James E. Durham v. Cabinet for Health and Family Services Commonwealth of Kentucky

RENDERED: JULY 1, 2022; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2019-CA-1925-MR

JAMES E. DURHAM APPELLANT

ON REMAND FROM SUPREME COURT OF KENTUCKY
NO. 2022-SC-0033-D

APPEAL FROM BULLITT CIRCUIT COURT
v. FAMILY COURT DIVISION
HONORABLE MONICA K. MEREDITH, JUDGE
ACTION NO. 92-J-00083

COMMONWEALTH OF KENTUCKY
EX REL. CABINET FOR HEALTH
AND FAMILY SERVICES; AND JODI
M. BROWN APPELLEES

OPINION
AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.

TAYLOR, JUDGE: This matter is before the Court of Appeals on remand from

the Kentucky Supreme Court by Opinion and Order entered June 8, 2022, in
Appeal No. 2022-SC-0033-D. The Supreme Court vacated and remanded this

Court’s November 19, 2021, Opinion for further consideration in light of Crandell

v. Cabinet for Health and Family Services ex rel. Dilke, 642 S.W.3d 686 (Ky.

2022).

Having reviewed Crandell, we believe the instant appeal is

distinguishable from Crandell. In Crandell, the family court made a finding that

Crandell had the present ability to pay and then imposed punishment for possible

future contempt by Crandell. In the case sub judice, the family court, likewise,

found that Durham had the present ability to pay, but there was no attempt to

punish him for future contemptuous conduct. Thus, upon reconsideration, we

affirm the family court’s order holding Durham in contempt for failure to pay his

child support arrearage when he had the present ability to do so.1

The underlying action was commenced on March 11, 1992, in the

Bullitt District Court (Action No. 92-J-00083) upon the filing of a paternity

complaint by the Commonwealth of Kentucky ex rel. Cabinet for Human

Resources (collectively referred to as the Commonwealth) and Jodi M. Brown.2

1
This is the same result reached by this Court in our original Opinion rendered November 19,
2021.
2
The Cabinet for Human Resources is now known as the Cabinet for Health and Family
Services. The Petition in this action was initiated by the Bullitt County Attorney on behalf of the
Commonwealth of Kentucky and Brown.

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The Commonwealth sought to establish paternity of Brown’s daughter, who was

born on August 16, 1991.3 In the petition, it was alleged that Brown was receiving

support from the Commonwealth under Aid to Families with Dependent Children,

as well as other government benefits, and the Commonwealth wanted contribution

from the child’s father. Brown identified Durham as the father, and Durham filed

an acknowledgement of paternity. By Judgment and Order entered August 10,

1992, Durham was adjudicated the father and ordered to pay child support of $40

per week.

Between 1992 and 2005, the matter was brought before the lower

court on several occasions for issues related to nonpayment of child support. By

order entered June 1, 2004, Durham was determined to be in contempt for failure

to pay child support and was sentenced to 179-days incarceration conditionally

discharged for two years. Child support of $416.87 per month was ordered to be

paid plus an additional $50 per month to be applied toward his arrearage of

$9,087.79.4 The record is silent from late 2005 until early 2019. Presumably,

Durham made substantial child support payments during this period of time. His

unrefuted testimony, based on information received from the Bullitt County

3
The child turned eighteen on August 16, 2009, and from the record it appears James E.
Durham’s child support obligation terminated in 2010 when the child graduated from high
school.
4
An Agreed Order reciting the same repayment terms was entered on August 31, 1999, and on
December 19, 2001, by the Bullitt District Court. Durham signed the orders as a pro se litigant.

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Attorney’s Office, indicates he had paid over $62,800 of child support prior to the

2019 hearing. However, he remained obligated to pay any arrearage at the rate of

$50 per month.

On April 16, 2019, the Commonwealth filed a motion to hold Durham

in contempt of court for failure to pay his current child support arrearage, in the

amount of $2,793.74.5 An evidentiary hearing was conducted, and by Order

entered on November 12, 2019, the family court stated:

At the hearing on November 5, 2019[,] the
[Commonwealth] produced evidence that the current
arrearage balance is $2,753.74. [Durham] has reduced
the balance by less than $50.00 since the
[Commonwealth’s] Motion was filed in April 2019.
[Durham] testified that he works as a drywaller and
supports a gambling habit. Counsel for [Durham] argued
that [he] has “substantially complied” with his child
support obligation and the Orders of the Court and thus
should not be held in contempt.

[Durham] has offered no reasonable explanation as
to why he was unable to comply with the agreement he
had previously entered and requested, by his agreement,
for the Court to Order. In fact, the testimony of
[Durham] is that he is capable of gainful employment and
has income sufficient to provide for him to participate in
the recreational activity of gambling. The Court being
sufficiently advised;

IT IS HEREBY ORDERED that [Durham] is found
to be in contempt of Court. For his contemptuous

5
At the hearing, a representative of the Bullitt County Attorney’s Office testified that Durham
owed $1,896.87 to the Commonwealth and $856.87 to Brown, which totals $2,753.74, not
$2,793.74.

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 conduct the Court imposes a sanction of one hundred
seventy-nine (179) days to be served in the Bullitt
County Detention Center. The sentence is to begin
immediately and to be served continuously until satisfied.

November 12, 2019, Order at 2-3.

