Joseph Grizz v. Nadine Morris

• Court: Court of Appeals of Kentucky
• Decided: May 4, 2023
• Docket: 2022 CA 000323
• Status: Unknown

Opinion

RENDERED: MAY 5, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0323-MR

JOSEPH GRIZZ APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE A. CHRISTINE WARD, JUDGE ACTION NO. 19-D-500070-001

NADINE MORRIS APPELLEE

OPINION AFFIRMING

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BEFORE: EASTON, JONES, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Joseph Grizz appeals from an order of contempt entered by

the Jefferson Family Court. The family court found he failed to demonstrate good

cause for violating the domestic violence order (DVO) entered against him. After

a thorough review of the record and applicable legal authority, we affirm.

The facts and procedural history began on January 7, 2019, when

Nadine Morris filed a petition for an emergency protective order (EPO).

Following a hearing held ten days later, the Jefferson Family Court issued a DVO for three years’ duration (effective until January 17, 2022). Kentucky Revised

Statute (KRS) 403.750. Among other conditions, the DVO required Grizz to

attend a batterers’ intervention program (BIP), and it forbade his owning or

attempting to purchase a firearm.

Within three months’ time, Grizz had failed to comply by being

discharged from the BIP because of his “poor attendance.” A summons was issued

for him to appear before the family court on July 25, 2019. When Grizz failed to

appear on that date, a bench warrant was issued for his arrest. On July 29, 2021,

Grizz appeared before the family court after his arrest. The court released him on

his own recognizance but ordered that Grizz re-enroll in the BIP and appear again

the following September 2.

Once again, Grizz was not compliant, and the family court issued a

show cause order. Grizz failed to appear on the date scheduled for the show cause

hearing. A contempt order was issued on September 23, 2021; Grizz was to be

sentenced after his arrest on the bench warrant issued on that date.

On January 2, 2022, while the DVO was still in effect (and with the

outstanding bench warrant issued against him), Grizz attempted unsuccessfully, at

two separate locations, to purchase firearms in McKee, Kentucky.

The bench warrant was finally served on Grizz on February 19, 2022.

He made a court appearance two days later. The family court appointed counsel to

-2- represent Grizz and continued the matter until February 24, 2022. At the show

cause hearing held that date, Grizz argued that the court no longer had jurisdiction

over him since the DVO had expired on January 17, 2022, and therefore he was no

longer bound under its terms. The family court disagreed, holding that its

contempt powers extended beyond the DVO’s expiration. The court offered Grizz

the option of conditional discharge (namely, 90 days’ incarceration, conditionally

discharged for two years) if he were to complete the BIP. Grizz accepted, but he

reserved the right to appeal the jurisdiction issue. The family court’s order to that

effect was entered on the date of the hearing (with review of compliance set for a

month hence), and Grizz appealed.

We begin by stating our standard of review, namely:

[A] trial court has broad authority when exercising its contempt powers; consequently, our review is limited to a determination of whether the court abused its discretion. Kentucky River Community Care, Inc. v. Stallard, 294 S.W.3d 29, 31 (Ky. App. 2008). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). The trial court’s underlying findings of fact are reviewed for clear error. Commonwealth, Cabinet for Health and Family Servs. v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011).

....

Contempt is defined as “the willful disobedience of or the open disrespect for the court’s orders or its

-3- rules.” Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky. App. 2007) (citing Newsome v. Commonwealth, 35 S.W.3d 836, 839 (Ky. App. 2001)). “Contempt may be either civil or criminal, depending upon the reason for the contempt citation.” Crowder v. Rearden, 296 S.W.3d 445, 450 (Ky. App. 2009).

“A civil contempt occurs when a party fails to comply with a court order for the benefit of the opposing party, while criminal contempt is committed by conduct against the dignity and authority of the court.” Smith v. City of Loyall, 702 S.W.2d 838, 839 (Ky. App. 1986). “It is not the fact of punishment but rather its character and purpose, that often serve to distinguish civil from criminal contempt.” Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996) (internal quotation marks and citation omitted).

“In 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.” Ivy, 353 S.W.3d at 332 (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. (citing Clay v. Winn, 434 S.W.2d 650 (Ky. 1968)).

Nienaber v. Commonwealth ex rel. Mercer, 594 S.W.3d 232, 235-36 (Ky. App.

2020).

Here, the family court’s finding was one of civil contempt for Grizz’s

failure to comply with its previous orders that he attend a batterer’s intervention

program and for his violation of the proviso against owning or attempting to

-4- purchase any firearms. Grizz violated the DVO numerous times and after multiple

opportunities offered by the family court. All violations occurred during the

DVO’s effective period. Only the hearing itself was held outside those parameters

and necessarily so since Grizz was evading appearance before the family court. In

fact, it was only after his incarceration on a different charge that the bench warrant

against him was able to be served. To hold otherwise would enable deliberate

contravention and evasion of court orders without consequences.

We have reviewed the record in its entirety and find no abuse of

discretion in the circuit court’s order holding Grizz in contempt. The family

court’s findings are supported by substantial evidence and its conclusions by

“sound legal principles.” Nienaber, 594 S.W.3d at 235. As in Nienaber, “we

cannot hold that the family court abused its discretion in imposing a period of

conditional discharge in this case.” Id.

Accordingly, we affirm the contempt order of the Jefferson Family

Court.

ALL CONCUR.

BRIEF FOR APPELLANT: NO BRIEF FILED FOR APPELLEE.

Catherine L. Vining Louisville, Kentucky

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