Crandell v. Cabinet for Health and Family Services ex rel. Dilke

• Decision Date: 24 March 2022
• Docket Number: 2021-SC-0103-DG
• Citation: 642 S.W.3d 686
• Parties: Gregory CRANDELL, Appellant v. Commonwealth of Kentucky, CABINET FOR HEALTH AND FAMILY SERVICES EX REL. Mary J. DILKE, Appellee
• Court: United States State Supreme Court — District of Kentucky

642 S.W.3d 686

Gregory CRANDELL, Appellant

v.Commonwealth of Kentucky, CABINET FOR HEALTH AND FAMILY SERVICES EX REL. Mary J. DILKE, Appellee

2021-SC-0103-DG

Supreme Court of Kentucky.

MARCH 24, 2022

COUNSEL FOR APPELLANT: Karen Shuff Mauer, Department of Public Advocacy.

COUNSEL FOR APPELLEE: Daniel J. Cameron, Attorney General of Kentucky, Jeffrey Lane England, Assistant County Attorney.

OPINION OF THE COURT BY JUSTICE KELLER

Gregory Crandell appeals from a Court of Appeals decision affirming a Bullitt Family Court order of contempt. We affirm the factual findings of the trial court, as well as its finding of contempt. However, because the order seeks to punish future contempt rather than present contempt, the trial court abused its discretion. For the reasons stated below, we affirm in part, vacate in part, and remand the order of the family court.

I. BACKGROUND

In July of 1997, the Superior Court in Contra Costa County, California ordered Gregory Crandell to pay $391 per month in child support for two minor children. The term of the order was June of 1997 to December of 2016. As of September 8, 2017, Crandell still owed $115,760.20 in arrearages on his child support. Crandell failed to appear following an initial summons regarding registering the California order in Kentucky. Upon his failure to appear, Kentucky registered California's order on September 8, 2017 by default judgment. Crandell failed to appear after allegedly being served a summons, and failed again to appear at subsequent hearings in May and July of 2018 regarding the California child support order and contempt. As a result, a bench warrant was issued for his arrest. Crandell was subsequently arrested on March 21, 2019. While in jail, Crandell moved for work release. He represented to the court that although he was disabled, he believed he could get a job.

On March 26, 2019, the family court held an initial hearing. The court appointed a public defender to represent Crandell. Although Crandell was found indigent, he was also ordered to pay a $100 public defender fee before the next hearing. Crandell remained in custody and failed to pay the fee.

Crandell's contempt hearing was eventually held on July 16, 2019, at which he was still in custody. At that hearing, Crandell alleged that he could not pay the arrearage due to his physical disability. He offered as proof the testimony of two workers affiliated with the housing program in which he lived. Neither of these witnesses testified about his disability specifically. Instead, they testified regarding his qualification for the housing program they managed. Crandell's housing was funded by a program under the Department of Housing and Urban Development. The housing program was restricted to individuals who have been homeless, have a professionally-verified disability of long-lasting duration, and have sufficiently low income. Both witnesses confirmed that Crandell qualified for this housing.

In addition to testimony asserting that he qualified for disability housing, the trial court observed that Crandell could not walk without his cane and could not stand without bearing all his weight on his walking aid. At one hearing, Crandell had to be given a chair due to his inability to support himself standing up. Crandell walked with a pronounced limp. His visible disability appeared unaltered between hearings, although neither his specific diagnosis nor accommodation needs were ever discussed.

Testimony at his contempt hearing also revealed that Crandell had no record of having a job in Kentucky since at least 2016. Crandell had been living off the Kentucky Transitional Assistance Program and disability benefits, although what those benefits were was never discussed. He used these public benefits in part to support his two other minor children—children not parties to the California order—who lived with him.

The Bullitt County Family Court ultimately held Crandell in contempt, found him to be $126,691.25 in arrears (after applying interest), and reduced his monthly payment to $251. The family court also noted that Crandell still owed a $100 public defender fee. Finally, the family court ordered that if Crandell failed to pay the stated amount by the 11th of each month, he must serve 20 days in the Bullitt County Detention Center. Crandell appealed the family court's finding of contempt, its ordered remedy,¹ and the imposition of a public defender fee.

The Court of Appeals reversed the family court's imposition of a public defender fee.² The Court of Appeals then affirmed the family court's order of contempt but declined to review the remedy due to lack of preservation. Crandell moved for discretionary review, and this Court granted his motion.

