Smothers v. Baptist Hosp. E., 2013–CA–000947–DG

• Decision Date: 12 June 2015
• Docket Number: NO. 2013–CA–000947–DG,2013–CA–000947–DG
• Citation: 468 S.W.3d 878
• Parties: Jerry Smothers, Appellant v. Baptist Hospital East, Appellee
• Court: Kentucky Court of Appeals

468 S.W.3d 878

Jerry Smothers, Appellant

v.Baptist Hospital East, Appellee

NO. 2013–CA–000947–DG

Court of Appeals of Kentucky.

RENDERED: JUNE 12, 2015; 10:00 A.M.

BRIEF FOR APPELLANT: Kyle A. Burden, Louisville, Kentucky

BRIEF FOR APPELLEE: Joseph R. Cox, Bowling Green, Kentucky

BEFORE: DIXON, KRAMER, AND NICKELL, JUDGES.

OPINION

NICKELL, JUDGE:

We granted discretionary review of Jerry Smothers' challenge of the Jefferson Circuit Court's order affirming the Jefferson District Court's entry of summary judgment in favor of Baptist Hospital East in a collection action against him stemming from unpaid medical bills incurred on behalf of Smothers' minor daughter. Following a careful review, we affirm.

Smothers and an unnamed woman are the biological parents of a minor child, Taylor. Smothers provided health insurance for the child. In October 2008 and June 2009, the mother twice took Taylor to Baptist Hospital East for medical treatment. Smothers denies knowledge of the visits or the treatment provided. The record is unclear as to what treatment Taylor received on these dates. Smothers' health insurance provider paid for a portion of the medical expenses but the remaining balance remained outstanding. On July 6, 2011, Baptist Hospital East filed an action against Smothers in Jefferson District Court to collect the unpaid medical bills.

On January 24, 2012, Baptist Hospital East moved the trial court for entry of summary judgment, arguing no genuine issue of material fact existed and it was entitled to judgment as a matter of law. No response to the motion appears in the record. However, on January 31, 2012, Smothers moved the trial court to declare KRS ¹ 405.020 —a statute mentioned in Baptist Hospital East's motion for summary judgment—unconstitutional, arguing it improperly shielded women from financial liability and thus constituted gender-based discrimination. In response, Baptist Hospital East argued numerous other avenues existed to establish Smothers' liability apart from application of the disputed statute, including the common law doctrine of necessaries.

On February 10, 2012, in a succinct order, the District Court entered summary judgment in favor of Baptist Hospital East and awarded damages in the amount of $597.19. Smothers subsequently moved to vacate the February 10 order, contending the trial court erred in failing to rule on the constitutionality of KRS 405.020 ; reiterating his previous arguments related to that statute; positing the trial court improperly imposed a financial burden upon him solely because he provided health insurance for Taylor; and arguing genuine issues of material fact existed as to whether any services or treatment were actually rendered. The motion was overruled and Smothers appealed, raising the same allegations in support of his position.

The Jefferson Circuit Court affirmed the District Court's decision on appeal. As had the district court before it, the circuit court declined to render a decision on Smothers' constitutional challenge, declaring such a determination unnecessary in reliance on the holding of Stephenson v. Woodward, 182 S.W.3d 162, 168 (Ky.2005) (constitutional adjudication to be avoided unless strictly necessary to a decision).

The circuit court concluded the common law doctrine of necessaries requires both parents to be jointly and severally liable for the support of their children, including payment for medical treatments. In final support of its decision, the circuit court went on to state:

Applying the above principles to the instant case, the fact that Baptist East looked to Smothers first to pay the medical bills in question was reasonable since he provided Taylor's health insurance. The record is silent on the marital status of Smothers and Taylor's mother. It is apparent, however, for whatever reason, that Smothers believes Taylor's mother should bear the cost of Taylor's expenses that exceeded that which his insurance company paid. This being so, he had the ability to implead Taylor's mother as a party under either CR ² 14.01 or CR 19.01 in an attempt to foist some or all of the excess liability on her. Smothers did not take this route, choosing instead to argue he had no further responsibility for his daughter's medical bills at all. Left with no other parent or guardian to pay the bills in question, the District Court did not err by placing full liability on Smothers, the parent before it who unquestionably bore the responsibility by operation of “natural law.” Rounds Brothers [v. McDaniel, 133 Ky. 669, 118 S.W. 956 (1909) ].

