Gregory Crandell v. Commonwealth of Kentucky Cabinet for Health and Family Services ( 2021 )

RENDERED: FEBRUARY 26, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
MODIFIED: MARCH 5, 2021; 10:00 A.M.
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1325-MR
GREGORY CRANDELL APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
v. HONORABLE MONICA K. MEREDITH, JUDGE
ACTION NO. 17-CI-00357
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAMILY SERVICES
EX REL. MARY J. DILKE APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, MAZE, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Gregory Crandell (“Crandell”) appeals from the Bullitt
Circuit Court’s July 30, 2019 amended order finding him in contempt for failing to
pay child support. For the reasons set forth herein, we affirm in part, reverse in
part, and remand for further proceedings.
Background
In July 1997, the Superior Court in Contra Costa County, California
ordered Crandell to pay child support in the amount of $391.00 per month for his
two minor children. In April 2017, a UIFSA1 petition was filed in the Bullitt
Circuit Court requesting that Bullitt County enforce the California child support
order. On September 1, 2017, the Commonwealth filed a motion for default
judgment, and on September 8, 2017, the circuit court entered a default judgment
for child support arrears and repayment, ordering that Crandell pay $391.00 per
month towards an arrearage amount of $115,760.00.
On May 3, 2018, the Commonwealth filed a motion to hold Crandell
in contempt for failure to pay child support. Crandell failed to appear for the
contempt hearing and was subsequently arrested pursuant to a bench warrant. On
March 26, 2019, a brief hearing was held where the court found Crandell to be
indigent and appointed a public defender to represent him. Prior to the contempt
hearing, Crandell moved for work release so that he could search for a job to begin
paying the child support arrears, representing to the court that despite his physical
disability, he believed he could find a job.
1
Uniform Interstate Family Support Act, Kentucky Revised Statutes (KRS) 407.5101, et seq.
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The contempt hearing was held on July 16, 2019. At the hearing,
Crandell did not challenge the validity of the child support order or the amount of
the arrears, but instead argued his disability prevented him from complying with
the child support order. Crandell presented evidence from Ramona Jackson, a
supervisor at Volunteers of America’s Housing Stabilization Program, and
Vanessa Nagle, a housing specialist for the Louisville Metro Department of
Community Services, concerning his disability. Both Jackson and Nagle testified
Crandell was part of a program funded by the Department of Housing and Urban
Development to provide housing for the homeless. To qualify for the program, a
person must have a disability, be homeless, and have low income.
Crandell introduced evidence that on September 20, 2016, a nurse
practitioner determined he had a physical disability, qualifying him for the housing
program. Crandell tendered a verification form completed by the nurse
practitioner, noting that Crandell’s physical disability is “of long-continuing or
indefinite duration,” “substantially impede[s] [Crandell’s] ability to live
independently,” and “[c]ould . . . improve[] by the provision of more suitable
housing conditions.” The form is silent on the nature of the disability or its impact
on Crandell’s ability to work.
Nagle testified she did not believe Crandell has held a job at any time
while participating in the program based upon the fact that his only listed income
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when he applied for the program was from the Kentucky Transitional Assistance
Program (K-TAP). Nagle stated Crandell has two dependent children living with
him. Nagle further testified Crandell now receives disability income in addition to
K-TAP, but there was no testimony as to the amount of the benefit.
Crandell did not testify at the hearing, and no evidence was presented
concerning Crandell’s income, expenses, or work history. On July 22, 2019,2 the
court entered an order finding Crandell in contempt for failure to make regular
payments towards his child support arrearage of $126,691.25. The court noted
Crandell’s “physical impairment of long or indefinite duration,” but it found
Crandell had not proven his disability prevented him from working. The court
pointed to Crandell’s request for work release while incarcerated as evidence of his
ability to work. It also found Crandell had a reliable automobile to transport him
to and from work. However, the court reduced Crandell’s monthly payment from
$391.00 to $251.00, in consideration of his recent incarceration and economic
circumstances.
As a remedy for Crandell’s contempt, the circuit court sentenced him
to serve twenty days in jail for each month he fails to pay his child support,
including the current month. The court ruled it would hold the sentence in
2
The circuit court subsequently entered an “Amended Order” on July 30, 2019, reflecting that
Crandall, who was in custody at the time of the hearing, had been released by separate order.
