RENDERED: JUNE 7, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1134-MR
ROBERT GRUMBLATT APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT v. HONORABLE LORI N. GOODWIN, JUDGE ACTION NO. 15-CI-502339
DEBORAH GRUMBLATT APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, ECKERLE, AND LAMBERT, JUDGES.
EASTON, JUDGE: In this divorce case, the Appellant (“Bob”) seeks reversal of
the Jefferson Family Court’s Order holding him in civil contempt for failing to pay
$34,540 to the Appellee (“Debby”) in violation of an Agreed Order. Bob argues
the family court erred by holding him in contempt without an evidentiary hearing
and sufficient findings of fact. Upon review of the record and applicable law, we
affirm the Jefferson Family Court. FACTUAL AND PROCEDURAL HISTORY
This is the fourth appeal for this case. The first three appeals decided
together resulted in remand to the family court. Grumblatt v. Grumblatt, Nos.
2016-CA-1854-MR, 2016-CA-1932-MR, 2018-CA-0800-MR, 2021 WL 137264
(Ky. App. Jan. 15, 2021). After remand, the parties reached a final, comprehensive
settlement with a specific and clearly stated agreement to submit the contempt
issue to the court on the existing record with only briefs to be filed.
The perhaps inevitable disagreement about the settlement agreement
goes back to an Agreed Order entered on December 15, 2021. Bob and Debby
executed the Agreed Order partly to permit the entry of a Domestic Relations
Order (“DRO”) for a retirement account. According to the Agreed Order, Bob was
also to pay Debby one-half of $69,080 (i.e., $34,540) representing unilateral
withdrawals Bob had made from the retirement account. This payment was to be
made within sixty days. The Agreed Order also addressed the division of the
remaining balance of the same account. Provisions 2 and 3 of the Agreed Order
state:
2. The parties agree to the entry of the Domestic Relations Order dividing the Ameriprise retirement account as prepared and filed by Charlie Meers on or about May 17, 2021. No legal interest shall accrue on said amount as interest and investment gains and losses are reflected in the DRO.
-2- 3. Bob agrees to pay to Debby one-half of the total value of the withdrawals he made from the Ameriprise retirement account through September 2020 for a total sum of $34,540 ($69,080/2) within 60 days.
Sixty days passed, and Bob did not make the payment to Debby as
mandated by Provision 3 of the Agreed Order. Debby’s counsel tried to resolve
the issue informally but to no avail. On February 22, 2022, Debby filed a Motion
for Contempt. Bob filed a response, arguing he did not intend for the payment
mentioned in Provision 3 of the Agreed Order to be in addition to the disbursement
pursuant to the parties’ DRO from the same account as stated in Provision 2. In
other words, Bob claimed Provision 3 was not a separate obligation to pay any
amount of money. In support of his position, Bob pointed to the phrase “gains and
losses are reflected in the DRO” as including prior payments and also argued
payments made were just an advancement to be reflected in the final payout of the
total account.
The family court conducted a hearing on August 17, 2022. At the
hearing, counsel for Debby informed the family court that the parties agreed to
submit the issues of contempt and attorney fees to the Court. The parties agreed to
a briefing schedule on the interpretation of Provisions 2 and 3 of the Agreed Order.
Bob confirmed to the family court that he acknowledged and affirmed this
agreement to submit the contempt issue on the briefs.
-3- On May 31, 2023, the circuit court issued its Order sustaining
Debby’s Motion for Contempt. The circuit court stated Provisions 2 and 3 were
unambiguous and that Provision 3 clearly directed Bob to pay Debby $34,540.
The circuit court found that Bob did not have good cause to dispute his obligation
to pay Debby $34,540, and that Bob’s interpretation of the Agreed Order was
“unreasonable and self-serving.” The circuit court found Bob in contempt for his
failure to pay pursuant to the Agreed Order, awarded Debby attorney fees
associated with the contempt motion, and ordered that Bob may purge himself of
contempt by paying at least 50% of the amount due, or $17,270, no later than the
sentencing date on August 2, 2023.
