RENDERED: MARCH 5, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0240-ME
BETTY CAITLIN NICOLE SMITH APPELLANT
APPEAL FROM CALLOWAY CIRCUIT COURT v. HONORABLE JAMES G. ADAMS, JUDGE ACTION NOS. 13-D-00044, 13-D-00044-001 & 13-D-00044-002
ZACHARY TAYLOR DANIEL APPELLEE
AND NO. 2020-CA-0744-ME
APPEAL FROM CHRISTIAN CIRCUIT COURT v. HONORABLE JASON SHEA FLEMING, JUDGE ACTION NO. 20-CI-00165
ZACHARY TAYLOR DANIEL APPELLEE OPINION AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, MAZE, AND MCNEILL, JUDGES.
MAZE, JUDGE: Betty Caitlin Nicole Smith (Smith) appeals from separate orders
of the Calloway Family Court and the Christian Family Court denying her relief in
her actions against Zachary Taylor Daniel (Daniel). In the Calloway Family Court
case, we find that the trial court did not abuse its discretion by declining to impose
contempt for Daniel’s alleged violations of an expired domestic violence order
(DVO). In the Christian Family Court case, we conclude that the trial judge was
not obligated to recuse himself from the matter. Hence, we affirm the orders in
both cases.
This matter arises from two separate appeals but involves related
facts. Smith and Daniel are the Mother and Father, respectively, of M.L.A.S., born
in July 2013. In 2014, Daniel filed a paternity/custody action against Smith in the
Calloway Family Court. On November 19, 2014, the family court entered an
agreed order adjudicating Daniel as the father of the child and granting joint
custody with Smith designated as the residential parent.
However, the parties continued to have disputes over visitation and
custody. Based upon Smith’s allegations of domestic violence by Daniel, the
family court entered a DVO restraining Daniel from contact with Smith and
-2- awarding Smith temporary custody of M.L.A.S. The terms of the DVO provided
that it would be in effect until November 25, 2018.
Following entry of the DVO, both parties and the child relocated to
Florida. In November 2016, Daniel brought an action in the circuit court for
Madison County, Florida, seeking dissolution of his marriage to Smith and custody
of M.L.A.S. Smith appeared in that action, contesting the jurisdiction of the court
and filing a motion in that action seeking to enforce the Kentucky DVO. After
finding that it had jurisdiction to modify the Kentucky custody order, the Florida
court granted the parties joint custody of the child. However, an appeals court
reversed that order, finding that the lower court failed to address how the Kentucky
DVO affected the issues relating to shared parental responsibility and parenting
time. Smith v. Daniel, 246 So. 3d 1279 (Fla. Dist. Ct. App. 2018).
Following remand of the matter to the Florida circuit court, the
Kentucky DVO expired. The Florida court again determined that it had
jurisdiction to modify the Kentucky order because neither the parents nor the child
resided in Kentucky. Smith made additional allegations of domestic violence
against her and M.L.A.S. However, the Florida court determined that she failed to
substantiate those allegations. Consequently, the court denied Smith’s request for
a new order of protection. The court also noted ongoing disputes over custody,
visitation, and support, primarily precipitated by Smith. Eventually, the court
-3- granted sole custody of the child to Daniel, with Smith receiving supervised
visitation.
Daniel moved to Tennessee during the pendency of the case in
Florida. After the Florida court granted him sole custody of the child, he and the
child resided there permanently. Smith then filed a petition in the Christian Family
Court seeking a modification of the original custody order. The court dismissed
her petition, noting that Florida had already exercised jurisdiction on custody and
the child was residing with Father in Tennessee. The court also took notice that
there was a new custody proceeding pending in Tennessee. Smith filed a motion to
disqualify the trial judge due to the alleged ex parte communication from Daniel’s
Tennessee counsel. The family court denied the motion.
Separately, on January 26, 2019, Smith filed a motion in the Calloway
County case, alleging that Taylor had repeatedly violated the DVO while it was in
effect.1 The family court denied the motion, noting that the DVO had already
expired and neither party resided in Kentucky. Smith appeals from both of these
orders, and this Court directed that her appeals be heard together.
1 The DVO involved in this case was filed under Calloway Family Court Case No. 15-D-01922. However, the DVO was issued under an earlier case involving these parties, No. 13-D-00044. Consequently, Smith brought her motion to hold Daniel in contempt under the latter case number, which is the subject of this appeal.
-4- In her appeal from the Calloway Family Court matter, Smith argues
that the court had jurisdiction to address alleged violations of the DVO committed
while it was in effect. In addition to separate criminal penalties, a court has broad
discretion to impose criminal contempt sanctions for violations of a DVO. See
Newsome v. Commonwealth, 35 S.W.3d 836, 839 (Ky. App. 2001). However, we
will not disturb a court’s decision regarding contempt absent an abuse of its
discretion. Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky. App. 2007) (citing Smith
v. City of Loyall, 702 S.W.2d 838, 839 (Ky. App. 1986)). “The test for abuse of
discretion is whether the trial [court’s] decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999).
