Norma Terry v. Mark Terry ( 2022 )

RENDERED: SEPTEMBER 30, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0938-MR
NORMA TERRY APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
v. HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 18-CI-00421
MARK TERRY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, GOODWINE, AND JONES, JUDGES.
JONES, JUDGE: Norma Terry appeals from an order of the Greenup Family
Court finding her in contempt for failure to sign a quitclaim deed for real property
awarded to her former spouse, Mark Terry, in the parties’ dissolution of marriage.
After careful review, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Norma and Mark were married in 2000. Prior to the marriage, the
parties executed a prenuptial agreement containing a clause that stated its
construction and enforcement were to be governed in accordance with the laws of
West Virginia. The prenuptial agreement also contained a clause that stated, in
relevant part,
in the event that Mark and Norma shall acquire any
real property during their contemplated marriage,
this property shall be the sole property of Mark free
and clear from any and all claims of Norma even if
the same should be titled in both parties[’] names. It
is the intention of this Agreement that Mark and
Norma each acknowledge that any real property
acquired during the marriage shall be the sole and
separate property of Mark regardless of how the
same is titled.
(Emphasis original.)
Mark filed for divorce in 2018. During the dissolution proceedings,
the parties argued over whether Kentucky or West Virginia law should govern the
prenuptial agreement and the issue was extensively briefed. On January 28, 2019,
the family court entered an order concluding the law of West Virginia “shall
govern and enforces the ability and interpretation of the prenuptial agreement.”
The record before us indicates a hearing was held on March 26, 2019.
Mark characterizes this as a “final hearing” both in the record and in his brief to
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this Court. However, neither party filed a designation of record pursuant to CR1
75.01. As a result, none of the hearings that took place in the family court are
contained in the record before us. However, a hand-written order contained in the
record, entered by the family court on March 26, 2019, indicates the parties once
again argued with one another over the validity of the prenuptial agreement.
Following the hearing, the family court provided the parties with twenty days to
file post-hearing memoranda.
On June 18, 2019, Norma filed a motion to “set aside real property as
a non-marital asset.” Norma argued the parties’ marital home was purchased with
funds received from the settlement of her workers’ compensation claim with her
former employer, and therefore, should be considered her sole property. Mark
filed a response stating, in part, that the parties had already been before the family
court for a final hearing although no order had yet been entered regarding the
distribution of property. He also stated he paid Norma’s insurance, not her
employer. The family court entered an order on October 23, 2019, finding that
Norma had the opportunity to discuss the prenuptial agreement with an attorney
before signing it, yet she chose not to do so, and the prenuptial agreement was
valid. The family court also set the matter for a final hearing on December 16,
2019.
1
Kentucky Rule of Civil Procedure.
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The family court entered findings of fact, conclusions of law, and a
decree of dissolution on January 8, 2020. In relevant part, the family court ordered
“that the disposition of property and marital assets shall be divided in accordance
with the provisions of the parties’ Prenuptial Agreement which is filed of record.”
The family court’s dissolution decree finally ordering the distribution of property
was not appealed by either party.
On February 13, 2020, Mark filed a motion for contempt and for a
bench warrant. In this motion, Mark alleged that Norma refused to return his
personal belongings and sign the quitclaim deed concerning the marital residence.
The matter was set for a hearing on March 10, 2020. Neither Norma nor her
counsel appeared. Norma’s counsel contacted the family court by telephone the
evening prior to the hearing to reschedule, but was informed a motion for
continuance must be filed.2 Counsel did not file a motion. The family court
entered an order on March 13, 2020, finding Norma in contempt and ordering her
to return Mark’s personal property and to sign the quitclaim deed. The family
court further sentenced Norma to 180 days’ incarceration in the Greenup County
Detention Center if she failed to return the items and sign the quitclaim deed by
March 17, 2020.
2
The order setting the matter for hearing entered February 19, 2020, stated, in relevant part, that
“[a] continuance of said hearing shall not be granted without proper motion before the Court.”
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On March 18, 2020, Mark filed a motion for a bench warrant, stating
Norma had not turned over the personal items or signed the quitclaim deed. The
family court set the matter for a hearing on July 14, 2020. On April 20, 2020,
Norma filed two motions. The first objected to the March 13, 2020 order, and
requested the family court stay the order. The second motion was a re-filing of
Norma’s motion to set aside the marital residence as a non-marital asset. After a
hearing, the family court found the orders entered on January 8, 2020 (i.e., the
decree of dissolution) and March 13, 2020, were final orders. The decree of
dissolution was not appealed and Norma’s motion to stay the March 13, 2020 order
was filed later than ten days from entry. The family court gave Norma until July
17, 2020, to comply with its orders or report to the Greenup County Detention
Center to serve 180 days’ incarceration. This appeal followed.
II. STANDARD OF REVIEW
A trial court has broad authority to enforce its orders, including
contempt proceedings. Lewis v. Lewis, 875 S.W.2d 862 (Ky. 1993). We review
the trial court’s exercise of its contempt powers for abuse of discretion. Id. at 864.
III. ANALYSIS
Norma indicates in her brief to this Court that her “June [19, 2020]
Motion to set aside was heard in late October, 2019. The [family] court held that
the Motion could not be heard until it determined the validity of the Prenuptial
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Agreement.”3 On October 23, 2019, the family court ordered that the prenuptial
agreement was valid and set the matter for a final hearing in December 2019.
