer camp and the cost of Megan’s return trip to Louisville
from New Jersey relating to a visitation with Reigle.
In its order of February 12, 2001, the family court
awarded Hunter the cost of a return trip from New Jersey from
Louisville; however, it denied her request for fees relating to
summer camp because “[a]s has been her pattern with other
decisions, [Hunter] made the determination to send Megan to camp
without consulting the respondent.”
The family court further
noted that “[t]he idea that one parent should send Megan to an
extended out-of-state program at a significant cost to the other,
and even more, to contemplate a reduction of the respondent’s
time with him, without consulting or even notifying the
respondent, is completely inconsistent with the terms of the
parties’ agreement to share joint custody.”
The family court
further held that Hunter “should shoulder the burden of the
substantial cost of the camp incurred unilaterally.”
The family court’s ruling on Hunter’s July 6, 2000
motion does not support the appellant’s claim that she was the
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“nondefaulting party” in the litigation.
To the contrary, the
ruling demonstrates that Hunter, also, violated the terms of the
parties’ settlement agreement by failing to consult with Reigle
regarding Megan’s attendance at summer camp; that Reigle was
justified in refusing to reimburse Hunter for the camp fees; and
that Hunter precipitated unnecessary attorney fees for both
parties by attempting to recoup summer camp expenses to which she
was not entitled and which she incurred in violation of the
parties settlement agreement.
In view of Hunter’s unclean hands
in the matters addressed in her July 6, 2000 motion, the family
court did not abuse its discretion by declining to award Hunter
attorney fees under paragraph twenty-six of the settlement
agreement for the cost of bringing the motion.
Hunter also claims that she is entitled to attorney
fees on the basis that Reigle’s unwarranted litigation tactics
directly increased her attorney fees.
Under this theory, Hunter
contends that she is entitled to fees relating to Reigle’s motion
seeking visitation with Megan on Presidents Day 1998 and as a
result of his failure to cooperate on the entry of the medical
child support order.
Hunter further claims that the family court
applied the wrong standard when it stated that “obstruction
and/or prolonging of the litigation may not be a basis for an
award of attorney fees until an imbalance of resources is found
unless the obstruction is related to discovery, in which case
attorney’s fees may be awarded under CR 37.”
Hunter believes
this is an incorrect statement of the law and alleges that Gentry
v. Gentry, Ky., 798 S.W.2d 928 (1990), authorizes the imposition
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of attorney fees for obstructionist tactics and refusal to
cooperate regardless of any disparity of resources.
In support of its above statement, the family court
cited Lampton v. Lampton, Ky. App., 721 S.W.2d 736, 739 (1986).
In Lampton, the misconduct at issue was discovery violations.
While the family court correctly stated the holding in Lampton,
we do not believe Lampton intended to hold that attorney fees may
not be awarded under any circumstances in a domestic relations
case in instances where a party has filed harassing or vexatious
pleadings, unrelated to discovery, and while at the same time the
parties have similar resources.
In such cases, CR 11 provides a
basis for the trial court to impose sanctions against the
violator, including the imposition of reasonable attorney fees.
Moreover, in Gentry there was a disparity of resources, and we
disagree with Hunter’s interpretation of that case.
Inasmuch as the family court was not considering a
request for attorney fees under CR 11, we conclude that it
applied a correct statement of the law.
It is well settled that
an allocation of attorneys fees in a divorce action is entirely
within the court's discretion.
551 S.W.2d 823 (1977).
Browning v. Browning, Ky. App.,
The only requirement is that there be a
disparity in the financial resources of the parties.
KRS
403.220; Gentry v. Gentry, supra.; Glidewell v. Glidewell, Ky.
App., 859 S.W.2d 675, 679-680 (1993).
Here, as discussed later,
Hunter failed to show that there was a disparity of financial
resources and, further, the family court determined that “neither
party has fully complied with the orders of this court and both
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have contributed to the length and expense of this litigation.”
The family court also professed its agreement with the holding of
the predecessor circuit court regarding attorney fees.
The
circuit court gave fair warning it seems when it stated in its
order of April 4, 1996:
This never ending battle between these
parties continues. If the parties insist on
coming before this Court on matters that
should be resolved between them, they will be
responsible for their own attorney fees.
The family court did not abuse its discretion in
denying Hunter’s motion for attorney fees for expenses incurred
as a result of Reigle’s motion seeking visitation with Megan on
Presidents Day 1998, and as a result of his failure to cooperate
on the entry of the medical child support order.
With regard to Hunter’s May 25, 2000 motion to
establish summer vacation visitation schedule, Hunter contends
that she is entitled to an award of attorney fees pursuant to CR
68.
CR 68 provides that if a party defending against a claim
makes an offer of settlement to the claimant, and the claimant
rejects the offer, and the award to the claimant is subsequently
not more favorable than the offer, then the offeree must pay the
costs of the litigation incurred after the making of the offer.
