Lewis v. Lewis

• Decision Date: 27 May 1993
• Docket Number: Nos. 91-SC-463-D,91-SC-641-TG,s. 91-SC-463-D
• Citation: 875 S.W.2d 862
• Court: United States State Supreme Court — District of Kentucky
• Parties: Charles E. LEWIS, Appellant, v. Pamela Jean LEWIS, Appellee. Tony PRICE, Appellant, v. Sandra PRICE, Appellee.

Page 862

875 S.W.2d 862

Charles E. LEWIS, Appellant, v. Pamela Jean LEWIS, Appellee.

Tony PRICE, Appellant, v. Sandra PRICE, Appellee.

Nos. 91-SC-463-DG, 91-SC-641-TG.

Supreme Court of Kentucky.

May 27, 1993.

Gary W. Adkins, William B. Mains, Dennis M. Stutsman, Morehead, for appellants.

Marsha M. McCartney, Flemingsburg, for appellee Pamela Jean Lewis.

Michael J. Curtis, Ashland, for appellee Sandra Price.

WINTERSHEIMER, Justice.

These consolidated appeals involve civil contempt of court for failure to pay accrued child support. Both Charles Lewis and Tony Price appeared before the trial court without counsel, and both were ordered incarcerated until they expunged the total debt of which they were adjudged to be in arrears.

The questions presented are whether adjudicated indigents facing incarceration for civil contempt for failure to pay child support are entitled to appointment of counsel; and whether it was error to order incarceration without a specific finding of fact concerning the obligor's present ability to pay.

On January 12, 1990, Pamela Lewis filed a motion in the Mason Circuit Court asking that Charles Lewis be ordered to show cause why he should not be held in contempt of court for failure to pay child support. On January 19, 1990, Charles Lewis appeared before the circuit court without counsel. The transcript of the hearing demonstrates that he was not afforded or advised of his right to counsel. He was not given an opportunity to explain whether he had paid any child support pursuant to the decree of dissolution or why he was behind in his payments. The trial court refused to look at his tax return. The court then ordered Lewis incarcerated in the county jail until he purged himself of contempt. Lewis obtained a stay of incarceration from the Court of Appeals. This Court granted discretionary review.

On June 26, 1991, Sandra Price filed a motion before the Boyd Circuit Court requesting that Tony Price be ordered to show cause why he should not be held in contempt for falling behind in his child support payments and property settlement agreement. On July 19, 1991, Tony Price appeared before the circuit court without counsel. This hearing was not recorded at the request of Sandra Price's counsel. The trial court entered an order determining that child support arrearage and property settlement amounts were owed. The court made no findings of fact, however, regarding Price's present ability to make any payment on these debts. He was sentenced to the county jail until he expunged himself of the total arrearage of $7,050, of which he was adjudged to be in contempt of court. The order of incarceration was stayed by the Court of Appeals. This Court granted transfer and consolidated the cases.

Neither Price nor Lewis preserved for appellate review the issues considered in this appeal. We review these questions because the legislature has determined that an indigent person who is facing incarceration for any amount of time is entitled to appointed counsel. K.R.S. 31.100(4); K.R.S. 31.110(1)(a). Failure to review could result in manifest injustice. Massie v. Persson, Ky.App., 729 S.W.2d 448 (1987). Pittsburg & Midway Coal Mining Company v. Rushing, Ky., 456 S.W.2d 816 (1969).

Lewis and Price argue that an indigent defendant has a right to appointed counsel in civil contempt proceedings under the Fourteenth Amendment to the United States Constitution when a trial court contemplates incarceration as a penalty. That issue need not be reached for we hold that the statutes of the Commonwealth require that an indigent person has a right to appointed counsel in civil contempt proceedings prior to the execution of an order of incarceration.

A "serious crime" is defined by K.R.S. 31.100(4)(c) as "[a]ny legal action which could result in the detainment of a defendant." Detain "means to have in custody or otherwise deprive of freedom of action." K.R.S. 31.100. "A needy person who is being detained by a law enforcement officer ... or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime is entitled" to appointed counsel. K.R.S. 31.110. Lewis and Price were denied their opportunity to receive state appointed and funded counsel.

K.R.S. 31.120 provides guidance for trial courts in determining whether a person qualifies for appointed counsel. If the trial court finds that a defendant fails to qualify as an indigent under K.R.S. 31.120, then the court shall so state its findings in the record. Failure to provide an opportunity to present an affidavit of indigency is reversible error.

Price and Lewis also argue that incarceration, in the absence of a showing of a present ability by the contemnor to purge himself of the contempt, violates the Kentucky and Federal constitutions. We decline to address appellants' federal argument, but it is clear that the trial courts' actions in the present cases constitute an abuse of discretion under Kentucky law.

The question of the ability of a debtor to satisfy a judgment is a question of fact to be determined by the trial judge. Clay v. Winn, Ky., 434 S.W.2d 650 (1968). The power of contempt cannot be used to compel the doing of an impossible act. Rudd v. Rudd, 184 Ky. 400, 214 S.W. 791 (1919). Clay, supra, held that a father delinquent in his child support payment, but financially unable to pay, had a valid defense to contempt. Clay further indicated that the trial judge should make a finding of fact on the question of the ability to pay and any further contempt proceedings should be limited to those amounts which the delinquent father is found to be able to pay. Spurlock v. Noe, Ky., 467 S.W.2d 320 (1971), held that a defendant in custody only because he was unable to pay a fine because of his indigence must be released. Spurlock, supra, indicated that such a ruling did not mean that the fine was extinguished or that the state could not compel payment but only that the indigent defendant must be given some reasonable alternative to satisfy the fine.

This Court recognizes the inherent power of the trial court to enforce its judgment by means of incarceration of a person who is found in contempt of the lawful orders of the court. Such action is extraordinary and subject to certain...