Darian R. Clay v. Maricarmen Rivera

• Court: Court of Appeals of Kentucky
• Decided: May 2, 2025
• Docket: 2024-CA-0173
• Status: Unpublished

Opinion

RENDERED: MAY 2, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0173-MR

DARIAN R. CLAY APPELLANT

APPEAL FROM OLDHAM CIRCUIT COURT v. HONORABLE DOREEN S. GOODWIN, JUDGE ACTION NO. 20-CI-00205

MARICARMEN RIVERA APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, KAREM, AND LAMBERT, JUDGES.

ACREE, JUDGE: Darian Clay, pro se, appeals the Oldham Circuit Court, Family

Division’s July 20, 2023 order denying his motions to hold Maricarmen Rivera in

contempt and modifying a therapy requirement, as well as the court’s January 10,

2024 order awarding Rivera attorney’s fees. We affirm.

In September 2021, the court entered a custody order for the parties’

minor child, H.C. The court declined to award Rivera sole custody, but Clay was

restricted to supervised parenting time and ordered to set up parent-child therapy with provider Mark Cain. In June 2022, the court entered an order maintaining

restrictions on Clay’s visitation, but also requiring Rivera to reach out to Cain

about incorporating H.C. into Clay’s therapy sessions, and both parties were

“ordered to cooperate with the therapist and comply with any recommendations.”

(Record (R.) 159.)

In August 2022, Clay filed a motion to hold Rivera in contempt

alleging her failure to comply with the court’s order by enrolling H.C. in therapy

with a second provider, Jessica Cowick. (R. 165.) Clay also sought a temporary

injunction to prevent Rivera from removing the child from therapy with Cain.

In September 2022, Clay filed a motion styled as a motion to modify

custody, although the motion stated it was pursuant to KRS1 403.320(3), which

pertains to modifying visitation. (R. 173.) That same day, Clay also filed a motion

to have Rivera undergo a mental health assessment. (R. 176.) He also filed a new

motion for injunctive relief regarding therapy. (R. 177.)

In October 2022, Clay filed a second motion for Rivera to be held in

contempt for violating the family court’s order regarding visitation. (R. 181.)

Despite having filed numerous motions with the family court in the preceding

months, Clay also filed a motion to transfer venue to Jefferson Circuit Court. (R.

1 Kentucky Revised Statutes.

-2- 186.)2 Rivera responded to Clay’s various pending motions, and also made her

own motion for attorney’s fees, asserting Clay’s pending motions served “no

purpose other than to annoy or harass.” (R. 192.)

Following scheduled hearings, the family court entered its order

denying Clay’s motions for contempt and modifying the therapy requirement.

With respect to the therapy requirement, the family court decided H.C. will

continue seeing Cowick, and parent-child therapy with H.C. and Clay will not take

place until recommended by Cowick. (R. 247.) Clay filed a motion to alter,

amend, or vacate pursuant to CR3 59.05, (R. 273), which was accompanied by a

lengthy affidavit setting forth a multitude of grounds, and attaching several

exhibits. (R. 249-71). Rivera filed another motion for attorney’s fees alleging

Clay’s motion was “specious and untimely.” (R. 273.) The family court denied

Clay’s motion to alter, amend, or vacate, and granted Rivera’s motion for

attorney’s fees, in part, awarding her $400.00. (R. 286-88.) This appeal followed.

2 When Clay filed the motion, he had already failed to persuade this Court on three separate occasions that the Oldham Circuit Court was an improper venue in this and related matters. See Clay v. Rivera, No. 2019-CA-0938-MR, 2020 WL 748726 (Ky. App. Feb. 14, 2020) (rejecting that Oldham Circuit Court lacked jurisdiction or was an inappropriate venue for domestic violence action); Clay v. Rivera, No. 2020-CA-1255-MR, 2021 WL 3935393 (Ky. App. Sep. 3, 2021) (affirming Jefferson Circuit Court’s determination Oldham Circuit Court was the proper venue for custody action); and Clay v. Rivera, No. 2021-CA-0815-MR (rejecting writ of prohibition alleging Oldham Circuit Court lacked jurisdiction and was an improper venue for custody action). 3 Kentucky Rules of Civil Procedure.