In this case, the family court noted that the alleged violations of the
DVO occurred after both parties left Kentucky. Several of the allegations involve
contact that occurred while they were both living in Florida, and at least one while
Daniel was living in Tennessee. The family court also had access to records from
the Florida proceedings, at which Smith raised these allegations and was denied
relief. Smith made no effort to bring the alleged violations of the DVO to the
attention of the Calloway Family Court while the DVO was in effect or within a
reasonable time thereafter. Consequently, we conclude that the family court did
not abuse its discretion by declining to consider these allegations.
-5- In her appeal from the Christian Family Court action, Smith argues
that the trial judge should have recused himself due to ex parte communications.
While Smith’s new custody matter was pending, the trial judge was contacted by
Daniel’s Tennessee counsel, who advised the court that there was another custody
matter pending in Maury County, Tennessee. The trial judge advised the parties of
this contact and then contacted the Tennessee court to discuss which state should
hear the custody matter. The family court ultimately concluded that Kentucky had
already lost home state jurisdiction while the Florida case was pending. Since
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RENDERED: MARCH 5, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0240-ME
BETTY CAITLIN NICOLE SMITH APPELLANT
APPEAL FROM CALLOWAY CIRCUIT COURT v. HONORABLE JAMES G. ADAMS, JUDGE ACTION NOS. 13-D-00044, 13-D-00044-001 & 13-D-00044-002
ZACHARY TAYLOR DANIEL APPELLEE
AND NO. 2020-CA-0744-ME
APPEAL FROM CHRISTIAN CIRCUIT COURT v. HONORABLE JASON SHEA FLEMING, JUDGE ACTION NO. 20-CI-00165
ZACHARY TAYLOR DANIEL APPELLEE OPINION AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, MAZE, AND MCNEILL, JUDGES.
MAZE, JUDGE: Betty Caitlin Nicole Smith (Smith) appeals from separate orders
of the Calloway Family Court and the Christian Family Court denying her relief in
her actions against Zachary Taylor Daniel (Daniel). In the Calloway Family Court
case, we find that the trial court did not abuse its discretion by declining to impose
contempt for Daniel’s alleged violations of an expired domestic violence order
(DVO). In the Christian Family Court case, we conclude that the trial judge was
not obligated to recuse himself from the matter. Hence, we affirm the orders in
both cases.
This matter arises from two separate appeals but involves related
facts. Smith and Daniel are the Mother and Father, respectively, of M.L.A.S., born
in July 2013. In 2014, Daniel filed a paternity/custody action against Smith in the
Calloway Family Court. On November 19, 2014, the family court entered an
agreed order adjudicating Daniel as the father of the child and granting joint
custody with Smith designated as the residential parent.
However, the parties continued to have disputes over visitation and
custody. Based upon Smith’s allegations of domestic violence by Daniel, the
family court entered a DVO restraining Daniel from contact with Smith and
-2- awarding Smith temporary custody of M.L.A.S. The terms of the DVO provided
that it would be in effect until November 25, 2018.
Following entry of the DVO, both parties and the child relocated to
Florida. In November 2016, Daniel brought an action in the circuit court for
Madison County, Florida, seeking dissolution of his marriage to Smith and custody
of M.L.A.S. Smith appeared in that action, contesting the jurisdiction of the court
and filing a motion in that action seeking to enforce the Kentucky DVO. After
finding that it had jurisdiction to modify the Kentucky custody order, the Florida
court granted the parties joint custody of the child. However, an appeals court
reversed that order, finding that the lower court failed to address how the Kentucky
DVO affected the issues relating to shared parental responsibility and parenting
time. Smith v. Daniel, 246 So. 3d 1279 (Fla. Dist. Ct. App. 2018).
Following remand of the matter to the Florida circuit court, the
Kentucky DVO expired. The Florida court again determined that it had
jurisdiction to modify the Kentucky order because neither the parents nor the child
resided in Kentucky. Smith made additional allegations of domestic violence
against her and M.L.A.S. However, the Florida court determined that she failed to
substantiate those allegations. Consequently, the court denied Smith’s request for
a new order of protection. The court also noted ongoing disputes over custody,
visitation, and support, primarily precipitated by Smith. Eventually, the court
-3- granted sole custody of the child to Daniel, with Smith receiving supervised
visitation.
Daniel moved to Tennessee during the pendency of the case in
Florida. After the Florida court granted him sole custody of the child, he and the
child resided there permanently. Smith then filed a petition in the Christian Family
Court seeking a modification of the original custody order. The court dismissed
her petition, noting that Florida had already exercised jurisdiction on custody and
the child was residing with Father in Tennessee. The court also took notice that
there was a new custody proceeding pending in Tennessee. Smith filed a motion to
disqualify the trial judge due to the alleged ex parte communication from Daniel’s
Tennessee counsel. The family court denied the motion.
