LORRAINE CARRICO FIORELLO v. ANTHONY JOHN FIORELLO AND TERRY W. HOLLOWAY
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RENDERED:
SEPTEMBER 9, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001627-ME
AND
NO. 2003-CA-001943-ME
LORRAINE CARRICO FIORELLO
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE KEVIN L. GARVEY, JUDGE
ACTION NO. 00-FC-005351
ANTHONY JOHN FIORELLO AND
TERRY W. HOLLOWAY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND MINTON, JUDGES; ROSENBLUM, SENIOR JUDGE. 1
GUIDUGLI, JUDGE:
Lorraine Carrico Fiorello (hereinafter
“Lorrie” 2 ) has appealed from several orders of the Jefferson
Family Court involving visitation, child support, contempt, and
the award of attorney fees and costs.
1
We affirm.
Senior Judge Paul W. Rosenblum, sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
2
“Lorrie” is also spelled “Lori” in the record and the parties’ briefs.
Lorrie filed a Petition for Dissolution of Marriage in
July 2000, which was followed in August by a Counterpetition by
her husband Anthony John Fiorello (hereinafter “Tony”).
Lorrie
and Tony were married on September 30, 1989, and separated in
late November 1999.
Two children were born of the marriage:
Skylar Anthony Fiorello, born March 17, 1993, and Claudia
Lorraine Fiorello, born April 16, 1996.
Following a contested
litigation, the family court entered a decree of dissolution on
October 31, 2001.
In the accompanying judgment, the family
court awarded sole custody of the minor children to Tony,
ordered Lorraine to pay child support in the amount of $309.96
per month, and awarded her liberal visitation.
The following
March, the parties entered into an Agreed Order, in which they
settled their disputes as to health insurance, debts and the
division of personal property.
Paragraph 4 of the Agreed Order,
entered March 12, 2002, provided:
Tony agrees to pay Lorrie forthwith the
sum of $23,500.00, said sum being referred
to on Page 26 of the aforesaid Findings, but
in the actual specific sum of $23,395.81.[ 3 ]
This payment of $23,500.00, however, is
being made in that amount by Tony to Lorrie
so as to enable her to purchase a home, for
which she now has entered into a contract to
purchase. She does, however, acknowledge
and agree that Tony only owes to her the
actual total sum of $20,000.00. This
$20,00.00 figure was arrived at after the
3
The family court awarded Lorrie the sum of $23,395.81 as her share of the
marital residence in the Findings of Fact, Conclusions of Law, Decree of
Dissolution and Judgment.
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parties reached a compromise and a
negotiated settlement pertaining to all of
the issues hereinabove, including a division
of all marital debts.
In return Lorrie agrees to sign a
promissory note payable to Tony in the
amount of $3,500.00, with interest at 6% per
annum, and said sum is to be repaid by
Lorrie to Tony at the rate of $100.00 per
month, with the first payment being due on
May 1, 2002, and a similar payment due on
the first of each and every succeeding month
thereafter until the principal sum of
$3,500.00, plus all accrued interest, is
paid in full. If Lorrie should fail to make
two $100.00 payments on time and for two
consecutive months in a row, then Tony has
the absolute right to [accelerate] the
entire remaining unpaid balance of said
note, principal plus accrued interest, which
will then automatically increase to 12% per
annum, at his sole discretion. Lorrie
understands and agrees that in the event
Tony chooses to exercise his right to
accelerate payment on said promissory note
as outlined above, that it will not be
necessary for him to file suit on said note,
or to seek the approval of any Court, or to
engage in further negotiation or legal
action whatsoever before exercising the
legal right to pursue full collection of
said note. Further she acknowledges and
agrees that immediately upon Tony’s decision
to accelerate said note the remaining unpaid
balance of same will, as indicated above,
then automatically accrue at 12% per annum
rather than 6% per annum.
Lorrie further acknowledges that a
closing date for the purchase of her new
home has not yet been set, but anticipates
same to be set within the next 30 days.
Lorrie agrees that after the closing for the
purchase of her new home has been completed,
and her deed thereto has been recorded, she
will then convey to Tony a second mortgage
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to be placed against her real property by
Tony as additional security in insure the
payment of his $3,500.00 loan, plus
interest, which he is now making to her as
outlined hereinabove.
Lorrie also agrees that if she were to
miss two timely consecutive monthly payments
under said note, as outlined hereinabove,
same would automatically constitute contempt
of this Court’s Order, and that it will not
be necessary for Tony to file any pleadings,
or to even obtain a hearing to obtain a
contempt finding against her by the Court.
Tony would thus be free to exercise his
legal rights against Lorrie, under this
event, forthwith.
In September 2002, Tony filed a motion to suspend
Lorrie’s visitation and telephone contact with the children, and
requested attorney fees.
