DONALD RAY DENNY v. SHEILA MOLDEN MOORE; JUDGE DANIEL J. VENTERS; HON. ANITA M. BRITTON; STOLL, KEENON AND PARK, LLP
Annotate this Case
Download PDF
RENDERED: December 17, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NOS.
1998-CA-002597-MR and 1998-CA-003000-MR
DONALD RAY DENNY
v.
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DANIEL J. VENTERS, JUDGE
ACTION NO. 92-CI-00712
SHEILA MOLDEN MOORE;
JUDGE DANIEL J. VENTERS;
HON. ANITA M. BRITTON;
STOLL, KEENON AND PARK, LLP
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GARDNER, KNOX, AND SCHRODER, JUDGES.
KNOX, JUDGE: Donald Denny appeals the orders of the Pulaski
Circuit Court penalizing him in the amount of $4,800.00 for
contempt of court, and awarding his former spouse, appellee
Sheila Moore, approximately $1,050.00 in attorney fees.
Having
reviewed the record and applicable law, we affirm.
The parties’ marriage was dissolved by decree entered
February 4, 1993.
Incorporated in said decree was a separation
agreement wherein the parties agreed on the issues of custody,
visitation, and support of their two (2) minor children, Casey
born November 29, 1982, and Logan born October 12, 1988.
That
was the last thing the parties ever agreed on, and from thereon
the gloves came off.
From the onset, the parties experienced difficulty with
the custody/visitation arrangement previously agreed upon.
Principally, the minor child Casey commenced experiencing
disciplinary, emotional, and often physical behavioral problems.
Over the course of the next several years, the court held
numerous hearings regarding the parties’ various motions to
modify custody, visitation, and support.
Underlying much of this
litigation was the issue of Donald’s repetitive pattern of
returning the children late from the scheduled visitation.
Ultimately, on February 6, 1997, the court issued its
order holding, inter alia, that “Donald shall strictly adhere to
the specific hours of visitation. He will be assessed a fine of
$10.00 for every minute he is late in returning the children at
the end of his visitation period.”
In this same order, the court
directed the parties to attend a mediation conference in order to
resolve a number of remaining issues.
The resulting mediation
conference produced the specific agreement that for “summer
visitation with the children . . . (b) Don’s visitation will be
the first 2 weeks of July, beginning the last evening of his
first visitation for that month.
For 1997 Don’s visitation will
be July 8 to July 22.”
On August 12, 1997, Sheila moved the court to hold
Donald in contempt for failing to return the children at the end
of the visitation period on July 22, 1997.
She further moved the
court to direct Donald to pay $718.50 in reimbursable medical
-2-
expenses, in accordance with the mediation agreement, in addition
to attorney fees necessitated by the filing of the motion.
A
hearing was held in the matter on September 16 with the court
issuing its findings of fact, conclusions of law and order on
September 17, 1997.
Pertinent to this appeal, the court stated:
As agreed in the mediation
agreement, Donald’s “summer visitation”
commenced July 8th. On July 22nd, Sheila
expected the boys to be returned to her at
8:00 P.M. because that was the time which had
previously been established for the return of
the children to her home. The mediation
agreement does not specify a particular hour
of the day for the return of the children.
It simply recites that “for 1997 Don’s
visitation will be July 8 to July 22.” At or
about 10:30 P.M. on July 22nd, Don called
Sheila and indicated that he wanted to keep
the boys for that evening. Sheila declined,
and insisted that the boys be brought back to
her home that evening. On the morning of
July 23rd, at 8:22 A.M., [Donald] brought
Logan back to Sheila’s home. Casey remained
with him.
The [c]ourt finds no reasonable
justification for the failure of Don to
return the children to Sheila’s home on July
22nd. The only argument presented by his
counsel is that the terms of the mediation
agreement are ambiguous, and that the return
of the children on the morning of July 23rd
is in compliance. That argument is
unpersuasive. There is no construction of
the language of the mediation agreement which
would support Don in his failure to return
the children on July 22nd. It is the finding
of the [c]ourt that he has, once again,
sought to impose his will over Sheila’s and
over the direction of the Court.
Disregarding the issue of whether Casey was
due to be returned to Sheila’s home on July
22nd, the evidence unequivocally established
that Donald was due to return Logan to his
home on July 22nd. Construing the mediation
agreement most favorably to Donald would
allow him until the end of the 24-hour period
designated on our calendars as July 22nd.
