Brandi Caffee v. Christopher Waters ( 2021 )

RENDERED: JANUARY 29, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0102-MR
BRANDI CAFFEE APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE HUGH SMITH HAYNIE, JUDGE
ACTION NO. 17-CI-502402
CHRISTOPHER WATERS AND L.W.,
A MINOR CHILD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, KRAMER, AND LAMBERT, JUDGES.
KRAMER, JUDGE: Brandi Caffee (“Mother”) appeals from an order of the
Jefferson Circuit Court finding her in contempt of the parties’ court-ordered
visitation schedule and sentencing her to seven days’ incarceration. We affirm.
Factual and Procedural Background
Christopher Waters (“Father”) filed a petition to establish custody and
parenting time of the parties’ minor child (“Child”) in August 2017. There was
also a separate paternity action pending before the family court at the time. A
visitation schedule had been put into place in that action.1 One month later, Father
filed his first motion to hold Mother in contempt, alleging that she refused to
follow the court-ordered visitation schedule. Before the motion was heard by the
family court, Father filed a supplemental affidavit indicating that Mother had
refused more visitation since his motion was filed and that he had not seen Child in
three months. He also filed a motion asking the family court to order the sheriff to
accompany him to pick up Child for his visitation. Mother did not appear for the
hearing on Father’s motions. The family court ordered temporary custody of Child
to Father and suspended Mother’s parenting time until she appeared before the
family court. The order warned Mother that failure to follow orders of the family
court could result in up to six months in jail and/or a $500.00 fine.
The following month, the parties agreed to a parenting schedule, and
Father’s motion for contempt was remanded. The parties entered several agreed
orders changing the parenting schedule throughout 2018, the last one being in
December 2018. On this agreed order, the family court added, “THIS ORDER
MUST BE FOLLOWED. CONTEMPT CARRIES UP TO SIX MONTHS IN
JAIL.” Just a few weeks later, Father filed a motion for contempt, again alleging
that Mother refused to follow the schedule and denied him visitation with Child.
1
Jefferson County Case No. 17-J-500762.
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The family court entered an order on April 9, 2019, which found, in relevant part,
that Mother’s behavior at that point did not rise to the level of contempt. In issuing
other orders, the family court again reminded the parties of the possible penalties
of incarceration and/or a fine for failure to follow court orders.
The parties were before the family court again in August 2019. At
that time, the family court entered a civil restraining order preventing Mother from
(1) any acts of abuse or threats against Father and (2) any contact or
communication with Father. At that time, a week-on week-off parenting schedule
was ordered by the family court. Less than one month later, Father filed another
motion for contempt, alleging that Mother was once again refusing his visitation
with Child. Father sought a penalty of 180 days’ incarceration for Mother’s failure
to obey orders of the family court. Mother’s attorney filed a response stating that
her attorney of record was out of the country and that stand-in counsel was in St.
Louis, Missouri, for a prior commitment. Mother did not appear at motion hour.
The family court entered an order setting an emergency contempt hearing for the
following day. The order also stated, “CONTEMPT CARRIES UP TO 6
[MONTHS] IN JAIL” and “[MOTHER] MUST FOLLOW [COURT] ORDERS.”
Mother did not appear for the emergency contempt hearing the
following day; however, she was represented by counsel. The family court stated
that Father’s motion would not normally be considered an emergency. However,
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the family court pointed out the numerous and ongoing court appearances by the
parties, including Father’s recent attempt to obtain an emergency protective order,
and Mother’s “never ending” allegations to the Cabinet for Health and Family
Services (“CHFS”) and subsequent investigations. Mother’s counsel requested a
continuation, but the family court denied her request and proceeded with the
hearing.2
Father testified regarding his missed visitation with Child, and
Mother’s counsel cross-examined Father. Child’s guardian ad litem (“GAL”) also
questioned Father. Mother’s counsel did not call any witnesses on Mother’s
behalf. The family court initially ruled from the bench that it was finding Mother
in civil contempt and ordered her to serve seven days’ incarceration. However, if
Mother complied with all scheduled visitation prior to the family court’s next
motion hour, the court would reconsider imposition of the sentence. Child’s GAL
and Father’s counsel voiced their concerns and argued that if Mother did not face
serious consequences, the parties would soon be before the court again. Father’s
counsel asked for a bench warrant and argued that Mother had been given too
many chances. After a short recess, the family court issued a bench warrant and
2
There was a question by the family court and counsel as to whether there was an active
investigation by CHFS in regard to Mother’s most recent allegations against Father and whether
a safety plan was in place. It appears from the record before us that family court staff reached
out to CHFS during the hearing and confirmed that no safety plan was in place and the
investigation was closed. Father also testified that he had never seen paperwork saying he could
not visit Child, nor had CHFS contacted him and, to his knowledge, there was no investigation.
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ordered Mother to serve seven days’ incarceration for contempt. An order was
entered on October 3, 2019. Father was given temporary custody of Child.