He alleged that Lorrie’s involvement
with the children’s lives was having a profoundly negative
impact on their mental, emotional, psychological and physical
well-being.
The family court agreed, and on October 18, 2002,
entered an Opinion and Order suspending all visitation pending
further order, but allowing for telephonic contact with the
children once a day.
In December, the family court ordered
Lorrie to participate in a treatment needs assessment, and
allowed for supervised holiday visitation.
Social worker
Elizabeth Senn was ordered to provide a written report of the
treatment needs assessment prior to a review date scheduled for
April 25, 2003.
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In February 2003, Lorrie filed motions to suspend her
child support obligation, citing her job lay-off, to hold Tony
in contempt regarding the order providing for telephonic
contact, and to compel him to give her gifts to the children.
Following an April 18, 2003, hearing, 4 entered an Order on April
25, 2003, ruling on Lorrie’s two motions.
While the family
court recognized that there had been over a 15% change in the
amount of support that was due, creating a material change in
circumstance, the family court nevertheless determined that the
material change was not substantial and continuing, and
therefore denied Lorrie’s motion to modify child support.
The
family court also determined that Tony was not in contempt of
its prior order and rejected Lorrie’s motion to compel him to
deliver the presents.
Lorrie filed a motion to vacate that
order, and on June 2, 2003, the family court denied Lorrie’s
motion and ordered supervised, weekly, two-hour visitation with
the children. 5
On June 11, Lorrie filed a motion to vacate and
amend the June 2 order regarding visitation.
Tony objected to
the motion, and requested $1,500 in attorney fees.
On July 3,
the family court denied Lorrie’s motion to vacate and amend,
noting that it had previously made extensive and thorough
4
None of the hearings held in this case are included in the certified record
on appeal; we note that Lorrie did not file a designation of record in either
appeal, and that the court clerk properly only included the videotaped
recording of the 2001 trial.
5
Lorrie did not designate this order in her notice of appeal.
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findings, and ordered her to pay the requested $1,500 in
attorney fees.
In a parallel set of pleadings, Tony moved the family
court on May 29, 2003, to hold Lorrie in contempt for failing to
pay her financial obligations.
He demanded a common law
judgment in the amount of $4,914.61, plus interest, as well as
$500 in attorney fees.
At the time the motion was filed, Lorrie
owed $929.89 in support payments from February 7 through May 2,
2003; $290.64 in health insurance premiums; $629.02 in
unreimbursed medical expenses for 2001, 2002, and 2003; and had
missed the $100 payments for March, April, and May 2003 on the
$3,500 debt, for which a $2,600 balance remained.
Tony also
chose to accelerate the payment of the debt, demanding immediate
payment of the remaining balance to accrue at a 12% interest
rate.
On June 6, the family court scheduled a hearing for July
8 on Tony’s pending motions.
On July 16, the family court
entered an Opinion and Order, in which it held Lorrie in
contempt for disregarding its orders to pay child support,
health insurance, unreimbursed medical expenses, and the $3,500
debt.
The family court also awarded $500 in attorney fees to
Tony, and continued the matter to August 8, 2003, for sentencing
on the contempt finding.
Lorrie filed her first notice of
appeal on August 4, 2003, listing the orders entered April 25,
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June 6, July 3, and July 16, 2003, as the orders from which the
appeal was being taken.
Lorrie did not appear at the August 8 sentencing as
ordered; rather, her attorney appeared and moved for a
continuance due to her illness.
The family court granted the
motion, and sentencing was rescheduled for August 12 at 8:00
a.m.
On August 12, the family court noted that the back due
amounts had not been paid, nor had a supersedeas bond been filed
following the filing of the notice of appeal.
Consequently, the
family court sentenced Lorrie to 180 days in the Jefferson
County Jail on four counts of civil contempt, but allowed her
purge herself of contempt and be immediately released upon the
payment of $5,335.08 to Tony’s attorney.
was entered the same day.
An Order of Commitment
Also the same day, Lorrie purged
herself of contempt by paying the full amount due, and was
accordingly released from custody.
The following day, Terry W.
Holloway, Tony’s attorney, filed a motion for a common law
judgment for $2,000, representing the amount he was owed in
attorney fees pursuant to the July 3 and July 16, 2003, orders.
This motion was granted on August 19, 2003.
Lorrie filed her
second notice of appeal from two August 12, 2003, orders 6 as well
as from the August 19, 2003, order. 7
6
We assume these are the Sentencing Order and the Order of Commitment, as
both were entered on August 12, 2003.
7
This Court consolidated the appeals for all purposes on December 18, 2003.
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On appeal, Lorrie urges this Court to hold that the
family court committed error by restricting her visitation with
the children, by denying her motion to modify child support, by
awarding attorney fees and costs, and by jailing her for
contempt without having entered an order from which she could
seek an amendment or vacation.
