Durham v. Commonwealth ex rel. Cabinet for Health & Family Servs.

• Decision Date: 01 July 2022
• Docket Number: 2019-CA-1925-MR
• Parties: JAMES E. DURHAM APPELLANT v. COMMONWEALTH OF KENTUCKY EX REL. CABINET FOR HEALTH AND FAMILY SERVICES; AND JODI M. BROWN APPELLEES
• Court: Kentucky Court of Appeals

JAMES E. DURHAM APPELLANT
v.
COMMONWEALTH OF KENTUCKY EX REL. CABINET FOR HEALTH AND FAMILY SERVICES; AND JODI M. BROWN APPELLEES

No. 2019-CA-1925-MR

Court of Appeals of Kentucky

July 1, 2022

NOT TO BE PUBLISHED

ON REMAND FROM SUPREME COURT OF KENTUCKY NO. 2022-SC-0033-D

APPEAL FROM BULLITT CIRCUIT COURT FAMILY COURT DIVISION HONORABLE MONICA K. MEREDITH, JUDGE ACTION NO. 92-J-00083

BRIEFS FOR APPELLANT: Karen Shuff Mauer Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky

BRIEF FOR COMMONWEALTH OF KENTUCKY EX REL. CABINET FOR HEALTH AND FAMILY SERVICES: Jeffrey L. England Special Assistant Attorney General Bullitt County Attorney's Office Shepherdsville, Kentucky

NO BRIEF FOR JODI M. BROWN

BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.

OPINION

TAYLOR, JUDGE

This matter is before the Court of Appeals on remand from the Kentucky Supreme Court by Opinion and Order entered June 8, 2022, in

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Appeal No. 2022-SC-0033-D. The Supreme Court vacated and remanded this Court's November 19, 2021, Opinion for further consideration in light of Crandell v. Cabinet for Health and Family Services ex rel. Dilke, 642 S.W.3d 686 (Ky. 2022).

Having reviewed Crandell, we believe the instant appeal is distinguishable from Crandell. In Crandell, the family court made a finding that Crandell had the present ability to pay and then imposed punishment for possible future contempt by Crandell. In the case sub judice, the family court, likewise, found that Durham had the present ability to pay, but there was no attempt to punish him for future contemptuous conduct. Thus, upon reconsideration, we affirm the family court's order holding Durham in contempt for failure to pay his child support arrearage when he had the present ability to do so.^[1]

The underlying action was commenced on March 11, 1992, in the Bullitt District Court (Action No. 92-J-00083) upon the filing of a paternity complaint by the Commonwealth of Kentucky ex rel. Cabinet for Human Resources (collectively referred to as the Commonwealth) and Jodi M. Brown.^[2]

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The Commonwealth sought to establish paternity of Brown's daughter, who was born on August 16, 1991.^[3] In the petition, it was alleged that Brown was receiving support from the Commonwealth under Aid to Families with Dependent Children, as well as other government benefits, and the Commonwealth wanted contribution from the child's father. Brown identified Durham as the father, and Durham filed an acknowledgement of paternity. By Judgment and Order entered August 10, 1992, Durham was adjudicated the father and ordered to pay child support of $40 per week.

Between 1992 and 2005, the matter was brought before the lower court on several occasions for issues related to nonpayment of child support. By order entered June 1, 2004, Durham was determined to be in contempt for failure to pay child support and was sentenced to 179-days incarceration conditionally discharged for two years. Child support of $416.87 per month was ordered to be paid plus an additional $50 per month to be applied toward his arrearage of $9,087.79.^[4] The record is silent from late 2005 until early 2019. Presumably, Durham made substantial child support payments during this period of time. His unrefuted testimony, based on information received from the Bullitt County

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Attorney's Office, indicates he had paid over $62,800 of child support prior to the 2019 hearing. However, he remained obligated to pay any arrearage at the rate of $50 per month.

On April 16, 2019, the Commonwealth filed a motion to hold Durham in contempt of court for failure to pay his current child support arrearage, in the amount of $2,793.74.^[5] An evidentiary hearing was conducted, and by Order entered on November 12, 2019, the family court stated:

At the hearing on November 5, 2019[,] the [Commonwealth] produced evidence that the current arrearage balance is $2,753.74. [Durham] has reduced the balance by less than $50.00 since the [Commonwealth's] Motion was filed in April 2019. [Durham] testified that he works as a drywaller and supports a gambling habit. Counsel for [Durham] argued that [he] has "substantially complied" with his child support obligation and the Orders of the Court and thus should not be held in contempt

[Durham] has offered no reasonable explanation as to why he was unable to comply with the agreement he had previously entered and requested, by his agreement, for the Court to Order. In fact, the testimony of [Durham] is that he is capable of gainful employment and has income sufficient to provide for him to participate in the recreational activity of gambling. The Court being sufficiently advised;

IT IS HEREBY ORDERED that [Durham] is found to be in contempt of Court. For his contemptuous

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conduct the Court imposes a sanction of one hundred seventy-nine (179)

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