Caffee v. Waters

• Decision Date: 29 January 2021
• Docket Number: NO. 2020-CA-0102-MR,2020-CA-0102-MR
• Parties: BRANDI CAFFEE APPELLANT v. CHRISTOPHER WATERS AND L.W., A MINOR CHILD APPELLEES
• Court: Kentucky Court of Appeals

BRANDI CAFFEE APPELLANT v. CHRISTOPHER WATERS AND L.W., A MINOR CHILD APPELLEES

NO. 2020-CA-0102-MR

Commonwealth of Kentucky Court of Appeals

JANUARY 29, 2021

NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE HUGH SMITH HAYNIE, JUDGE

ACTION NO. 17-CI-502402

OPINION

AFFIRMING

** ** ** ** **

BEFORE: DIXON, KRAMER, AND LAMBERT, JUDGES.

KRAMER, JUDGE: Brandi Caffee ("Mother") appeals from an order of the Jefferson Circuit Court finding her in contempt of the parties' court-ordered visitation schedule and sentencing her to seven days' incarceration. We affirm.

Factual and Procedural Background

Christopher Waters ("Father") filed a petition to establish custody and parenting time of the parties' minor child ("Child") in August 2017. There was also a separate paternity action pending before the family court at the time. A visitation schedule had been put into place in that action.¹ One month later, Father filed his first motion to hold Mother in contempt, alleging that she refused to follow the court-ordered visitation schedule. Before the motion was heard by the family court, Father filed a supplemental affidavit indicating that Mother had refused more visitation since his motion was filed and that he had not seen Child in three months. He also filed a motion asking the family court to order the sheriff to accompany him to pick up Child for his visitation. Mother did not appear for the hearing on Father's motions. The family court ordered temporary custody of Child to Father and suspended Mother's parenting time until she appeared before the family court. The order warned Mother that failure to follow orders of the family court could result in up to six months in jail and/or a $500.00 fine.

The following month, the parties agreed to a parenting schedule, and Father's motion for contempt was remanded. The parties entered several agreed orders changing the parenting schedule throughout 2018, the last one being in December 2018. On this agreed order, the family court added, "THIS ORDER MUST BE FOLLOWED. CONTEMPT CARRIES UP TO SIX MONTHS IN JAIL." Just a few weeks later, Father filed a motion for contempt, again alleging that Mother refused to follow the schedule and denied him visitation with Child.The family court entered an order on April 9, 2019, which found, in relevant part, that Mother's behavior at that point did not rise to the level of contempt. In issuing other orders, the family court again reminded the parties of the possible penalties of incarceration and/or a fine for failure to follow court orders.

The parties were before the family court again in August 2019. At that time, the family court entered a civil restraining order preventing Mother from (1) any acts of abuse or threats against Father and (2) any contact or communication with Father. At that time, a week-on week-off parenting schedule was ordered by the family court. Less than one month later, Father filed another motion for contempt, alleging that Mother was once again refusing his visitation with Child. Father sought a penalty of 180 days' incarceration for Mother's failure to obey orders of the family court. Mother's attorney filed a response stating that her attorney of record was out of the country and that stand-in counsel was in St. Louis, Missouri, for a prior commitment. Mother did not appear at motion hour. The family court entered an order setting an emergency contempt hearing for the following day. The order also stated, "CONTEMPT CARRIES UP TO 6 [MONTHS] IN JAIL" and "[MOTHER] MUST FOLLOW [COURT] ORDERS."

Mother did not appear for the emergency contempt hearing the following day; however, she was represented by counsel. The family court stated that Father's motion would not normally be considered an emergency. However,the family court pointed out the numerous and ongoing court appearances by the parties, including Father's recent attempt to obtain an emergency protective order, and Mother's "never ending" allegations to the Cabinet for Health and Family Services ("CHFS") and subsequent investigations. Mother's counsel requested a continuation, but the family court denied her request and proceeded with the hearing.²

Father testified regarding his missed visitation with Child, and Mother's counsel cross-examined Father. Child's guardian ad litem ("GAL") also questioned Father. Mother's counsel did not call any witnesses on Mother's behalf. The family court initially ruled from the bench that it was finding Mother in civil contempt and ordered her to serve seven days' incarceration. However, if Mother complied with all scheduled visitation prior to the family court's next motion hour, the court would reconsider imposition of the sentence. Child's GAL and Father's counsel voiced their concerns and argued that if Mother did not face serious consequences, the parties would soon be before the court again. Father's counsel asked for a bench warrant and argued that Mother had been given too many chances. After a short recess, the family court issued a bench warrant andordered Mother to serve seven days' incarceration for contempt. An order was entered on October 3, 2019. Father was given temporary custody of Child.