CR 68; Smith v. Ky. State Fair Board, Ky. App. 816 S.W.2d 911
(1991).
Hunter contends that since the visitation schedule
ultimately set by the Court was not more favorable than the
proposed schedule served upon Reigle in July of 1999, CR 68
entitles her to an award of attorney fees.
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In the usual case, CR 68 would apply to offers which
could be quantified, and hence an objective comparison could be
made between the offer and the award.
Whether the family court’s
ultimate disposition of summer visitation was more or less
favorable than her offer requires subjective analysis.
Hunter
claims her offer was more favorable, Reigle claims “the trial
court’s judgment regarding Rick’s visitation with Megan was far
more favorable than the offer.”
The family court’s February 12, 2001, order did not
address the issue of whether Hunter’s offer was more favorable,
and it not the function of an appellate court to resolve a
disputed fact such as this.
The order did, however, state:
The petitioner [Hunter] has proposed that the
summer be divided essentially into thirds,
giving each parent equal time and giving
Megan an extended opportunity to attend camp.
. . . To divide the summer as the petitioner
proposes is merely to invite further
litigation regarding the child’s summer and
once again to place this unfortunate child in
the midst of a battle between her parents. .
. . Accordingly, the summer shall be divided
between the parents and each may, during the
time Megan is with him/her, permit the child
to participate in such summer programs as
he/she deems appropriate.
It therefore appears that a significant aspect of
Hunter’s proposal was decided against her.
Based upon the record
before us, Hunter is not entitled to attorney fees for the summer
2000 visitation litigation under CR 68.
Hunter also claims that the family court abused its
discretion by not awarding attorney fees under KRS 403.220 in
that the family court improperly offset Hunter’s request for fees
against her co-parenting failures even though Reigle had filed no
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related motions or requests for fees.
KRS 403.220 provides as
follows:
The court from time to time after considering
the financial resources of both parties may
order a party to pay a reasonable amount for
the cost to the other party of maintaining or
defending any proceeding under this chapter
and for attorney's fees, including sums for
legal services rendered and costs incurred
prior to the commencement of the proceeding
or after entry of judgment. The court may
order that the amount be paid directly to the
attorney, who may enforce the order in his
name.
The family court has broad discretion in awarding fees
under KRS 403.220.
The amount of an award of attorney’s fees is
committed to the sound discretion of the trial court with good
reason.
That court is in the best position to observe conduct
and tactics which waste the court’s and attorneys’ time and must
be given wide latitude to sanction or discourage such conduct.
Gentry v. Gentry, 798 S.W.2d at 938.
Under the facts of this
case, the family court’s consideration of Hunter’s litigation
history was a proper consideration in exercising its broad
discretion, and its denial of the fees under KRS 403.220 was not
an abuse of discretion.
Hunter also contends that she is entitled to an award
of attorney fees because there is a substantial disparity in the
income of the parties.
However, the standard under KRS 403.220
is not disparity of income, it is disparity of financial
resources.
In this regard, the family court stated, “[i]n this
action, the court has been advised of the petitioner’s income,
but of none of her assets.
While it is clear that there is a
substantial disparity in income, the court is not advised as to
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resources of either party.”
In light of this deficiency in the
record, the court did not abuse its discretion in denying
attorney fees with regard to a disparity of financial resources.
Finally, Hunter contends that the family court erred by
referring Reigle’s motion to modify child support to the domestic
relations commissioner.
Hunter contends that the motion is in
violation of the parties’ settlement agreement.
Hunter notes
that under the terms of the agreement, child support could not be
modified unless her salary exceeded $50,000.
The February 12,
2001 order specifically provided that the case was remanded to
the domestic relations commissioner “subject to this qualifying
factor.”
KRS 22A.020(1) vests this Court with jurisdiction over
final judgments, orders and decrees.
Kentucky Rules of Civil
Procedure (CR) 54.01 defines a final or appealable judgment as
one "adjudicating all the rights of all the parties in an action
or proceeding, or a judgment made final under CR 54.02."
Accordingly, the family court’s order of February 12, 2001,
granted final judgment on the issues of sanctions and attorney
fees and contained the requisite CR 54.02 finality language
deeming it a final and appealable order.
However, with respect to the child support issue, the
February 12, 2001 order did not adjudicate the rights of the
parties; rather, the order referred the case to the domestic
relations commissioner for a consideration of Reigle’s motion in
light of the parties settlement agreement.
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Under these
circumstances, the child support issue is interlocutory and,
therefore, not properly before this Court.
For the foregoing reasons the judgment of the Jefferson
Family Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Christina R. L. Norris
Louisville, Kentucky
Mark Mulloy
Mulloy & Mulloy
Louisville, Kentucky
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