Further, the family court held a hearing on July 14, 2020, to address various
motions, including Norma’s second motion to set aside the marital residence as
non-marital property. We reiterate that there are no hearings in the record before
us.
It is the responsibility of the appellant to present a
complete record to this Court for review. Chestnut v.
Commonwealth, 250 S.W.3d 288, 303 (Ky. 2008). When
the record is incomplete, we assume the omitted record
supports the trial court’s decision. Commonwealth v.
Thompson, 697 S.W.2d 143, 145 (Ky. 1985) (citing
Commonwealth, Dept. of Highways v. Richardson, 424
S.W.2d 601, 604 (Ky. 1968)).
S.T. v. Cabinet for Health and Family Services, 585 S.W.3d 769, 777-78 (Ky. App.
2019) (citation omitted). Accordingly, we must assume that the omitted hearings
support each of the family court’s orders, including the July 15, 2020 order
currently on appeal.
Norma characterizes the July 15, 2020 order as the order “requiring
the distribution of real property.”4 We disagree. The family court entered findings
of fact and conclusions of law on January 8, 2020. At that time, the family court
3
See page 2 of Appellant’s brief.
4
See page 3 of Appellant’s brief.
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ordered the property distribution shall be in accordance with the parties’ prenuptial
agreement (i.e., all real property acquired during the marriage shall be awarded to
Mark). The January 8, 2020 order was not appealed and therefore became final
thirty days after entry.5 Therefore, the only issue before us is whether the family
court abused its discretion when it held Norma in contempt.
Contempt is the willful disobedience toward, or open
disrespect for, the rules or orders of a court. Contempt
can be classified as civil or criminal. Civil contempt is
when someone fails to follow a court order to do
something. That something is usually for the benefit of a
party litigant (e.g., pay child support, allow visitation, fix
something by a certain date, move a driveway, clean up a
spill, close a business by a certain hour, provide
discovery, etc.). A judge may incarcerate someone for
civil contempt in order to motivate the person to obey the
court order, but the contemptuous one is entitled to be
released upon compliance with the court’s order.
Criminal contempt, on the other hand, is when a person
disobeys a court order out of disrespect for the rules or
orders of court. A contemptuous person can be
incarcerated for criminal contempt; but unlike civil
contempt, the primary purpose of criminal contempt is to
punish the contemptuous conduct.
Gormley v. Judicial Conduct Commission, 332 S.W.3d 717, 725-26 (Ky. 2010)
(internal quotation marks and footnotes omitted). Because Norma was ordered to
serve 180 days’ incarceration for her repeated failure to sign the quitclaim deed,
she was found in civil contempt. The jail sentence was ordered in an attempt to
5
CR 73.02(1)(a) provides “[t]he notice of appeal shall be filed within 30 days after the date of
notation of service of the judgment or order under Rule 77.04(2).”
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induce Norma to sign the agreement and she held the power to stop its imposition
in her hands. Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996) (“While
one may be sentenced to jail for civil contempt, it is said that the contemptuous one
carries the keys to the jail in his pocket, because he is entitled to immediate release
upon his obedience to the court’s order.”).
“The conditional nature of imprisonment, based entirely upon the
contemnor’s continued defiance of the court order, justifies holding civil contempt
proceedings absent the safeguards of indictment and jury, provided that the usual
due process requirements are met.” Blakeman v. Schneider, 864 S.W.2d 903, 906
(Ky. 1993). “Notice and the opportunity to be heard . . . are sufficient in such
cases to satisfy the demands of due process.” Cabinet for Health and Family v.
J.M.G., 475 S.W.3d 600, 615-16 (Ky. 2015).
Careful review of the record before us shows Norma had notice of the
contempt proceedings against her and multiple opportunities to be heard. Mark
filed his first motion on February 13, 2020, and the family court set the matter for a
hearing on March 10, 2020. Although Norma had notice of the hearing, her
attempt to reschedule at the last minute was not in accordance with prior orders of
the family court, and she was not present at the hearing. On March 13, 2020, the
family court entered an order finding Norma in contempt and giving her a deadline
to comply. When she did not, Mark filed another motion. There were
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approximately four months between the date Mark filed his second motion and the
date the family court conducted a second contempt hearing. It was not until this
intervening period that Norma moved the family court to stay the March 13, 2020
order – long past the ten-day requirement provided in CR 59.05. We agree with
the family court that the order was final long before Norma filed her motion.
“The purpose of civil contempt authority is to provide courts with a
means for enforcing their judgments and orders, and trial courts have almost
unlimited discretion in applying this power.” Smith v. City of Loyall, 702 S.W.2d
838, 838-39 (Ky. App. 1986). The family court did not abuse its discretion when it
found Norma in contempt and ordered her to either sign the quitclaim deed or
report to the Greenup County Detention Center to serve 180 days’ incarceration in
its July 15, 2020 order.
IV. CONCLUSION
For the foregoing reasons, the order of the Greenup Family Court is
affirmed.
CALDWELL, JUDGE, CONCURS.
GOODWINE, JUDGE, DISSENTS AND DOES NOT FILE
SEPARATE OPINION.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Derrick E. Willis Tracy D. Frye
Grayson, Kentucky Marie E. Troxler
Nikki Burke
Russell, Kentucky
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