ROBERT B. KANE v. CANDIE KANE
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RENDERED:
AUGUST 23, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000047-MR
ROBERT B. KANE
APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 97-CI-00231
v.
CANDIE KANE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, MCANULTY AND TACKETT, JUDGES.
GUIDUGLI, JUDGE.
The appellant, Robert Kane (hereinafter
“Robert”), petitions this court for review of the December 4,
2001, Greenup Circuit Court order finding him in contempt for
failing to appear at a scheduled show cause hearing and adjudging
that he pay child support, fees and costs for which he was in
arrears.
Having considered the parties arguments and the record,
we affirm.
We will address two separate and distinct issues in
this appeal.
The first issue we will discuss is the underlying
basis for this appeal, civil contempt of court.
The order of the
Greenup Circuit court will be reviewed under an abuse of
discretion standard.
The second issue is of a frivolous nature.
Robert makes arguments that have been ruled on by this court
previously and are governed by the law of the case doctrine.
Each of these issues will be discussed in turn.
CONTEMPT OF COURT AND JUDGMENT
The Greenup Circuit Court set a hearing for November
30, 2001, to show cause why Robert should not be held in contempt
for his failure to pay court ordered child support, attorney fees
and costs.
In November of 1999 Robert had successfully
petitioned the trial court for a reduction in child support due
to a decrease in his income.
Subsequently, the Appellee, Candie
Kane (hereinafter “Candie”), moved to show cause why Robert had
failed to pay child support and further moved that Robert produce
his 2000 income tax returns for verification of his income.
A
hearing was set before the Domestic Relations Commissioner
(hereinafter “DRC”) on April 26, 2001. On Robert’s motion, the
hearing was continued until May 15, 2001.
On May 8, 2001, Robert
mailed a letter to the DRC, which was received and entered in the
record, requesting that the hearing be held via telephone
conference.
Robert wrote that he would be unable to travel from
Florida for the hearing and that he was unable to obtain legal
representation for the hearing. The DRC held the hearing as
scheduled without Robert being present or represented by counsel.
As a result of Robert’s failure to attend the hearing or provide
verifiable information as to his current income, even though it
had been requested, the DRC calculated Robert’s income based on
his educational level and previous earnings.
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The DRC
calculations indicated that Robert’s current child support
obligation should be set at $531.00 per month and the DRC applied
that amount retroactively to December 5, 2000.
On July 5, 2001, Robert filed exceptions to the DRC’s
report which were ultimately overruled by the trial court’s order
on July 12, 2001.
The trial court ordered Robert to provide
Candie’s counsel a copy of his 2000 federal income tax return and
all schedules within thirty (30) days.
Several other motions
were filed in the following days including a motion by Candie to
re-compute child support.
July 26, 2001.
This issue was set for a hearing on
Robert who had also filed motions to be heard on
July 26th, once again failed to appear before the court resulting
in a bench warrant for his arrest.
Finally, on July 31, 2001,
the trial court accepted the findings of fact and the conclusions
of law of the DRC as well as upholding the order for Robert to
produce his 2000 tax documentation.
The court further ordered
child support in the amount of $634 per month, retroactive to
December 5, 2000, attorney fees of $400 to Candie’s attorney, and
costs to the DRC and court reporter.
Subsequently, Robert failed to pay the ordered support
or fees, instead he continued to file motions seeking to alter,
amend or vacate the court’s decisions.
When Candie sought a
Motion for Rule to determine why Robert should not be held in
contempt, he responded that he did not owe her any child support.
In his September 17, 2001, response to Candie’s Motion for Rule,
Robert sets forth his position that the original January 1998
Dissolution Decree, as affirmed by this Court, incorporated by
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reference his exceptions to the 1997 DRC Recommendations.
As
such, he believes that the decree includes the exceptions which
he propounded and thus there should be a reduction in his child
support obligation for the conveyance of the Cattletsburg
property to Candie.
The trial court set a November 30, 2001,
hearing date to review all pending motions and issues.
Prior to
this hearing Robert filed another Motion to Vacate and two
motions to continue, which were all overruled.
On November 27,
2001, Robert filed a Motion for Show Cause again asserting that
the trial court’s orders entered on August 30 and September 26
were in error because they had failed to recognize the so called
“Exceptions Settlement Agreement” from the original Dissolution
Decree.
Finally, on the morning of the hearing, November 30,
2001, Robert faxed a letter to the court stating that he would
not be appearing at the hearing.
The trial court held the hearing and rendered its
findings on December 4, 2001, holding that Robert was in Contempt
of Court for failing to appear and failing to pay the previously
ordered child support, fees and costs.
Based on information
provided in Candie’s August 30, 2001, Motion for Show Cause the
trial court ordered that Robert pay $5,508 in child support
arrearage, $400 as previously ordered attorney fees and an
additional $300 in attorney fees for Candie having to bring this
motion.
The court also levied a six-month jail sentence on
Robert unless he purged himself of the present debt.
this order that Robert appeals.
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It is from
Our standard of review in this case is whether the
trial court’s findings of fact were clearly erroneous and whether
it abused its discretion in applying the law to the factual
findings.
