JOHNSON (CHARLES LAMAR) VS. CABINET FOR HEALTH AND FAMILY SERVICES
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RENDERED: JULY 2, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001893-ME
CHARLES LAMAR JOHNSON
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE HUGH SMITH HAYNIE, JUDGE
ACTION NOS. 04-J-500469 AND 87-FP-004897
CABINET FOR HEALTH AND FAMILY
SERVICES, COMMONWEALTH OF
KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, KELLER AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Charles Lamar Johnson appeals from a Jefferson Circuit
Court judgment entered on September 1, 2009, which denied his motions
challenging the garnishment of his bank accounts. Discerning no reversible error,
we affirm.
On May 28, 2008, the Cabinet for Health and Family Services filed
six orders of garnishment (non-wage) with the Jefferson Circuit Family Court
pursuant to Kentucky Revised Statutes (KRS) 205.778(1). These six orders named
Charles Lamar Johnson, a prisoner at the Kentucky State Reformatory, as the
judgment debtor, listed National City Bank as the garnishee, and included the total
amount due as $32,067 for past due child support. On June 4, 2008, National City
Bank closed several of Johnson's bank accounts and tendered the funds in the
accounts, totaling approximately $30,000, to the Cabinet for Health and Family
Services.
On June 23, 2008, Johnson filed a writ of prohibition in the Court of
Appeals, which challenged the above garnishments. Johnson’s writ was denied by
both this Court and the Kentucky Supreme Court because “Johnson has a clear
remedy by appeal that is specifically set forth in the [o]rder of [g]arnishment
form.” Johnson v. Haynie, 2009 WL 1108799 (Ky. 2009)( 2008-SC-000776-MR).
Specifically, the form stated that any debtor who wished to challenge a
garnishment of property must “immediately request a hearing in the court listed
above by filing a sworn written request with the Clerk of the Court within ten (10)
days of the [g]arnishee’s [d]ate of [r]eceipt noted above.” Id. at 2. Because sworn
written requests challenging the above garnishments were filed by Johnson on July
8, 2008, the Supreme Court held that Johnson “will be able to participate in a
hearing challenging the garnishments.”
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In his written affidavits, Johnson contended that money in his bank
accounts were exempt from garnishment because “all my children receive monthly
checks from my Social Security Benefits [sic].” On August 4, 2008, Johnson set
forth additional grounds for his garnishment challenges and motioned to set the
matter for a hearing. Principally, Johnson contended that he was not notified of the
garnishment proceedings in a timely manner.
Despite Johnson’s motion, a hearing was never set. Then, on May 26,
2009, the Jefferson County Attorney’s office moved to set a hearing to address
Johnson’s garnishment challenges. In its motion, the County Attorney explained
that Johnson’s challenges were never heard because his writs of prohibition were
pending at the appellate level. On June 15, 2009, the County Attorney’s motion
for a hearing on Johnson’s garnishment challenges was heard. The trial court
entered a “Paternity Calendar Court Order” listing Johnson’s status as “custodyprison.” The order indicated that a telephonic hearing to address Johnson’s
garnishment challenges shall be conducted on August 3, 2009.
On August 3, 2009, a telephonic hearing was conducted. At the
initiation of this call, the trial court asked Johnson to address his garnishment
challenges. Johnson replied that he needed appointed counsel or a legal aide to
assist him with his case. The trial court stated that since this was a civil matter,
Johnson was not entitled to the appointment of counsel or a legal aide.
Johnson then stated that he was unprepared and did not have his
paperwork with him. To this, the trial court replied, “Well, today’s the day.” The
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County Attorney asked Johnson whether he remembered being sent notice of the
hearing. Johnson replied that he never received any notice.
The trial court again asked Johnson to set forth the grounds for his
garnishment challenges. Johnson replied that he did not owe back child support
because his children received social security disability payments in satisfaction of
his child support obligations. The County Attorney then asked Johnson whether he
received copies of the audits she sent him. Johnson replied in the affirmative and
the County Attorney then explained that the back child support owed by Johnson
was accrued prior to his disability.
After some discussion, the trial court again asked Johnson to set forth
his grounds for challenging the garnishments. Johnson repeated that he was not
prepared for the hearing, that he did not have his paperwork in front of him, and
that he needed a legal aide to assist him. The trial court then ended the hearing by
stating that it would take the case under submission.
