MELISSA PHEBUS v. BRYAN McCONATHY
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RENDERED: JUNE 27, 2003; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000426-MR
AND
NO. 2002-CA-001553-MR
MELISSA PHEBUS
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 99-CI-03258
v.
BRYAN McCONATHY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI, AND SCHRODER, JUDGES.
SCHRODER, JUDGE.
These are two consolidated appeals from orders
adjudging appellant in contempt for withholding visitation in
violation of the court’s visitation orders.
Appellant raises
several arguments which she maintains entitled her to ignore the
court’s visitation orders.
We deem all of her arguments to be
devoid of merit and, thus, affirm.
Appellant, Melissa Phebus, and appellee, Bryan
McConathy, were married in 1995 and one child was born of the
marriage, Ian McConathy, born May 23, 1995.
In September of
1999, Melissa filed a petition for dissolution of the marriage.
The parties thereafter entered into a separation agreement
wherein Melissa would have sole custody of Ian with Bryan having
visitation every Saturday and alternating Sundays.
The
agreement also contained provisions for weekday and holiday
visitation.
Immediately after filing this agreement, Melissa
began withholding visitation from Bryan, prompting Bryan to file
a motion for temporary visitation.
In November of 1999, Melissa
sought and obtained an Emergency Protective Order alleging that
Bryan had sexually abused Ian in February of 1999 and that Bryan
had a serious drug and alcohol problem.
The court thereupon
ordered that the Commonwealth of Kentucky Cabinet for Families
and Children (the “Cabinet”) and the Fayette County Friend of
the Court investigate the allegations and report their findings.
The Cabinet at first substantiated sexual abuse by Bryan, but
reversed its finding after a full hearing on the matter.
The
report of the Friend of the Court accepted the ultimate finding
of the Cabinet regarding the allegations of sexual abuse by
Bryan, but recognized there were areas of concern relative to
both parties’ mental health and Bryan’s use of alcohol and
drugs.
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In January of 2000, Ian was removed from Melissa’s
home and placed in foster care because of Melissa’s mental
instability.
Ian was returned to Melissa’s custody in June of
2001 and supervised visitation by Bryan was ordered.
Thereafter, Melissa again began withholding visitation from
Bryan.
On November 8, 2001, an evidentiary hearing was held
wherein the court heard evidence on Melissa’s allegations
regarding Bryan’s mental problems, drug and alcohol abuse, and
sexual abuse of Ian.
At the conclusion of this hearing, the
judge determined that Melissa had not proven her allegations,
but nevertheless, to be cautious, ordered visitation by Bryan to
be supervised by Bryan’s mother and stepfather.
The court then
proceeded to verbally set forth an explicit visitation schedule
to be followed by the parties immediately which was ultimately
reduced to writing and entered by the court on December 7, 2001.
At the hearing, Melissa personally made inquiries of the court
and voiced objections regarding this supervised visitation.
Thereafter, Melissa again disregarded the court’s
order and refused visitation on November 8, 2001, November 22,
2001, November 24, 2001, and December 8, 2001.
On December 14,
2001, Bryan moved the court to hold Melissa in contempt for
violation of the November 8 visitation order.
The court then
entered an order requiring Melissa to show cause why she should
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not be held in contempt and a hearing thereon was held on
February 22, 2002.
At the conclusion of this hearing, the court
held Melissa in contempt and ordered her to serve 30 days in
jail.
The court allowed that Melissa could purge herself of the
contempt if she began complying with the visitation order.
Despite the contempt ruling, Melissa continued
thereafter to refuse to make the child available for visitation.
Thus, Bryan filed another motion to have Melissa held in
contempt.
On June 24, 2002, the court held a lengthy hearing on
the contempt motion and allowed Melissa to present testimony and
call numerous witnesses regarding her allegations of mental
illness/sex abuse/substance abuse by Bryan.
On June 28, 2002,
the court entered its second order finding that Melissa did not
meet her burden of demonstrating why she should not be held in
contempt.
Consequently, Melissa was held in contempt and
sentenced to 90 days in jail, 85 days of which was to be held in
abeyance so long as she complied with the visitation order in
the future.
From the February 22, order and the June 28, order,
Melissa now appeals.
Melissa first argues that she could not have been held
in contempt for refusing visitation after the November 8, 2001,
hearing because the visitation order made pursuant to that
hearing was not entered in writing until December 7, 2001.
