RENDERED: MARCH 22, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0456-MR
HANY BASTA APPELLANT
APPEAL FROM KENTON FAMILY COURT v. HONORABLE THOMAS A. RAUF, JUDGE ACTION NO. 12-CI-01579
ELENA KOSULINA APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, CETRULO, AND TAYLOR, JUDGES.
CETRULO, JUDGE: Appellant Hany Basta (“Hany”) appeals the Kenton Circuit
Court’s (“family court”) March 2023 Order1 finding Hany in contempt of court.
After review, we affirm.
1 Although Hany’s Notice of Appeal stated that he was appealing a second order as well, Hany’s appellate brief indicates that he withdraws that portion of the appeal. As such, we address only the order of contempt. I. FACTUAL AND PROCEDURAL HISTORY
Hany and Appellee Elena Kosulina (“Elena”)2 divorced in 2012.
Since that time, they have had joint custody of their minor child, D.B. (“Child”).
In 2021, Elena moved to modify the parenting schedule and review her child
support obligations. As part of those proceedings, in February 2022, the family
court entered an order stating, in relevant part, that the “Parties agree to follow
medical advice/order of [Child’s] current physicians.” In April 2022, Elena filed a
motion for contempt against Hany, arguing Hany changed Child’s physician and
thereby violated the February 2022 Order.
In the motion, Elena noted that Child’s previous primary care
physician had referred Child to Cincinnati Children’s Hospital (“Cincinnati
Children’s”) to care for his severe allergies. Since that referral, Cincinnati
Children’s had been Child’s primary Ear, Nose, and Throat (“ENT”) provider.
Elena alleged that Hany “unilaterally” changed Child’s provider from Cincinnati
Children’s to a different ENT provider and refused to take Child to appointments at
Cincinnati Children’s. Elena argued that such failure to follow the medical advice
of Cincinnati Children’s physicians – i.e., Child’s current physicians – violated the
court’s order.
2 The record, including the courts’ captions, fluctuate between spelling Appellee’s name Elena and Elana. As this Court’s caption uses Elena, we will too.
-2- The family court heard the motion for contempt in August 2022.
There, Elena testified that she had attempted to pick Child up from school for an
appointment at Cincinnati Children’s, but Hany had contacted the school and
prohibited Elena from picking him up. Additionally, Elena testified that Hany
changed Child’s physician from Cincinnati Children’s to a different ENT physician
without her knowledge and took Child to only the new ENT physician.
When Elena’s counsel passed the witness for cross-examination,
Hany’s counsel moved for directed verdict.3 However, Elena’s counsel stated that
she had not rested her case and called Hany to testify. Hany’s counsel objected,
asserting that Hany would invoke his Fifth Amendment right to remain silent.
Elena objected to such right being applicable because there was no threat of
criminal prosecution, and she was not seeking jail time. The family court
overruled Hany’s motion for directed verdict and allowed Elena to call Hany as a
witness. Hany invoked the Fifth Amendment. Elena moved for a continuance in
progress to obtain certified copies of Child’s medical records, which the court
granted. The court instructed the parties to brief whether the Fifth Amendment
was applicable under these circumstances.
3 Although Hany’s counsel moved for directed verdict, proceedings without a jury require a Kentucky Rule of Civil Procedure (“CR”) 41.02 motion for involuntary dismissal. CR 41.02(2). Nevertheless, the standards are similar and any error in allowing the motion for directed verdict instead of that under CR 41.02 was harmless. We will treat the motion for directed verdict as one under CR 41.02.
-3- In his brief, Hany argued that the Fifth Amendment may be invoked
by witnesses in civil matters. To invoke the right, he claimed, “[i]t is sufficient if
there is a law creating the offense under which the witness may be prosecuted[,]”
citing Kindt v. Murphy, 227 S.W.2d 895, 898 (Ky. 1950). However, Hany failed to
indicate an offense for which he could have been prosecuted for testifying
regarding Child’s physicians. Nevertheless, Hany emphasized that the family
court could order jail time for contempt even if that was not what Elena sought;
therefore, the family court should have permitted him to invoke the Fifth
Amendment.
