RENDERED: NOVEMBER 21, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2024-CA-0782-MR
VERNON W. WRIGHT APPELLANT
APPEAL FROM PIKE CIRCUIT COURT v. HONORABLE KENT VARNEY, JUDGE CASE NO. 23-CI-00598
KELLIE S. WRIGHT AND THE COMMONWEALTH OF KENTUCKY APPELLEES
OPINION REVERSING, VACATING, AND REMANDING
** ** ** ** **
BEFORE: CETRULO, KAREM, AND MOYNAHAN, JUDGES.
KAREM, JUDGE: Vernon Wright (“Vernon”) appeals from a Pike Circuit Court
order denying his Kentucky Rules of Civil Procedure (“CR”) 60.02 motion to set
aside two orders holding him in contempt of court for failure to pay child support. Upon careful review, we reverse the order denying the CR 60.02 motion; vacate
the orders finding Vernon in contempt; and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Vernon and Kellie Wright (“Kellie”) were divorced in Clermont
County, Ohio, in 1999. Kellie was designated the residential parent and legal
custodian of their two children, and Wright was ordered to pay child support. At
some point thereafter, Kellie and the children moved to Alabama, and Vernon
moved to Kentucky. The child support was terminated for one child in 2009 and
the other in 2013. Vernon failed to pay child support and accrued an arrearage
amount of $50,815.79.
On April 1, 2023, the Kentucky Interstate Central Registry received a
request from the Clermont County Child Support Office to register and enforce the
arrearage amount. The Pike County Attorney filed an action under the Uniform
Interstate Family Support Act (“UIFSA”), Kentucky Revised Statutes (“KRS”)
407.5101 et seq., seeking an arrearage judgment, income withholding, a monthly
payment amount, and an order to make the Department of Income Support the
payee. The circuit court entered an order setting the matter for a hearing on
October 3, 2024. Vernon failed to appear. The circuit court entered an order and
judgment finding Vernon owed a child support arrearage amount of $50,815.79.
Specifically, the court ordered; effective October 1, 2023, Vernon was to pay $100
-2- per month toward the arrearage; his income could be withheld for support
payments in arrears by thirty days; and, that the Commonwealth’s motion to hold
Vernon in contempt of court for failure to pay child support was granted. The
circuit court entered a separate order directing Vernon to appear on January 23,
2024, for a hearing to show cause why he should not be held in contempt of court.
Vernon appeared without counsel on January 23, 2024. He told the
court he had just moved back from Cincinnati, he was in sober living, and he had
called that morning about going back to work. Vernon believed his wife had
“dropped” the child support in Ohio. The court told him he would have to return to
Ohio if he wanted to contest the child support, and that all the court could do was
enforce the back payments. Vernon told the court he did not want to contest
anything and wanted to start making payments right away. The court told him that
“they’re asking us to collect it at $100 per month.” Vernon replied, “That’s fine.”
The court asked him if he could pay $100 per month, and he said “yes.”
The court entered a written order on January 29, 2024, finding that
Vernon was homeless and living in the Shelby Valley Veterans’ Home, and had no
income at that time. The order stated that Vernon was held to be in contempt of
court for failure to pay child support as previously ordered; that he could purge
himself of contempt by paying the sum of $100 per month toward the arrearage;
that he was to make January and February’s payments prior to the review hearing
-3- scheduled for March 5, 2024, and that should he fail to purge himself of contempt,
an immediate warrant for his arrest would be issued.
Vernon did not make the payments, and he did not appear at the
review hearing. On March 5, 2024, the trial court entered an order finding that
Vernon had failed to purge himself of contempt pursuant to prior orders of the
court, granting judgment in the amount of $50,815.79 (not including Ohio’s fees
and interest), reissuing a bench warrant, and setting a full cash bond of $10,000.
Vernon was arrested for public intoxication on March 22, 2024. The
bench warrant for his arrest was served at that time. A public advocate was
appointed to represent him.