Separately, on January 26, 2019, Smith filed a motion in the Calloway
County case, alleging that Taylor had repeatedly violated the DVO while it was in
effect.1 The family court denied the motion, noting that the DVO had already
expired and neither party resided in Kentucky. Smith appeals from both of these
orders, and this Court directed that her appeals be heard together.
1 The DVO involved in this case was filed under Calloway Family Court Case No. 15-D-01922. However, the DVO was issued under an earlier case involving these parties, No. 13-D-00044. Consequently, Smith brought her motion to hold Daniel in contempt under the latter case number, which is the subject of this appeal.
-4- In her appeal from the Calloway Family Court matter, Smith argues
that the court had jurisdiction to address alleged violations of the DVO committed
while it was in effect. In addition to separate criminal penalties, a court has broad
discretion to impose criminal contempt sanctions for violations of a DVO. See
Newsome v. Commonwealth, 35 S.W.3d 836, 839 (Ky. App. 2001). However, we
will not disturb a court’s decision regarding contempt absent an abuse of its
discretion. Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky. App. 2007) (citing Smith
v. City of Loyall, 702 S.W.2d 838, 839 (Ky. App. 1986)). “The test for abuse of
discretion is whether the trial [court’s] decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999).
In this case, the family court noted that the alleged violations of the
DVO occurred after both parties left Kentucky. Several of the allegations involve
contact that occurred while they were both living in Florida, and at least one while
Daniel was living in Tennessee. The family court also had access to records from
the Florida proceedings, at which Smith raised these allegations and was denied
relief. Smith made no effort to bring the alleged violations of the DVO to the
attention of the Calloway Family Court while the DVO was in effect or within a
reasonable time thereafter. Consequently, we conclude that the family court did
not abuse its discretion by declining to consider these allegations.
-5- In her appeal from the Christian Family Court action, Smith argues
that the trial judge should have recused himself due to ex parte communications.
While Smith’s new custody matter was pending, the trial judge was contacted by
Daniel’s Tennessee counsel, who advised the court that there was another custody
matter pending in Maury County, Tennessee. The trial judge advised the parties of
this contact and then contacted the Tennessee court to discuss which state should
hear the custody matter. The family court ultimately concluded that Kentucky had
already lost home state jurisdiction while the Florida case was pending. Since
neither the parties nor the child remained in Kentucky, the family court found that
it had no basis to exercise further jurisdiction over the custody matter.
Smith contends that the initial contact with Daniel’s Tennessee
attorney was improper and warranted recusal. However, the burden of proof
required for recusal of a judge is an onerous one. Stopher v. Commonwealth, 57
S.W.3d 787, 794 (Ky. 2001). There must be a showing of facts “of a character
calculated seriously to impair the judge’s impartiality and sway his judgment.” Id.
(quoting Foster v. Commonwealth, 348 S.W.2d 759, 760 (Ky. 1961)). See also
KRS2 26A.015(2)(e). The trial judge is “in the best position to determine whether
questions raised regarding his impartiality were reasonable.” Jacobs v.
2 Kentucky Revised Statutes.
-6- Commonwealth, 947 S.W.2d 416, 417 (Ky. App. 1997). We find no basis to
conclude that the trial judge’s impartiality in this matter was improperly swayed.
Generally, ex parte communications between judges and attorneys are
prohibited unless “expressly authorized by law[.]” Penticuff v. Miller, 503 S.W.3d
198, 209 (Ky. App. 2016) (quoting SCR3 4.300 Canon 3(B)(7)(e)). But here,
Smith fails to show that any contact was unauthorized. Daniel’s Tennessee
counsel, who is not licensed in Kentucky and was not representing Daniel in this
matter, merely advised the court of the pending custody matter in Maury County,
Tennessee. The family court informed both Smith and Daniel of the contact.
Furthermore, KRS 403.832(2) authorized the family court to contact
the Tennessee court to determine which court was the more appropriate forum.
Smith presents no authority to support her assertion that the trial judge’s initial
contact with the Tennessee attorney affected his partiality in any way. And since
Smith does not challenge the family court’s conclusion that it lacked jurisdiction to
modify custody, she cannot show that this initial contact improperly swayed the
outcome of the case. Under these circumstances, the trial judge had no obligation
to recuse himself in this matter.
3 Kentucky Supreme Court Rules.
-7- Accordingly, we affirm the orders of the Calloway Family Court and
the Christian Family Court in the above-styled matters.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Betty Caitlin Nicole Smith, pro se Zachary Taylor Daniel, pro se Hopkinsville, Kentucky Columbia, Tennessee
-8-