SAMUEL RICHARD WHITE, II APPEALS v. MICHELLE S. WHITE
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RENDERED:
OCTOBER 28, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000878-MR
AND
NO. 2004-CA-002247-MR
SAMUEL RICHARD WHITE, II
APPELLANT
APPEALS FROM OLDHAM CIRCUIT COURT
HONORABLE PAUL W. ROSENBLUM, JUDGE
ACTION NO. 02-CI-00538
v.
MICHELLE S. WHITE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, JOHNSON, AND McANULTY, JUDGES.
JOHNSON, JUDGE:
Samuel Richard White, II has appealed in Case
No. 2004-CA-000878-MR from an order of the Oldham Circuit Court
entered on April 19, 2004, which held him in criminal contempt
for his failure to reimburse his former wife, Michelle S. White,
for health insurance premiums, extraordinary medical expenses,
and daycare expenses for the parties’ two minor children, and
ordered him to serve 48 hours in the Oldham County Jail.
White
has also appealed in Case No. 2004-CA-002247-MR from an order of
the Oldham Circuit Court entered on September 29, 2004, which
held him in contempt for his failure to abide by the circuit
court’s previous orders requiring him to pay past-due amounts to
Michelle, and to serve 96 hours in the Oldham County Jail.
Having concluded that the circuit court did not abuse its
discretion in ordering Samuel to serve a fixed amount of time in
the county jail for criminal contempt, we affirm.
Samuel and Michelle were married in 1995.
One child
was born before the marriage, namely Brittany Michelle (D/O/B
December 5, 1990), 1 and one child was born during the marriage,
namely Ashley Danielle (D/O/B April 20, 1996).
On January 31,
2003, a limited decree of dissolution of marriage was entered in
the Oldham Circuit Court, wherein the parties’ marriage was
dissolved and issues concerning the care, custody, and support
of the minor children, maintenance, and division of marital
property and debts were reserved for later determination.
On May 12, 2003, the circuit court entered an order
awarding full custody of the children to Michelle with Samuel
receiving specific visitation.
Samuel receives disability
benefits, 2 and he was ordered to pay Michelle $464.00 3 per month
1
Samuel was established as Brittany’s biological father pursuant to a
judgment of paternity entered by the Oldham District Court on November 20,
2002.
2
Samuel is legally blind.
3
As a result of Samuel’s disability, the two children each receive Social
Security benefits of $232.00 per month.
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as child support for the two children.
Also, he was ordered,
after the passing of 90 days, to pay Michelle one-half of the
children’s health insurance premiums, extraordinary expenses,
and daycare expenses.
Further, the circuit court determined
that Samuel was capable of obtaining gainful employment despite
his disability, 4 and stated that after 90 days and upon
Michelle’s motion it would review the child-support issue,
including Samuel’s voluntary unemployment if he was still
unemployed.
On July 3, 2003, Michelle filed a motion requesting
the circuit court to hold Samuel in contempt for failing to
abide by the May 12, 2003, order.
A hearing on Michelle’s
motion was held on August 6, 2003, and both parties were present
with counsel.
In its order entered on August 7, 2003, the
circuit court did not hold Samuel in contempt, but instead
ordered him to pay the past-due child support for the months of
June and July 2003, in the amount of $928.00. 5
Samuel did not
appeal from this order.
4
During the parties’ marriage Samuel worked as a financial advisor for
Morgan-Stanley from May 1998 until March 2000. He was then employed by PNC
Bank as a financial consultant from March 2000 until February 2002, earning
as much as $3,000.00 per month. Samuel voluntarily quit his position at PNC,
but he has testified he is capable of working, although he has not actively
sought employment since February 2002.
5
This order also addressed Samuel’s failure to allow Michelle access to the
marital residence, Samuel’s failure to place the children’s education
accounts solely in Michelle’s name, and payment of Michelle’s attorney’s
fees. However, for purposes of this appeal, these issues are not relevant.
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On October 21, 2003, Michelle filed another motion
requesting the circuit court to hold Samuel in contempt for
failing to comply with the previous orders entered by the
circuit court regarding the payment of the children’s expenses.
The circuit court held a hearing on November 14, 2003, and both
parties were present with counsel.
In an order entered on
November 17, 2003, the circuit court ordered Samuel to pay
Michelle $900.32 6 within ten days.
Samuel did not appeal from
this order.
