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C.C. v. Commonwealth ex rel. S.B.

Court of Appeals of Kentucky

February 8, 2019

C.C. APPELLANT
v.
COMMONWEALTH OF KENTUCKY EX REL S.B. APPELLEE

          APPEAL FROM KENTON CIRCUIT COURT HONORABLE CHRISTOPHER J. MEHLING, JUDGE ACTION NO. 08-J-01537

          BRIEFS FOR APPELLANT: Steven J. Buck Frankfort, Kentucky

          BRIEF FOR APPELLEE: Katherine McLindon Covington, Kentucky

          BEFORE: ACREE, KRAMER, AND L. THOMPSON, JUDGES.

          OPINION

          ACREE, JUDGE:

         C.C. appeals the Kenton Circuit Court's order partially revoking the conditional discharge of his contempt sentence. He argues the family court erred by denying his counsel's request to continue the final hearing, by activating the revocation in C.C.'s absence, by not setting an amount by which C.C. could purge his contempt, and by failing to determine C.C.'s failure to pay support was willful. Having considered the record and arguments of counsel, we affirm.

         BACKGROUND

         On July 23, 2010, the circuit court ordered C.C. to pay $357.14 per month in child support for his two children, along with a $40 per month payment toward arrears. Within a few years, C.C. was $4, 925.98 in arrears. In 2016, the Commonwealth filed a motion for C.C. to show cause why he should not be held in contempt for failing to comply with the family court's support order. The court heard the motion on November 16, 2016. C.C. was present for the hearing.

         At that hearing, the family court told C.C. he was charged with contempt of court and further told him:

The allegations are you were ordered to pay child support in the amount of $357.14 a month effective 5/12/10; you were ordered to pay $40 a month for arrearage; you're in arrears over $4900 as of the end of August; that you're not paying per the court order and you've not paid since May [2016]; that you had the ability to comply but have failed to do so; you face up to 180 days in jail so you have a right to an attorney.

(Video Transcript (VT) 11/16/16; 3:13:04) (emphasis added). The court appointed counsel to represent C.C. The court then asked for a proposal from the Commonwealth for sanctions should the court find, after a hearing, that there was sufficient proof to support the allegations. The Commonwealth's proposal was a sentence of 180 days conditionally discharged for two years provided C.C. thereafter paid child support as ordered. The court then further informed C.C. that "I can enter a denial, set the case for a trial, a hearing, later; however, you [and your appointed counsel] should talk about [the Commonwealth's proposal] because it might be a good idea to take it. You two decide what you want to do." The court then addressed other cases before it that day while C.C. and his counsel conferred.

         There was no need to set a date to conduct a hearing. After C.C. consulted with appointed counsel, and consistent with the recommendation of the Commonwealth, C.C. was ready to plead:

Court: Okay, do you admit you're in contempt ...

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