Elena disagreed, asserting that the Fifth Amendment is applicable
only when there is a “reasonable possibility of exposure to prosecution or
involvement in a crime[,]” citing Young v. Knight, 329 S.W.2d 195, 201 (Ky.
1959). Elena contended that there was no “reasonable possibility that the
responsive answer called for would expose Hany to criminal prosecution or
involvement in a crime.” Additionally, Elena noted that “[t]he danger of self-
incrimination to be apprehended must be real and substantial in the ordinary course
of things, for the law does not permit a witness arbitrarily to hide behind an
imaginary or unappreciable danger or risk[,]” citing Young, 329 S.W.2d at 201.
In December 2022, the family court entered an order finding the Fifth
Amendment was not applicable in this case because Hany’s testimony regarding
-4- Child’s physicians would “not have criminal prosecutorial implications; [Hany]
has no possible risk of exposure to prosecution or involvement in a crime.”
Further, the court noted that “it is for the court and not the witness to say whether
refusal to answer is justified[.]” Therefore, the court ordered Hany to complete his
testimony as to the contempt allegations.
Hany filed a motion to alter, amend, or vacate the December 2022
Order. Hany argued that the court initially noted that it could give Hany jail time,
so to later claim there were no prosecutorial implications, without further evidence,
was inconsistent. The family court denied Hany’s motion and clarified that “the
court has civil contempt powers that could include jail time, but the use of those
powers is not criminal prosecution.” The court explained that the Fifth
Amendment applies only to criminal prosecution; therefore, Hany could not invoke
such right to protect himself from the civil contempt power of the court. Hany
then filed a writ of mandamus with this Court, which we denied.
The family court then transferred the case to a different division
within the county.4 In February 2023, the new family court judge held the
continued contempt hearing.5 There, Elena’s counsel again called Elena to testify.
4 A new family court seat was created which required redistribution of some cases. 5 Additionally, the family court heard testimony regarding a separate motion regarding Elena’s request for additional parenting time.
-5- Elena testified regarding her living arrangements, Child’s health issues, and his
medical history. Elena explained that Cincinnati Children’s became Child’s
primary ENT physician by at least April 2021; “way before” the February 2022
Order. After the initial appointment, Cincinnati Children’s physicians
recommended that Child continue to see them. At that point, Hany’s counsel
objected to Elena’s testimony, arguing that she had already testified regarding
Child’s physicians at the previous contempt hearing. Elena’s counsel noted that,
because it was a continued hearing, he did not expect the court to remember
everything previously stated. Further, Elena was submitting Child’s medical
records into evidence and was also using her testimony to lay the foundation for
those new documents. The family court overruled Hany’s objection.
Elena continued testifying. She explained that she had set numerous
appointments for Child at Cincinnati Children’s; however, Hany canceled them.
She recounted her unsuccessful attempt in April 2022 to pick Child up from school
to take him to a Cincinnati Children’s appointment. Unbeknownst to Elena,
however, Hany had taken Child to a different ENT physician. Elena’s counsel then
called Hany to testify, and Hany’s counsel again moved for directed verdict.6 The
family court denied the motion.
6 Again, we will treat this motion as one under CR 41.02.
-6- Hany testified that he “was simply doing the best for the kid.” He
confirmed that Child’s previous primary care physician had referred Child to
Cincinnati Children’s and Child went to an initial appointment there in 2021.
Hany testified that he attended that initial appointment with Elena and Child and
the physicians scheduled additional testing and a follow-up appointment. Hany
further testified that after that initial appointment, the family court ordered the
parties to maintain the status quo regarding Child’s medical care. However, Child
never returned to Cincinnati Children’s for the follow-up appointment or additional
testing. Instead, Hany testified that he scheduled Child’s appointments at a
different provider in early 2022. Hany admitted that he did not allow Elena to pick
Child up from school for his appointment at Cincinnati Children’s in April 2022.