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abeyance until the tenth day of the following month, so if Crandell made his
payment that month, he would not have to serve the sentence. It also provided that
if Crandell provided proof of employment when he reported to the jail, he would
be granted work release for up to twelve hours a day, five days a week. This
appeal followed.
Standard of Review
“We review the trial court’s exercise of its contempt powers for abuse
of discretion, but we apply the clear error standard to the underlying findings of
fact.” Commonwealth, Cabinet for Health and Family Servs. v. Ivy, 353 S.W.3d
324, 332 (Ky. 2011) (citations omitted).
Analysis
Crandell contends the circuit court abused its discretion when it found
him in contempt for failing to pay child support because his disability prevents him
from complying with the order. We disagree.
A trial court . . . has broad authority to enforce its
orders, and contempt proceedings are part of that
authority. 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.
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Ivy, 353 S.W.3d at 332 (citation omitted). Here, the contempt proceeding was civil
since it was meant to coerce Crandell to comply with his child support obligation.
The burden in a civil contempt proceeding is initially “on the party
seeking sanctions to show by clear and convincing evidence that the alleged
contemnor has violated a valid court order[,]” as well as to prove any amounts
sought in compensation. Id. (citing Roper v. Roper, 242 Ky. 658, 47 S.W.2d 517
(1932)). Once a movant makes 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.” Id. (citing Clay v.
Winn, 434 S.W.2d 650 (Ky. 1968)). As noted in Ivy, “[t]his 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.” Id. (citations omitted).
At the hearing, Crandell did not dispute the existence of the order or
the amount owed. The burden was his, therefore, to show he was unable to comply
with the child support order. Here, while Crandell put on evidence that he had a
disability, this evidence alone is insufficient to show clearly and convincingly that
he was unable to comply with the child support order. See Ivy, 353 S.W.3d at 333
(holding that finding of disability by Social Security Administration (SSI) does not
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compel finding of inability to comply with order). Crandell offered no evidence
that his disability prevents him from being employed. While he introduced a form
stating he had a physical impairment of long or indefinite duration, the form said
nothing about the nature of his physical impairment, or that this impairment
prevented him from working.
The circuit court found Crandell’s recent request to be released from
jail to work and/or search for a job as evidence of his ability to work. The court
also noted Crandell had reliable transportation. The burden was on Crandell “to
show clearly that he . . . made all reasonable efforts to comply.” Id. at 332
(citation omitted). We hold the circuit court did not abuse its discretion in finding
Crandell in contempt for failing to comply with the child support order.
“Having found a party in contempt, the court’s next task is to fashion
a remedy.” Id. at 334. Crandell has not challenged the circuit court’s sanction on
appeal; therefore we decline to address it.3 Serv. Fin. Co. v. Ware, 473 S.W.3d 98,
103 (Ky. App. 2015) (“Questions . . . not argued in the briefs, will not be
considered by the Court of Appeals.”) (citation omitted).
3
However, we would note the sanction is nearly identical to the one our Supreme Court held
invalid in Commonwealth, Cabinet for Health and Family Services v. Ivy, 353 S.W.3d 324, 335
(Ky. 2011).
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Finally, Crandell argues that the court erred in assessing him a $100
partial public defender fee after finding him indigent. Crandell has not preserved
this issue for appeal but requests palpable error review under CR4 61.02. We agree
with Crandell that the circuit court erred in imposing attorney fees “as it did not
conduct a nonadversarial hearing to determine whether [Crandell] had the present
ability to pay for his legal representation as required by KRS 31.211(1).”
Applegate v. Commonwealth, 577 S.W.3d 83, 88 (Ky. App. 2018) (citing Maynes
v. Commonwealth, 361 S.W.3d 922, 929 (Ky. 2012)).
Further, in Spicer v. Commonwealth, 442 S.W.3d 26, 34 (Ky. 2014),
our Supreme Court held, under similar circumstances, that a trial court erred in
imposing a public defender fee on a defendant found to be indigent and granted in
forma pauperis status on appeal:
Appellant in this case was represented by a public
defender at the time of sentencing, and was granted in
forma pauperis status on appeal. Thus, it is clear his
indigency continued throughout trial. There is simply no
record of any hearing in which the trial court later found
good cause to determine the defendant should not
continue to be considered an indigent person. Thus,
without such findings, the court’s imposition of a
$450.00 attorney fee was improper, and we now vacate
it.