To this Court, Crandell argues that the finding of contempt was in error, and the remedy for contempt imposed by the family court was an illegal sanction. Crandell further argues that the issue is preserved, in spite of the Court of Appeals’ holding. On appeal to our Court, the Commonwealth has failed to supply a brief. Absent their brief, this Court is free to "accept [Crandell's] statement of the facts and issues as correct," including the issue of preservation. CR 76.12(8)(c). Furthermore, to fail to rule on the remedy imposed would "result in manifest injustice." Lewis v. Lewis , 875 S.W.2d 862, 863 (Ky. 1993) (citations omitted). Accordingly, we review the order of contempt and its imposed remedy.

II. ANALYSIS

"A trial court ... has broad authority to enforce its orders, and contempt proceedings are part of that authority." Commonwealth, Cabinet for Health & Fam. Servs. v. Ivy , 353 S.W.3d 324, 332 (Ky. 2011) (citing Lewis , 875 S.W.2d at 864 ). We review contempt orders "for abuse of discretion, but we apply the clear error standard to the underlying findings of fact." Id. (citations omitted). Although the trial court is the finder of fact as to whether an alleged contemnor is able to perform on the underlying judgment, "[t]he power of contempt cannot be used to compel the doing of an impossible act." Clay v. Winn , 434 S.W.2d 650, 652 (Ky. 1968) ; Lewis , 875 S.W.2d at 864 (citing Rudd v. Rudd , 184 Ky. 400, 214 S.W. 791, 796 (1919) ).

Because the contempt order in the case at bar is civil, rather than criminal, the burden of proof initially lies on the party seeking sanctions to make a prima facie case. Ivy , 353 S.W.3d at 332 ; see also Roper v. Roper , 242 Ky. 658, 47 S.W.2d 517, 519 (1932). If the movant shows by clear and convincing evidence that the alleged contemnor has not met their obligation, the burden shifts to the alleged contemnor. Ivy , 353 S.W.3d at 332. The alleged contemnor must then show "clearly and convincingly, that he or she was unable to comply with the court's order or was, for some other reason, justified in not complying." Id. (citation omitted). After proof is offered by both the movant and the alleged contemnor, the court must weigh the totality of evidence. Id.

Based on this evidence, in the child support context, the court must make specific findings of fact concerning the obligor's present ability to pay. Lewis , 875 S.W.2d at 865. These findings are required when ordering incarceration as a remedy for a finding of contempt. Id. No matter the family court's finding on a present ability to pay, it must not threaten alleged contemnors with "coercive remed[ies]" for future conduct. Ivy , 353 S.W.3d at 335. Thus, future contempt may not be the subject of the enforcement mechanism within a contempt order. Id. Similarly, a family court may not order the impossible to remedy contempt. Lewis , 875 S.W.2d at 864.

In Lewis , an indigent father was found in contempt for failing to comply with a child support order. Id. at 863. At his contempt hearing, he was not given the opportunity to explain his inability to pay. Id. The family court ordered incarceration until he purged himself of contempt "without a specific finding of fact concerning the obligor's present ability to pay." Id. This Court held that the family court erred by ordering incarceration as a remedy without making a finding regarding the father's present ability to pay. Id. at 865. We noted that while an unsatisfied child support obligation is not "discharged by mere indigence," the trial court nonetheless erred by failing to note or consider facts in support of indigency prohibiting payment. Id.

Almost twenty years later, this Court heard another child support contempt case in Ivy . 353 S.W.3d 324. There, as in the case at bar, a parent asserted that she was unable to perform her child support duties due to disability. Id. at 326. To meet her burden of proof, Ivy presented evidence of her Social Security benefits, which, after payment of bills and rent, provided her with only $25 to $50 each month. Id. at 333. She received her SSI benefits due to a psychological disability. Id. In spite of this, the family court ordered Ivy to pay $5 per month towards her arrearage and reduced her ongoing support obligation to $60 per month. Id. at 327. Although the court did make a finding that Ivy was disabled, it also found Ivy "to be an able-bodied person capable of providing financial support to her child." Id. It further ordered that "any future failure to pay the new amount [of $60] plus $5 per month toward the arrears would result in her being placed in jail." Id. at 326.

On review, this Court held that "Ivy's inability to pay her child support precluded holding her in contempt for failing to do so." Id. at 332. Regarding the family court's factually deficient order, the Court stated,

The family court is not free, of course, simply to disregard the Social Security Administration's determinations that an SSI recipient is disabled and needs the full amount of his or her award for subsistence. If earning capacity is to be attributed to the recipient, or if child support is to be demanded from the SSI benefit itself, there must be evidence clearly establishing the recipient's ability to work or

...