In March 2023, the family court entered its Findings of Fact and
Conclusions of Law. Based on the testimony, the court found that Child had been
referred to Cincinnati Children’s; however, after the initial appointment in 2021,
Child had never returned for the follow-up appointments and additional testing
although his physicians instructed him to do so. On one occasion, the court noted,
Elena scheduled a follow-up appointment but when she attempted to pick Child up
from school, Hany had instructed the school to prohibit her from doing so. Instead,
Hany had begun taking Child to a different ENT provider. When asked how that
change in care comported with the family court’s February 2022 medical status
-7- quo order, Hany responded that “what was best for the kid was done.” The court
therefore granted Elena’s motion for contempt.
Hany appealed, arguing the family court should not have compelled
him to testify against his interests; should have dismissed Elena’s motion for
contempt; and should not have allowed Elena to testify at the February 2023
hearing regarding the contempt allegations.
II. STANDARDS OF REVIEW
As to Hany’s Kentucky Rule of Civil Procedure (“CR”) 41.02
motions for involuntary dismissal,7 “[o]n appellate review of a ruling on a
defendant’s CR 41.02 motion, [the court] will overturn the trial court only for an
abuse of discretion.” R.S. v. Commonwealth, 423 S.W.3d 178, 184 (Ky. 2014)
(citation omitted). Likewise, for evidentiary issues – like those regarding the
family court’s determination that the Fifth Amendment was not applicable and that
Elena’s testimony at the February 2023 hearing was permissible – “[t]he standard
of review for the admission of evidence is whether a trial court has abused its
discretion.” Holt v. Commonwealth, 250 S.W.3d 647, 652 (Ky. 2008) (citation
omitted). “An abuse of discretion occurs if the trial court’s ruling is ‘arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.’” Garrett v.
7 As noted, we will address Hany’s motions for directed verdict as such.
-8- Commonwealth, 534 S.W.3d 217, 224 (Ky. 2017) (quoting Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999)).
III. ANALYSIS
Hany argues that the family court erred when it (A) compelled him to
testify against his interests at the contempt hearing; (B) denied his motions for
involuntary dismissal; and (C) allowed Elena to testify at the February 2023
contempt hearing.
A. Fifth Amendment Right Against Self-Incrimination
First, Hany claims that the family court should have permitted him to
invoke his Fifth Amendment right against self-incrimination. He does not dispute
that his was a civil contempt; however, he claims that because the possibility of jail
time existed, he was entitled to invoke Fifth Amendment protections. Elena,
however, argues that such invocation was not appropriate because the civil
contempt hearing did not have criminal prosecutorial implications. We agree.
The self-incrimination clause of the Fifth Amendment provides that
“[n]o person . . . shall be compelled in any criminal case to be a witness against
himself.” Murray v. Commonwealth, 399 S.W.3d 398, 407 (Ky. 2013) (quoting
U.S. CONST. amend. V). While the United States Supreme Court has interpreted
that provision broadly, explaining that “[i]t can be asserted in any proceeding, civil
or criminal[,]” the Court has emphasized that “it protects against any disclosures
-9- which the witness reasonably believes could be used in a criminal prosecution or
could lead to other evidence that might be so used.” Kastigar v. United States, 406
U.S. 441, 444-45, 92 S. Ct. 1653, 1656, 32 L. Ed. 2d 212 (1972) (citations omitted)
(emphasis added).
This Court has addressed a similar issue in Woods v. Commonwealth,
712 S.W.2d 363 (Ky. App. 1986).8 There, a witness asserted his Fifth Amendment
privilege and refused to testify. Woods, 712 S.W.2d at 364. The lower court
considered the basis of the witness’s assertion and determined that “no testimony
elicited from [the witness] would prove incriminating to him at a later time.” Id. at
364-65. As such, the lower court ordered the witness to testify. Id. at 365. On
appeal, this Court noted that “[i]t is generally accepted that it is for the court and
not the witness to determine if a refusal to testify is justified” and “the law does not
permit a witness arbitrarily to hide behind an imaginary or unappreciable danger or
risk.” Id. (citing Young, 329 S.W.2d at 201).