As noted in its June 8, 2022, Opinion and Order vacating and

remanding, the Supreme Court directed this Court to reconsider our November 19,

2021, Opinion in light of its recent Opinion in Crandell v. Cabinet for Health and

Family Services ex rel. Dilke, 642 S.W.3d 686 (Ky. 2022). In Crandell, the family

court found that Crandell had the present ability to pay child support. Id. The

family court further held that Crandell was in contempt for failure to pay, found his

child support arrearage to be $126,691.25, and imposed a monthly payment of

$251 per month. Id. The family court further stated “that if Crandell failed to pay

the stated amount [$251] by the 11th of each month, he must serve 20 days in

[jail].” Id. at 689. Essentially, the family court was imposing punishment upon

Crandell for possible future contemptuous conduct. See id.

It is well-established that a trial court has the inherent authority to

enforce its judgment by ordering incarceration of a person who is found in

contempt of a lawful order of the court. Lewis v. Lewis, 875 S.W.2d 862, 864 (Ky.

1993). Such inherent authority is nearly unfettered and will not be disturbed

absent an abuse of discretion. Lanham v. Lanham, 336 S.W.3d 123, 128 (Ky. App.

2011). It has, likewise, been recognized that the lower court’s contempt authority

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should not be utilized to compel the doing of an impossible act. Lewis, 875

S.W.2d at 864 (citing Rudd v. Rudd, 214 S.W. 791 (Ky. 1919)). In fact, the

Kentucky Supreme Court has specifically held that financial inability to pay can be

a valid defense to contempt. See id. (citing Clay v. Winn, 434 S.W.2d 650, 652

(Ky. 1968)). Therefore, the lower court must find that the contemnor has the

ability to satisfy the child support judgment before incarceration can be ordered.

Id. The question of the contemnor’s ability to satisfy a judgment is a question of

fact to be determined by the trial court. Id. (citing Clay v. Winn, 434 S.W.2d 650,

652 (Ky. 1968)).

As an evidentiary hearing was conducted without a jury, our review

proceeds pursuant to Kentucky Rules of Civil Procedure (CR) 52.01. CR 52.01

provides that “[f]indings of fact, shall not be set aside unless clearly erroneous[.]”

A finding of fact is not clearly erroneous if supported by substantial evidence.

Moore v. Asente, 110 S.W.3d 336, 353-54 (Ky. 2003). Questions of law are

reviewed de novo. Allen v. Devine, 178 S.W.3d 517, 524 (Ky. App. 2005).

In this case, the family court conducted a hearing on November 5,

2019, upon the Commonwealth’s motion to find Durham in contempt for his

failure to pay the child support arrearage. A review of the video record reveals that

the court heard testimony from an employee of the county attorney, who testified

Durham’s child support arrearage was $2,753.74. She further testified that

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Durham’s two most recent payments were $40 on October 16, 2019, and $11 on

March 6, 2018. Durham testified he was a drywaller by trade but had not been

recently employed full time. Durham also testified that he had a gambling

addiction and estimated that he had spent $3,000 - $4,000 on gambling in 2019.

Durham testified that the money he spent on gambling was earned by working

“odd jobs.” Thus, by his own admission, Durham had earned more income in 2019

than his total child support arrearage.

Based upon this evidence, the family court specifically found that

Durham was capable of gainful full-time employment but chose to work only

sporadically. The family court also found that Durham spent those sporadic

earnings on gambling rather than paying child support. We believe the family

court’s findings of fact are supported by substantial evidence and, thus, the

findings are not clearly erroneous. The record plainly reveals that Durham

possessed the ability to pay the child support arrearage of $50 per month. Instead,

Durham simply chose not to work full time and to engage in gambling activities

rather than pay child support.

Of particular import to the case sub judice, the Crandell Court

reiterated the significance of the family court having made “specific findings of

fact concerning the obligor’s present ability to pay [the child support as ordered].”

642 S.W.3d at 690 (citation omitted). And, the Crandell Court also stressed the

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significance of such finding “when ordering incarceration as a remedy for a finding

of contempt.” Id. at 690 (citation omitted).

In our case, the court orders at issue were entered in 1999, 2001, and

2004, which the family court concluded had been violated by Durham. The family

court did not attempt to punish Durham for future contemptuous conduct. Rather,

the family court merely made a finding that Durham had the present ability to pay

his child support arrearage at a rate of $50 per month but chose not to do so even

though he was capable of working. And, such finding was supported by

substantial evidence and was not clearly erroneous. Based upon Durham’s blatant

refusal to pay the $50 per month toward the arrearage, despite his present ability to

do so, the family court found that Durham was in contempt and ordered that he be

incarcerated for his failure to do so as previously ordered.

Accordingly, we hold that the family court made sufficient findings of

fact that Durham had the present ability to pay the child support arrearage and was

in contempt for his failure to pay. We believe our holding is in accord with the

holding in Crandell. See id.

For the foregoing reasons, the November 12, 2019, Order of the

Bullitt Circuit Court, Family Court Division, is affirmed.

ALL CONCUR.

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BRIEFS FOR APPELLANT: BRIEF FOR COMMONWEALTH OF
KENTUCKY EX REL. CABINET
Karen Shuff Mauer FOR HEALTH AND FAMILY
Assistant Public Advocate SERVICES:
Department of Public Advocacy
Frankfort, Kentucky Jeffrey L. England
Special Assistant Attorney General
Bullitt County Attorney’s Office
Shepherdsville, Kentucky

NO BRIEF FOR JODI M. BROWN.

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