-3- Within the burden-shifting framework of civil contempt, once a

presumption of contempt arises, it may be rebutted if “the alleged contemnor

[shows], 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.”

Commonwealth, Cabinet for Health and Family Services v. Ivy, 353 S.W.3d 324,

332 (Ky. 2011). If the alleged contemnor successfully rebuts the presumption, “the

trial court must make its determination from the totality of the evidence, with the

ultimate burden of persuasion on the movant.” Id. (citations omitted).

A trial court’s disposition of a contempt motion is tested for an abuse

of discretion. Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky. App. 2007). “The test

for abuse of discretion is whether the trial [court’s] decision was arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.” Id. (citations

omitted). The denial of a contempt motion is appealable. Smith v. City of Loyall,

702 S.W.2d 838, 839 (Ky. App. 1986).

In the matter at hand, the family court denied Clay’s motion to hold

Rivera in contempt, concluding it was:

without sufficient proof to find [Rivera] in contempt of the June 29, 2022, Order. [Rivera] had what appears to be a legitimate concern regarding allegations made by the child and she found it necessary to explore those allegations through therapy rather than potentially expose the child to additional harm. She was justified in both withholding reunification therapy and any visitation.

-4- (R. 247-48.) The trial court’s order cited both Rivera and the minor child’s

testimony in concluding Rivera was justified in her noncompliance.

Based on that same testimony, the family court’s order also modified

the therapy requirement. Modifications of visitation are reviewable. Anderson v.

Johnson, 350 S.W.3d 453, 456 (Ky. 2011). A family court’s decision to modify

visitation is also tested for an abuse of discretion. Layman v. Bohanon, 599

S.W.3d 423, 431 (Ky. 2020).

With respect to the family court’s decisions regarding contempt and

the therapy requirement, Clay primarily argues the family court abused its

discretion by failing to make requisite findings on several issues. For one, Clay

faults the family court for citing testimony “without indicating [the testimony] was

true and if such truthfulness was judged on the witness’s demeanor, forthrightness,

appearance, and body language.” (Appellant’s Br. 7.) CR 52.01 states that factual

findings “shall not be set aside unless clearly erroneous, and due regard shall be

given to the opportunity of the trial court to judge the credibility of the witnesses.”

The rule merely reiterates that credibility determinations are the province of our

trial courts. The rule does not require our trial courts to make express credibility

determinations, much less furnish the exacting analysis Clay demands, concerning

“demeanor, forthrightness, appearance, and body language,” etc. Clay cites no

authority for such a proposition. In this matter, the family court concluded Rivera

-5- “had what appears to be a legitimate concern” and that she was “justified in both

withholding reunification therapy and any visitation.” (R. 247-48). Implicit in that

conclusion is that the family court found Rivera and H.C.’s testimony credible, a

finding this Court owes deference.

Similarly, Clay argues the family court’s order failed to make any

findings and conclusions regarding the best interests of the child. (Appellant’s Br.

at 7.) This is refuted by the record. The family court’s order plainly states: “It is

in H.C.’s best interest to continue to work with Ms. Cowick as the two have built

trust and rapport.” (R. 247 (emphasis added).) The family court made a best-

interests determination and explained its basis. As Clay fails to acknowledge the

family court’s determination, he also fails to explain why that determination is

insufficient.4 Clay also argues the family court failed to comply with CR 52 by

“failing to make specific findings to support [H.C.] seeing Dr. Cowick and the

indefinite suspension of reunification therapy.” (Appellant’s Br. 10.) This is

likewise refuted by the record, as the family court cited Rivera’s “legitimate

4 Clay does cite KRS 403.270(2), the non-exhaustive list of factors a trial court must consider to “determine custody.” However, while KRS 403.340, concerning modification of a custody decree, explicitly directs our courts to that statutory provision for making a best-interests determination, KRS 403.320, concerning modification of visitation, does not. Compare KRS 403.340(3)(c) with KRS 403.320(3). To the extent Clay faults the family court for failing to consider the statutory factors in making its best-interests determination, Clay does not explain why the family court was required to consider those factors in modifying the therapy requirement.

