LICIA JOANN BARRETT v. DANIEL S. BARRETT
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RENDERED: APRIL 21, 2006; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000539-MR
LICIA JOANN BARRETT
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JOAN L. BYER, JUDGE
ACTION NO. 97-FC-001233
v.
DANIEL S. BARRETT
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, MINTON, AND TACKETT, JUDGES.
BARBER, JUDGE:
Appellant, Licia Barrett (Licia), appeals the
ruling of the Jefferson Family Court finding Licia in contempt
of court and requiring payment from Appellant of $4,117.00 as
reimbursement of payment of health insurance premiums and
attorney fees.
We affirm the trial court’s ruling.
Counsel for Appellee, Daniel S. Barrett (Daniel),
withdrew during the pendency of the appeal and Daniel failed to
file a brief before this Court, tendering an affidavit stating
that he believed the judge’s order was correct and that no
response is necessary.
Licia Barrett filed a motion asking that
this Court impose the penalties allowed by CR 76.12(8)(c) and
accept the statements of Appellant regarding facts and issues on
appeal as correct.
This Court issued an order permitting
counsel to withdraw, but informing Daniel that “failure to file
an appellee’s brief may result in the imposition of penalties
pursuant to CR 76.12(8).
The failure of a party on appeal to
file a brief gives this Court the option of imposing penalties.
Flag Drilling Co., Inc. v. Erco, Inc., 156 S.W.3d 762, 765
(Ky.App. 2005).
We decry the failure of Daniel to provide
argument in support of his position.
In the present case,
however, the record and the orders of the trial court support
the trial court’s rulings, and reversal would be improper.
The parties appeared before the family court on
Daniel’s request that Licia be ordered to reimburse him for
payments made for health insurance for the parties’ minor
children.
Licia asserts that the parties had an agreement that
Daniel would pay those costs.
No evidence in the record shows
which party was charged with payment of those costs.
The record
does show, however, that Licia failed to object to Daniel’s
statement that she was required to pay those costs.
An initial motion regarding the reimbursement of
health insurance premium payments was filed by Daniel on May 12,
2004.
That motion requested reimbursement and asked that the
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court find Licia in contempt for failing to make the payments.
That motion was served on Licia.
The court ordered the parties
to attend mediation in an order dated May 19, 2004.
was served on Licia.
That order
Licia did not make the payments ordered,
and the parties did not attend mediation.
A hearing was scheduled for August 25, 2004, before
the Jefferson Family Court.
Licia was not present.
Daniel appeared with counsel.
Counsel for Daniel informed the court
that the parties had resolved the issues and settled the
conflict between them.
Daniel’s attorney informed the court
that Licia did not wish to be present, and that she was “happy
the matter was settled.”
Counsel for Daniel also told the court
that Licia did not have an attorney, and was acting pro se.
The
court acknowledged that Licia’s absence was due to her being
misinformed by the judge’s secretary that the hearing was
cancelled.
That absence was therefore excusable.
The family court directed Daniel to prepare an order,
designating it as a “show cause” order, to place the case back
on the docket.
The court informed Daniel that he could make a
claim against Licia for back child support, as she had failed to
carry health insurance on the parties’ children.
Daniel
requested health insurance as required by the decree of
dissolution.
Licia contended that the parties had a different
oral agreement regarding the payment of health insurance
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premiums.
The record does not contain evidence supporting
Licia’s position.
The court indicated on August 25, 2004, that Daniel
could be reimbursed for the expense of the childrens’ insurance
coverage.
Licia argues that the discussion of reimbursement was
improper as she was not before the court at that time.
As no
final action was taken on that date, Licia cannot show that the
discussion of relevant facts improperly prejudiced her case.
Following the hearing, counsel for Daniel filed a
motion requesting $450 as payment for attorneys fees for motions
and proceedings up to the date of the hearing.
Without a
hearing, the court issued an order requiring Licia to pay all
past due medical expenses for one of the parties’ minor
children, to acquire a new pediatrician for one of the children,
to obtain health insurance for the children and provide proof of
insurance to Daniel, and to reimburse Daniel for money he paid
for the insurance for the children in the sum of $1,653.07.
The
court also directed Licia to pay the attorney fees in the sum of
$450.
The order was entered on October 1, 2004.
Licia objects
to entry of the order because she had no opportunity to appear
for a hearing or to present evidence before it was entered.
Licia also contends that the order was not sent to her at the
time it was filed and that she did not have timely notice of the
order.
She did not pay any of the sums ordered by the court.
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On October 25, 2004, the court set the matter for a
hearing, and mandated that the parties attend mediation.
On
November 15, 2004, Daniel moved to set aside the mediation order
and asked that the court demand Licia show cause why she has not
complied with the October 1, 2004 order.
A hearing was held on January 13, 2005.
appear at that hearing.
Licia did not
At that time, the court ordered Licia
to pay the original attorney fee of $450, and an additional
attorney fee of $450 pursuant to Daniel’s attorney’s affidavit.
The court also found Licia in contempt for failing to make the
payments ordered earlier.
The court set the case for a show
cause hearing.
Licia appeared at the January 31, 2005 show
cause hearing.
She claimed that she had not had notice of the
earlier hearing of January 13, 2005, and argued that she had
missed the hearing due to lack of notice.
The court passed the
matter in order to permit Licia to obtain counsel.