On March 27, 2024, Vernon’s counsel filed a CR 60.02 motion to set
aside the previous orders of contempt entered on January 29, 2024, and March 5,
2024. He argued that the trial court had entered the orders without making
findings of fact that Vernon was able to pay towards the arrearage and, indeed, the
only finding it did make in this regard was that Vernon was homeless, staying in
the veterans’ home, and had no income. He further argued that the trial court
should have provided Vernon the opportunity to complete an affidavit of indigency
and that Vernon had the right to appointed counsel before the finding of contempt
was made.
-4- Vernon was released from the Pike County Detention Center on April
23, 2024.
The trial court conducted a hearing on the CR 60.02 motion and stated
that Vernon did not have a right to appointed counsel unless he requested it. The
trial court denied the CR 60.02 motion to set aside the contempt finding in a docket
notation on April 25, 2024. Vernon filed a motion for the court to issue a
judgment clarifying the grounds of the April 25, 2024, order and for findings of
fact and conclusions of law.
On May 21, 2024, the trial court entered an order finding Vernon was
still in contempt but had started working at Wendy’s. He had made only one
payment of $20 towards his arrearage. The court ordered an Income Withholding
Order to be sent to Wendy’s in the amount of $100 per month. The order specified
that he would be immediately arrested if he failed to purge himself of contempt by
failing to make payments or failing to appear for future hearings. On the same day,
Vernon filed a notice of appeal from the April 25, 2024, denial of his CR 60.02
motion to set aside the orders of contempt.
STANDARD OF REVIEW
CR 60.02 has been described as “a safety valve, error correcting
device for trial courts.” Kurtsinger v. Board of Trustees of Kentucky Retirement
Systems, 90 S.W.3d 454, 456 (Ky. 2002). “The rule is designed to allow trial
-5- courts a measure of flexibility to achieve just results and thereby provides the trial
court with extensive power to correct a judgment.” Id. (citation omitted).
“Accordingly, CR 60.02 addresses itself to the broad discretion of the trial court
and for that reason, decisions rendered thereon are not disturbed unless the trial
judge abused his/her discretion.” Id. 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) (citations omitted).
ANALYSIS
Vernon argues, in reliance on Lewis v. Lewis, 875 S.W.2d 862 (Ky.
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RENDERED: NOVEMBER 21, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2024-CA-0782-MR
VERNON W. WRIGHT APPELLANT
APPEAL FROM PIKE CIRCUIT COURT v. HONORABLE KENT VARNEY, JUDGE CASE NO. 23-CI-00598
KELLIE S. WRIGHT AND THE COMMONWEALTH OF KENTUCKY APPELLEES
OPINION REVERSING, VACATING, AND REMANDING
** ** ** ** **
BEFORE: CETRULO, KAREM, AND MOYNAHAN, JUDGES.
KAREM, JUDGE: Vernon Wright (“Vernon”) appeals from a Pike Circuit Court
order denying his Kentucky Rules of Civil Procedure (“CR”) 60.02 motion to set
aside two orders holding him in contempt of court for failure to pay child support. Upon careful review, we reverse the order denying the CR 60.02 motion; vacate
the orders finding Vernon in contempt; and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Vernon and Kellie Wright (“Kellie”) were divorced in Clermont
County, Ohio, in 1999. Kellie was designated the residential parent and legal
custodian of their two children, and Wright was ordered to pay child support. At
some point thereafter, Kellie and the children moved to Alabama, and Vernon
moved to Kentucky. The child support was terminated for one child in 2009 and
the other in 2013. Vernon failed to pay child support and accrued an arrearage
amount of $50,815.79.
On April 1, 2023, the Kentucky Interstate Central Registry received a
request from the Clermont County Child Support Office to register and enforce the
arrearage amount. The Pike County Attorney filed an action under the Uniform
Interstate Family Support Act (“UIFSA”), Kentucky Revised Statutes (“KRS”)
407.5101 et seq., seeking an arrearage judgment, income withholding, a monthly
payment amount, and an order to make the Department of Income Support the
payee. The circuit court entered an order setting the matter for a hearing on
October 3, 2024. Vernon failed to appear. The circuit court entered an order and
judgment finding Vernon owed a child support arrearage amount of $50,815.79.