His refusal to return Logan until 8:22 the
-3-
following morning means that he is at least
eight hours, or 480 minutes, late in
returning the child at the end of his
visitation period. Actually he was 502
minutes late.
. . . .
The [c]ourt finds that [Sheila] is
entitled to the recovery of attorney’s fees
for the necessity of bringing this motion.
When [Sheila] was unable to get a response
from Don as to when he would pay the $718.50,
she necessarily consulted her attorney. When
her attorney failed to get a response from
his inquiry, he had no reasonable alternative
but to file a motion. The manner in which
the payment was to be made could have been
reasonably resolved between the parties, or
between the attorneys. By failing to respond
within a reasonable time, [Donald] and his
counsel effectively communicated that they
had no interest in resolving the matter.
The court concluded by ordering Donald to pay the sum
of $450.00 toward the attorney fees incurred by Sheila in that
action.1
The court further fined Donald $4,800.002 for contempt
of the court’s previous order directing him to return the
children in a timely manner from the scheduled visitation.
fine was to be paid to the Pulaski Circuit Court.
The
Donald filed a
CR 59.05 motion, which was denied; however, the court further
ordered the parties to appear before it on October 2, 1998, for a
re-examination of the parties’ compliance with the court’s order,
and to enter a final order with respect to the contempt of court
fine.
On October 15, 1998, an appeal was taken by Donald.
1
Following the service of Sheila’s motion seeking redress
for the grievances above-stated, and prior to the hearing on
same, Donald tendered the $718.50 due under the mediation
agreement. As such, it was unnecessary for the court to order
payment of those monies.
2
$4,800.00 represents 480 minutes at $10.00 per minute.
-4-
Subsequently, on November 3, 1998, the court, having
found Donald’s efforts to comply with the court’s orders greatly
improved, suspended imposition of the September 17, 1997, fine,
except that Sheila was to recover $600.003 from those funds for
attorney fees expended.4
of the court.
Once again, Donald appealed the order
The two (2) appeals have been consolidated and are
addressed herein.
On appeal, Donald, in essence, argues the trial court
erred on two points: (1) the court abused its power of contempt
by penalizing him in that not only was the fine excessive, but it
amounted to the trial court’s interference with the contractual
rights and obligations of the parties under the mediation
agreement; and, (2) the court further abused its discretion in
failing to follow the mandates of KRS 403.220 in awarding Sheila
attorney fees.
We disagree.
As a primary matter, we pretermit discussion of the
contempt of court penalty.
In that the court unconditionally
suspended imposition of the fine, it is our opinion the court
effectively dismissed said order.
rendered moot.
Therefore, the matter is
Rather, the only viable issue before this Court
is the question of whether the trial court abused its discretion
in awarding Sheila the total sum of $1,050.00 in attorney fees.
Our review of the record reveals no such abuse of discretion.
3
The $600.00 award of attorney fees was in addition to the
$450.00 previously granted.
4
Effectively $4,200.00 of the fine was suspended with the
balance of $600.00 order paid to the circuit court clerk who was
instructed to transfer said funds to Sheila for payment of her
attorney fees.
-5-
It is a well known concept that the trial court has
considerable latitude in the exercise of its discretion
concerning the award or denial of attorney fees.
Hollingsworth
v. Hollingsworth, Ky. App., 798 S.W.2d 145, 148 (1990).
Although
Donald contends the trial court was obligated to follow the
provisions of KRS 403.220 to the extent that an inquiry
concerning the parties’ financial resources be undertaken, it is
our opinion this statutory provision is inapplicable under the
facts before us.
Rather, KRS 403.220 is generally employed in
the instance of a dissolution action wherein the court addresses
either or both parties’ request for attorney fees.
In the matter
sub judice, the court was ruling on Donald’s contempt of the
court’s prior order, i.e. the timely return of the children from
scheduled visitation.
In view of the record before us, combined
with the trial court’s detailed explanation for its ruling, we
believe the award of attorney fees was reasonable and will not be
disturbed.
In accordance with the foregoing, the order of the
Pulaski Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael Davidson
Lexington, Kentucky
Anita M. Britton
Crystal L. Osborne
Lexington, Kentucky
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