This Court explained that to determine whether the invocation was
appropriate, “[t]he court must consider the totality of the testimony to be given and
the context in which it is given, and must afford the contemnor a fair opportunity
to present a defense in resolving the factual issue of incrimination.” Id. at 365.
8 Although Woods is a criminal case, this Court provided an applicable discussion regarding Fifth Amendment rights of witnesses.
-10- (citing Miller v. Vettiner, 481 S.W.2d 32, 35 (Ky. 1972)). In Woods, this Court
found the lower court had properly done so because it had “conducted an in camera
hearing to determine the issue of self-incrimination.” Id. Therefore, the lower
court had “examined the evidence and found the testimony would not prove
incriminating to [the witness].” Id. As such, this Court affirmed the lower court’s
determination. Id. at 366.
Similarly, here, the family court considered the totality and context of
the testimony to be given and “afford[ed] the contemnor a fair opportunity to
present a defense in resolving the factual issue of incrimination” when it had the
parties brief the issue. See id. at 365. Elena had called Hany to testify regarding
where and when he took Child to medical appointments. The family court
concluded that Hany’s responses to such inquiries would “not have criminal
prosecutorial implications; [therefore, Hany had] no possible risk of exposure to
prosecution or involvement in a crime.” Indeed, Hany’s disclosures simply
confirmed Elena’s testimony that he attended Child’s initial appointment at
Cincinnati Children’s, was aware of the family court’s February 2022 Order, and
nevertheless took Child to a different physician. As in Woods, the family court
here “examined the evidence and found the testimony would not prove
incriminating” to Hany. See id.
-11- As such, the family court did not err when it found that the Fifth
Amendment protections against self-incrimination were not applicable to Hany.
Such finding was not arbitrary or unreasonable and was properly “supported by
sound legal principles.” See Garrett, 534 S.W.3d at 224 (citation omitted). As
such, the family court did not abuse its discretion.
B. Hany’s CR 41.02 Motions for Involuntary Dismissal
Next, Hany argues that the court erred when it denied his motions for
dismissal because, he claims, Elena failed to show by clear and convincing
evidence that he violated a court order. As such, Hany claims the burden never
should have shifted to him to show he had cause to defy the court’s order.
Therefore, Elena showed “no right to relief.” See CR 41.02. We disagree.
Here, the family court properly explained that “[i]n a civil contempt
proceeding, the initial burden is on the party seeking sanctions to show by clear
and convincing evidence that the alleged contemnor has violated a valid court
order.” Commonwealth, Cabinet for Health & Fam. Servs. v. Ivy, 353 S.W.3d 324,
332 (Ky. 2011) (citation omitted). “Once the moving party makes out 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. (citation omitted).
-12- First, the court found that Elena met her initial burden. Specifically,
Elena presented substantial evidence – largely through Hany’s testimony and
Child’s medical records – that Child’s “current physician” at the time of the
February 2022 Order was Cincinnati Children’s, that Hany was aware of the
court’s February 2022 Order to follow the medical advice of Child’s current
physicians, and that Hany refused to let Elena take Child to appointments with
those physicians. Likewise, Hany testified that he refused to take Child to
Cincinnati Children’s for the follow-up visit or additional testing, even though
Child’s physicians had recommended it. Instead, Hany started taking Child to a
different physician. Elena initially testified to those facts and Hany confirmed
them when he testified. As such, the court concluded that Elena met her burden
and established a prima facie case for contempt. At which point, the burden
shifted to Hany to “show, clearly and convincingly, that he . . . was unable to
comply with the court’s order or was, for some other reason, justified in not
complying.” See id. (citation omitted).