Specifically, the court ordered; effective October 1, 2023, Vernon was to pay $100
-2- per month toward the arrearage; his income could be withheld for support
payments in arrears by thirty days; and, that the Commonwealth’s motion to hold
Vernon in contempt of court for failure to pay child support was granted. The
circuit court entered a separate order directing Vernon to appear on January 23,
2024, for a hearing to show cause why he should not be held in contempt of court.
Vernon appeared without counsel on January 23, 2024. He told the
court he had just moved back from Cincinnati, he was in sober living, and he had
called that morning about going back to work. Vernon believed his wife had
“dropped” the child support in Ohio. The court told him he would have to return to
Ohio if he wanted to contest the child support, and that all the court could do was
enforce the back payments. Vernon told the court he did not want to contest
anything and wanted to start making payments right away. The court told him that
“they’re asking us to collect it at $100 per month.” Vernon replied, “That’s fine.”
The court asked him if he could pay $100 per month, and he said “yes.”
The court entered a written order on January 29, 2024, finding that
Vernon was homeless and living in the Shelby Valley Veterans’ Home, and had no
income at that time. The order stated that Vernon was held to be in contempt of
court for failure to pay child support as previously ordered; that he could purge
himself of contempt by paying the sum of $100 per month toward the arrearage;
that he was to make January and February’s payments prior to the review hearing
-3- scheduled for March 5, 2024, and that should he fail to purge himself of contempt,
an immediate warrant for his arrest would be issued.
Vernon did not make the payments, and he did not appear at the
review hearing. On March 5, 2024, the trial court entered an order finding that
Vernon had failed to purge himself of contempt pursuant to prior orders of the
court, granting judgment in the amount of $50,815.79 (not including Ohio’s fees
and interest), reissuing a bench warrant, and setting a full cash bond of $10,000.
Vernon was arrested for public intoxication on March 22, 2024. The
bench warrant for his arrest was served at that time. A public advocate was
appointed to represent him.
On March 27, 2024, Vernon’s counsel filed a CR 60.02 motion to set
aside the previous orders of contempt entered on January 29, 2024, and March 5,
2024. He argued that the trial court had entered the orders without making
findings of fact that Vernon was able to pay towards the arrearage and, indeed, the
only finding it did make in this regard was that Vernon was homeless, staying in
the veterans’ home, and had no income. He further argued that the trial court
should have provided Vernon the opportunity to complete an affidavit of indigency
and that Vernon had the right to appointed counsel before the finding of contempt
was made.
-4- Vernon was released from the Pike County Detention Center on April
23, 2024.
The trial court conducted a hearing on the CR 60.02 motion and stated
that Vernon did not have a right to appointed counsel unless he requested it. The
trial court denied the CR 60.02 motion to set aside the contempt finding in a docket
notation on April 25, 2024. Vernon filed a motion for the court to issue a
judgment clarifying the grounds of the April 25, 2024, order and for findings of
fact and conclusions of law.
On May 21, 2024, the trial court entered an order finding Vernon was
still in contempt but had started working at Wendy’s. He had made only one
payment of $20 towards his arrearage. The court ordered an Income Withholding
Order to be sent to Wendy’s in the amount of $100 per month. The order specified
that he would be immediately arrested if he failed to purge himself of contempt by
failing to make payments or failing to appear for future hearings. On the same day,
Vernon filed a notice of appeal from the April 25, 2024, denial of his CR 60.02
motion to set aside the orders of contempt.
STANDARD OF REVIEW
CR 60.02 has been described as “a safety valve, error correcting
device for trial courts.” Kurtsinger v. Board of Trustees of Kentucky Retirement
Systems, 90 S.W.3d 454, 456 (Ky. 2002). “The rule is designed to allow trial
-5- courts a measure of flexibility to achieve just results and thereby provides the trial
court with extensive power to correct a judgment.” Id. (citation omitted).
