Samantha M. Karsner (Now Prario) v. Brian Christopher Karsner ( 2022 )

RENDERED: NOVEMBER 10, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1444-MR
SAMANTHA M. KARSNER (NOW
PRARIO) APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE DERWIN L. WEBB, JUDGE
ACTION NO. 13-CI-502342
BRIAN CHRISTOPHER KARSNER
AND JUSTIN R. KEY APPELLEES
OPINION
VACATING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
ACREE, JUDGE: Appellant, Samantha Karsner, appeals the Jefferson Family
Court’s September 3, 2021 order holding her in contempt of court and awarding
attorney fees to Appellee, Brian Karsner. After careful review, we conclude the
Jefferson Family Court abused its discretion by entering this order. Accordingly,
we vacate and remand for further proceedings consistent with this Opinion.
The parties had two children together but eventually separated.
Domestic abuse issues resulted in Appellant obtaining an Emergency Protective
Order (EPO) against Appellee. This was in response to several violent episodes.
Appellee was served with the EPO in July 2013 and had no subsequent contact
with his children until 2020. A Domestic Violence Order (DVO) was entered on
August 26, 2013. Appellant had sole custody of the children.
In 2020, Appellee moved the family court to modify the custody
arrangement. The court granted the motion and joint custody was ordered. As a
part of the order, the family court ordered visitation to Appellee on Saturdays from
noon to 4:00 p.m. every other weekend. Appellant opposed this visitation
schedule, believing Appellee needed to participate in reunification therapy first.
However, the family court did not require reunification therapy.
Appellant then filed a CR1 60.02 motion to vacate the joint custody
award based on her claim she lacked notice of the motion and, therefore, did not
respond or attend the hearing.2 The family court ordered the issues in the motion
to be mediated. Based on the record before us, the family court has not yet ruled.
1
Kentucky Rules of Civil Procedure.
2
Appellant, while she was not represented by counsel, appears to have failed to notify the court
clerk of her change of address. Once she learned of the order granting joint custody and
visitation, she obtained counsel who filed the motion pursuant to CR 60.02 noting the Appellee’s
$36,000 child support arrearage and history of violence and arguing Appellee’s motion for joint
custody “was based on lies, [was] procedurally improper, and [was] not supported by the law.”
(Appellant’s brief, p. 3.)
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Although there was no written agreement, Appellee alleges that from
September 2020 until February 2021, Appellant agreed to informal visitation
beyond the four hours every other weekend granted. Appellee claims the
agreement equated roughly to alternating weekend visitation. According to
Appellee, Appellant stopped this voluntary extended visitation. This prompted
Appellee to move the family court for an order consistent with what he represented
had been the parties’ practice.
Over Appellant’s objection, on March 24, 2021, the family court
ordered Appellee unsupervised parenting time every other weekend starting at 6:00
p.m. Fridays until 6:00 p.m. Sundays.
When visitation did not occur consistently with this schedule,
Appellee filed a motion to hold Appellant in contempt and for an award of attorney
fees. A hearing on the motion took place on August 23, 2021.
Appellee testified that he moved for an order of contempt to ensure
consistency that his visitation would occur. On cross-examination, he confirmed
Appellant’s testimony that at the drop-off site, both children refused to get out of
the car and the visits did not occur. Both parties attempted to get the children to go
with Appellee but those attempts usually failed. At some point, the parties
successfully got the youngest child to spend the weekend with Appellee but, again,
testimony shows the older child refused. Eventually, the youngest child helped
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convince the older child to visit with their father. The older child’s reluctance to
visit with her father was based on her recollections of an episode when Appellee
threw knives at Appellant.
Neither party cites to evidence in the record contradicting Appellant’s
testimony that she attempted to make the exchange of the children and actively
participated in attempting to have her children go with Appellee. Appellant
testified that she encouraged the children to have contact with Appellee but found
it difficult because they were afraid of him. She recounted one instance when she
had to pick up the children early from a visit because they were afraid.
Once the hearing concluded, the family court held Appellant in
contempt of court and ordered her to pay $1,976.50 in attorney fees. The only
finding in the order relating to the events at the exchange was as follows: “The
child(ren) are not entitled to refuse visitation simply because they ‘do not want to
go’ and [Appellant] is required to make the children available to [Appellee] at his
scheduled parenting time unless some other agreement has been made between the
parties.” This appeal follows.
When appellate courts review a family court’s decision to hold a party
in contempt, the standard of review is abuse of discretion. Lewis v. Lewis, 875
S.W.2d 862, 864 (Ky. 1993). When a court exercises its contempt powers, it has
“almost unlimited discretion in applying this power.” Smith v. City of Loyall, 702
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S.W.2d 838, 839 (Ky. App. 1986). However, “[t]he test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Sexton v. Sexton, 125 S.W.3d 258, 272
(Ky. 2004) (footnote and citation omitted). Here, the family court’s order was
arbitrary and unreasonable.
The contempt alleged and which the family court concluded occurred
is a civil contempt which “occurs when a party fails to comply with a court order
for the benefit of the opposing party[.]” Smith, 702 S.W.2d at 839 (citing Tucker v.
Commonwealth, 299 Ky. 820, 187 S.W.2d 291 (1945)). Appellee claimed and the
family court found Appellant failed to follow the scheduling order that benefited
Appellee; consequently, the family court found Appellant in contempt.
It is clear from the record that Appellant did not willfully violate the
family court’s unsupervised parenting order so as to justify a contempt order. She
arrived with the children on time for Appellee’s scheduled unsupervised parenting
time and attempted to coax the children out of the car. Appellant also testified to
actively encouraging the children to spend time with their father. Appellee cited
no evidence in the record that contradicts Appellant’s testimony.
Furthermore, the implication of the family court’s finding is that the
children simply “do not want to go” visit their father, and that their resistance was
unfounded or unreasonable. Such an implication is not supported by the record.
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The record indicates numerous violent incidents precipitated by Appellee and
remembered by the children, or at least the older child. It was not unreasonable for
the children to exhibit some degree of trepidation, even fear, of being with
Appellee without Appellant also present.
The family court held that Appellant must make the children available
for scheduled visits. The record to which this Court has been directed, and other
portions that we have examined, do not show a failure on her part to do so. A
finding that Appellant did not make the children available is not supported by the
record; therefore, it is unreasonable. Appellant cannot be held in contempt merely
because she did not utilize any and all means that would have been required to
forcibly bring about the exchange. The family court has other options to address
the children’s reluctance to visit with their father, such as the therapeutic visitation
previously considered.
Given the circumstances, Appellant took reasonable measures to get
her children out of the car and actively tried to comply with the literal language of
the scheduling order. In the end, Appellant complied with the spirit of the order.
Because she did, it is unreasonable for the family court to hold her in contempt.
Because we are reversing the contempt award, we must also reverse
the award of attorney fees. Pursuant to KRS3 403.240(4), a family court may
3
Kentucky Revised Statutes.
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award attorney fees “if no reasonable cause is found for denial of visitation[.]”
Here, reasonable cause existed as to why Appellee’s visitations did not occur and
an award under KRS 403.240(4) is improper.
For the foregoing reasons, the Jefferson Family Court’s September 3,
2021 order is vacated and remanded.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Allison S. Russell Justin R. Key
Shanna R. Ballinger Caitlin P. Kidd
Louisville, Kentucky Prospect, Kentucky
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