Tony argues that the family
court ruled properly on those issues.
At the outset, we must address a jurisdictional issue
not raised by either party, but one that must be decided before
we may be permitted to review the issue of visitation.
First,
we note that Lorrie did not list the June 2, 2003, order
regarding visitation in either notice of appeal.
Rather, she
listed the June 6, 2003, order, which merely scheduled a hearing
date on Tony’s motion to hold Lorrie in contempt.
Pursuant to
CR 73.03(1), the notice of appeal “shall identify the judgment,
order or part thereof appealed from.”
However, we note that
Lorrie did include in her notice of appeal the July 3, 2003,
order denying her motion to vacate the June 2 order.
Under the
standard of substantial compliance announced in Ready v.
Jamison, 8 Lorrie’s designation of the order denying her motion to
vacate the final order regarding visitation is sufficient.
We shall now address the merits of Lorrie’s argument
regarding visitation.
8
Lorrie argues that the family court
705 S.W.2d 479 (Ky. 1986).
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restricted her visitation rights without finding that visitation
would seriously endanger the physical, mental, moral, or
emotional well-being of the children, but rather expressed only
historical concerns about her behavior.
Tony disagrees, and
asserts that the family court had a sufficient basis for its
ruling from evidence introduced at the October 16, 2002, and the
April 25, 2003, hearings.
KRS 403.320(3) provides that, “[t]he court may modify
an order granting or denying visitation rights whenever
modification would serve the best interests of the child; but
the court shall not restrict a parent’s visitation rights unless
it finds that the visitation would endanger seriously the
child’s physical, mental, moral, or emotional health.”
In the
June 2, 2003, order, the family court stated its findings as
follows:
The Court finds that Lori continues to
exhibit behaviors which are detrimental to
the children. For example, she has used
Christmas presents to manipulate the
children and she has continued telephone
conversations well past a point when the
children wanted to stop. Based on these
continued detrimental behaviors and the
unsuccessful therapy with Ms. Senn, the
Court finds that unsupervised visitation is
inappropriate at the present time. Based on
the information received from the children’s
therapist, Carol Lindner, the Court finds
that weekly supervised visitation would be
in the best interests of the children at the
present time.
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In the order denying Lorrie’s motion to vacate that order, the
family court stated:
This Court held a hearing and made specific
findings regarding [Lorrie’s] continued
pattern of conduct which endangers seriously
the children’s mental and emotional health.
. . . At such time as [Lorrie] is able to
successfully address the pattern of conduct
and manipulation which continues to endanger
seriously the children’s mental and
emotional health, this Court will be happy
to consider more reasonable visitation.
Both Lorrie and Tony refer to testimony from the hearings to
support their respective arguments.
However, the record does
not contain any videotaped hearings, other than of the 2001
trial.
We shall assume that the omitted portions of the record
support the findings of the family court, 9 and the family court
properly made the findings necessary to restrict Lorrie’s
visitation.
We perceive no error in the family court’s ruling.
Next, we shall examine Lorrie’s argument regarding
child support.
Lorrie asserts the trial court abused its
discretion by waiving the requirement that each party verify his
or her income and by going beyond the evidence to find that she
could undertake further efforts to earn a greater income.
Tony,
on the other hand, argues that the family court properly denied
Lorrie’s motion and was justified in determining that the
material change, which was caused by Lorrie’s being laid off,
9
Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).
-10-
was not substantial and continuing, and that her potential
income was higher.
Tony also points out that his income was
established by evidence in the record.
KRS 403.213(1) provides, in relevant part, that,
“[t]he provisions of any decree respecting child support may be
modified . . . only upon a showing of a material change in
circumstances that is substantial and continuing.”
In this
case, it is undisputed, and the family court found, that Lorrie
met the rebuttable presumption of a change in circumstances
because the reduction in her income resulted in a 15% or greater
change in her child support obligation. 10
However, it is the
“substantial and continuing” portion of the modification statute
that is at issue in the present case.
The record reflects that
Lorrie was laid off from her full-time employment shortly before
she moved for a modification of child support in February 2003.
She was collecting unemployment benefits and supplementing those
benefits by cleaning houses.
While it might have been somewhat
unfair of the family court to conclude that “with only a little
more effort” she would be able to make up a $60 per week
shortfall, we nevertheless agree with the conclusion that
Lorrie’s change in circumstances was not substantial and, in
particular, not continuing.
Her unemployment benefits should
expire, and Lorrie will undoubtedly acquire, if she has not
10
KRS 403.213(2).
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already, full-time employment, hopefully at a higher rate of
income than she was receiving at the time she filed her motion.
Obviously, should the income situation become substantial and
continuing, such as if she were forced to accept employment at a
substantially reduced income, Lorrie is always free to file
another motion to modify child support.