Mother filed a motion to alter, amend, or vacate the family court's order, arguing, in part, that Mother's penalty was criminal contempt, not civil, and that Mother had not been afforded due process. The family court amended its order to find Mother in criminal contempt, beyond a reasonable doubt, but otherwise denied Mother's requested relief. This appeal followed.

Standard of Review

We review the family court's exercise of its contempt powers for abuse of discretion, Lewis v. Lewis, 875 S.W.2d 862, 864 (Ky. 1993). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004) (citation omitted). We further note that the family court has broad authority to enforce its orders, and contempt proceedings are part of that authority. Lewis, 875 S.W.2d at 864.³

Analysis

We first note that Father did not file an appellee brief, nor was an appellee brief filed by the GAL on behalf of Child. When a responsive brief has not been filed, the Court may: (i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if the appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case. CR⁴ 76.12(8)(c). "The decision as to how to proceed in imposing such penalties is a matter committed to our discretion." Cabinet for Health and Family Services v. Loving Care, Inc., 590 S.W.3d 824, 826 (Ky. App. 2019) (quoting Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007)). Given the nature of the underlying action and the fact that this matter may be decided based upon the law and the undisputed evidence of record, we exercise our discretion to not impose any penalties herein; however, we do caution that such leniency may not be extended in the future.

Mother's first two arguments focus on what she perceives as a lack of due process. Mother also argues that the family court erred in "its determination that the violation of the parenting time order was sufficiently culpable to besanctioned as contempt" or, in the alternative, that the court erred in finding there was sufficient proof of willful or intentional disobedience of its order.⁵

The distinctions between civil and criminal contempt have been thoroughly reviewed by this Court and the Kentucky Supreme Court.

Contempt is the willful disobedience toward, or open disrespect for, the rules or orders of a court. Contempt can be classified as civil or criminal. Civil contempt is when someone fails to follow a court order to do something. That something is usually for the benefit of a party litigant (e.g., pay child support, allow visitation, fix something by a certain date, move a driveway, clean up a spill, close a business by a certain hour, provide discovery, etc.). A judge may incarcerate someone for civil contempt in order to motivate the person to obey the court order, but the contemptuous one is entitled to be released upon compliance with the court's order. Criminal contempt, on the other hand, is when a person disobeys a court order out of disrespect for the rules or orders of court. A contemptuous person can be incarcerated for criminal contempt; but unlike civil contempt, the primary purpose of criminal contempt is to punish the contemptuous conduct.

Criminal contempt can be either direct or indirect. A direct contempt is committed in the presence of the court and is an affront to the dignity of the court. It may be punished summarily by the court, and requires no fact-finding function, as all the elements of the offense are matters within the personal knowledge of the court. In re Terry, 128 U.S. 289, 9 S. Ct. 77, 32 L. Ed.405 (1888). Indirect criminal contempt is committed outside the presence of the court and requires a hearing and the presentation of evidence to establish a violation of the court's order. It may be punished only in proceedings that satisfy due process. Cooke v. United States, 267 U.S. 517, 45 S. Ct. 390, 69 L. Ed. 767 (1925).

Gormley v. Judicial Conduct Commission, 332 S.W.3d 717, 725-26 (Ky. 2010) (internal quotation marks and footnotes omitted).

Mother's actions were indirect and, because the penalty imposed by the family court did not afford her the opportunity to comply with the family court's order, the sanction was criminal in nature. Accordingly, the proceedings must satisfy due process. Mother claims she was denied due process, in part, because the family court failed to appoint "someone else to prosecute the case." We disagree. The family court was well within its authority to engage in contempt proceedings.

That those accused of indirect or serious direct

...