Steven Thomas v. Stephanie Thomas ( 2021 )

RENDERED: APRIL 23, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0182-MR
STEVEN THOMAS APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 94-CI-01333
STEPHANIE THOMAS APPELLEE
OPINION
AFFIRMING
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BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES.
KRAMER, JUDGE: Steven Thomas appeals from an order of the Hardin Circuit
Court, Family Division, finding him in contempt for failure to comply with a court
order entered August 7, 2014, to enroll the parties’ son in a health insurance plan.
Upon review, we affirm.
Steven and Stephanie Thomas divorced in 1996. However, there has
been ongoing litigation due to the health insurance needs of the parties’ son Jay.
Although Jay is an adult, he is disabled and requires constant care. Pursuant to the
parties’ separation agreement, Steven was required to maintain military health
insurance for Jay as long as he was eligible. Should Jay ever become ineligible,
the parties were to provide equivalent health insurance.
In 2014, the family court entered an order requiring Steven to provide
health insurance for Jay. That order was never appealed. Stephanie filed a motion
for contempt in June 2015, arguing that Steven had failed to maintain health
insurance for Jay as ordered. The parties tried to reach a resolution and, as a result,
Stephanie’s contempt motion was continued numerous times. The family court
eventually held Steven in contempt, but the contempt was purged when Steven
signed a Special Power of Attorney so that Stephanie could attempt to enroll Jay in
the military health insurance program (Tricare) available to Steven.
Stephanie filed a second motion to hold Steven in contempt in July
2018, again for his failure to provide health insurance for Jay. The motion was
continued numerous times as the parties attempted, unsuccessfully, to reach a
resolution. The family court entered a scheduling order, and a hearing was held on
October 16, 2018. Neither Steven nor his attorney appeared. The family court
entered another order finding Steven in contempt but instructed he could purge the
contempt by enrolling Jay in Tricare within ten (10) days of the order. Steven was
also ordered to pay Stephanie’s attorney’s fees. Steven filed a “motion to vacate
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and for sanctions” following entry of the family court’s order. The motion was
scheduled to be heard on November 6, 2018. However, on November 7, 2018, the
family court entered an order continuing the hearing to November 20, 2018, to give
Stephanie time to respond to the motion. Stephanie’s response is contained in the
record before us and is stamped as “Filed in Open Court: 11-20-[20]18.” Steven
filed a reply on November 25, 2018, and the family court entered an order denying
Steven’s motion on January 2, 2019. This appeal followed.1
We must affirm the judgment of the family court due, in part, to the
inadequate record before us. We note that Steven filed a designation of record
pursuant to CR2 75.01 that included the October 16, 2018 hearing. However, the
hearing does not appear in the record before us.
On appeal, the trial court’s findings of fact will not be
disturbed unless they are clearly erroneous. CR 52.01.
When the evidence is not presented for review, this court
is confined to a determination as to whether the pleadings
support the judgment and on all issues of fact in dispute
we are required to assume that the evidence supports the
findings of the lower court.
1
This case had been pending in this Court for two years before Steven filed his appellant brief on
January 21, 2021. A prior brief filed by Steven on December 30, 2020, was rejected as deficient,
and Steven requested three extensions of time during the pendency of this appeal. Additionally,
there were six prehearing conferences scheduled in this case, resulting in an over seven-month
delay. This matter was finally assigned to this merits panel on March 25, 2021.
2
Kentucky Rule of Civil Procedure.
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McDaniel v. Garrett, 661 S.W.2d 789, 791 (Ky. App. 1983) (internal citation
omitted).
Thus, without the hearing to review, we must assume its contents
support the family court’s order. Id.We have repeatedly held that it is an appellant’s responsibility to
ensure that we have the complete record for our review. A simple check on the
status of his record on appeal would have confirmed to Steven that the hearing was
not in the record received by this Court.3
In Hatfield v. Commonwealth, 250 S.W.3d 590 (Ky.
2008), the Supreme Court of Kentucky discussed the
appellant’s burden to present a complete record to
support his appeal:
Appellant has a responsibility to present a
“complete record” before the Court on appeal.
Steel Technologies, Inc. v. Congleton, 234 S.W.3d
920, 926 (Ky. 2007). “Matters not disclosed by the
record cannot be considered on appeal.”
Montgomery v. Koch, 251 S.W.2d 235, 237 (Ky.
1952); see also Wolpert v. Louisville Gas & Elec.
Co., 451 S.W.2d 848 (Ky. 1970) (holding that our
predecessor court could not review contentions of
prejudice before the jury when the only basis for
the argument was the Appellant’s brief, because
review is confined to the record). Appellant may
not raise allegations of error on appeal “based
entirely on a silent record.” Commonwealth v.
Thompson, 697 S.W.2d 143, 144 (Ky. 1985).
Further, “[i]t has long been held that, when the
3
There are four compact discs containing hearings in the record before us. However, the
hearings are dated May 4, 2012, and April 2, 2013.
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complete record is not before the appellate court,
that court must assume that the omitted record
supports the decision of the trial court.” Id. at 145.
Hatfield, 250 S.W.3d at 600-01.
Ray v. Ashland Oil, Inc., 389 S.W.3d 140, 145 (Ky. App. 2012); see also K.M.E. v.
Commonwealth, 565 S.W.3d 648, 654 (Ky. App. 2018).
We also affirm the family court because it does not appear, from the
record before us, that Steven’s motion to vacate and for sanctions was ever heard
by the family court. As indicated herein, Stephanie’s response to the motion was
filed in open court on November 20, 2018, which was the same date the hearing
was scheduled. However, Steven did not include that date in his designation of
record, and the proceedings do not appear in the record before us. Stephanie
contends that, because there was not a hearing on Steven’s motion, all the exhibits
he included were not properly authenticated, nor were they admitted into evidence
by the family court. We are compelled to agree. Based on the record before us,
this Court has no way of knowing what proceedings took place before the family
court on November 20, 2018.
Steven argues that the purge requirement of putting Jay on Tricare is
an impossible task. He contends Jay does not qualify for Tricare due to reasons
that have nothing to do with anything Steven has or has not done. However,
Steven did not avail himself of the proceedings before the family court to present
the evidence and arguments that he now presents to this Court. Neither Steven nor
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his counsel appeared at the October 16, 2018 hearing, and they also failed to
ensure that it was contained in the record for our review. It also does not appear
that Steven requested a hearing on his motion to vacate and for sanctions based on
the record before us. “An appellate court is without authority to review issues not
raised in or decided by the trial court.” Fischer v. Fischer, 197 S.W.3d 98, 102
(Ky. 2006) (internal quotation marks and footnote omitted). Although Steven’s
argument is preserved generally, the exhibits he attached to the motion were never
properly authenticated or admitted into evidence by the family court.
Accordingly, we must affirm the family court as we are compelled to
assume that the omitted portions of the record support the order of contempt.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Donald J. Haas Lori A. Kinkead
Louisville, Kentucky Elizabethtown, Kentucky
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