When the burden shifts to the alleged contemnor, he or she “must
offer evidence tending to show clearly that he or she made all reasonable efforts to
comply.” Id. (citation omitted). As our Supreme Court has explained, “[t]his
burden is a heavy one and is not satisfied by mere assertions of inability.” Id.
(citation omitted). However, as the court noted here, when the burden shifted to
-13- Hany, he “offered no evidence showing that he was unable to comply with the
Order. On the contrary, [Hany] stated, ‘What was best for the kid was done.’”
Therefore, the court found Hany’s actions to be “willful disobedience of this
Court’s Order” and sustained Elena’s motion for contempt.
The court’s decisions were supported by both Elena’s and Hany’s
testimony and were not “arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” See Garrett, 534 S.W.3d at 224. The court did not abuse its
discretion.
C. Elena’s February 2023 Testimony
Lastly, Hany asserts that the family court erred when it allowed Elena
to testify at the February 2023 hearing regarding her motion for contempt. Hany
claims that Elena started “her testimony completely over in violation of KRE
[Kentucky Rule of Evidence (“KRE”)] 403” and KRE 611. Hany argues that such
allowance was improper because Elena “was not presenting rebuttal testimony or
offering impeachment testimony[.]” However, as Elena asserts, she had not rested
her case during the first hearing. As such, she continued to present direct evidence
at the February 2023 hearing and was not required to limit her testimony to rebuttal
or impeachment testimony. Further, Elena submitted Child’s medical records and
argued that she was partially using her testimony to lay the foundation for those
documents.
-14- First, Hany claims Elena’s testimony at the February 2023 hearing
violated KRE 403. KRE 403 provides that relevant evidence “may be excluded if
its probative value is substantially outweighed by the danger of undue prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, or needless presentation of cumulative evidence.” However, Hany fails to
make a specific argument as to how the court violated the rule. Nevertheless, we
find no evidence that Elena’s testimony was unduly prejudicial. As noted, Hany
testified regarding many of the same facts and confirmed Elena’s testimony.
Therefore, the same facts would have been presented regardless of whether Elena
testified in February 2023.
Additionally, Hany argues Elena’s testimony violated KRE 611.
Again, we disagree. KRE 611(a) provides that “[t]he court shall exercise
reasonable control over the mode and order of interrogating witnesses and
presenting evidence so as to: (1) Make the interrogation and presentation effective
for the ascertainment of the truth; (2) Avoid needless consumption of time; and (3)
Protect witnesses from harassment or undue embarrassment.” This Court has
emphasized that “[b]ecause modern litigation creates a wide variety of problems
related to interrogation of witnesses, production of evidence, and general trial
management, trial judges are given broad discretion . . . to deal with problems and
situations associated with the production of evidence.” Disabled Am. Veterans,
-15- Dep’t of Ky., Inc. v. Crabb, 182 S.W.3d 541, 550-51 (Ky. App. 2005) (internal
quotation marks and citation omitted).
Here, we find no error – and, again, Hany fails to provide a specific
argument – in the family court allowing Elena to testify at the February 2023
hearing. As discussed, the initial hearing had been continued and Elena had not
yet rested her case. Further, she presented new documentary evidence that
required her to lay a foundation, and the hearing was before a new family court
judge. Hany presents no evidence nor caselaw suggesting that the court’s decision
to deal with the production of new evidence and to manage the witnesses’
testimonies as it saw fit was unreasonable. See id. As such, we do not find that the
court acted arbitrarily or against sound legal principles in allowing her to testify.
See Garrett, 534 S.W.3d at 224. The court did not abuse its discretion.
IV. CONCLUSION
The family court did not abuse its discretion when it found Hany’s
Fifth Amendment right against self-incrimination was not applicable under these
circumstances, denied Hany’s motions for dismissal, or allowed Elena to testify at
the February 2023 hearing. As such, we AFFIRM the Kenton Family Court.
ALL CONCUR.
-16- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Marianne S. Chevalier Laura A. Ward Ft. Mitchell, Kentucky Covington, Kentucky
-17-