Melissa contends that she had no obligation to comply with the
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verbal visitation order entered on November 8, 2001, until it
was reduced to writing and entered by the court.
As noted
earlier, the court’s verbal visitation order during the
November 8 hearing stated that visitation would be every other
Saturday and would start immediately on November 10, 2001.
The
court even addressed the holiday visitation schedule, which
included Thanksgiving, which was prior to the written entry of
the December 7, 2001, order.
Melissa was present at said
hearing and clearly had actual notice of the verbal order, as
she personally asked questions of the court regarding the
visitation ordered.
It has been held that where an individual
has actual notice of a court’s verbal ruling, violation of said
ruling is punishable by contempt.
726 S.W.2d 315 (1987).
Vaughn v. Asbury, Ky. App.,
Melissa attempts to distinguish Vaughn
from the instant case by the fact that Vaughn was a case of
direct contempt wherein violation of the court’s order took
place in the court’s presence.
App., 15 S.W.3d 393 (2000).
distinction.
See Commonwealth v. Pace, Ky.
We do not see this as a meaningful
Although Melissa’s contemptuous conduct may have
taken place outside the presence of the court, it is undisputed
that she was in court and aware of the court’s verbal ruling at
the time it was issued.
The cases cited by Melissa as authority
for the proposition that an order must be signed and entered by
the court to have effect, see Davis v. Bowling Green, Ky., 289
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S.W.2d 506 (1955); Staton v. Poly Weave Bag. Co., Ky., 930
S.W.2d 397 (1996); and Charles v. Appalachian Regional
Healthcare, Ky. App., 59 S.W.3d 466 (2001), however, are
distinguishable by the fact that no verbal orders were entered
in those cases.
Hence, there was no issue as to whether a prior
verbal order was enforceable.
Melissa next argues that she could not be held in
contempt for violation of the December 7, 2001, written order of
visitation because she did not receive notice of said order
since it was mailed to her former counsel who did not forward it
to her until late December.
Given the undisputed evidence that
Melissa had actual notice of the November 8, 2001, verbal
visitation order as discussed above, this argument is moot.
Melissa’s third argument is that there was
insufficient evidence of contempt – that she intentionally acted
in willful disobedience or open disrespect for the rules or
orders of the court.
805, 808 (1997).
See Commonwealth v. Burge, Ky., 947 S.W.2d
We disagree.
Bryan filed in the record an
affidavit specifying the dates that he was refused visitation
and testified at the June 24 hearing to these dates.
Moreover,
Melissa admitted at the June 24 hearing that she had not allowed
the visitation.
Hence, there was more than sufficient evidence
that Melissa willfully violated the visitation order of the
court.
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Melissa also claims that she was entitled to a full
evidentiary hearing on the contempt charge since she was
convicted of indirect criminal contempt.
“Criminal contempt is
conduct ‘which amounts to an obstruction of justice, and which
tends to bring the court into disrepute.’”
Id. (quoting Gordon
v. Commonwealth, 141 Ky. 461, 463, 133 S.W. 206, 208 (1911)).
“If the court’s purpose is to punish, the sanction is criminal
contempt.”
Burge, 947 S.W.2d at 808.
Civil contempt is
described as follows:
Civil contempt consists of the failure of
one to do something under order of court,
generally for the benefit of a party
litigant. Examples are the willful failure
to pay child support as ordered, or to
testify as ordered. While one may be
sentenced to jail for civil contempt, it is
said that the contemptuous one carries the
keys to the jail in his pocket, because he
is entitled to immediate release upon his
obedience to the court’s order. Campbell v.
Schoering, Ky. App., 763 S.W.2d 145, 148
(1988).
Id.
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.
Id.
In our view, the contempt adjudged by the court in the
present case is more properly characterized as civil contempt
because the visitation order was for the benefit of a party
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litigant and because Melissa was allowed to purge the contempt
citations by following the visitation order.
The court’s main
objective was clearly to elicit compliance with the visitation
order.
However, even if the contempt is characterized as
indirect criminal contempt, we believe Melissa was afforded due
process.
Melissa was given notice of the show cause hearings,
was represented by counsel, and had the opportunity to be heard.
Melissa does not allege that she attempted to present certain
evidence at these hearings and was denied said opportunity.