Bob hired another attorney who then filed a Motion to Amend, Alter,
or Vacate the May 31, 2023, Order pursuant to CR1 59. When Bob and his new
attorney showed up for the contempt sentencing the attorneys argued2 about the
lack of a contempt hearing. The family court issued an Order on August 30, 2023,
denying Bob’s CR 59 motion. The family court realized that Bob would be
1 Kentucky Rules of Civil Procedure. 2 The attorneys often cut each other off in mid-sentence, and Bob’s counsel made improper statements about Debby’s counsel being a liar. Other unnecessary and inappropriate things were said. What was scheduled as a fifteen minute hearing took more than thirty minutes. If we remove the unnecessary sparring, the substance of the hearing could have been addressed in the fifteen minutes allotted. We also note that the record does not contain avowal or any other sufficient offer of what specific testimony Bob may have offered to further explain his interpretation of the Agreed Order at an evidentiary hearing.
-4- entitled to a separate evidentiary hearing on the issue of contempt, but that at the
August 17, 2022, hearing, “[Bob] expressly waived his right to a contempt hearing,
on the record, after having the opportunity to confer with counsel.” This appeal
followed.
STANDARD OF REVIEW
Trial courts have broad discretion to hold individuals in contempt
when they willfully disobey or openly disrespect the rules or orders of a court.
Sidebottom v. Watershed Equine, LLC, 564 S.W.3d 331, 333 (Ky. App. 2018)
(citation omitted). Findings of contempt are reviewed by appellate courts under
the abuse of discretion standard, which means the trial court’s order “must be
reasonable and legally sound.” Id. The underlying findings of fact are reviewed
for clear error and should not be disturbed if supported by substantial evidence.
Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998).
ANALYSIS
Bob argues the family court erred by holding him in contempt of the
Agreed Order without an evidentiary hearing. Bob argued Provisions 2 and 3 were
ambiguous as to whether the $34,540 was a separate sum to be paid in addition to
the division of the account as set out in Provision 2. The family court disagreed,
stating “[e]ach paragraph addresses a separate pool of funds[.]”
-5- At this point, Bob does not address the ambiguity argument in his
brief. “[A] reviewing court will generally confine itself to errors pointed out in the
briefs and will not search the record for errors.” Milby v. Mears, 580 S.W.2d 724,
727 (Ky. App. 1979). A failure to discuss errors in a brief is the same as if no
brief at all had been filed on those issues, and thus, the trial court’s determination
of those issues not briefed on appeal is ordinarily affirmed. Id.
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RENDERED: JUNE 7, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1134-MR
ROBERT GRUMBLATT APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT v. HONORABLE LORI N. GOODWIN, JUDGE ACTION NO. 15-CI-502339
DEBORAH GRUMBLATT APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, ECKERLE, AND LAMBERT, JUDGES.
EASTON, JUDGE: In this divorce case, the Appellant (“Bob”) seeks reversal of
the Jefferson Family Court’s Order holding him in civil contempt for failing to pay
$34,540 to the Appellee (“Debby”) in violation of an Agreed Order. Bob argues
the family court erred by holding him in contempt without an evidentiary hearing
and sufficient findings of fact. Upon review of the record and applicable law, we
affirm the Jefferson Family Court. FACTUAL AND PROCEDURAL HISTORY
This is the fourth appeal for this case. The first three appeals decided
together resulted in remand to the family court. Grumblatt v. Grumblatt, Nos.
2016-CA-1854-MR, 2016-CA-1932-MR, 2018-CA-0800-MR, 2021 WL 137264
(Ky. App. Jan. 15, 2021). After remand, the parties reached a final, comprehensive
settlement with a specific and clearly stated agreement to submit the contempt
issue to the court on the existing record with only briefs to be filed.
The perhaps inevitable disagreement about the settlement agreement
goes back to an Agreed Order entered on December 15, 2021. Bob and Debby
executed the Agreed Order partly to permit the entry of a Domestic Relations
Order (“DRO”) for a retirement account. According to the Agreed Order, Bob was
also to pay Debby one-half of $69,080 (i.e., $34,540) representing unilateral
withdrawals Bob had made from the retirement account. This payment was to be
made within sixty days. The Agreed Order also addressed the division of the
remaining balance of the same account. Provisions 2 and 3 of the Agreed Order
state:
2. The parties agree to the entry of the Domestic Relations Order dividing the Ameriprise retirement account as prepared and filed by Charlie Meers on or about May 17, 2021. No legal interest shall accrue on said amount as interest and investment gains and losses are reflected in the DRO.