On March 18, 2004, Michelle filed a third motion
requesting the circuit court to hold Samuel in contempt on the
child support issue.
On April 19, 2004, the circuit court held
a hearing on Michelle’s motion, and both parties were present
with counsel.
In its order, 7 entered the same day, the circuit
court found Samuel in contempt of court and ordered him to pay
Michelle $995.35 8 to satisfy the overdue health insurance
6
This amount is one-half of the health insurance premiums and daycare
expenses that were overdue. The November 17, 2003, order also addressed
Samuel’s failure to sell the marital residence and his failure to allow
Michelle access to the marital residence to retrieve the children’s personal
property. Again, these issues are not relevant to this appeal.
7
This order also addressed Samuel’s failure to return Ashley to Michelle
following visitation, transportation of the children for visitation, nonemergency medical care for the children, and payment of Michelle’s attorney’s
fees. These issues are not relevant to this appeal.
8
During the hearing held on April 19, 2004, evidence was presented that onehalf of the children’s daycare expenses from November 14, 2003, through April
19, 2004, was $445.00; one-half of the children’s dental insurance from the
same time period was $100.40; and one-half of the children’s major medical
and emergency expenses from this time period was $449.95. This evidence is
the basis for the $995.35 total.
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premiums and daycare expenses for the children, and to serve 48
hours in the Oldham County Jail. 9
In the April 19, 2004, order, the circuit court
allowed Samuel until April 21, 2004, at 6:00 p.m. to pay the
amount of money he owed to Michelle.
Samuel’s mother tendered a
check to Michelle’s attorney before this deadline.
Therefore,
Samuel purged himself of the civil contempt once the money was
paid to Michelle’s attorney.
On April 22, 2004, Samuel filed a motion to vacate the
circuit court’s judgment stating that it could not legally
incarcerate him for contempt without affording him the recourse
to purge himself of the contempt.
The circuit court denied
Samuel’s motion on April 23, 2004.
This appeal in Case No.
2004-CA-000878-MR followed. 10
On August 10, 2004, Michelle filed another motion for
contempt proceedings against Samuel for his failure to abide by
the circuit court’s previous orders.
9
The circuit court held a
Samuel did not report to the Oldham County Jail as ordered.
posted a $500.00 bond.
10
Instead, he
Because Samuel did not appear at the Oldham County Jail on April 24, 2004,
to serve his 48-hour sentence, the circuit court entered a bench warrant for
his arrest. On May 5, 2004, Samuel filed a motion in the circuit court
stating that he had filed a motion for emergency relief in this Court, which
was denied and instead instructed him to seek an appeal bond in circuit
court. On May 6, 2004, the circuit court withdrew its bench warrant for
Samuel and did not incarcerate him pending appeal, but rather allowed him to
post a $500.00 bond.
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hearing on Michelle’s motion on September 28, 2004. 11
In its
order dated September 29, 2004, the circuit court once again
held Samuel in contempt for failing to reimburse Michelle for
the children’s health insurance premiums, extraordinary
expenses, and daycare expenses. 12
The circuit court ordered
Samuel to pay Michelle $981.50 within seven days, and to serve
96 hours in the Oldham County Jail. 13
This appeal in Case No.
2004-CA-002247-MR followed. 14
Samuel argues in his brief that the circuit court
erred (1) by using both its civil and criminal contempt powers;
(2) by denying him due process by not giving him adequate notice
that he was subject to criminal contempt; and (3) by imposing
criminal contempt when he did not have the ability to comply
with the court’s orders.
We reject all three arguments and hold
the circuit court did not abuse its discretion in sentencing
Samuel to jail for periods of 48 hours and 96 hours.
11
The hearing was originally scheduled for September 24, 2004, but neither
Samuel nor his counsel appeared at the hearing. The circuit court
rescheduled the hearing for September 28, 2004.
12
This order also addressed Samuel’s visitation schedule with the children
and payment of Michelle’s attorney’s fees. These issues are not relevant to
this appeal.
13
Samuel did not report to the Oldham County Jail on October 4, 2004, as he
was ordered. It is unclear from the record if Samuel paid the $981.50 within
the seven days.
14
This Court entered an order on March 30, 2005, consolidating the two
appeals.
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“The power to punish for contempt is an essential and
inherent attribute of judicial authority.” 15
“Contempt is the
willful disobedience of -- or open disrespect for -– the rules
or orders of a court.” 16
or “civil”.