In
fact, at the second contempt hearing, the court allowed
Melissa’s counsel to call numerous witnesses, including Melissa,
the child, a police officer, her mother, her aunt, Ian’s
teacher, and Bryan’s mother and stepfather, to establish she had
good cause to deny visitation.
Melissa’s next assignment of error is that the trial
court erred in denying her motion to modify the visitation order
to allow for a neutral supervisor for the visitation.
According
to Bryan’s motion to supplement the record herein, which was
granted, this issue is now moot because the court has since
appointed a neutral supervisor for the visitation.
Finally, Melissa argues that the court erred in
holding her in contempt when she demonstrated good cause
pursuant to KRS 403.240 to not comply with the visitation order.
“Good cause” is defined in KRS 403.240 as a “reasonable belief
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by either party that there exists the possibility of
endangerment to the physical, mental, moral, or emotional health
of the child, or endangerment to the physical safety of either
party, or extraordinary circumstances as determined by the
court.”
Like in other domestic matters, the court’s findings of
fact regarding visitation will not be overturned if they are not
clearly erroneous.
Ghali v. Ghali, Ky. App., 596 S.W.2d 31
(1980).
As stated earlier, the court heard much evidence at
the June 24 hearing relative to Melissa’s claim that she had
good cause to refuse to comply with the visitation order.
Most
of this evidence had previously been heard by the court pursuant
to the court’s November 8, 2001, order of visitation, from which
Melissa did not appeal.
The only new evidence was the testimony
of Ian, who was then age 7, in chambers.
Ian testified that his
father had held a handgun on him and threatened to kill him in
McDonald’s, had touched his privates during a visit, and that
Bryan and a friend of his had taken a video of him with his
clothes off.
However, as noted by the court, there were several
inconsistencies within Ian’s testimony and from what he had told
others about the alleged incidents in the past.
at the hearing that he had never owned a handgun.
Bryan testified
At the
conclusion of the hearing, the court adjudged that in viewing
all of the evidence, including the Cabinet’s ultimate finding
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that sexual abuse by Bryan had not been substantiated, he did
not believe that Melissa had good cause to deny supervised
visitation.
The court noted that it had erred on the side of
caution in the November 8, 2001, order requiring that the
visitation be supervised and that Melissa had never even given
the supervised visitation a chance.
We also recognize the inconsistencies as to the
circumstances of the alleged abuse within the child’s testimony
and within the various versions of the allegations offered by
other witnesses in the record.
The record also contains
evidence regarding the mental instability of Melissa and her
propensity for depression, paranoia, and delusional behavior.
There was some suggestion in the Friend of the Court report that
Melissa’s mental condition may have contributed to her
perception that Ian was sexually abused by Bryan.
Melissa
maintains her mental problems are the result of a serious
physical illness, Lupus, which is now under control.
There was evidence that Bryan may have had a substance
abuse problem at some point and that Bryan had been drinking
alcohol prior to one of his visits with Ian in February of 2001.
However, the results of two random drug tests which the court
required were negative with the exception of prescription
medications Bryan was taking for medical conditions.
There was
also evidence of two instances of domestic violence that Bryan
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had perpetrated against Melissa during the marriage, although
there was no evidence that Bryan had ever physically abused Ian,
aside from the allegations relating to sexual abuse and Ian’s
testimony that Bryan had held a gun on him.
Bryan presented evidence that Melissa had filed a tort
action against him during the pendency of the visitation dispute
and had offered to dismiss the claim if he agreed to terminate
his parental rights to Ian.
When questioned about her motive
for this offer, Melissa admitted that she wanted to move to
Colorado with Ian.
Finally, Bryan’s mother and stepfather both testified
that they were aware of the allegations against Bryan and stated
that they understood and agreed that they were to have direct
visual contact with Bryan and Ian at all times during visits.
They further agreed that Bryan was not to be under the influence
of alcohol during these visits.
In viewing the evidence as a whole, we cannot say that
the lower court’s finding of a lack of good cause to deny
visitation was clearly erroneous.
Accordingly, for the reasons
stated above, we affirm both orders of the Fayette Circuit Court
adjudging appellant in contempt.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard Ducote
New Orleans, Louisiana
Patrick F. Nash
Lexington, Kentucky
Terry Anderson
Nicholasville, Kentucky
Brian P. Gilfedder
Lexington, Kentucky
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