Mother filed a motion to alter, amend, or vacate the family court’s
order, arguing, in part, that Mother’s penalty was criminal contempt, not civil, and
that Mother had not been afforded due process. The family court amended its
order to find Mother in criminal contempt, beyond a reasonable doubt, but
otherwise denied Mother’s requested relief. This appeal followed.
Standard of Review
We review the family court’s exercise of its contempt powers for
abuse of discretion, Lewis v. Lewis, 875 S.W.2d 862, 864 (Ky. 1993). “The 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) (citation omitted). We further note that the
family court has broad authority to enforce its orders, and contempt proceedings
are part of that authority. Lewis, 875 S.W.2d at 864.3
3
We are mindful that the Kentucky Supreme Court has stated that “[a]ppellate review of
criminal contempt sanctions should be commensurate with the review provided in regular
criminal cases of a comparable seriousness, as suggested by the penalties imposed.” Cabinet for
Health and Family Services v. J.M.G., 475 S.W.3d 600, 624 (Ky. 2015). Although it is unclear
what is meant by the “review provided in regular criminal cases[,]” other than the requirement of
proof beyond a reasonable doubt, we note that the punishment was not as “substantial” as those
contemplated by the high court in J.M.G. Therefore, we see no reason to deviate from applying
the abuse of discretion standard in the case at bar. See, e.g., Meyers v. Petrie, 233 S.W.3d 212
(Ky. App. 2007) (this Court reviewed a penalty of 181 days’ incarceration for contempt under
the abuse of discretion standard).
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Analysis
We first note that Father did not file an appellee brief, nor was an
appellee brief filed by the GAL on behalf of Child. When a responsive brief has
not been filed, the Court may: (i) accept the appellant’s statement of the facts and
issues as correct; (ii) reverse the judgment if the appellant’s brief reasonably
appears to sustain such action; or (iii) regard the appellee’s failure as a confession
of error and reverse the judgment without considering the merits of the case. CR4
76.12(8)(c). “The decision as to how to proceed in imposing such penalties is a
matter committed to our discretion.” Cabinet for Health and Family Services v.
Loving Care, Inc., 590 S.W.3d 824, 826 (Ky. App. 2019) (quoting Roberts v.
Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007)). Given the nature of the underlying
action and the fact that this matter may be decided based upon the law and the
undisputed evidence of record, we exercise our discretion to not impose any
penalties herein; however, we do caution that such leniency may not be extended
in the future.
Mother’s first two arguments focus on what she perceives as a lack of
due process. Mother also argues that the family court erred in “its determination
that the violation of the parenting time order was sufficiently culpable to be
4
Kentucky Rules of Civil Procedure.
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sanctioned as contempt” or, in the alternative, that the court erred in finding there
was sufficient proof of willful or intentional disobedience of its order.5
The distinctions between civil and criminal contempt have been
thoroughly reviewed by this Court and the Kentucky Supreme Court.
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.
Criminal contempt can be either direct
or indirect. A direct contempt is committed
in the presence of the court and is an affront
to the dignity of the court. It may be
punished summarily by the court, and
requires no fact-finding function, as all the
elements of the offense are matters within
the personal knowledge of the court. In re
Terry, 128 U.S. 289, 9 S. Ct. 77, 32 L. Ed.
5
Mother also argues that the matter is not moot simply because she has served her sentence.
Because we address the merits of Mother’s other arguments, we agree that the matter is not moot
and will not further address the issue of mootness.
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405 (1888). Indirect criminal contempt is
committed outside the presence of the court
and requires a hearing and the presentation
of evidence to establish a violation of the
court’s order. It may be punished only in
proceedings that satisfy due process. Cooke
v. United States, 267 U.S. 517, 45 S. Ct.
390, 69 L. Ed. 767 (1925).
Gormley v. Judicial Conduct Commission, 332 S.W.3d 717, 725-26 (Ky. 2010)
(internal quotation marks and footnotes omitted).
Mother’s actions were indirect and, because the penalty imposed by
the family court did not afford her the opportunity to comply with the family
court’s order, the sanction was criminal in nature. Accordingly, the proceedings
must satisfy due process. Mother claims she was denied due process, in part,
because the family court failed to appoint “someone else to prosecute the case.”
We disagree. The family court was well within its authority to engage in contempt
proceedings.
That those accused of indirect or serious direct
criminal contempts are entitled to “full criminal process”
does not mean, the United States Supreme Court has
explained, that “any prosecution of contempt must now
be considered an execution of the criminal law in which
only the Executive Branch may engage.” Young, 481
U.S. at 799-800, 107 S. Ct. 2124.[6] On the contrary, lest
the judicial power be reduced to “‘a mere mockery,’” it
has long been deemed essential that the Judiciary have “a
6
Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S. Ct. 2124, 95 L. Ed. 2d 740
(1987).