Id. at 34-35.
4
Kentucky Rules of Civil Procedure.
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Crandell was previously found to be indigent by the circuit court and
subsequently granted in forma pauperis status on appeal. His indigency continued
throughout the proceeding, and there was never any finding of good cause
determining he should no longer be considered indigent. Therefore, the court erred
in imposing the partial public defender fee.
Conclusion
For the foregoing reasons, we affirm the order of the Bullitt Circuit
Court as to the finding of contempt, reverse as to the imposition of the $100 public
defender fee, and remand for entry of an order consistent with this opinion.
CALDWELL, JUDGE, CONCURS.
MAZE, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
MAZE, JUDGE, DISSENTING: Respectfully, I dissent from that portion of the
majority opinion concluding that the family court did not abuse its discretion in
holding Crandell in contempt for failing to comply with its prior judgment
requiring him to pay $391.00 per month toward the child support arrearage of
$126,691.25. In Lewis v. Lewis, our Supreme Court recognized “the inherent
power of the trial court to enforce its judgment by means of incarceration of a
person who is found in contempt of the lawful orders of the court.” 875 S.W.2d
862, 864 (Ky. 1993). However, the Lewis Court also cautioned that “[s]uch action
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is extraordinary and subject to certain limitations. The contempt power should not
be used to require the doing of an impossible thing.” Id. (emphasis added).
As the majority notes, the family court heard evidence of Crandell’s
physical impairment of long or indefinite duration, supported by the testimony of
two witnesses who testified that Crandell qualified for benefits from a program
funded by the Department of Housing and Urban Development which required a
showing that he had a disability, was homeless, and had low income. Crandell
submitted a verification form for that program which had been completed by a
nurse practitioner attesting to the fact that his physical disability was of long-
continuing or indefinite duration and that his disability substantially impeded his
ability to live independently. As the majority states, the family court also heard
testimony from a housing specialist for Louisville Metro Department of
Community Services that she did not believe Crandell had held a job at any time
while participating in the program; that his only listed income when he applied for
the program was from the Kentucky Transitional Assistance Program; and that he
is now receiving disability income in addition to the K-TAP benefits. Although, as
the majority states, there was no testimony as to the amount of that benefit, nor was
there evidence as to Crandell’s income, expenses, or work history, I am
nevertheless convinced that the evidence he produced was sufficient to preclude a
finding that he had the ability to comply and thus avoid incarceration. I am also
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convinced that nothing in the caselaw we are bound to follow requires specific
evidence in order to avoid incarceration for contempt. Because I am convinced
that the family court clearly erred in predicating its finding of contempt solely on
Crandell’s request to be released from incarceration in order to seek employment
and the fact that he has a car sufficient to get to employment should he be able to
find some, I view the decision of the family court as fundamentally unfair and
failing to comport with the sound legal principles set out in long-standing caselaw
which this Court is bound to follow.
Returning to the dictates of Lewis, supra, the Supreme Court made
clear that 1) civil contempt charges should be related to the amount the defendant
is found able to pay; 2) the contemnor’s ability to satisfy the judgment is a question
of fact for the trial judge; and 3) the trial court must make findings of fact
regarding the ability to satisfy the judgment before ordering incarceration for
failure to pay child support. The Supreme Court had occasion to revisit the
principle of ability to pay in Commonwealth, Cabinet for Health and Family
Services v. Ivy, 353 S.W.3d 324 (Ky. 2011). Similar to the case at bar, Ivy offered
proof that she was unable to pay by reason of disability and had been determined to
be disabled and needy by Social Security Administration standards.
Acknowledging that receipt of SSI benefits, standing alone, does not compel a
finding of inability to pay, the Supreme Court nevertheless emphasized that the
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family court is not free to simply disregard the Social Security Administration’s
determination that an SSI recipient is disabled:
If earning capacity is to be attributed to the recipient, or
if child support is to be demanded from the SSI benefit
itself, there must be evidence clearly establishing the
recipient’s ability to work or the recipient’s ability to
afford the support payment. We agree with the Court
of Appeals that there was no such evidence here.
...