“Accordingly, CR 60.02 addresses itself to the broad discretion of the trial court
and for that reason, decisions rendered thereon are not disturbed unless the trial
judge abused his/her discretion.” Id. 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) (citations omitted).
ANALYSIS
Vernon argues, in reliance on Lewis v. Lewis, 875 S.W.2d 862 (Ky.
1993), that he had a right to appointed counsel before he was held in contempt of
court. In Lewis, the Kentucky Supreme Court held that “the statutes of the
Commonwealth require that an indigent person has a right to appointed counsel in
civil contempt proceedings prior to the execution of an order of incarceration.” Id.
at 864. The specific statutes are found in KRS Chapter 31:
A “serious crime” is defined by KRS 31.100(4)(c) as “[a]ny legal action which could result in the detainment of a defendant.” Detain “means to have in custody or otherwise deprive of freedom of action.” KRS 31.100. “A needy person who is being detained by a law enforcement officer . . . or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime is entitled” to appointed counsel. KRS 31.110.
-6- Id. at 864.
The Lewis Court recognized “that trial judges are human and that
child support questions are vexing and difficult[,]” and cautioned that “[n]othing in
this opinion should be construed as limiting the use of imprisonment as a
legitimate tool for the enforcement of child support orders.” Id. It set forth the
following process to be followed by the trial court to ensure compliance with the
statutes:
The trial court must hold a hearing and allow the contemnor to explain through counsel, or pro se, why he or she should not be incarcerated for civil contempt of court. If the contemnor is not represented by counsel at such a hearing, then the trial court should make a specific finding of fact concerning the person’s indigency. If the defendant is found to be indigent, then prior to any incarceration, counsel should be appointed and the defendant should be given an opportunity to show cause why the order of incarceration should not be executed.
Should defendants be found to have present ability to pay; that is, they have the funds available to purge themselves of contempt and thus the key to their own release, the trial judge could find the defendants in civil contempt and the order should identify it as such. If the defendant has the present ability to pay, he or she may not be indigent and therefore not entitled to appointed counsel. If found to be indigent, the trial court should then appoint counsel pursuant to KRS 31.110 to represent the indigent person.
Id. at 865.
-7- At the show cause hearing on January 23, 2024, Vernon informed the
trial court that he was in sober living, that he was calling about getting back to
work, and that he would be able to pay $100 per month. The trial court’s order
found that Vernon was residing in a veterans’ home and had no income. Under
Lewis, the trial court was required to make a specific finding of fact regarding
whether Vernon was indigent and, if so, to appoint counsel to represent him before
any order of incarceration could be entered.
Vernon further argues that the trial court was required to make
findings of fact regarding his ability to pay the arrearage. “[A] contemnor’s ability
to satisfy a judgment, and thereby purge a contempt amount, . . . is a finding of fact
to be made by the trial court.” Sidebottom v. Watershed Equine, LLC, 564 S.W.3d
331, 333 (Ky. App. 2018) (citation omitted). “The contemnor’s ability to pay must
be properly found and clearly set forth in a finding of fact.” Id. at 334 (internal
quotation marks and citation omitted). At the show cause hearing on January 23,
2024, the trial court questioned Vernon, who was not represented by counsel, about
his ability to pay the purge amount. It did not make specific findings on this issue.
This omission provides further grounds to vacate the orders finding Vernon in
contempt and to remand the matter for a new hearing in accordance with this
Opinion.
-8- CONCLUSION
For the foregoing reasons, the order denying Vernon’s CR 60.02
motion is reversed. The prior orders of contempt are vacated, and the case is
remanded for a hearing to determine whether Vernon is indigent and for the
appointment of counsel if necessary.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Adam Meyer Paul Howard, Jr. Assistant Public Advocate Pike County Attorney Frankfort, Kentucky Pikeville, Kentucky
-9-