(1988).
Cochran v. Cochran, Ky. App., 746 S.W.2d 569, 570
In evaluating the trial court’s action we are mindful
that the purpose of civil contempt is to coerce rather than
punish -- to compel obedience to and respect for an order of the
court.
The primary characteristic of civil contempt is the fact
that the contemnors "carry the keys of their prison in their own
pocket."
Blakeman v. Schneider, Ky., 864 S.W.2d 903 (1993).
This Court is also aware that the use of contempt proceedings as
a means to enforce child support payments has long been
judicially approved in this state.
Goodman v. Goodman, Ky. App.,
695 S.W.2d 865 (1985); Commonwealth v. O'Harrah, Ky., 262 S.W.2d
385 (1953).
In Cherry v. Cherry, Ky., 634 S.W.2d 423 (1982), our
Supreme Court set forth guidance for reviewing a trial court’s
decisions.
The test is not whether the reviewing court would
have decided it differently, but whether the findings of a trial
judge were clearly erroneous or that he abused his discretion.
Contempt is the willful disobedience of--or open disrespect for-the rules or orders of a court.
S.W.2d 805 (1996).
Commonwealth v. Burge, Ky., 947
In reviewing the trial court’s decision to
levy contempt this Court must therefore consider if the decision
was clearly erroneous or an abuse of discretion.
To do this we
note the standard set fourth in The Goodyear Tire & Rubber Co. v.
Thompson, Ky., 11 S.W.3d 575 (2000).
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If the legitimacy of the challenged action
presents only a question of law, the
reviewing court may of course determine the
law without necessary deference to the lower
court or hearing officer. Where the challenge
involves matters of fact, or application of
law to facts, however, an abuse of discretion
should be found only where the factual
underpinning for application of an
articulated legal rule is so wanting as to
equal, in reality, a distortion of the legal
rule.
...
Abuse of discretion is the proper standard of
review of a trial court's evidentiary
rulings.
...
The test for abuse of discretion is whether
the trial judge's decision was arbitrary,
unreasonable, unfair, or unsupported by sound
legal principles.
Id. at 575, 577. 581. (Emphasis added).
The contempt order in the instant case involves the
trial court’s application of the law to the facts.
The trial
court is in the best position to evaluate the parties’ conduct
and the particular facts of a case.
In this case the record
clearly indicates that the civil contempt charge levied against
Robert was done after eleven months of Robert’s refusal to pay
court ordered child support and failure to appear before the
court to show cause.
In this same time Robert continually filed
motions with the court seeking to alter, amend or vacate the
orders of the court based on arguments that have been ruled on by
the trial court and affirmed by this court.
It is abundantly
clear that the civil contempt was not levied arbitrarily, it was
reasonable, it was fair, and it was supported by sound legal
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principles.
The civil contempt and judgment in this case also
served its purpose as it coerced Robert into making payments in
order to avoid a jail sentence.
As such there was not an abuse
of discretion by the trial court.
FRIVOLOUS APPEAL
In bringing this appeal, Robert grounds his arguments
on the right to appeal the contempt charge.
However, as counsel
for the appellee points out in his brief, the arguments set forth
in Robert’s briefs are the same arguments that have previously
been addressed by this Court.
While the initial partial
settlement agreement and dissolution of marriage decree have
already been addressed on appeal in Kane v. Kane, (an unpublished
opinion rendered February 2, 2001, and finalized December 18,
2001, Case No. 1999-CA-002825-MR, discretionary review denied on
December 12, 2001, 2001-SC-0314-D), Robert continues to assert
those issues in this appeal and are thus precluded as res
judicata.
The history of this case was set out in the first
opinion of this Court.
Briefly, some eighteen months after the
Dissolution Decree was entered Robert began to file CR 60.02
motions before the trial court.
When the second motion was
overruled, he appealed to this Court.
His motions and appeal
were based on the unconscionability of the decree and a belief he
held that certain exceptions filed should have been incorporated
into the decree.
A review of the record from the first appeal to
the present reveals that Robert continues his attempt to litigate
issues that have been decided and are thus governed by the law of
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the case doctrine.
In his November 27, 2001, show cause motion,
Robert sets forth his position as such:
The parties exercised their 14th Amendment
rights and settled this case by a Settlement
Agreement that contains the contract terms
that obligated the Court and both parties per
the provisions of KRS 403.180(4)(a)(5) to
reduce child support from the property
conveyance in order to comply with the terms
of the parties December 17, 1997 Exceptions
Agreement, incorporated by reference in the
January 22 Decree. Therefore, the
Respondent’s (sic) in full compliance with
all said laws and court orders.
Contrary to Robert’s assertions, he was not in
compliance with all said laws and court orders. As noted above,
he continually refused to follow the Court’s order to pay child
support and to appear to show cause why he had failed to pay the
ordered child support, attorney’s fees, and costs.
On November
30, 2001, at the scheduled hearing, the appellant failed to
appear to show cause and as such, was held in contempt for
failing to pay the court ordered support.
In his current appeal,
Robert asserts that his November 27, 2001, pro se show cause
motion was erroneously overruled by the trial court.
