David Lee Farley v. Theresa Willis ( 2023 )

RENDERED: APRIL 21, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0465-MR
DAVID LEE FARLEY APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE LAUREN ADAMS OGDEN, JUDGE
ACTION NO. 19-CI-501598
THERESA WILLIS APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: ACREE, EASTON, AND JONES, JUDGES.
JONES, JUDGE: The appellant, David Farley (“Farley”), appeals from an order of
the Jefferson Circuit Court, Family Division, holding him in contempt and ordering
several terms to purge his contempt, one term being to re-enroll the parties’ child,
D.F., into in-person public school. After careful review, we affirm in part, reverse
in part, and remand for further proceedings.
I. BACKGROUND
The parties were divorced on June 29, 2020, by decree of dissolution
of the Jefferson Family Court in the underlying civil case. In that decree, the
parties were awarded joint custody of their two minor children, A.W. (born 2007)
and D.F. (born 2008), with both parties to be involved with all major decisions
involving the children, including educational matters. (Record (“R.”) at 157-58.)
On September 14, 2021, after a hearing in a separate domestic
violence case involving these parties, Case No. 21-D-503030-001, the family court
entered a no contact order of domestic violence (“DVO”) against Willis in favor of
Farley and on behalf of D.F. Additionally, the DVO awarded Farley temporary
sole custody of D.F. and was to last for one year. (Supplemental Record (“S.R.”)
at 3.)
On December 29, 2021, Willis filed a pro se motion to hold Farley in
contempt of the June 29, 2020, decree in the underlying civil custody case, alleging
that Farley was denying her timesharing with A.W. and asking for family therapy
between her and A.W. The entirety of affidavit accompanying the form motion for
contempt read:
I request the [c]ourt to hold David Farley in contempt for
his/her failure to obey the [c]ourt’s [o]rder on 6/29/20,
which required that he/she to do the following: Let me
get my [d]aughter every other weekend [and] my set
schedule for Holidays. The reason I believe David
Farley has violated the [o]rder is: I have not seen my
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[d]aughter snice [sic] May 2021 or talked to her. To fix
David Farley’s failure to obey the [c]ourt’s [o]rder, I am
asking the [c]ourt to: to do pick up at Home of the
Innocence and drop off’s[.] CPS would like for me and
[A.W.] to do family therapy.
(R. at 192.)
On January 10, 2022, the family court set the matter for a thirty-
minute hearing to be conducted on February 14, 2022, noting in its contempt
hearing order that Willis’s motion related to a request “to hold [Farley] in contempt
for failure to follow by the [c]ourt [o]rder that was entered by the [c]ourt June 29,
2020, and for family therapy with her children.” (R. at 195.)
Additionally, in the previous domestic violence case, Willis filed a
motion to amend the DVO, which was granted on January 11, 2022, to allow her to
have supervised and therapeutic visits with D.F. Reflective of the original DVO,
the amended DVO did not modify the award of temporary sole custody to Farley
and was to remain in place until September 13, 2022. (S.R. at 12-13.)
Both parties appeared and represented themselves, pro se, at the
February 14, 2022, hearing. The only matter before the family court at that time
was Willis’s motion for contempt regarding parenting time with A.W. and family
therapy. Early into the hearing, Willis mentioned that Farley had withdrawn D.F.
from public school and began homeschooling D.F. sometime after the issuance of
the September 14, 2021, DVO. Farley responded by saying that he removed D.F.
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because of concerns with violence and D.F. being bullied. The family court noted
concerns with Willis not being able to meaningfully participate in D.F.’s schooling
and stated: “I don’t think it’s a good idea to take the children out of school in a
situation like this.” (Video Record (“V.R.”) – Feb. 14, 2022, Hearing at 9:05:40.)
At no other point during the rest of the February 14, 2022, hearing did the family
court or either party mention the schooling issue again. During the hearing Farley
admitted to having problems with getting A.W. to go to timesharing visits with
Willis and that he did not file a motion to modify those visits. (V.R. – Feb. 14,
2022, Hearing at 9:18:20.) He also admitted to never taking A.W. to be assessed
for counseling as ordered in the June 29, 2020, decree. (V.R. – Feb. 14, 2022,
Hearing at 9:24:08.)
Later the same day, the family court entered an order finding Farley in
contempt of the “[c]ourt’s orders related to parenting time and medical care for the
parties’ minor children” and stating how Farley could purge himself of the
contempt, with one requirement being to re-enroll D.F. in public school, and the
other conditions being for Farley to recommence therapy for both children, to
ensure A.W. is available for all therapeutic visits recommended between A.W. and
Willis, to immediately resume D.F.’s previous medication treatment, and to ensure
D.F. is available for supervised visits between Willis and D.F. (R. at 199-200.)
