Derick Shepherd v. Commonwealth of Kentucky Cabinet for Health and Family Services ( 2022 )

RENDERED: AUGUST 19, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1106-MR
DERICK SHEPHERD APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
v. HONORABLE MONICA K. MEREDITH, JUDGE
ACTION NO. 16-CI-00103
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES; AND AMY
FUNK APPELLEES
OPINION
AFFIRMING
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BEFORE: DIXON, LAMBERT, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Derick Shepherd (“Appellant”) appeals from an order
of the Bullitt Circuit Court, Family Division, holding him in contempt and
establishing a child support arrearage and repayment plan. Appellant argues that
the circuit court erred in holding him in contempt, and in continuing ongoing
examination of his child support payment status. After careful review, we find no
error and affirm the order on appeal.
FACTS AND PROCEDURAL HISTORY
On March 3, 2021, the Commonwealth of Kentucky, Cabinet for
Health and Family Services (“Appellee”) filed a motion in Bullitt Circuit Court on
behalf of Amy Funk to hold Appellant in contempt based on his failure to pay child
support. In support of the motion, Appellee alleged that Appellant accrued a child
support arrearage of $568.78 as of January 31, 2021.
Appellant was found to be indigent, and he received appointed
counsel. A hearing on Appellee’s motion was conducted on June 15, 2021, where
evidence was presented that Appellant owed a child support arrearage of $271.95
as of May 31, 2021. Appellant had a monthly child support obligation of $284.39
as previously ordered by the circuit court, and was, according to Appellee, $240.73
in arrears at the time of the hearing. Evidence was adduced that Appellant had a
larger arrearage in the past but had made several payments to reduce the balance,
including two payments of $600.00 and one payment of $550.00. An employee of
the Bullitt County Attorney’s Office testified that Appellant made his June 2021
payment as required. Appellant, through counsel, argued that he was in substantial
compliance with the child support order because he was less than one month in
arrears.
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After considering the testimony and documentary evidence, the circuit
court determined that, though Appellant was unemployed at the time, he continued
to make some payments. As he was chronically in arrears, the circuit court found
Appellant to be in contempt for failure to meet his monthly child support
obligation. The court sentenced Appellant to 30 days in jail, to be conditionally
discharged if Appellant remained current on his obligation. The court found that it
would still have to review Appellant’s status monthly “because I think that’s what
it’s going to take.” The matter was reviewed on July 20, 2021, at which time
Appellant was 12 cents in arrears. The court scheduled another review for the
following month, and this appeal followed.1
STANDARD OF REVIEW
We review a contempt order arising from the failure to pay child
support for abuse of discretion. Commonwealth, Cabinet for Health and Family
Services v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011) (citation omitted). “[W]e apply
the clear error standard to the underlying findings of fact.” Id. (citation omitted).
ARGUMENTS AND ANALYSIS
Appellant argues that the Bullitt Circuit Court, Family Division, erred
in finding him in contempt for failing to pay child support. He asserts that the
1
Appellant filed another appeal in this matter with case number 2021-CA-1218-MR. On
February 9, 2022, that appeal was ordered dismissed as duplicative.
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court erred in failing to conclude that he is in substantial compliance with the
court’s child support order. Appellant notes that though he was somewhat less
than one month in arrears when the contempt order was rendered, the following
month he was only 12 cents in arrears which constitutes substantial compliance
with the child support order. Having substantially complied, Appellant maintains
that ongoing monthly review of his compliance and possibility of jail time is not
warranted.
Appellant also argues that if the payment he made in June 2021 was
applied to his arrearage rather than to his June obligation, he would not have had
an arrearage and would have still had the remainder of the month to make his June
payment. The focus of Appellant’s argument is that as he is in substantial
compliance with the court’s child support order, he should not be subjected to
ongoing monthly reviews with the threat of jail time looming if he misses future
payments. While acknowledging that he has been inconsistent in meeting his child
support obligation, he maintains that he does make payments when he is able and
often in amounts larger than his monthly obligation. He states that he is not
employed, has had multiple surgeries, and is disabled. He seeks an opinion
reversing the order on appeal. Appellee has not filed a responsive brief.
A trial court, of course, has broad authority to
enforce its orders, and contempt proceedings are part of
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that authority. KRS[2] 403.240, moreover, provides that a
party’s noncompliance with a support or custody decree
“shall constitute contempt of court,” and shall be
addressed as such.
...
Contempt sanctions are classified as either
criminal or civil depending on whether they are meant to
punish the contemner’s noncompliance with the court’s
order and to vindicate the court’s authority and dignity,
or are meant to benefit an adverse party either by
coercing compliance with the order or by compensating
for losses the noncompliance occasioned. . . .
In a civil contempt proceeding, the 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. If the party is seeking
compensation, it must also prove the amount. Once the
moving party makes out a prima facie case, a
presumption of contempt arises, and the burden of
production shifts to the alleged contemnor to show,
clearly and convincingly, that he or she was unable to
comply with the court’s order or was, for some other
reason, justified in not complying. This burden is a
heavy one and is not satisfied by mere assertions of
inability. The alleged contemnor must offer evidence
tending to show clearly that he or she made all
reasonable efforts to comply. If the alleged contemnor
makes a sufficient showing, then the presumption of
contempt dissolves and the trial court must make its
determination from the totality of the evidence, with the
ultimate burden of persuasion on the movant.
Ivy, 353 S.W.3d at 332 (citations omitted).
2
Kentucky Revised Statutes.
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In the matter before us, Appellant was subjected to civil rather than
criminal contempt, as the sanction was intended to benefit Ms. Funk by coercing
Appellant’s compliance with the court’s orders rather than merely punishing
Appellant to vindicate the court’s authority and dignity. Ms. Funk, through the
Cabinet, met her initial burden under Ivy by demonstrating via clear and
convincing evidence that Appellant violated a valid child support order. Appellant
does not contest that he was in arrears on his child support obligation at the time
the contempt order was rendered. The burden then shifted to Appellant to show,
clearly and convincingly, that he was unable to comply with the court’s order or
was, for some other reason, justified in not complying. Id. Appellant had the
heavy burden of showing by clear and convincing evidence that he made all
reasonable efforts to comply, and this burden was not satisfied by mere assertions
of inability. Id.
CONCLUSION
Having closely examined the record and the law, we find no abuse of
discretion in the Bullitt Circuit Court’s conclusion that Appellant did not meet the
heavy burden of demonstrating that he made all reasonable efforts to comply with
the court’s child support order. The record establishes that though Appellant made
substantial strides toward paying off the arrearage, he was nevertheless still behind
on his obligation when the order on appeal was entered. He does not contest this
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fact. The record also demonstrates that Appellant was delinquent on his child
support obligation both before and after the entry of the order on appeal. We find
no basis for concluding that the circuit court’s ongoing review of Appellant’s child
support payment status, even with the threat of jail time for noncompliance, is
overly burdensome or otherwise improper. For these reasons, we affirm the order
of the Bullitt Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEES.
Steven J. Buck
Kayley V. Barnes
Frankfort, Kentucky
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