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means to vindicate its own authority without complete
dependence on other Branches.” Young, 481 U.S. at 796,
107 S. Ct. 2124 (quoting Gompers, 221 U.S. at 450, 31 S.
Ct. 492).[7] Contempt proceedings are that means, and
accordingly, “[c]ourts cannot be at the mercy of another
Branch in deciding whether such proceedings should be
initiated.” Id.
J.M.G., 475 S.W.3d at 612.
Mother alleges at least eight other reasons why she was denied due
process. Rather than address each allegation individually, we look to the due
process requirements in contempt proceedings to decide the matter.
Due process of law, therefore, in the prosecution of
contempt, except of that committed in open court,
requires that the accused should be advised of the charges
and have a reasonable opportunity to meet them by way
of defense or explanation. We think this includes the
assistance of counsel, if requested, and the right to call
witnesses to give testimony, relevant either to the issue of
complete exculpation or in extenuation of the offense and
in mitigation of the penalty to be imposed.
Cooke, 267 U.S. at 537, 45 S. Ct. at 395.
With those guideposts in mind, Mother’s arguments quickly fall part.
We will, nonetheless, briefly discuss them.
Mother asserts that the family court failed to give adequate notice of
the contempt proceedings. This is unsupported by the record. It is undisputed that
the family court had previously entered an order regarding the parties’ visitation
7
Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797 (1911).
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schedule with Child. It is also undisputed that Mother received Father’s motion for
contempt setting the motion to be heard on September 30, 2019. The motion
detailed the dates that Mother failed to comply with the family court’s order.
Mother failed to appear at the motion hour when Father’s motion was called. The
family court set an emergency hearing for the following day, and Mother does not
dispute the family court’s finding that she knew of the hearing. The order setting
the emergency hearing, as well as numerous orders previously entered by the
family court, warned that failure to comply with court orders could result in
incarceration and/or a fine. Mother was given the opportunity to be heard at the
emergency hearing, but she again failed to appear and now argues she was denied
due process. We are not persuaded. Mother was represented by counsel8 at the
contempt hearing, who did have the opportunity to cross-examine Father and call
witnesses, although none were called on Mother’s behalf. Accordingly, due
process requirements were met, and the family court did not abuse its discretion.
Mother next argues that there was insufficient evidence that she
willfully violated the family court’s order. We disagree.
We have construed “willful” in the contempt
context to mean not merely knowing but intentional, and
the difference is along the lines of a conscious purpose to
8
We note the record also shows that the family court appointed a public defender to represent
Mother in a prior contempt hearing when she was unrepresented by counsel and facing
incarceration as a penalty.
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disobey the authority of the court. The disobedience may
be reluctant, polite, and regretful, as it appears to have
been in Poindexter[9] (“[T]here need not be a showing of
malice or disrespect in order for a trial court to hold an
attorney in criminal contempt.” 389 S.W.3d at 118), or it
may be openly defiant, as it was in Norton v.
Commonwealth, 37 S.W.3d 750, 754 (Ky. 2001) (After
being found guilty, “[a]ppellant erupted in what he now
modestly describes as an ‘emotional outburst.’ ”), but to
be contemptuous the violation of a duty must involve a
duty the court meant to enforce.
J.M.G., 475 S.W.3d at 620.
Mother argues that, by withholding Father’s court-ordered visitation,
she was “trying to protect her child” during an ongoing investigation by CHFS. 10
The record does not support this allegation. In its order, the family court noted that
it was “very familiar with [Mother’s] extensive history of denying [Father] his
parenting time and her numerous unsubstantiated claims to [CHFS] that [Father]
has sexually abused [Child].” This is borne out by the record before us.11 Father
filed at least four motions for contempt against Mother for denying his parenting
time with Child. Although this was the first finding of contempt against Mother by
9
Poindexter v. Commonwealth, 389 S.W.3d 112 (Ky. 2012).
10
We generously treat this argument as preserved because, although objected to by Father,
Mother’s counsel did attempt to explain the reason why Mother withheld Father’s visitation to
the family court. As previously stated in this Opinion, there was an extensive discussion by the
family court and counsel prior the outset of the emergency hearing regarding whether there was
(1) an active investigation by CHFS and (2) a safety plan in place.
11
The records of the paternity action and the domestic violence petitions are not before us.
Likewise, the record before us does not contain documentation from any investigation by CHFS.
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the family court, she was warned on each occasion that violation of any order
could result in jail time and/or a fine. Rather than appear before the family court
and present the defense she now argues to this Court, Mother simply failed to
appear. We find no error in the family court’s conclusion that Mother willfully
violated the visitation order.
Conclusion
For the reasons stated herein, we hold that Mother was afforded due
process in the contempt proceedings and that the family court did not commit error
therein. Accordingly, we affirm the Jefferson Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT: NO APPELLEE BRIEF FILED
Mary Stewart Tansey
Louisville, Kentucky
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