-6- concern” for suspending reunification therapy with Cain, and H.C.’s “trust and

rapport” with Cowick for ordering continued therapy with Cowick. (R. 247.)

Clay also faults the family court for purportedly failing to rule on all

his pending motions, as well as purported instances of delayed adjudication. Of

course, we cannot review decisions the family court has yet to render, and Clay

fails to explain how these purported failures of the family court warrant reversal of

the rulings actually under review by this Court.5

With respect to the family court’s decision to grant, in part, Rivera’s

motion for attorney’s fees, Clay argues the family court erred in concluding his CR

59.05 motion to alter, amend, or vacate, was untimely. As an untimely CR 59.05

motion would not have tolled Clay’s time for taking an appeal, this court issued a

show cause order, and Clay responded. This Court determined Clay’s 59.05

motion was timely served within the ten-day requirement, whereas the family court

errantly focused on the date it was filed.6

However, while Clay is correct his CR 59.05 motion was timely, the

family court also noted Clay’s motion both “raised new arguments” and “reiterated

5 A party may file with the clerk a notice that a civil matter has been submitted for final adjudication. Kentucky Rules of Supreme Court (SCR) 1.050(8). A party typically accomplishes this by filing an AOC-280 form. The trial court then has ninety (90) days to rule on the matter, or otherwise certify the reason for delayed adjudication to the Chief Justice. SCR 1.050(9). This Court is unclear on the extent to which Clay has furnished the family court with notice of any pending motions. 6 Clay v. Rivera, No. 2024-CA-0173-MR, Order (Ky. App. May 20, 2024).

-7- [previously raised] arguments,” (R. 286), and that CR 59.05 cannot be used “to

raise arguments and to introduce evidence that should have been presented during

the proceedings before the entry of judgment[,]” citing Rumpel v. Rumpel, 438

S.W.3d 354, 366 (Ky. 2014). The family court also cited Clay’s “patterned

conduct throughout” the litigation in deciding to award Rivera attorney’s fees. If

this Court is “aware of a reason to affirm the lower court’s decision, it must do so,

even if on different grounds.” Mark D. Dean, P.S.C. v. Commonwealth Bank &

Tr. Co., 434 S.W.3d 489, 496 (Ky. 2014) (emphasis added).

While this Court has concluded Clay’s CR 59.05 motion was timely,

it was nonetheless frivolous, and the record is replete with similar filings wherein

Clay simply repeats previously dispatched arguments, in some instances repeating

arguments subject to multiple adverse rulings. As one example, Clay’s CR 59.05

motion is, in part, a substantive retread of Clay’s motion to modify.7 Clay has also

filed numerous appeals on this and related matters. Adverse disposition of those

appeals likewise has not deterred Clay from repeating the arguments. Supra, n.2.

While we generally afford pro se litigants leeway, we cannot allow a

pro se litigant to abuse that leeway in contravention of our rules. Watkins v.

Fannin, 278 S.W.3d 637, 643 (Ky. App. 2009) (“While pro se litigants are

sometimes held to less stringent standards than lawyers in drafting formal

7 Compare R. 249-56 (Clay’s CR 59.05 affidavit) with R. 173-75 (Clay’s motion to modify).

-8- pleadings, Kentucky courts still require pro se litigants to follow the Kentucky

Rules of Civil Procedure” (citation omitted)). A trial court may award reasonable

attorney’s fees following final judgment pursuant to CR 11, “a procedural rule

designed to curb abusive conduct in the litigation process.” Lexington Inv. Co. v.

Willeroy, 396 S.W.3d 309, 312 (Ky. App. 2013). Clay is not entitled to litigate the

same issues ad nauseum, and Clay fails to illuminate any abuse of discretion in the

family court’s decision to award Rivera attorney’s fees based on Clay’s patterned

conduct of record.

CONCLUSION

Based on the foregoing, we affirm the July 20, 2023 and January 10,

2024 orders of the Oldham Circuit Court, Family Division.

ALL CONCUR.

BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.

Darian Clay, pro se Louisville, Kentucky

-9-