Thinh Nguyen v. Tue Tran & Commonwealth of Kentucky
| Docket Number | 2023-CA-0162-MR |
| Decision Date | 10 May 2024 |
| Parties | THINH NGUYEN APPELLANT v. TUE TRAN AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
BRIEF FOR APPELLANT: Robert Frederick Smith Prospect, Kentucky
BRIEF FOR APPELLEE: Sarah Sturgeon Almy Louisville, Kentucky
BEFORE: ACREE, COMBS, AND ECKERLE, JUDGES.
Appellant Thinh Nguyen, appeals the Jefferson Family Court's order holding him in contempt for his repeated failure to abide by the conditions of the marital settlement agreement between himself and Appellee, Tue Tran ("Christy"). He also challenges his subsequent incarceration resulting from his failure to purge himself of contempt. We affirm.
The history of this case is, to say the least, protracted. Thinh and Christy were married for approximately four years. Their twin sons were born in 2009. The parties, as well as their family members, often invested in residential real estate. Thinh is the owner of Nguyen's Investments, through which Thinh buys and sells homes and transfers title to properties to family members.
Thinh and Christy divorced in 2012. They entered a Marital Settlement Agreement on March 26, 2012, which was incorporated in the family court's April 10, 2012 Decree of Dissolution. Pursuant to the settlement agreement, Thinh and Christy each received three of the residential investment properties. The family court required Thinh to pay all debts associated with the properties Christy received, as well as debts associated with nine other properties deeded to other family members.
Included in these properties were two houses; one on Bluegrass Avenue and another on Guenevere Court, both in Louisville. The Bluegrass Avenue property had been deeded to Thinh's sister. At the time of Thinh and Christy's divorce, the Bluegrass Avenue property was subject to a mortgage with U.S. Bank with a balance of $68,677.90. The house was also subject to an approximate $50,000 home equity line of credit with 5/3 Bank. Both loans were in Christy's name. Subject to the parties' settlement agreement, Thinh was required to pay the minimum amounts due each month on both loans and to refinance both loans to remove Christy.
Thinh did not pay the monthly payments and did not refinance the loans. The family court ordered Thinh to sell several properties to satisfy these debts associated with the Bluegrass Avenue house. However, he failed to disclose that these other properties were subject to tax liens. The property was transferred to Christy so that she could sell it, but she was unable to do so due to disrepair. After foreclosure, the property sold at auction for $39,163.07, an amount insufficient to pay off either loan. U.S. Bank initiated a collection action against Christy for the $63,953.50 still owed, and 5/3 Bank initiated a collection action against her to collect $44,191.67 still owed.
The Guenevere Court property was deeded to Thinh's parents. Thinh transferred possession from his parents to Christy. Because of the condition of the property, Christy was required to pay $60,644 in repairs and to remedy a foreclosure. She paid this amount out of both her personal bank account and the account of Tran Han Investments, a company of which Christy is a fifty percent shareholder alongside her brother. The Guenevere house was also subject to a tax lien. Like the Bluegrass Avenue property, the Guenevere property was foreclosed upon and sold at auction. The sale proceeds covered the outstanding mortgages on the property, and no proceeds went to Christy.
The family court has on multiple occasions ordered Thinh to produce an accounting of his proceeds from the sale of various properties, but Thinh did not comply. According to Christy's testimony, Thinh regularly purchases property and obtains credit in the name of his businesses, family, and friends. She testified that Thinh acquired over thirty properties since their divorce, and that Thinh spends extravagantly. Thinh did not produce his bank records as the family court directed. Thinh, conversely, testified he only owns one home - on South Arbor Park Drive in Louisville - has no financial resources, is unemployed, and stays home to care for the two children he has with his current girlfriend.
Also pursuant to the parties' settlement agreement, Thinh is required to pay Christy $1,395 in monthly child support. The children live with Christy and rarely see Thinh. Thinh acknowledged he has not paid child support in several years and believed he and Christy had agreed for him to neither see the children nor pay child support. In 2019, the family court told Thinh the child support obligation was still effective, and since that time Thinh has paid less than required.
On February 10, 2022, the family court entered an order reflecting these facts and holding Thinh in contempt of court for his repeated, substantial, and willful failure to complete the requirements imposed upon him by the family court. The family court enabled Thinh to purge himself of contempt on the following conditions: pay Christy $60,644 within 60 days to reimburse her for the debts resulting from the Guenevere property; satisfy the deficiency judgments on the 5/3 Bank and U.S. Bank loans related to the Bluegrass property within 60 days; and pay Christy child support as required. If Thinh failed to meet these conditions, the family court would order the transfer of the South Arbor Park Drive property to Christy and would consider sentencing Thinh to 180 days' incarceration.
Christy moved the family court to hold Thinh in contempt for his failure to comply with the February 10, 2022 order. Christy also discovered that U.S. Bank and 5/3 Bank had both permanently written off the amounts Christy owed related to the Bluegrass property; because Thinh would be unable to pay the banks for these loans, Christy moved the family court to direct Thinh to pay her these amounts directly or to deed the South Arbor Park property to her. At an August 19, 2022 hearing, the family court sentenced Thinh to 180 days' incarceration, allowing his release if he deeded the South Arbor Park property to Christy. Thinh now appeals.
In this appeal, Thinh argues the family court abused its discretion in multiple ways. He argues it was an abuse of discretion for the family court to direct the transfer of the Arbor Park property to Christy should he fail to purge himself of contempt. He also argues the court abused its discretion in sentencing Thinh to 180 days' incarceration. Additionally, he raises a constitutional challenge to the family court's ruling, arguing his incarceration violated his right to due process.
Appellate courts review a trial court's contempt order for abuse of discretion, while reviewing factual findings for clear error. Crandell v. Cabinet for Health and Fam. Servs. ex rel. Dilke, 642 S.W.3d 686, 689 (Ky. 2022) (). A trial court abuses its discretion when its decision is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). A finding of fact is clearly erroneous if it is unsupported by substantial evidence. Goshorn v. Wilson, 372 S.W.3d 436, 439 (Ky. App. 2012) (quoting Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky. App. 2005)). Substantial evidence is "that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person." Bowling v. Nat. Res. &Env't Prot. Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994) (citing Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972)).
"The failure of either party, without good cause, to comply with a provision of a decree or temporary order or injunction, including a provision with respect to visitation or child support shall constitute contempt of court, and the court shall remedy the failure to comply." KRS[1] 403.240(2). "Good cause" in this context includes "mutual consent of the parties, reasonable belief by either party that there exists the possibility of endangerment to the physical, mental, moral, or emotional health of the child, or endangerment to the physical safety of either party, or extraordinary circumstances as determined by the court." KRS 403.240(3). "[T]he initial burden is on the party seeking sanctions to show by clear and convincing evidence that the alleged contemnor has violated a valid court order." Cabinet for Health and Fam. Servs. v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011) (citing Roper v. Roper, 47 S.W.2d 517 (Ky. 1932)).
However "[a]lthough 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.'" Crandell, 642 S.W.3d at 689 (quoting Lewis v. Lewis, 875 S.W.2d 862, 864 (Ky. 1993)). Impossibility includes financial inability. See Clay v. Winn, 434 S.W.2d 650, 652 (Ky. 1968). The alleged contemnor has the...
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