A contempt of court may be “criminal”
“‘A “criminal contempt” is conduct directed against
the dignity and authority of the court.
It includes those acts
done in disrespect of the court or its processes or which
obstruct the administration of justice or tend to bring the
court into disrepute.
It covers not only acts which directly
and openly insult or resist the powers of the court or the
persons of the judges.’” 17
Direct criminal contempt occurs in
the court’s presence and may be punished summarily by the court,
whereas indirect criminal contempt, which occurs outside the
court, requires a hearing and the presentation of evidence to
establish the violation of the court’s order. 18
Thus, a court
may punish a person for disobeying a judicial order. 19
And
“[t]he use of contempt proceedings as a means to enforce child
15
Dunagen v. Commonwealth, 31 S.W.3d 928, 929 (Ky. 2000).
16
Bailey v. Bailey, 970 S.W.2d 818, 820 (Ky.App. 1998).
17
Akins v. Peak, 239 Ky. 847, 40 S.W.2d 324, 325 (1931) (quoting Mitchell v.
Commonwealth, 206 Ky. 634, 268 S.W. 313 (Ky. 1925)).
18
Campbell v. Schroering, 763 S.W.2d 145, 147 (Ky.App. 1988).
19
KRS 432.280.
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support payments has long been judicially approved in this
state.” 20
A trial court’s decision regarding whether to hold a
party in contempt is reviewed under an abuse of discretion
standard. 21
“‘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.’ . . .
‘The exercise of discretion must be
legally sound.’” 22
In Samuel’s first argument he relies on Shillitani v.
United States, 23 for his claim that the circuit court abused its
discretion by invoking its criminal contempt powers when civil
contempt alone would have been sufficient to accomplish its
purpose.
We reject this argument because it was clearly within
the circuit court’s discretion to not only attempt to compel
Samuel to pay the money owed to Michelle under its orders, but
also to punish him for his repeated violations of the court’s
orders. 24
Under the circumstances of this case, the criminal
contempt sanctions imposed by the circuit court were not an
20
Bailey, 970 S.W.2d at 820.
21
Smith v. City of Loyall, 702 S.W.2d 838, 839 (Ky.App. 1986).
22
Sherfey v. Sherfey, 74 S.W.3d 777, 783 (Ky.App. 2002) (quoting Kuprion v.
Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994)).
23
384 U.S. 364, 371, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966).
24
Bailey, 970 S.W.2d at 820.
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arbitrary or capricious disposition or an unreasonable and
unfair decision or not legally sound. 25
Samuel also claims he was denied due process of law
because he did not receive adequate notice that he was subject
to criminal contempt.
He stated in his brief that had he “known
that he faced the possibility of jail time he would have
specifically explained his inability to comply with the Court’s
order regarding [ ] payment of funds to [Michelle].”
This argument begs the question that why would Samuel
not specifically explain his inability to comply with the
circuit court’s orders if he merely faced civil contempt.
Regardless, as pointed out in our factual summary of the
proceedings before the circuit court, Michelle filed motions on
July 3, 2003, October 21, 2003, and March 18, 2004, asking the
circuit court to hold Samuel in contempt.
In Michelle’s
affidavit attached to the third motion, she stated, in part, as
follows:
“On no occasion has the Court actually jailed the
Respondent for his willful contempt.
I ask the Court to take
those steps at this point plus make him pay all Attorney’s fees
and costs.”
Thus, Samuel was clearly given notice that Michelle
was asking the circuit court to jail him for contempt.
Samuel
received the due process of law to which he was entitled. 26
25
Sherfey, 74 S.W.3d at 782-83.
26
Campbell, 763 S.W.2d at 147.
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Samuel’s final argument is similar to his second
argument.
He claims the circuit court abused its discretion by
punishing him for not complying with its orders requiring him to
pay various sums to Michelle because “he never had the ability
to perform.”
This argument is without merit because the
evidence of record supports the circuit court’s finding that
Samuel was willfully disobeying its orders.
Further, Samuel has
failed to comply with CR 76.12(4)(c)(iv) and (v) by not
directing this Court to where this argument was preserved for
appellate review or to any facts in the record to support his
claimed inability to comply with the court’s orders.
For the foregoing reasons, the orders of the Oldham
Circuit Court are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ashley Holloway Frank
Louisville, Kentucky
James L. Theiss
LaGrange, Kentucky
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