The court
did not rescind its order requiring payment of insurance premium
reimbursement or attorney fees.
On February 21, 2005, the parties again appeared
before the court.
The court required that Licia go to jail if
she did not pay the $4,117.00 awarded in the prior orders.
sum represented all past due health insurance premium
reimbursements, and all attorney fees claimed by Daniel’s
counsel.
Licia made payment the next day.
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That
Licia asserts that the trial court abused its
discretion by entering an order finding her in contempt, and in
forcing her to pay $450 twice to Daniel’s attorney.
Licia
asserts that this is palpable error, and should be reviewed on
appeal pursuant to CR 61.02.
Licia contends that the she was not present at the
original August hearing because the judge’s secretary gave her
erroneous information.
This claim is supported by the record.
For this reason, that absence was excusable.
Licia complains
that on that date Daniel and his counsel discussed the case with
the court, which eventually led to the orders requiring Licia to
pay the sums ordered.
improper.
Licia asserts that this was unfair and
As no ruling unsupported by documentary evidence in
the record was made on that date, we find no reversible error.
Licia argues that she was improperly ordered to
reimburse Daniel for health insurance premium payments he made
on behalf of their children.
The record does not contain any
evidence filed by Licia supporting her contention that she
should not have to reimburse Daniel for the insurance premiums
he paid.
The record does not contain any evidence showing that
Licia should not have been ordered to pay the minor child’s
medical expenses.
Licia has failed to show this Court why the
award of those sums was improper in any way.
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For that reason,
the order requiring payment of insurance premiums and medical
expenses is affirmed.
The October 1, 2004 order demanded Licia make
immediate reimbursement of the health insurance payments and the
$450 attorney fee.
Licia filed a motion for payment of back
child support with a hearing date of October 25, 2004.
That
motion asked that the court order Daniel to carry health and
dental insurance on the minor children at his own expense.
The
motion also requested that the court reverse the earlier order
and find that Licia did not have to pay Daniel’s attorney fee or
reimburse Daniel for health insurance premiums.
set for January 13, 2005 on all motions.
A hearing was
The record shows that
notice of the hearing was sent to all parties.
The court ordered the parties to attend mediation.
Daniel then filed a motion asking the court to set aside the
mediation order, and hold Licia in contempt for failing to make
the payments ordered.
Licia.
That motion does not show service on
The court entered a new mediation order requiring Licia
to bear the cost of mediation, but reserving the right to
reallocate costs.
That order demanded that mediation be
completed before the January hearing.
The order was dated
November 15, 2004, and was served on all parties.
The court held the hearing on January 13, 2005.
Licia
was not present at the hearing which dealt with her motion to
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amend or vacate the court’s order and Daniel’s motion regarding
Licia’s non-compliance with the court’s October 1, 2004 order.
The court entered an order finding Licia liable for the expenses
claimed by Daniel.
another order.
On January 18, 2005, the court entered
In that Order, the court stated:
The Petitioner Licia Barrett has willfully and
intentionally disregarded this Court’s Order of
October 1, 2004. The Petitioner currently owes
the sum of $4,117.00 to the Respondent, Daniel S.
Barrett, for those expenses as set out in the
Order of October 1, 2004 and the Order of January
13, 2005.
The court therefore found Licia in contempt and ordered her to
appear at a January 31, 2005 hearing.
Licia argues that Daniel’s counsel was awarded a
“double payment” of $450.
She contends that the court ordered
her to pay this sum twice, when it should only have ordered one
payment of $450.
The court’s order of January 13, 2005 holds,
in relevant part:
1. That Petitioner [Licia] shall
immediately comply with this Court’s Order
entered October 1, 2004, making full payment
of reimbursements to the Respondent in the
total amount of $2,103.07 . . .
2. Petitioner shall immediately reimburse
Respondent for further expenses in
providing health insurance for the parties’
minor children since the entry of the Order
of October 1, 2004, in the total amount of
$151.80;
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3. The Petitioner shall immediately
reimburse the Respondent in the amount of
$657.80, which is the contracted cost of
health insurance for the parties’ minor
children for the year 2005;
. . .
5. That the Petitioner shall immediately
pay Respondent’s attorney’s fees incurred
due to the Respondent’s attempts to enforce
this court’s Order of October 1, 2004 in the
total amount of $802.50 as well as the
attorney fee previously awarded in the
amount of $450.00.
That order shows that it was served on all parties.
The affidavit filed by Daniel’s attorney in September,
2004, listed charges for legal fees incurred from May 7, 2004,
through September 22, 2004.
The claimed fee was $450.00.
On
January 7, 2005, counsel for Daniel filed another affidavit
requesting attorneys fees in the sum of $802.50.
The affidavit
shows that this fee reflects services from October 4, 2004
through January 13, 2005.
Licia has failed to show that counsel for Daniel did
not provide such services as outlined in the affidavits.
The
trial court has discretion to award attorney fees where the
circumstances so merit.
(Ky.App. 2003).
Ford v. Blue, 106 S.W.3d 470,473
The fees were necessitated by Licia’s failure
to comply with the trial court’s orders regarding payment of
insurance premiums, and Licia’s failure to show up for at least
one motion hour despite having received notice requiring such
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appearance.
Licia has failed to show any abuse of discretion in
the trial court’s award of the attorney fee payments.
such circumstances, this Court must affirm the award.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard J. Head
Louisville, Kentucky
No brief for Appellee.
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