However, the family
court will also be able to determine whether Lorrie could be
considered voluntarily underemployed, or if potential income
should be applied to her.
As to the facts of this case, the
family court did not abuse its discretion or commit any error in
denying Lorrie’s motion to reduce her child support obligation.
The record contains substantial evidence to support a finding
that the material change in circumstance is not substantial and
continuing.
Lorrie next argues that the family court abused its
discretion when it awarded attorney fees and costs to Tony.
She
limits her argument to the lack of evidence Tony introduced,
which would have been subject to her cross-examination, meaning
that she was denied her right of confrontation.
Tony disputes
this argument, asserting that Lorrie failed to contest the
affidavits detailing the fees incurred and that the award did
not constitute an abuse of discretion.
KRS 403.220 provides:
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The court from time to time after
considering the financial resources of both
parties may order a party to pay a
reasonable amount for the cost to the other
party of maintaining or defending any
proceeding under this chapter and for
attorney’s fees, including sums for legal
services rendered and costs incurred prior
to the commencement of the proceeding or
after entry of judgment. The court may
order that the amount be paid directly to
the attorney, who may enforce the order in
his name.
In Wilhoit v. Wilhoit, the former Court of Appeals held that in
light of KRS 403.220, “an allocation of court costs and an award
of an attorney’s fee are entirely within the discretion of the
court.” 11
More recently, our Supreme Court held:
The amount of an award of attorney’s fees is
committed to the sound discretion of the
trial court with good reason. That court is
in the best position to observe conduct and
tactics which waste the court’s and
attorneys’ time and must be given wide
latitude to sanction or discourage such
conduct. 12
In the present matter, we note that the documentary
record does not reflect that the family court considered the
financial resources of both parties in awarding attorney fees.
However, we shall assume that the videotaped record, which is
not part of the record on appeal, supports the family’s court’s
ruling. 13
We cannot hold that the family court abused its
discretion in so awarding fees, based upon the lack of basis for
11
12
13
521 S.W.2d 512, 514 (Ky. 1975).
Gentry v. Gentry, 798 S.W.2d 928, 938 (Ky. 1990).
Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).
-13-
the motions filed and the reasonableness of the fees requested. 14
We perceive no abuse of discretion in the award of fees, or in
the entry of a common law judgment in favor of attorney
Holloway.
Lastly, we shall address Lorrie’s argument that the
family court erred when it jailed her for contempt without first
entering an order from which she could file a motion to vacate.
She relies upon KRS 426.030 to support her argument, and
requests that this Court reverse the order sentencing her to 180
days in jail.
Tony argues that KRS 426.030 does not apply to
this situation, and that in any event she was afforded the
opportunity at a hearing to defend against the contempt charges
while represented by counsel.
In Lewis v. Lewis, 15 cited by Tony in his brief, the
Supreme Court of Kentucky recognized “the inherent power of the
trial court to enforce its judgment by means of incarceration of
a person who is found in contempt of the lawful orders of the
court.
Such action is extraordinary and subject to certain
limitations.
The contempt power should not be used to require
the doing of an impossible thing.”
In other words, the trial
court must determine whether the contemnor has sufficient means
to pay the amount at issue in the proceeding.
14
“[T]he ability of
In the affidavit supporting the request for the $500 fee, attorney
Holloway’s billed fees amounted to $1,170.
15
875 S.W.2d 862, 864 (Ky. 1993).
-14-
a debtor to satisfy a judgment is a question of fact to be
determined by the trial judge.” 16
Furthermore, the Lewis court
held, “[t]he trial court must hold a hearing and allow the
contemnor to explain through counsel, or pro se, why he or she
should not be incarcerated for civil contempt of court.” 17
In the present matter, the family court held a
contempt hearing, during which, we presume, Lorrie was able to
present a defense against the charges, satisfying her due
process rights.
In the Sentencing Order, the family court made
a clear finding that Lorrie was able to pay and comply with its
orders, citing specifically to its April 25, 2003, order in
which it found that her change in circumstance was not
substantial and continuing.
The record contains substantial
evidence to support this finding of Lorrie’s ability to pay.
Furthermore, the family court properly conditioned Lorrie’s
incarceration upon the purging of the contempt.
In fact, Lorrie
purged herself of contempt, and in doing so, erased the 180-day
sentence.
Again, we perceive no abuse of discretion or error in
the family court’s Sentencing Order.
For the foregoing reasons, the orders of the Jefferson
Family Court are affirmed.
16
17
Id.
Id. at 865.
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ALL CONCUR.
BRIEF FOR APPELLANT:
J. Russell Lloyd
Louisville, KY
BRIEF FOR APPELLEE, ANTHONY
JOHN FIORELLO:
Terry W. Holloway
Louisville, KY
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