KIMBERLY K. BREIDENBACH v. ROBERT DEAN GRIMM, II
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RENDERED: AUGUST 3, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-000695-MR
KIMBERLY K. BREIDENBACH
(FORMERLY SHROYER)
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE STEPHEN M. GEORGE, JUDGE
ACTION NO. 95-FC-002110
ROBERT DEAN GRIMM, II
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: MOORE AND THOMPSON, JUDGES; GRAVES,1 SENIOR JUDGE.
GRAVES, SENIOR JUDGE: Kimberly K. Breidenbach (formerly Shroyer) appeals from
an order of the Jefferson Family Court holding her in contempt for the unilateral
termination of the therapeutic relationship between the parties' son, Payson, and therapist
Claudia Crawford in violation of a prior court order directing that the parties cooperate
with Crawford. We affirm.
1
Senior Judge J. William Graves sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute
21.580.
FACTUAL AND PROCEDURAL BACKGROUND
Kimberly and Grimm are the parents of Payson Grimm, born April 17,
1995. Since the divorce extensive litigation has occurred involving the child, resulting in
a family court record exceeding 5,000 pages in length.
Payson suffers from emotional and psychological problems and has been
diagnosed as having, among other things, Oppositional Defiant Disorder. Because of his
problems, over the years Payson has been treated by various psychiatrists, therapists, and
counselors. In May 2004, Payson's therapist was Claudia Crawford. During this time the
parties were in court again, this time on an issue concerning Grimm's visitation rights.
On May 12, 2004, the family court entered an order concerning the visitation conflict.
Included in the order was a directive that “[e]ach parent shall cooperate with the child's
therapist and psychiatrist.” Because Crawford was the child's therapist at the time, an
effect of the directive was that Kimberly was placed under court order to cooperate with
Crawford.
At some point Kimberly became engaged to Dr. Warren Breidenbach. In
December 2004, Dr. Breidenbach called Crawford and, among other things, canceled
scheduled appointments between Kimberly and Crawford and Payson and Crawford.
According to Crawford, Breidenbach also identified certain conditions Crawford would
be required to follow if she were to continue as Payson therapist. The discussions
between Breidenbach and Crawford degenerated into an impasse, with Crawford feeling
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that she could not continue as Payson's therapist if to do so would require her to comply
with Breidenbach's conditions. As a result, the therapeutic relationship between Payson
and Crawford ended in December 2004. Because Grimm had his visitations with Payson
at Crawford's office and under her oversight, a collateral effect of the ending of the
relationship was that Grimm was unable to exercise court ordered visitations with
Payson.
On January 18, 2005, Payson's Guardian Ad Litem filed a motion
informing the court of the breakdown of the therapeutic relationship between Payson and
Crawford and seeking the court's review in light of the development. Shortly thereafter
Grimm filed a pro se motion seeking to hold Kimberly in contempt as a result of the
Crawford-related events. The issue was initially taken up at a hearing held on February
17, 2005, but the matter was continued until March 10, 2005, pending the taking of the
deposition of Crawford. Crawford's deposition was taken on March 7, 2005, and an
evidentiary hearing on the contempt issue was held March 10, 2005.
On August 25, 2005, the family court entered an order holding Kimberly in
contempt “for her unilateral termination of the therapeutic relationship between Payson
and Ms. Crawford.” The order further stated that “the unilateral termination of that
relationship, without Court Order, was a clear violation of this Court's Order.” Noting
that the events had resulted in missed visitations and that “[t]his is consistent with
[Kimberly's] past conduct,” the order provided that Kimberly “may purge herself of this
finding of contempt by complying with this Court's Order, and ensuring that Payson is
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where he needs to be to ensure that Mr. Grimm is permitted to exercise his visitation.”
This appeal followed.
Before us, Kimberly contends (1) that for procedural reasons the family
court's finding of contempt was in violation of Kentucky law and violated her federal
constitutional rights, and (2) that the court's finding of contempt was not supported by the
evidence admitted at the hearing. We consider these arguments in turn.
PROCEDURAL ISSUES
Kimberly contends that the family court's finding of contempt was
improper because of various procedural shortcomings. Specifically, Kimberly contends
that the contempt proceedings were procedurally flawed because Grimm's pro se motion
was not accompanied by an attached affidavit; because the motion failed to identify the
specific order which Kimberly was alleged to have violated; because a hearing was held
even though Crawford's pre-hearing deposition testimony established that Crawford, not
Kimberly, terminated the relationship; because the motion failed to identify whether
Grimm was seeking civil or criminal sanctions for the contempt; and because Kimberly
was not served with a show cause order.
Though Kimberly sharply critiques the supposed procedural shortcomings
of the family court proceedings, ironically, in her appeal before us she is in violation of a
fundamental rule of this Court. CR 76.12(4)(c)(v) requires that the appellant's brief
"shall contain at the beginning of the argument a statement with reference to the record
showing whether the issue was properly preserved for review and, if so, in what manner."
