DAVID MICHAEL OWENS v. TERESA ANN OWENS
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RENDERED: MARCH 12, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2002-CA-001958-MR
DAVID MICHAEL OWENS
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JERRY J. BOWLES, JUDGE
ACTION NO. 98-FC-007077
TERESA ANN OWENS
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: COMBS, KNOPF, AND McANULTY, JUDGES.
McANULTY, JUDGE:
David Michael Owens appeals, pro se, from an
order of the Jefferson Family Court denying his motion to hold
Teresa1 Ann Owens in contempt of court for failure to comply with
the parties’ July 20, 2000, “Property Settlement Agreement”
1
In the record, the appellee’s name is spelled variously as Teresa and
Theresa. It is unclear which is the correct spelling, and we have used the
spelling contained in the notice of appeal, Teresa.
(separation agreement).
For the reasons stated below, we
affirm.
On June 30, 1988, the parties had an out of wedlock
child, Jamika Dawn Owens.
married.
On April 17, 1993, the parties were
On September 22, 1998, David filed a petition for
dissolution of the marriage.
At some point following the filing of the petition,
David engaged in violent conduct involving Teresa.
As a result,
David was charged with first-degree wanton endangerment,
unlawful imprisonment, and possession of a handgun by a
convicted felon.
In the altercation David beat Teresa about her
head and body, made her lay down on a bed, held a loaded gun to
her head, and fired a shot beside her head.
He also made her
talk on the telephone to her children, indicated to her what she
should say, and indicated to her that her children would hear
her die if she did not say what he told her.
It appears that
David received an eight-year sentence as a result of the
charges, and has been incarcerated as a result of the incident
since January 2000.
On July 20, 2000, the parties entered into a
separation agreement which, among other things, addressed issues
concerning custody, visitation, child support, and property
issues.
However, because Teresa was the victim of David’s
violent conduct, a no contact order remained in place
2
prohibiting David from contacting Teresa directly.
As a result,
the agreement provided that visitation should be coordinated
between Teresa’s mother and David’s mother.
On July 27, 2000,
the final decree dissolving the marriage was entered.
On April 5, 2001, David filed a pro se motion to
require Teresa to show cause as to why she should not be held in
contempt of court for failure to abide by the July 20, 2000
agreement.
The motion alleged that Teresa had violated those
provisions of the agreement which require each party to refrain
from alienating Jamika’s affection toward the other party;
require each party to provide records and information concerning
the child and to keep each other apprised of his or her current
residence and telephone number; and the provision of the
agreement which awards David exclusive title and possession of a
1983 Pontiac TransAm vehicle.
More specifically, the motion
alleged that Teresa was denying him telephone contact with the
child; withholding and screening his letters to the child; and
that Teresa had permitted the engine, wheels, tires, and window
glass to be removed from the 1993 Pontiac.
On August 15, 2002, a hearing was held on David’s
motion to hold Teresa in contempt.
On August 30, 2002, the
family court entered an order denying David’s motion to hold
Teresa in contempt for violating the July 2000 agreement.
appeal followed.
3
This
First, David contends that Teresa should be held in
contempt because he is being denied visitation with Jamika in
violation of the agreement; that he is unable to have telephone
visitations with the child; and that he does not know if
Teresa’s mother is forwarding his letters to Jamika.
Our review of this issue, and the remaining issues in
this case, is hindered because neither a recording nor a
transcript of the August 15, 2002, hearing is included in the
record on appeal.2
The burden was upon David to ensure that a
transcript or recording of the hearing was included in the
appellate record.3
(1968).
Burberry v. Bridges, Ky., 427 S.W.2d 583, 585
When evidence presented to the trial court is excluded
from the appellate record, we must presume that the missing
evidence supported the judgment of the trial court.
Miller v.
Com., Dept. of Highways, Ky., 487 S.W.2d 931, 933 (1972).
With regard to the David’s claims relating to Jamika,
the family court made the finding “the Court finds that the
respondent has not intervened or obstructed the Petitioner’s
access to the parties minor child[.]”
2
A videotape is included in the record on appeal; however, the only hearing
contained on the videotape is the July 20, 2000, hearing wherein the family
court approved the parties’ separation agreement.
3
We note that David’s designation of record filed on September 11, 2002, did
not specify the August 15, 2002, hearing but, rather, generally designated
“the entire record of the proceedings in this case.”
4
Under CR 52.01, in an action, as here, tried without a
jury, “[f]indings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of
the trial court to judge the credibility of the witnesses.”
A
factual finding is not clearly erroneous if it is supported by
substantial evidence.
Owens-Corning Fiberglas Corp. v.