-2- 3. Bob agrees to pay to Debby one-half of the total value of the withdrawals he made from the Ameriprise retirement account through September 2020 for a total sum of $34,540 ($69,080/2) within 60 days.
Sixty days passed, and Bob did not make the payment to Debby as
mandated by Provision 3 of the Agreed Order. Debby’s counsel tried to resolve
the issue informally but to no avail. On February 22, 2022, Debby filed a Motion
for Contempt. Bob filed a response, arguing he did not intend for the payment
mentioned in Provision 3 of the Agreed Order to be in addition to the disbursement
pursuant to the parties’ DRO from the same account as stated in Provision 2. In
other words, Bob claimed Provision 3 was not a separate obligation to pay any
amount of money. In support of his position, Bob pointed to the phrase “gains and
losses are reflected in the DRO” as including prior payments and also argued
payments made were just an advancement to be reflected in the final payout of the
total account.
The family court conducted a hearing on August 17, 2022. At the
hearing, counsel for Debby informed the family court that the parties agreed to
submit the issues of contempt and attorney fees to the Court. The parties agreed to
a briefing schedule on the interpretation of Provisions 2 and 3 of the Agreed Order.
Bob confirmed to the family court that he acknowledged and affirmed this
agreement to submit the contempt issue on the briefs.
-3- On May 31, 2023, the circuit court issued its Order sustaining
Debby’s Motion for Contempt. The circuit court stated Provisions 2 and 3 were
unambiguous and that Provision 3 clearly directed Bob to pay Debby $34,540.
The circuit court found that Bob did not have good cause to dispute his obligation
to pay Debby $34,540, and that Bob’s interpretation of the Agreed Order was
“unreasonable and self-serving.” The circuit court found Bob in contempt for his
failure to pay pursuant to the Agreed Order, awarded Debby attorney fees
associated with the contempt motion, and ordered that Bob may purge himself of
contempt by paying at least 50% of the amount due, or $17,270, no later than the
sentencing date on August 2, 2023.
Bob hired another attorney who then filed a Motion to Amend, Alter,
or Vacate the May 31, 2023, Order pursuant to CR1 59. When Bob and his new
attorney showed up for the contempt sentencing the attorneys argued2 about the
lack of a contempt hearing. The family court issued an Order on August 30, 2023,
denying Bob’s CR 59 motion. The family court realized that Bob would be
1 Kentucky Rules of Civil Procedure. 2 The attorneys often cut each other off in mid-sentence, and Bob’s counsel made improper statements about Debby’s counsel being a liar. Other unnecessary and inappropriate things were said. What was scheduled as a fifteen minute hearing took more than thirty minutes. If we remove the unnecessary sparring, the substance of the hearing could have been addressed in the fifteen minutes allotted. We also note that the record does not contain avowal or any other sufficient offer of what specific testimony Bob may have offered to further explain his interpretation of the Agreed Order at an evidentiary hearing.
-4- entitled to a separate evidentiary hearing on the issue of contempt, but that at the
August 17, 2022, hearing, “[Bob] expressly waived his right to a contempt hearing,
on the record, after having the opportunity to confer with counsel.” This appeal
followed.
STANDARD OF REVIEW
Trial courts have broad discretion to hold individuals in contempt
when they willfully disobey or openly disrespect the rules or orders of a court.
Sidebottom v. Watershed Equine, LLC, 564 S.W.3d 331, 333 (Ky. App. 2018)
(citation omitted). Findings of contempt are reviewed by appellate courts under
the abuse of discretion standard, which means the trial court’s order “must be
reasonable and legally sound.” Id. The underlying findings of fact are reviewed
for clear error and should not be disturbed if supported by substantial evidence.
Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998).
ANALYSIS
Bob argues the family court erred by holding him in contempt of the
Agreed Order without an evidentiary hearing. Bob argued Provisions 2 and 3 were
ambiguous as to whether the $34,540 was a separate sum to be paid in addition to
the division of the account as set out in Provision 2. The family court disagreed,
stating “[e]ach paragraph addresses a separate pool of funds[.]”