The family court’s contempt finding, however, was
not based so much on Ivy’s failure to eke out a support
payment from her SSI benefit. The court found, rather,
that Ivy is “able-bodied and capable of providing
support,” and thus apparently meant to impute to her,
during the period prior to the hearing, the capacity to
earn enough to pay at least some of the support she
owed. The court made no findings in support of this
conclusion, as it should have done, and indeed made no
reference to any evidence at all. Because the court failed
to make findings of fact, our review is essentially for
abuse of discretion.
Id. at 333-34 (footnote omitted) (emphases added).
Here, the family court failed to make findings as to Crandell’s ability
to work or to find employment given his disability. Rather, the family court,
without apparent basis, simply imputed to him the ability to earn $251.00 per
month “which is approximately the sum an individual will earn in one month
working one eight (8) hour day each week at minimum wage ($7.25/hour).”
Further, I am convinced that a request for release from incarceration to seek
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employment cannot be construed as an admission by Crandell that suitable
employment was available or that he would be physically capable of performing it.
In my opinion, given the lack of appropriate findings concerning Crandell’s ability
to pay, the family court’s finding of contempt constitutes an abuse of discretion
and should be reversed.
Further, I cannot concur in the majority’s refusal to address the
propriety of the family court’s sanction or remedy on the basis that Crandell failed
to challenge it. The majority does, however, note in footnote 3 that the sanction in
this case is nearly identical to the one invalidated in Ivy. Reviewing the arguments
Crandell presses in this appeal in light of the holding in Ivy, I fail to conclude as
did the majority that “Crandell has not challenged the circuit court’s sanction on
appeal.” To my mind, Crandell’s argument that he cannot be incarcerated due
solely to his inability to pay cannot be logically separated from the nature of the
sanction imposed – which was incarceration. In concluding that this argument is
adequately preserved for our review, I turn to the Supreme Court’s explanation of
the sanction of contempt set out in Ivy:
Having found a party in contempt, the court’s next
task is to fashion a remedy. Where, as here, the contempt
proceeding is civil, the sanction may serve either to
coerce the contemnor to comply with a court order, to
compensate a party for losses caused by the contempt, or
both. Coercive sanctions, such as daily fines or
incarceration, are punishments imposed until the
contempt is purged by compliance with an order. For
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the punishment to retain its civil character, the
contemnor must, at the time the sanction is imposed,
have the ability to purge the contempt by compliance
and either avert the punishment or at any time bring
it to an end. The contemnor bears the burden of
proving his or her inability to meet the purge
condition, but in imposing that burden the court
should be mindful of the contemnor’s overriding
interest in not being required to perform an
impossible act.
Id. at 334-35 (citations omitted) (emphasis added). Because I am convinced that
Crandell’s arguments in this appeal place this issue squarely before us, I cannot
conclude that the issue has not been adequately preserved.
Finally, the Supreme Court in Ivy made clear that an order predicated
on future compliance is invalid:
Had the court properly found Ivy in contempt, it could, as
a compensatory remedy, have ordered her to make
payments toward her arrears in an amount she could
afford. The court also could have ordered her
imprisonment for past non-compliance. The court’s
attempt to fashion a coercive remedy, however, by
threatening Ivy with fixture [sic] incarceration for
future violations of her support order, did not provide
her with a true opportunity for purging, and thus was
invalid. As noted above, the purge condition of a
coercive order must be something presently within the
contemnor’s ability to perform. Ivy had no present
ability to perform future obligations. By itself, moreover,
a future failure to pay would not, in and of itself, the
court’s order notwithstanding, justify Ivy’s incarceration.
That future conduct was not, and could not be, the
subject of the pending contempt motion because it had
yet to occur. If Ivy did fail to pay, she would be entitled
to notice, a new hearing, and a finding that at that future
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point in time she had the ability to comply. Even were it
valid, therefore, the court’s order would amount to little
more than a reaffirmation of the support order.
Id. at 335 (footnote and citations omitted) (emphases added). For the same reasons
set forth in Ivy, I am convinced that the family court’s imposition of a
conditionally-discharged sentence dependent upon Crandell’s future compliance
with his payment obligations was not a condition with which he had a present
ability to comply and thus, in my opinion, the contempt order is invalid and cannot
be enforced.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Karen Shuff Maurer Jeffrey L. England
Frankfort, Kentucky Shepherdsville, Kentucky
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