On September 1, 2009, the trial court entered an order denying
Johnson’s garnishment challenges. In so ordering, the trial court concluded that
“sufficient evidence has not been shown by [Johnson] to justify an order releasing
the garnishments and returning the money to [Johnson].” An appeal to this Court
now follows.
In his appeal, Johnson claims the trial court violated his due process
rights by denying him a legal aide or guardian ad litem to assist him in preparing
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and presenting his case.1 According to Johnson, he was in need of such assistance
“to facilitate the request and production of records from the Social Security
Administration . . . .”
Except in very limited circumstances, there is no constitutional right
to the assistance of counsel in civil cases. May v. Coleman, 945 S.W.2d 426, 427
(Ky. 1997). For prisoners, Kentucky Rule(s) of Civil Procedure (CR) 17.04(1)
provides the following circumstances in which they are entitled to the appointment
of a guardian ad litem in civil matters:
Actions involving adult prisoners confined either within
or without the State may be brought or defended by the
prisoner. If for any reason the prisoner fails or is unable
to defend an action, the court shall appoint a practicing
attorney as guardian ad litem, and no judgment shall be
rendered against the prisoner until the guardian ad litem
shall have made defense or filed a report stating that after
careful examination of the case he or she is unable to
make defense.
Id. (Emphasis added).
This case involves post-judgment garnishment proceedings. See CR
69.02. Pursuant to its plain language, CR 17.04 does not provide for the
appointment and assistance of a guardian ad litem after the entry of a final
judgment. See May, 945 S.W.2d at 427; Davidson v. Boggs, 859 S.W.2d 662, 664
(Ky. App. 1993) (implying that CR 17.04 only applies prior to trial). Accordingly,
1
Johnson claims in his brief that he made a written motion for appointment of guardian ad litem.
After thorough review of this record, we cannot find it. However, for the purposes of this
appeal, we will presume that such a motion was filed.
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Johnson’s claim that he had a constitutional right to the appointment of counsel in
these post-judgment civil garnishment proceedings is without merit.
Johnson also complains that he was not afforded a meaningful
hearing. He contends that the hearing was “cursory” and that “he was repeatedly
cut off by the judge and constantly interrupted by the Commonwealth.” In
Edmonson v. Commonwealth, 725 S.W.2d 595 (Ky. 1987), the Kentucky Supreme
Court explained that a “meaningful hearing” requires, at a minimum, that the
defendant be given a fair opportunity to present evidence to the fact-finder before
that fact-finder has made up his or her mind. Id. at 596. Upon review of this
hearing, we discern no violation of Johnson’s right to a meaningful hearing.
Johnson was permitted plenty of opportunity to present his arguments and evidence
before the trial court. His assertion to the contrary is without merit.
Johnson next argues he is entitled to a new hearing because the trial
court failed to make findings addressing: (1) his claim that the Social Security
Administration did make enough payments to offset all child support obligations,
even those that accrued prior to his disability; and (2) whether he was provided
sufficient statutory notice of the garnishment proceedings. He further claims the
trial court’s order is nonsensical to the extent that it refers to back child support
being owed to the state; however, the County Attorney admitted that money seized
from his bank accounts was not being paid to the state, but rather to the mothers of
his children.
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While the trial court’s order may not be a model of clarity or detail,
there are sufficient findings to address the issues raised by Johnson. In any event,
final orders shall not be reversed for failure to make findings unless such failure is
brought to the attention of the trial court. CR 52.04. Johnson never brought these
alleged deficiencies to the attention of the trial court.
And even if there was some deficiency in the trial court’s findings,
Johnson fails to demonstrate how he was prejudiced by any delay in notification of
these proceedings. Moreover, Johnson concedes that he failed to obtain the
necessary documents from the Social Security Administration to support his claim.
Johnson argues that a guardian ad litem was necessary to assist in these tasks;
however, as set forth above, Johnson was not entitled to such assistance under our
law. Nothing prevented Johnson from seeking these documents himself and the
fact that Johnson chose not to do so is not grounds for the granting of a new
hearing in this case. See CR 43.03 (trial may be postponed on account of absence
of evidence, but only upon showing that party exercised due diligence in attempt to
obtain evidence prior to trial); see also Kentucky Rule(s) of Criminal Procedure
(RCr) 9.04.
Having been presented with no reversible error, we hereby affirm the
Jefferson Circuit Court’s September 1, 2009, order denying Johnson’s garnishment
challenges.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Charles Lamar Johnson, Pro Se
LaGrange, Kentucky
Penny L. Honchell
Louisville, Kentucky
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