-5- At this point, Bob does not address the ambiguity argument in his
brief. “[A] reviewing court will generally confine itself to errors pointed out in the
briefs and will not search the record for errors.” Milby v. Mears, 580 S.W.2d 724,
727 (Ky. App. 1979). A failure to discuss errors in a brief is the same as if no
brief at all had been filed on those issues, and thus, the trial court’s determination
of those issues not briefed on appeal is ordinarily affirmed. Id. We note Bob did
not file a reply brief.
Regardless of the claim of ambiguity in the Agreed Order, Bob argues
that the family court’s order holding him in contempt failed to discuss the
requirement that contempt be proven by clear and convincing evidence, failed to
discuss the shift of the burden of proof to Bob to show justification for
noncompliance, failed to discuss the requirement that willfulness be also shown in
a clear and convincing fashion, and ignored the reasons set forth in Bob’s CR 59
motion justifying why he was not in contempt.
Contempt can either be civil or criminal in nature. Commonwealth v.
Burge, 947 S.W.2d 805, 808 (Ky. 1996) (citation omitted). Bob was held in civil
contempt, which includes a failure to do something pursuant to a court order,
generally for the benefit of a party litigant. Id. This case is also an example of
indirect contempt (that is, committed outside the presence of the court), so an
evidentiary hearing is required. Cabinet for Health & Fam. Servs. v. R.C., 661
-6- S.W.3d 305, 315 (Ky. App. 2023). Summary adjudication of indirect contempt is
usually prohibited. Id.
“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.” Commonwealth, Cabinet for Health
& Fam. Servs. v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011). Once a prima facie case is
made, “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. “The alleged contemnor must offer evidence tending to show
clearly that he or she made all reasonable efforts to comply. If the alleged
contemnor makes a sufficient showing, then the presumption of contempt dissolves
and 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).
Bob admittedly did not make a payment of $34,540 per the Agreed
Order. No further evidence was needed to establish the prima facie case of
contempt. The burden shifted to Bob. Bob chose, with advice of counsel, to
submit the question of contempt based solely on whether his offered interpretation
of the Agreed Order justified his decision not to pay.
-7- The family court’s August 30, 2023, Order correctly acknowledged
Bob’s right to an evidentiary hearing regarding contempt, but the circuit court
properly found that Bob explicitly waived this right. Most rights, including
constitutional rights, may be waived. Commonwealth v. Simmons, 394 S.W.3d
903, 907 (Ky. 2013). Since Bob waived his right to a hearing on the contempt
issue and instead agreed to brief the issue of contempt, the family court did not err
in issuing a contempt decision on the briefs filed and the existing record.
Bob’s next question is whether the family court made required
findings of fact necessary to hold him in contempt. Without question, Debby
satisfied her initial burden of showing by clear and convincing evidence that Bob
violated a valid court order. Bob was ordered to pay Debby $34,540 within 60
days, which he admittedly did not do. With the burden then shifting to Bob, he
chose to present no evidence and submitted the matter on the reasonableness of his
interpretation of the Agreed Order.
The circuit court found Bob’s interpretation of what he had to pay to
be unreasonable. It might just as well have been described as specious. The
reference to investment gains and losses in the account cannot logically mean
including the withdrawals made by Bob. If that were the case, there would be no
reason for Provision 3 at all. Bob’s delay-continuing and meritless explanation did
not shift the burden back for the family court to have to make any further specific
-8- findings. Bob decided to rely on a legal argument and having done so cannot now
claim a violation of his rights because he lost that argument.
CONCLUSION
The circuit court did not abuse its discretion in holding Bob in civil
contempt for failing to pay Debby $34,540 as directed by the Agreed Order.
Because of Bob’s express waiver, the family court did not err by failing to have an
evidentiary hearing. From our review, we can determine the clear basis for the
family court’s decision. There was no dispute as to Bob’s failure to make the
required payment, and the family court adequately explained that Bob failed to
offer a sufficient reason for his non-compliance. The Order of the Jefferson
Family Circuit Court holding Bob in contempt is AFFIRMED.3
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Todd K. Bolus Allen McKee Dodd Louisville, Kentucky Louisville, Kentucky
3 Having affirmed the contempt decision, we expect the family court will be called upon to address claims by Debby for additional attorney’s fees as well as prejudgment interest from the time the payment was originally due under the Agreed Order and perhaps post-judgment interest on any amounts not paid after any final order was entered, but those issues are not yet before us in this appeal.
-9-