Calvert v. Calvert
| Decision Date | 09 August 2019 |
| Docket Number | NO. 2018-CA-000744-MR,NO. 2018-CA-000813,NO. 2018-CA-000331-MR,NO. 2018-CA-000330-MR,NO. 2018-CA-001714-MR,2018-CA-000330-MR,2018-CA-000331-MR,2018-CA-000744-MR,2018-CA-000813,2018-CA-001714-MR |
| Parties | TROY ROBERT CALVERT APPELLANT v. TARA DAWN CALVERT APPELLEE TROY CALVERT APPELLANT v. TARA CALVERT APPELLEE AND TROY CALVERT APPELLANT v. TARA CALVERT APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM DAVIESS CIRCUIT COURT FAMILY DIVISION
After careful review, we vacate the January 29, 2018 order; affirm the May 2, 2018 order; and vacate, in part, the August 24, 2018 order, as amended by the October 16, 2018 order. We remand for further proceedings.
Troy and Tara Dawn Calvert ("Tara") were married on February 28, 2004 and had two minor children. They separated on April 9, 2017. The next day, Tara filed for an emergency protective order ("EPO"). One week later, she filed for divorce and sole custody of the minor children, then ages 10 and 13. The parties agreed on the terms of the EPO. Troy agreed to: (1) stay 500 feet away from Tara; (2) participate in the children's extracurricular activities with supervision from his father, Bob Calvert; and (3) obtain a complete mental health evaluation with an anger management component and follow recommendations. One month after entry of the EPO, Troy was found in contempt for violating the no-contact provision. The family court imposed a 30-day sanction, probated, provided no further violations occur. Troy filed a motion to alter, amend or vacate.
Meanwhile, the family court entered an order in the dissolution action, on June 8, 2017, granting Troy unsupervised visits with his children per the Daviess Circuit Court guidelines provided he: (1) attend weekly counseling/therapy sessions with a qualified mental health professional; (2) provide proof of compliance at least once a month; and (3) comply with all terms of the agreed EPO.
Less than a month later, Tara filed an emergency motion to suspend visitation and appoint a guardian ad litem ("GAL") alleging Troy harassed the children about divorce issues. Troy filed a motion for immediate relief and noticed it for July 17, 2017. He alleged Tara had unilaterally interfered with his visitation by not showing up at the meeting place on time and discussing visitation and custody issues with the children.
At the July 17, 2017 hearing, the family court heard: (1) Troy's motion to alter, amend, or vacate the family court's May 17, 2017 order; (2) Troy's motion to hold Tara in contempt for interfering with visitation; and (3) Tara's motion to appoint a GAL and to suspend Troy's visitation. To support his motion to alter, amend or vacate, Troy called Scott Morgan ("Scott") to testify, but the family court stopped the hearing after Scott revealed Troy threatened him to get him to come to court and testify. Troy withdrew his motion to alter, amend or vacate. However, the family court suspended Troy's visitation and contact with the children until further orders of the court stating it had "grave concerns" about Troy's mental stability. See Opinion and Order entered January 29, 2018. R. at 99. The family court appointed a GAL and friend of the court and ordered the children to meet with both before July 21, 2017.
On July 21, 2017, the family court entered an order in the domestic violence case ordering Troy to complete a full psychological evaluation with a provider other than the Department of Veterans' Affairs ("VA")5 and to sign releases. A visitation schedule was set with the children. On August 7, 2017, Troy filed a report dated August 1, 2017 from Kendra Keith Counseling ("Keith"), a mental health professional, who assessed Troy for post-traumatic stress disorder.6 Troy did not suffer from the disorder. The family court extended the EPO to August 30, 2017.
On August 30, 2017, the parties entered into a partial separation agreement and the family court entered a divorce decree. The family court also heard testimony on the EPO. Troy disputed Tara's claims, but family court found evidence supported domestic violence and granted a Domestic Violence Order (DVO) for one year, which replaced the provisions of the EPO.