(Footnote added). We granted discretionary review to address Smothers' arguments related to the applicability and constitutionality of KRS 405.020, as well as those concerning his liability to pay for medical services for his biological child for which he had not consented nor explicitly accepted financial responsibility.

Error correction is not the purpose of discretionary review. Special reasons must exist such as novel questions of law and the interpretation of statutes, matters of general public interest and the administration of justice, or clearly erroneous judgments resulting in manifest injustice. 7 Kurt A. Philipps, David V. Kramer and David W. Burleigh, Kentucky Practice–Rules of Civil Procedure Annotated , Rule 76.20, cmt. 1 (5th ed. West Group 1995).

As an initial matter, we note Smothers' failure to comply with CR 76.12(4)(c)(v) which requires “a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.”

CR 76.12(4)(c) [ (v) ] in providing that an appellate brief's contents must contain at the beginning of each argument a reference to the record showing whether the issue was preserved for review and in what manner emphasizes the importance of the firmly established rule that the trial court should first be given the opportunity to rule on questions before they are available for appellate review. It is only to avert a manifest injustice that this court will entertain an argument not presented to the trial court. (citations omitted).

Elwell v. Stone, 799 S.W.2d 46, 48 (Ky.App.1990) (quoting Massie v. Persson, 729 S.W.2d 448, 452 (1987) (overruled on other grounds by Conner v. George W. Whitesides Co., 834 S.W.2d 652 (Ky.1992) ). Also in contravention of the provisions of CR 76.12(4)(c)(iv) and (v), Smothers' brief does not contain a single reference to the record supportive of his arguments. Failing to comply with these rules is an unnecessary risk the appellate advocate should not chance. Compliance with CR 76.12 is mandatory. See Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky.App.2010). Although noncompliance with CR 76.12 is not automatically fatal, we would be well within our discretion to strike the brief or dismiss the appeal for Smothers' failure to comply with the rules. While we have chosen not to impose such a harsh sanction, we caution counsel that such latitude may not be extended in the future.

Smothers first—and chiefly—argues KRS 405.020(1) violates the equal protection clause of the federal constitution because it holds fathers primarily liable for the nurture and education of children under the age of eighteen. KRS 405.020(1) provides:

The father and mother shall have the joint custody, nurture, and education of their children who are under the age of eighteen (18).... The father shall be primarily liable for the nurture and education of his children who are under the age of eighteen (18) and for any unmarried child over the age of eighteen (18) when the child is a full-time high school student, but not beyond completion of the school year during which the child reaches the age of nineteen (19) years.

Smothers alleges he provided the required notification of the constitutional challenge to KRS 405.020(1) to the Attorney General who has declined to participate in this litigation to defend the statute.³ The circuit court did not rule on the constitutionality of KRS 405.020(1) and instead based its decision on the common law doctrine of necessaries whereby a father must provide for the nurture and support of his children. Colovos' Adm'r v. Gouvas, 269 Ky. 752, 108 S.W.2d 820 (1937).

The circuit court correctly stated that ruling upon constitutional questions should be avoided when there is an alternative basis for a decision.

We also reiterate the long-observed principle that constitutional adjudication should be avoided unless it is strictly necessary for a decision in the case. In Spector Motor Service v. McLaughlin, the Supreme Court of the United States stated, “If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.” 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944). More recently, in Gomez v. U.S., the Court stated, “It is our settled policy to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.” 490 U.S. 858, 864, 109 S.Ct. 2237, 2241, 104 L.Ed.2d 923 (1989). One articulation of the rule directly applicable here was first stated by Justice Brandeis: “Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.” Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).

Stephenson, 182 S.W.3d at 168. We agree with the circuit court that the matter at bar can be decided absent a constitutional adjudication. Thus, in spite of Smothers' urging, the same must be avoided. Further, even were we inclined to address the question, our decision would constitute an impermissible advisory opinion, as neither of the courts below utilized the challenged portion of the statute as a basis for its decision, instead...