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Kimberly's brief contains no reference identifying whether her present challenges were
properly preserved. As such, we are under no obligation to review this issue. Brooks v.
Lexington-Fayette Urban County Housing Authority, 132 S.W.3d 790, 807 n. 3 (Ky.
2004) However, the record discloses that Kimberly's procedural due process rights were
not violated in the course of the contempt proceedings, or, alternatively, that any error
was harmless.
Ordinarily, notice and an opportunity to be heard are the basic requirements
of due process. Storm v. Mullins, 199 S.W.3d 156, 162 (Ky. 2006) (citing Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865
(1950)). Kimberly had notice from multiple sources that the issue in the present round of
litigation was the allegation that she was in contempt for failure to cooperate with
Crawford. The first indicator was the Guardian Ad Litem's January 18, 2005, motion
first bringing the issue to the court's attention. Next, Grimm's motion to hold her in
contempt for Crawford-related matters placed her on notice of the issue; then the family
court's order entered on February 22, 2005, alerted her that on March 10, 2005, a hearing
would be held on Grimm's “motion to hold Ms. Shoyer in contempt for her failure to
cooperate with Ms. Crawford as required by prior order of the Court”; and finally, at the
March 7, 2005, deposition of Crawford, Crawford repeatedly referred to the family
court's order that the parties cooperate with her. Moreover, it is obvious from Kimberly's
counsel's questioning at the deposition that his objective was to shift the blame for the
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breakdown to Crawford, which, contrary to appellant's present position, evidences an
understanding of the issue at bar.
In summary, the record discloses that Kimberly was provided adequate
notice - and that she had actual knowledge - that the issue at bar was the allegation that
she had failed to cooperate with Crawford in violation of a prior family court order.
Accordingly, any procedural defects, including those identified by her in the present
argument, were harmless. CR 61.01 (“No error in either the admission or the exclusion
of evidence and no error or defect in any ruling or order or in anything done or omitted
by the court or by any of the parties is ground for granting a new trial or for setting aside
a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court inconsistent with substantial justice. The
court at every stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the parties.”).
Further, Kimberly had an opportunity to be heard on the issue. Kimberly
identifies no constraints on her opportunity to defend against the contempt allegation at
the March 10, 2005, evidentiary hearing on the matter.
Because Kimberly was afforded adequate notice and an opportunity to be
heard, the basic requirements of procedural due process were complied with in this case.
As such, we will not disturb the decision of the family court upon the grounds alleged in
this argument.
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SUBSTANTIALITY OF EVIDENCE
Kimberly also argues that the family court's decision was not supported by
the evidence. We disagree.
The power of the courts to punish for contempt is one of the powers
inherently belonging to the judiciary. Arnett v. Meade, 462 S.W.2d 940, 947 (Ky.1971).
“As necessary to the due exercise of their functions, it was recognized at common law,
and has been from time immemorial, that courts have the inherent power to enforce their
processes and orders and so to attain the ends of their creation and existence.” Crook v.
Schumann, 292 Ky. 750, 167 S.W.2d 836, 840 (1943). “The purpose of civil contempt
authority is to provide courts with a means for enforcing their judgments and orders, and
trial courts have almost unlimited discretion in applying this power.” Smith v. City of
Loyall, 702 S.W.2d 838, 838 -839 (Ky.App. 1986)
It is undisputed that Kimberly was under court order to cooperate with
Crawford. As there was a complete breakdown in Payson's relationship with Crawford as
a result of a conflict between Kimberly and Crawford, if that breakdown was the fault of
Kimberly, then it follows that she failed in her duty to cooperate. The family court found
that Kimberly was at fault. We will not disturb the finding unless it was clearly
erroneous. CR 52.01. Upon the record as a whole, the finding was not clearly erroneous.
We particularly note that the deposition testimony of Crawford supports the
family court's finding. In her deposition Crawford describes two phone conversations
with Dr. Breidenbach on December 9, 2005, in which Breidenbach canceled scheduled
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appointments for Kimberly and Payson; indicated that there would be no further
appointments until Crawford agreed to meet with him and go over a list of points; and
stated until Crawford complied with this, she would not be paid. Crawford further
testified that
I asked them to -- I begged him in an hour and a half, two
phone calls, to please produce Payson and they refused. He
said he talked with Kim, and they absolutely refused. What
more am I supposed to do at that point, Mr. Helmers.
....
They discharged me as far as I was concerned.
March 7, 2005, Crawford testimony, pg. 39.
In light of the foregoing, the family court's findings that Kimberly
unilaterally terminated Payson's therapeutic relationship with Crawford and that such was
a violation of its order to cooperate with the therapist were not clearly erroneous. As
such, its decision to hold Kimberly in contempt of its order to cooperate with Crawford
was not an abuse of discretion.
CONCLUSION
For the foregoing reason the judgment of the Jefferson Family Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John H. Helmers, Jr.
Louisville, Kentucky
Ninamary Buba Maginnis
Louisville, Kentucky
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