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On February 17, 2022, Farley filed a pro se motion requesting the
family court to reconsider its February 14, 2022, ruling concerning D.F.’s
schooling situation, medication, and therapy along with a letter from one of D.F.’s
counselors that addressed some of the concerns about removing D.F. from school.
(R. at 202-07.) Counsel for Farley subsequently entered his appearance in the case
and requested leave to file an amended motion, which the family court granted.
(R. at 212.)
On March 9, 2022, Farley, by counsel, filed a motion requesting a
new hearing, or in the alternative, to alter, amend, or vacate the February 14, 2022,
order and make additional findings. (R. at 213.) On March 29, 2022, the family
court entered an order denying the motion and this appeal followed. On appeal,
Farley argues that the family court did not afford him a meaningful opportunity to
be heard on the schooling issue and that the family court lacked subject matter
jurisdiction to enter an order directing Farley to re-enroll D.F. in public school
since sufficient affidavit requirements per KRS1 403.350 were not followed.2
Farley has not raised the issues of D.F.’s medical treatment, visitation, or therapy
in this appeal.
1
Kentucky Revised Statutes.
2
We are not persuaded by Farley’s argument concerning the lack of subject matter jurisdiction
based on insufficient affidavits accompanying a request for custody modification as it relies on
Petrey v. Cain, 987 S.W.2d 786, 788 (Ky. 1999), which was overruled by Masters v. Masters,
415 S.W.3d 621, 624 (Ky. 2013).
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II. STANDARD OF REVIEW
When examining a family court’s decision exercising its contempt
powers, the standard we must follow is that of an abuse of discretion: “‘[t]he test
for abuse of discretion is whether the trial court’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.’” Meyers v. Petrie,
233 S.W.3d 212, 215 (Ky. App. 2007) (quoting Commonwealth v. English, 993
S.W.2d 941, 945 (Ky. 1999)).
Additionally, the standard of review regarding child custody issues is
whether a family court’s decision made based on the supporting findings of fact is
clearly erroneous or constitutes an abuse of discretion. Eviston v. Eviston, 507
S.W.2d 153, 153 (Ky. 1974). A factual finding supported by substantial evidence
is not clearly erroneous. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).
Decisions about schooling and medical issues regarding minor children are matters
concerning custody. Warawa v. Warawa, 587 S.W.3d 631, 636 (Ky. App. 2019)
(citing Keeton v. Keith, 511 S.W.3d 918, 921 (Ky. App. 2017)).
III. ANALYSIS
Willis failed to file an appellee’s brief herein. Pursuant to Kentucky
Rule of Appellate Procedure (“RAP”) 31(H)(3), under these circumstances the
Court may accept the Appellant’s statement of the facts and issues as correct.
However, because this case involves custody matters affecting children, we decline
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to exercise the permissible sanctions of RAP 31 as to this appeal. Galloway v.
Pruitt, 469 S.W.2d 556, 557 (Ky. 1971) (citing Borjesson v. Borjesson, 437
S.W.2d 191, 193 (Ky. 1969)).
A. Contempt
One general inherent power of family courts is the power to impose
sanctions as the result of a contempt violation. Contempt can be classified as
either civil or criminal, the difference being the purpose for which the sanction is
prescribed. Gordon v. Commonwealth, 141 Ky. 461, 463, 133 S.W. 206, 208
(1911). “The purpose of civil contempt is to coerce rather than to punish – to
compel obedience to and respect for an order of the court[,]” while criminal
contempt “seeks to punish conduct which has already occurred rather than to
compel a course of action.” Commonwealth, ex rel. Bailey v. Bailey, 970 S.W.2d
818, 820 (Ky. App. 1998); see also Meyers, 233 S.W.3d at 215 (citing Newsome v.
Commonwealth, 35 S.W.3d 836, 839 (Ky. App. 2001)). Specifically, “[c]ivil
contempt consists of the failure of one to do something under order of court,
generally for the benefit of a party litigant.” Commonwealth v. Burge, 947 S.W.2d
805, 808 (Ky. 1996). In the instant case, the family court found Farley to be in
civil contempt as it issued rulings for the purpose of effectuating Farley’s
compliance with the terms of the June 29, 2020, decree. See Feb. 14, 2022, order
at p. 3, (R. at 199) (stating that KRS 403.240 “authorizes the court to remedy the
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failure to comply” and that Farley “may purge himself of contempt by complying
with this [o]rder”). Since the purpose of civil contempt is to compel specific
compliance with an order, that order by necessity must be one that is valid and
enforceable. With this in mind, we turn to an examination of the June 29, 2020,
decree.