Robert
continues to claim that his child support obligations have been
determined by the “precedential” findings of this Court
concerning the Dissolution Decree of January 22, 1997, and that
following that order he is due a reduction in child support.
Robert is correct in his assertion that this Court did rule on
this matter and affirmed the trial court, however, his
characterization in this appeal of our previous ruling is clearly
erroneous.
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The first time that this Court reviewed this divorce
action the Dissolution Decree of January 22, 1998, was affirmed.
In that decree, the trial court included the parties’ agreements
as to the terms of the dissolution.
Item 8 of the partial
settlement agreement sets forth that:
8. The Petitioner [Candie Kane] and
Respondent [Robert Kane] entered into a
Settlement Agreement which was dictated into
the record before the Domestic Relations
Commissioner and the Court has approved the
same and further, some issues were heard by
the Domestic Relations Commissioner and
Exceptions were filed by the Respondent and
the parties reached an agreement concerning
such Exceptions, all set forth hereinafter.
The hereinafter referred to by the trial court, and as
affirmed by this Court as conscionable, was the Decree Of
Dissolution Of Marriage.
As this Court noted in our first review
of this dissolution:
In the decree the trial court incorporated
the agreement of the parties previously
entered as well as the agreement reach [ed]
between the parties and counsel on the day of
the court hearing on the exceptions
previously filed. The decree as relevant to
this appeal sets forth that the parties would
share joint custody of the children that
Robert would pay $859.95 per month in child
support, and that Candie would be awarded the
Catlettsburg real estate with Robert
executing a quitclaim deed to the property.
In the current appeal, Robert fundamentally
mischaracterizes the above section of this Court’s opinion by
claiming that there was an “Exceptions Settlement Agreement”
reached on December 17, 1997.
Robert claims that this was
incorporated by reference into the trial court’s Dissolution
Decree and this Court’s opinion affirming.
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There is no basis in
the record or in this Court’s opinion meriting this claim.
The
trial court clearly set forth the final terms of the parties’
settlement agreement in the Dissolution Decree.
As noted above,
this Court expressly affirmed the Decree and in our opinion set
forth the basic terms of that agreement.
If Robert’s assertions,
that the “Exceptions Settlement Agreement” included only his
December 12, 1997 exceptions filed in response to the DRC’s
recommendations, are correct then his position could have merit.
However, those exceptions, propounded by Robert, who was
represented by counsel, were not included in the Dissolution
Decree.
Rather, it was the agreement which the parties reached
after the exceptions were filed that became part of the Decree
and are the law of the case.
This Court previously held that the decree of the
Greenup Circuit Court was conscionable and it was not in
derogation of state or federal law.
As such, the decree and
decision of the courts are the law of the case and must be
adhered to.
Robert chose not to follow the law of this case and
pay his court ordered child support.
As his November 27, 2001,
Show Cause Motion indicates Robert believes that his exceptions
to the DRC’s original recommendations should be binding, not the
orders and decisions of the trial court and this Court.
After years of litigation and a voluminous record in
which Robert continues to perpetuate the same claim, a claim that
was settled by the original decree in 1998, affirmed by this
Court and denied review by the Supreme Court of Kentucky, we are
again presented with his same arguments.
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Arguments which have no
basis in the record and which Robert continues to make in hopes
of bootstrapping his old arguments into a valid legal issue.
believe that Robert’s appeal is frivolous.
We
Kentucky Rule of
Civil Procedure (CR) 73.02(4) provides that:
If an appellate court determines that an
appeal or motion is frivolous, it may award
just damages and single or double costs to
the appellee or respondent. An appeal or
motion is frivolous if the court finds that
it is so totally lacking in merit that it
appears to have been taken in bad faith.
By appealing this contempt order, Robert has forced
Candie to defend herself before this Court and incur additional
legal expenses.
Robert’s appeal lacks merit and appears to have
been taken in bad faith.
Other than the mentioning that he is
bringing this appeal on the basis of the trial court’s contempt
order, Robert fails to set forth or present any issues that have
not been previously decided and are governed by the law of the
case.
We believe it is appropriate to impose sanctions pursuant
to CR 73.02.
This Court has often determined that the
appropriate sanction for a violation of CR 73.02 is the
imposition of attorneys’ fees against the party who filed the
frivolous appeal.
Angel v. Harlan County Bd. of Education, Ky.
App., 14 S.W.3d 559 (2000).
Therefore, we impose as sanctions against Robert the
legal costs incurred by Candie associated with this appeal
including the cost of preparing her brief and reasonable
attorney's fees. We direct the appellee to submit within fifteen
days following the rendition of this decision an affidavit
detailing the costs she incurred in defending against this
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appeal.
Robert will have ten days thereafter to respond before
we fix the amount of the sanctions.
Circuit Court is affirmed.
The order of the Greenup
This action shall remain on the
Court's active docket pending imposition of sanctions.
ALL CONCUR.
BRIEF FOR APPELLANT, PRO SE:
BRIEF FOR APPELLEE:
Robert B. Kane
Saint Petersburg, FL
Bruce W. MacDonald
Greenup, KY
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