Cox v. Grimmett

• Decision Date: 08 May 2020
• Docket Number: NO. 2019-CA-000448-MR,2019-CA-000448-MR
• Parties: NICHOLAS COX APPELLANT v. JULIA GRIMMETT APPELLEE
• Court: Kentucky Court of Appeals

NICHOLAS COX APPELLANT v. JULIA GRIMMETT APPELLEE

NO. 2019-CA-000448-MR

Commonwealth of Kentucky Court of Appeals

MAY 8, 2020

NOT TO BE PUBLISHED

APPEAL FROM GREENUP CIRCUIT COURT

HONORABLE JEFFREY L. PRESTON, JUDGE

ACTION NO. 18-D-00068-001

OPINION

VACATING AND REMANDING

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BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.

CALDWELL, JUDGE: This is an appeal of a finding of contempt for alleged violation of a domestic violence order (DVO). We hold that the family court denied the Appellant due process of law, and vacate and remand for additional proceedings consistent with the opinions expressed herein.

FACTS AND PROCEDURE

Julia Grimmett sought entry of a DVO from the Greenup Family Court alleging that the Appellant, Nicholas Cox, was sending communications via social media to her minor daughter, T.G., and alleging that Cox had had an inappropriate sexual relationship with T.G., who was only fifteen years old.

As he was incarcerated in the state of Ohio, Cox did not appear at the hearing on the petition, and the DVO was granted ordering him not to communicate with T.G. or come near any place where she might be, specifically her home, her school, and the home of a relative where she spent much of her time. That order was entered on August 1, 2018.

On October 31, 2018, Grimmett sought a show cause order and a hearing was set for November 7, 2018. Grimmett alleged that Cox was still reaching out to her daughter from his jail cell in Ohio, and provided copies of letters written by Cox mailed to T.G. At the November hearing, Cox was appointed counsel and a hearing was scheduled for December 5, 2018. Counsel reported at the December hearing that despite efforts, no communication had been successfully established with Cox, and the matter was continued until January 30, 2019. At the January hearing, counsel informed the family court that Cox was soon to be tried on charges in Ohio, while Grimmett insisted Cox had accepted an offer to plead guilty with a term of five years to serve in prison. The family courtcontinued the matter until February, hoping some clarity concerning the Ohio criminal case might ensue.

At the hearing on February 13, 2019, Grimmett reported to the family court that Cox had received a 36-month sentence in Ohio. Despite questioning the efficacy of a DVO against a person incarcerated in another state, the family court found Mr. Cox in contempt and sentenced him to six months' imprisonment, in absentia and over appointed counsel's objection. Cox appealed as a matter of right.¹

STANDARD OF REVIEW

The Greenup Family Court made no findings sufficient to support its conclusion that contempt was the appropriate and correct sanction. The sufficiency of findings of fact are reviewed using the "clear error" standard, and a complete absence of findings, as here, constitutes clear error. See Commonwealth, Cabinet for Health & Family Servs. v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011). Further, the appellate courts review the determination of contempt for an abuse of discretion:

When a court exercises its contempt powers, it has nearly unlimited discretion. Smith v. City of Loyall, 702 S.W.2d 838, 839 (Ky. App. 1986). Consequently, we will not disturb a court's decision regarding contempt absent an abuse of its discretion. "The test for abuse of discretion is whether the trial [court's] decision wasarbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).

Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky. App. 2007).

Civil vs. Criminal Contempt

The Greenup Family Court held Cox in criminal contempt. When a court seeks to punish an individual before it for that person's failure to follow the dictates of the court's orders, such is criminal contempt and is of a subset known as "indirect" criminal contempt.

Contempt is the willful disobedience toward, or open disrespect for, the rules or orders of a court. "Contempts are either civil or criminal." Gordon v. Commonwealth, 141 Ky. 461, 463, 133 S.W. 206, 208 (1911). Civil contempt consists of the failure of one to do something under order of court, generally for the benefit of a party litigant. Examples are the willful failure to pay child support as ordered, or to testify as ordered. While one may be sentenced to jail for civil contempt, it is said that the contemptuous one carries the keys to the jail in his pocket, because he is entitled to immediate release upon his obedience to the court's order. Campbell v. Schroering, Ky. App., 763 S.W.2d 145, 148 (1988).

Criminal contempt is conduct "which amounts to an obstruction of justice, and which tends to bring the court into disrepute." Gordon, supra, 141 Ky. at 463, 133 S.W. at 208. "'It is not the fact of punishment but rather its character and purpose, that often serve to distinguish' civil from criminal contempt." Shillitani v. United States, 384 U.S. 364, 369, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622, 627 (1966) (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492,498, 55 L.Ed. 797, 806 (1911)). If the court's purpose is to punish, the sanction is criminal contempt.

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).

Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996) (emphasis added).

ANALYSIS

With the standard of review in mind, we conclude that holding a person in indirect criminal contempt, as did this family court, without ensuring due process was an abuse of discretion. There was no indication in the record that Cox was ever effectively made aware of the hearing...