There are no specifics on schooling regarding either child in the plain
language of the June 29, 2020, decree. The decree simply constructs a timesharing
schedule around the times the children may be in school and states that exchanges
are to occur at school while it is in session. (R. at 158.) Meanwhile, the provisions
of the June 29, 2020, decree are more detailed relating to timesharing and therapy
issues involving the children, which happen to be the only two issues mentioned by
Willis in her initial motion for contempt and were the primary topics of discussion
during the February 14, 2022, hearing.
If the parties had joint custody and equal decision-making authority,
an argument remains that Farley’s decision to remove D.F. from school constitutes
a contemptuous violation of the June 29, 2020, decree; however, we must take into
consideration the fact that Farley had temporary sole custody as a result of the
DVO. Kentucky courts have long held, in conjunction with the Due Process
Clause of the 14th Amendment to the United States Constitution, that the decision-
making power regarding a child’s upbringing, specifically educational decisions, is
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a fundamental right afforded to that child’s parents. “[T]he state is inferior to fit
‘parents, whose primary function and freedom include preparation for obligations
the state can neither supply nor hinder.’” Hoskins v. Elliott, 643 S.W.3d 115, 118
(Ky. App. 2022) (quoting Troxel v. Granville, 530 U.S. 57, 65-66, 120 S. Ct. 2054,
2060, 147 L. Ed. 2d 49 (2000)). But that right is one that is not completely
unfettered between parents, as a family court from time to time may grant sole
custody to one parent, thereby limiting the other parent’s right to make decisions
for the child. VanWinkle v. Petry, 217 S.W.3d 252, 259-60 (Ky. App. 2007).
As was ordered in the September 14, 2021, DVO and again reiterated
in the amended DVO from January 11, 2022, Farley was awarded temporary sole
custody of D.F. by the family court. An award of temporary sole custody in a
domestic violence proceeding is a power afforded to the family court under KRS
403.740(1)(e). As a sole custodian, Farley had the exclusive right to exercise his
decision-making authority regarding the child’s educational decisions. See
Pennington v. Marcum, 266 S.W.3d 759, 763 (Ky. 2008). Farley’s rights as sole
custodian supersede any joint custody rights afforded to Willis under the June 29,
2020, decree. This is a fact that the family court itself appeared to recognize when
it specifically stated in the February 14, 2022, order that Farley is in contempt for
willfully violating the orders relating to “parenting time and medical care” with no
mention of decision-making or education. (R. at 199.) The family court also
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stated that the June 29, 2020, decree was superseded by the DVO in its March 29,
2022, order. (R. at 213.) As such, regarding D.F.’s remaining in public school, the
June 29, 2020, decree was unenforceable, and the family court abused its discretion
when it found Farley in contempt and arbitrarily directed him to re-enroll D.F. in
public school.
Additionally, we have recognized that when a party’s conduct results
in contumacy, the remedy should be reasonably related to the nature and
seriousness of the party’s behavior. Meyers, 233 S.W.3d at 216 (citing United
States v. Conole, 365 F.2d 306, 308 (3d Cir. 1966)) (holding that the trial court did
not abuse its discretion when it ordered a party to attend counseling as a
punishment for willfully defying a previous order to attend that counseling). In the
instant case, there is no reasonable nexus between the February 14, 2022, order;
Willis’s requested relief in her motion for contempt (pertaining solely to the
timesharing and counseling issues involving A.W.); and the purge condition of re-
enrolling D.F. in public school.3
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The provisions requiring Farley to have A.W. assessed for therapeutic services, keeping her in
counseling, and ensuring all therapeutic visits between A.W. and Willis occur are directly related
to his contumacious behavior, i.e., willfully denying the timesharing between A.W. and Willis
and not involving A.W. in therapeutic services as ordered. Therefore, these sanctions were
properly within the family court’s contempt power. On the other hand, as it pertains to D.F.,
Farley had all custodial decision-making authority by virtue of having sole custody and Willis’s
motion did not allege any contumacious behavior involving D.F.
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B. Modification of Custody
In addition to its contempt powers, the family court has the power to
make determinations and modifications when it comes to matters of child custody.
The question we must consider here was whether the family court inappropriately
made a modification of custody without a pending motion on that matter before it.
Summarily, it did.
