Reed v. Commonwealth, No. 2008-CA-000220-MR (Ky. App. 7/10/2009)

• Decision Date: 10 July 2009
• Docket Number: No. 2008-CA-000220-MR,2008-CA-000220-MR
• Parties: Benjamin REED, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

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Benjamin REED, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2008-CA-000220-MR

Court of Appeals of Kentucky

July 10, 2009.

Appeal from Metcalfe Circuit Court, Honorable W. Mitchell Nance, Judge, Action No. 06-CI-00114.

Roy A. Durham, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Kentucky, Briefs for Appellant.

Jack Conway, Attorney General of Kentucky, Courtney J. Hightower, Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee.

Before: DIXON and KELLER, Judges; KNOPF,¹ Senior Judge.

Not to be Published

OPINION

DIXON, JUDGE:

Appellant, Benjamin Reed, appeals from an order of the Metcalfe Circuit Court finding him in contempt of court for failure to pay child support and sentencing him to 140 days incarceration.

In October 2005, the Court of Common Pleas in Wyandot County, Ohio ordered Appellant to pay monthly child support in the amount of $652.38 for his two minor children, E.R. and W.R. In August 2006, a UIFSA petition was filed in the Metcalfe Circuit Court requesting that the Metcalfe County Child Support Office enforce the child support order entered by the Ohio court. The trial court subsequently entered an order reflecting that Appellant had an arrearage of $7,305.00 as of September 30, 2006, and that his monthly obligation was $682.38.

On December 20, 2007, the Commonwealth filed a motion to hold Appellant in contempt for failure to pay child support. On January 3, 2008, the trial court held a brief hearing wherein it found that Appellant was indigent, necessitating that counsel be appointed to represent him. At a subsequent hearing on January 24, 2008, the Commonwealth introduced evidence that Appellant was $13,978.86 in arrears as of December 31, 2007. Although Appellant did not dispute the arrearage amount, he argued that he was unable to work due to a medical condition and was in the process of seeking disability and social security benefits. Appellant's offer to pay $1,000 at the hearing was rejected by the Commonwealth.

At the conclusion of the hearing, the trial court found Appellant in contempt of court and sentenced him to 140 days incarceration, but stated that he could purge himself by making a full payment of $13,978.86. Appellant thereafter appealed to this Court as a matter of right.

Appellant argues that the trial court violated the dictates of the Kentucky Supreme Court's opinion in Lewis v. Lewis, 875 S.W.2d 862 (Ky. 1993), by ordering a term of imprisonment for contempt absent a factual finding as to his ability to pay the amount owed. We must agree.

It is well-established that a trial court has the authority to utilize contempt proceedings to enforce its orders. However, in Lewis, the Court held:

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.

Lewis, 875 S.W.2d at 864. See also Commonwealth, ex rel. Bailey v. Bailey, 970 S.W.2d 818 (Ky. App. 1998).

The trial court herein specifically found Appellant to be indigent. Therefore, it was incumbent upon the court to make factual findings as to Appellant's financial circumstances and then limit the contempt proceedings to those amounts that he is found to be able to pay. Id. By ordering Appellant incarcerated with the ability to purge himself only by paying the full amount of the arrearage, the trial court essentially attempted "to compel the doing of an impossible act." Id.

We are cognizant of the trial...