Under the August 30, 2017 DVO, Troy was prohibited from (1) any contact or communication with Tara; and (2) being within 500 feet of Tara, including her residence. He was to have a full psychological evaluation from a provider other than the VA and continue seeing a therapist. He could attend church at Masonville Baptist Church at designated times, which required reducing the 500-foot restriction to 50 feet for said purpose. The DVO was in effect for one year and did not list the parties' two minor children as protected parties.
The family court also heard whether Troy should be held in contempt for violating the EPO based on Troy's threat to Scott Morgan to get him to testify. No prior notice was given that this would be a show cause hearing. The family court revoked a weekend of the 30 days previously probated and ordered Troy to pay a fine of $500. He had to spend a weekend in the Henderson County Detention Center and pay the fine within 60 days. R. at 99. However, the family court failed to issue a commitment order.
On September 27, 2017, GAL filed a motion for individual assessments of the children, and the family court entered an order that the children were to continue therapy at Sunrise Children's Services. Troy and Tara were ordered not to discuss counseling with the children nor interfere with it.
Following an incident on December 21, 2017 at Troy's home where his daughter took a video of him screaming at his mother in front of the children, resulting in a welfare check by the police and the police removing the children from his home following a two-hour standoff, the GAL filed a motion to suspend Troy's visitation. On December 22, 2017, the family court signed an emergency ex parte order suspending Troy's visitation pending a hearing on January 4, 2018. Troy's counsel withdrew on December 27, 2017.
On January 4, 2018, the family court held a hearing on the GAL's motion to suspend visitation and review the DVO, even though no notice was filed that the DVO had been violated. The DVO did not include the children. Troy was unrepresented at the hearing. The family court heard testimony from Troy and a deputy sheriff. It appointed a public advocate to represent Troy and scheduled another hearing for January 18, 2018. The family court told Troy the hearing would be a show cause hearing, and he had to serve his weekend in jail by then or face contempt. On January 9, 2018, Troy's counsel filed an ex parte motion to suspend execution of the sentence previously imposed.
On January 17, 2018, the family court interviewed the minor children in chambers. The GAL was present. Each child was interviewed separately. "Both children described [Troy's] fixation with [Tara], threats [Troy] made against [Tara's] life and that they believe [Troy] has broken into [Tara's] home." R. at 101.
On January 18, 2018, the family court called both the domestic violence case and the dissolution proceeding, stating they were both on for review. The family court told Troy he had the burden of proving by clear and convincing evidence some reason he had not complied with the court's order. Troy's counsel argued his attempts to comply and noted a previously filed verified notice detailing Troy's attempts to comply with the family court's order. R. at 87. Despite this, the family court found Troy had not completed a full psychological evaluation as previously ordered on July 21, 2017, August 30, 2017, and January 5, 2018. Troy testified he had no insurance and the VA was free. He was now unemployed.7 The VA referred Troy to Keith, who determined that Troy did not suffer from post-traumatic stress disorder. Additionally, his counsel explained that Troy tried to turn himself in to the Henderson County Detention Center the weekend before the hearing, but the jail would not take him because the family court had failed to issue a commitment order.
The family court orally revoked 90 days probation. The parties immediately pointed out it had only imposed 30 days, probated. The family court then changed Troy's sanction to a revocation of 30 days but added an additional 60 days for failing to comply with the court's orders. The family court entered a commitment order on January 18, 2018 for Troy to serve 90 days and he was taken into custody. The family court entered written findings of fact and conclusions of law on January 29, 2018.8 These appeals followed.
Troy contends the family court denied him due process in finding him guilty of indirect criminal contempt for failing to do an impossible act. After careful review, we vacate and remand. We are mindful that a trial court has broad authority when exercising its contempt powers; consequently, our review is limited to a determination of whether the court abused its discretion. Kentucky River Community Care, Inc., v. Stallard, 294 S.W.3d 29, 31 (Ky. App. 2008); see also 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." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d...
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