In order to challenge a decision made by a custodian, a non-custodial
parent effectively must request a modification of custody to either joint or sole in
order to have standing to challenge a decision, as any alteration of the custodial
parent’s decision would inherently alter the nature of the custody. See, e.g.,
Pennington, 266 S.W.3d at 765 (holding that a decision to relocate with a child
necessitated a modification of custody); see also, e.g., Ryan v. Ryan, No. 2008-CA-
000858-MR, 2009 WL 1098330, at *7 (Ky. App. Apr. 24, 2009) (holding that a
modification to sole custody was appropriate to allow an educational decision to be
made).4
In the instant case, no such motion was made by Willis. As discussed
above, the only motion before the family court during the February 14, 2022,
hearing was Willis’s motion to find Farley in contempt of the June 29, 2020,
decree. Neither the motion, nor the accompanying affidavit, made any mention of
4
We cite this unpublished opinion for reference as persuasive, nonbinding authority. RAP 41.
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D.F. at all. (R. at 191-92). Additionally, during the hearing, Willis herself never
made a request to alter custody nor a request to alter Farley’s decision to remove
D.F. from public school – she merely questioned Farley’s decision. The family
court subsequently made a sua sponte ruling on the schooling issue, despite
Farley’s objections, despite any witnesses testifying or exhibits being filed, and
despite Farley’s request for a new hearing or more specific findings.
Generally, courts do not have the power to make rulings sua sponte,
unless a party or parties to an action raises the issue themselves. “The premise of
our adversarial system [of justice] is that . . . courts do not sit as self-directed
boards of legal inquiry and research, but essentially as arbiters of legal questions
presented and argued by the parties before them.” Delahanty v. Commonwealth,
558 S.W.3d 489, 503 n.16 (Ky. App. 2018) (citations omitted). Since the
promulgation of KRS 403.340, the courts have consistently held that it is improper
for a family court to review a modification of a custody decree sua sponte within
its first two years. Chandler v. Chandler, 535 S.W.2d 71, 72 (Ky. 1975). In this
case, the original decree awarding joint custody was entered on June 29, 2020, and
Willis’s motion was filed within two years of that order on December 29, 2021.
Even if we were inclined to consider Willis’s motion as a motion to
modify custody, the family court failed to make specific findings that supported a
modification of custody. When considering a motion to modify custody, a family
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court is required to make specific findings which warrant a change in custody;
these findings are to be based either on the best interests of the child pursuant to
KRS 403.270 or, if made less than two years after the decree, “there is reason to
believe that . . . [t]he child’s present environment may endanger seriously his
physical, mental, moral, or emotional health[.]” KRS 403.340(2)(a). Those
findings must be made in a good faith effort of the family court and must be
included in a written order. Murry v. Murry, 418 S.W.3d 432, 435-36 (Ky. App.
2014) (citing Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011) and Keifer v.
Keifer, 354 S.W.3d 123, 125-26 (Ky. 2011)).
The only “finding” on the schooling issue relating to the best interests
of the child found in the February 14, 2022, order is the absence of a finding,
namely: that “[t]here is no evidence that [Farley’s wife], can provide the
specialized education that [D.F.] requires.” (R. at 198.) The family court
attempted to rectify this in the March 29, 2022, order, updating its findings to
include the declaration that Farley’s wife “is not a certified teacher, nor does she
have any training in providing education for a child with special needs.” (R. at
219.) However, at no point during the February 14, 2022, hearing was testimony
or evidence concerning the qualifications of Farley’s wife as a school instructor
ever introduced. At no point were D.F.’s specific needs discussed or presented to
the family court. And again, at no point did Willis even make an oral request to
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modify the schooling situation – she merely stated that Farley had removed D.F.
from school, while A.W. had remained, and that she personally did not know why
that had happened. (V.R. – Feb. 14, 2022, at 8:58:30.) While it is clear that a
proper motion for modification of custody or to challenge Farley’s decision-
making authority was not before the family court, it is equally clear from the
record that a meaningful hearing on the subject was not conducted, and the
findings of fact that were made are not substantial even if there had been a proper
motion.
IV. CONCLUSION
The family court abused its discretion when it inappropriately
required Farley to re-enroll D.F. into public school to purge his contempt of the
June 29, 2020, order. Accordingly, the February 14, 2022, order is affirmed in
part, namely, that finding that Farley is in contempt of the June 29, 2020, decree
regarding the provisions relating to A.W., and reversed in part, namely, the
provision that D.F. be re-enrolled in public schools as a purge condition. This
matter is remanded for further proceedings consistent with this Opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
Kyle Louis Schickel
Allison White
Louisville, Kentucky
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