MINDY MCKINNEY v. STEVEN O'DEL CREMEANS
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RENDERED:
DECEMBER 1, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001124-MR
MINDY MCKINNEY
APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS NICHOLLS, JUDGE
ACTION NO. 96-CI-00188
v.
STEVEN O'DEL CREMEANS
APPELLEE
OPINION AND ORDER
DISMISSING APPEAL
** ** ** ** **
BEFORE:
EMBERTON, McANULTY AND SCHRODER, JUDGES.
EMBERTON, JUDGE: Mindy McKinney appeals from an order of the
Greenup Circuit Court holding her in contempt for failure to
comply with visitation orders.
Her sole allegation of error is
that there was no evidence whatsoever that would support a
finding of contempt.
Because we are convinced that this appeal
has been rendered moot by appellant’s service of the sentence
imposed, we dismiss the purported appeal from the judgment of
contempt.
In March 1999, appellee filed a motion for a rule
against appellant based upon her failure to abide by the terms
and provisions of visitation orders between the parties.
A
hearing was conducted on April 23, 1999, on this motion, as well
as on appellant’s motion for a rule against appellee based upon
his failure to pay court-ordered child support.
At the
completion of the hearing, the trial court found both parties to
be in contempt of court and sentenced each of them to seven days
in Greenup County Jail.
It further ordered the parties to attend
a second parenting class (they had previously been directed to
and did attend a parenting class) held by the Greenup Circuit
Court.
Although the parties were initially directed to begin
service of the contempt sentences immediately, appellant’s
sentence was deferred at her request until May 8, 1999, to allow
her to complete her final examinations at the University of
Kentucky.
A subsequent motion to alter or amend appellant’s
contempt citation was denied by order entered May 7, 1999.
In her brief to this court, appellant states that upon
the denial of her motion to alter or amend the judgment, she
“immediately surrendered herself and has in fact served seven
days in the Greenup County Jail pursuant to the court’s contempt
citation.”
In this appeal, appellant seeks reversal of the
judgment of contempt and expungement of that judgment from her
record.
Preliminary to a discussion explaining our holding that
the issues advanced in this appeal are moot, a brief recitation
of the distinctions between civil and criminal contempt is
helpful.
In Commonwealth, ex rel Bailey v. Bailey,1 the court
distinguished civil contempt from criminal contempt as follows:
1
Ky. App., 970 S.W.2d 818 (1998).
-2-
Civil contempt involves the failure of
one to do something under order of court —
generally for the benefit of a party
litigant. (Citation omitted). The purpose
of civil contempt is to coerce rather than
punish — to compel obedience to and respect
for an order of the court. The primary
characteristic of civil contempt is the fact
that the contemnors “carry the keys of their
prison in their own pocket.” Blakeman v.
Schneider, Ky., 864 S.W.2d 903 (1993).
Criminal contempt is conduct “which
amounts to an obstruction of justice and
which tends to bring the court into
disrepute.” Gordon v. Commonwealth, 141 Ky.
461, 463, 133 S.W. 206, 208 (1911). It seeks
to punish conduct which has already occurred
rather than compel a course of action. It is
the purpose of the punishment (rather than
the fact of punishment per se) that
distinguishes civil from criminal contempt.
Blakeman, supra. If the court’s purpose is
to punish, the sanction is criminal contempt.
If the court’s purpose is to goad one into
action or to compel a course of conduct, the
sanction is civil contempt.2
Thus, according to Bailey, we must determine whether the purpose
for appellant’s contempt citation was strictly punishment or
whether its purpose was essentially remedial, seeking to compel
compliance with the court’s visitation orders.
Using the
criteria set out in Bailey, we have no doubt that it is the
latter.
Thus, appellant’s sentence was imposed pursuant to a
finding of civil contempt.
It is clear from a reading of the record that the trial
court’s purpose was to compel compliance with future visitation
and support orders.
That he may have used imprisonment for past
failures to get the parties’ attention does not, in our opinion,
detract in a sense from the trial court’s ultimate purpose.
2
970 S.W.2d at 820.
-3-
He
noted on the record the parties’ intentional failures to comply
with support and visitation ordered.
The trial court also
emphasized the fact that the parties apparently had not learned
from their previous parenting class and ordered that they attend
another session.
Based upon these factors, we are convinced that
the contempt order was essentially civil in nature, an attempt to
compel future compliance.
That being established, we fail to discern what relief
this court could afford appellant.
Having served her sentence
and facing no collateral consequences from the judgment
convicting her of civil contempt, all issues related to that
judgment are moot.3
We are admittedly at a loss as to
appellant’s request for an expungement of her record, considering
the fact that the Commonwealth was never involved in any criminal
prosecution in this case.
We find absolutely no basis for a
claim of entitlement to having such a matter expunged from the
record of civil proceedings.
In sum, there is simply no relief
to be gained by this appeal.
The appeal from the judgment convicting appellant of
civil contempt is dismissed as moot.
ENTERED: December 1, 2000
/S/ Thomas D. Emberton
JUDGE, COURT OF APPEALS
McANULTY, JUDGE, CONCURS.
SCHRODER, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
3
NO BRIEF FILED FOR APPELLEE
Dent v. State, 136 Ga. App. 366; 221 S.E.2d 228 (1975).
-4-
Gordon J. Dill
Ashland, Kentucky
-5-
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