Golightly, Ky., 976 S.W.2d 409, 414 (1998); Uninsured Employers’
Fund v. Garland, Ky., 805 S.W.2d 116, 117 (1991).
Substantial
evidence is evidence, when taken alone or in light of all the
evidence, which has sufficient probative value to induce
conviction in the mind of a reasonable person.
S.W.2d at 414;
Golightly, 976
Sherfey v. Sherfey, Ky. App., 74 S.W.3d 777, 782
(2002).
As we do not have the record of the August 15, 2002,
hearing before us, we must presume that the evidence and
testimony presented at the hearing supported the findings of the
family court.
Miller, supra.
As those findings determined that
Teresa has not intervened or obstructed David’s access to
Jamika, it follows that she cannot be held in contempt for doing
so.
Moreover, this issue concerns David’s allegation that
Teresa should be held in contempt for violating the provisions
of their July 20, 2000, separation agreement which provide that
Teresa may not hinder David’s relationship with Jamika.
5
Contempt is “the willful disobedience toward, or open disrespect
for, the rules or orders of a court. ‘Contempts are either civil
or criminal.’”
Commonwealth v. Burge, Ky., 947 S.W.2d 805, 808
(1996); citing Gordon v. Commonwealth, 141 Ky. 461, 133 S.W.
206, 208 (1911).
The purpose of civil contempt is to coerce the
contemnor into conforming his behavior in accordance with the
court’s commandment.
Shillitani v. United States, 384 U.S. 364,
368, 86 S. Ct. 1531, 16 L. Ed. 2d 622, 626 (1966); Blakeman v.
Schneider, Ky., 864 S.W.2d 903, 906 (1993).
Alternatively,
there is criminal contempt which is levied for the purpose of
punishment. The act of disobedience consists of doing something
Blakeman, at 906.
which the court has prohibited.
It is within a court's discretion whether to use its
contempt power.
838, 839 (1986).
Smith v. City of Loyall, Ky. App., 702 S.W.2d
Inasmuch as the discretion in the matter rests
with the court imposing sanctions, we will disturb its ruling
only if there is an abuse of discretion.
“‘Abuse of discretion
in relation to the exercise of judicial power implies arbitrary
action or capricious disposition under the circumstances, or at
least an unreasonable and unfair decision.’” . . . “The exercise
of discretion must be legally sound.”
Sherfey v. Sherfey, Ky.
App., 74 S.W.3d 777, 783 (2002) (quoting Kuprion v. Fitzgerald,
Ky., 888 S.W.2d 679, 684 (1994)).
6
In the absence of a finding that Teresa hindered or
obstructed David’s access to Jamika, the family court did not
abuse its discretion by denying David’s motion to hold her in
contempt for violating the no alienation of affections clause of
the parties’ July 20, 2000, separation agreement.
Next, David contends that Teresa was responsible for
damage that was done to the 1983 Pontiac TransAm awarded to him
under paragraph 13 of the separation agreement on the basis that
it was her responsibility to look after the vehicle during his
period of incarceration.
In regards to David’s claim concerning the TransAm,
the family court made the finding “[b]ecause the Petitioner has
been incarcerate [sic] for felonious crimes related to the
Respondent since January of 2000 and the parties’ Property
Settlement Agreement was not reached until July of 2000, the
Court finds the Petitioner’s testimony regarding the status of
the property on the date of the agreement is unreliable.”
Again, because of the missing August 15, 2002, record
we are unable to conclude that the family court was clearly
erroneous in rejecting David’s testimony.
Miller, supra.
As
the family court rejected David’s version of Teresa’s
responsibility for damage to the TransAm, the court did not
abuse its discretion by denying David’s motion to hold Teresa in
contempt for the claimed damage.
7
Sherfey, supra.
Finally, David contends that the family court
erroneously failed to address the issue of whether Teresa had
failed to divide equally their 1999 federal and/or state income
tax returns as required in the agreement.
David did not raise this issue in his April 5, 2001,
motion to hold Teresa in contempt.
David appears to claim that
the issue was nevertheless raised and addressed at the August
15, 2002, hearing.
However, without the record of the August
15, 2002, hearing, we are unable to determine if this issue was
properly raised and preserved before the family court so as to
conclude that it was error for the court to fail to address the
issue.
In the absence of the record of the hearing, we must
conclude that the decision of the family court with regard to
this issue was correct.
Miller, supra.
For the foregoing reasons the judgment of the
Jefferson Family Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David Michael Owens, pro se
Green River Correctional
Complex
Central City, Kentucky
Linda L. Robinson
Kentucky Domestic Violence
Association
Frankfort, Kentucky
8
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