William Fredrick Buell, Jr. v. Billie Jan Rouse Buell

• Court: Court of Appeals of Kentucky
• Decided: May 30, 2024
• Docket: 2023 CA 001182
• Status: Unknown

Opinion

RENDERED: MAY 31, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1182-MR

WILLIAM FREDRICK BUELL, JR. APPELLANT

APPEAL FROM MADISON FAMILY COURT v. HONORABLE NORA J. SHEPHERD, JUDGE ACTION NO. 19-CI-50469

BILLIE JAN ROUSE BUELL APPELLEE

OPINION AND ORDER AFFIRMING

** ** ** ** **

BEFORE: EASTON, ECKERLE, AND LAMBERT, JUDGES.

EASTON, JUDGE: In this marriage dissolution action, Appellant (“William”)

asks us to reverse the Madison Family Court’s denial of his demand to hold

Appellee (“Billie”) in contempt for alleged violations of the parties’ initial status

quo obligations and a later specific spending limit from a joint account. Having

fully reviewed the record and the applicable law, we find no abuse of discretion.

We affirm the Madison Family Court. FACTUAL AND PROCEDURAL HISTORY

The parties were married in Illinois in 1976. They separated twice

previously but reconciled. The final separation occurred in August 2019. Billie

filed the dissolution action shortly thereafter.

Billie is a retired teacher. She receives two retirement checks per

month, one from Illinois and one from Kentucky. She also receives a small social

security payment. After retirement, Billie occasionally worked as a substitute

teacher and received some income from this work. William is also retired, and his

sole income source is social security. At the time of the separation, Billie received

approximately four times the retirement income that William received. When

Billie filed for dissolution, she vacated the marital residence where the parties had

lived for most of the marriage. William remained in the home, which included a

20-acre farm where the parties kept several horses.

In November 2019, William filed a motion for a status quo order and

a motion for non-dissipation of assets. A docket sheet was entered on November

18, 2019, on which was written “Non-diss. order to enter.” No additional orders or

details ever followed.

Nothing happened in this case for two years, and the final hearing was

not conducted until September of 2022. Although the parties were instructed to

file proposed findings for the final post-hearing order, they did not. By the time an

-2- order was entered and a motion to reconsider that order was denied, this case had

lasted for four years. It seems William benefited from living in the house for those

years without any compensation to Billie for her interest in the marital home.

William was also benefiting from Billie’s Kentucky retirement income.

Throughout the proceedings, the circuit court regularly stated that the

action was taking much longer than necessary, as the only issues to be determined

were those about property. The case was described as being “long in the tooth.”

The family court rightly observed that the case was being “slow walked.”

The parties participated in two mediations, which were completely

unsuccessful. Billie accused William of not negotiating in good faith. There were

many disagreements between the parties which led them to file several motions

before the family court, including William’s attempts to have Billie held in

contempt.

One such motion was addressed in November 2021, when Billie asked

the court to order an appraisal of the marital residence. William then asked the

family court to prohibit Billie from withdrawing funds from the parties’ joint

account without notice to him. He claimed he was unable to maintain the expenses

for the farm. At this time, both William’s social security check and Billie’s

Kentucky retirement check were being deposited into the joint account. Billie’s

Illinois retirement check went into her personal account. On the docket sheet for

-3- this hearing, the family court wrote that Billie would only withdraw $250 per

month from the joint account. The hearing for this date was not included for our

review, and no subsequent order with more details was ever entered.

In March 2022, Billie asked the family court to sell the marital home.

She stated she was unable to meet her current needs with only the income to which

she was allowed access and that selling the home would give both parties

additional funds for living expenses. Additionally, Billie asked the family court to

allow her to deposit her Kentucky teacher retirement check into her personal

account rather than the joint account. William objected to both requests.

At a case management conference in April 2022, the court denied

Billie’s motion to sell the home at that stage of the proceedings if the parties did

not agree to do so. The court indicated this case should be completed all at once,

rather than piecemeal.

As to the joint account, the family court said there was no order in

place that required the parties to put the entirety of their income into a joint

account. Notably, William’s attorney did not respond to this assertion. The family

court seemed perplexed that the parties still maintained a joint account after being

separated for three years. Again, no additional order was tendered or entered that

explained the court’s rulings further. The only order entered immediately after this

-4- case management conference was the court’s Order Scheduling Trial Date. The

overdue final hearing would take place in September of 2022.

Before the final hearing, William filed a Motion for Show Cause. In

this motion, William alleged Billie had violated a status quo order by removing all

of her retirement funds from the parties’ joint account and by unilaterally closing a

jointly held credit card, which damaged William’s credit score. Because a final

hearing was already scheduled, the family court passed this motion to be heard at

the final hearing. The court stated again that there was no order in the record that

outlined what exactly the “status quo” was for these parties or what would

constitute dissipation of assets. The court also repeated its frustration that the case

was not proceeding at an appropriate pace. It appeared to the court that one party

did not seem to want to resolve the case, as the “status quo” was too comfortable.

On September 22, 2022, the final hearing finally took place. Other

than the parties, the only witness was the real estate appraiser who testified as to

the valuation of the marital property. Billie agreed with the appraisal of the

property. William disputed it, but he did not present a different appraisal or any

other expert testimony or evidence.

Billie testified she retired in 2016, and that was when she began

receiving both retirement checks. She stated she always put the smaller Illinois

retirement check into a personal account, while she put the Kentucky retirement

-5- funds into the joint account. She did move her Kentucky retirement into her

personal account once she was told by the court that she was permitted to do so,

although she didn’t remember exactly when that began.

As for the closing of the joint credit card, Billie acknowledged that

she closed this account without consulting or advising William. She testified she

rarely used this card, and the card in her possession had expired. When she

attempted to get a new one, the company would not send her a new card to her

current address. They would only send a new card to the address that was on file

with them, which was the marital address where William lived.

Billie was still able to access the account electronically, and she

noticed the balance on the card continued to increase. She stated both she and

William were making payments on the card, with her making payments from her

personal account, while William made payments from the joint account. At that

point, most of Billie’s retirement income was still being deposited into the joint

account, which benefited William. Billie stated she spoke with the company in an

attempt to get only her name removed from the account, but it was not possible.

So, she decided to close the account, which she was permitted to do.

William testified he believes Billie has been dissipating assets over

the course of their separation, as well as before their separation. He attempted to

bring in evidence of Billie’s “frivolous spending” as far back as 2014. The family

-6- court did not allow this testimony, as it was not relevant to the issues for the

current dissolution.

William testified his credit rating dropped from “excellent” to “fair”

after Billie closed the joint credit card account. He stated he used the card to pay

the property taxes on the marital property. He was making payments on the

account. William also testified he had issues maintaining the home after Billie

moved her retirement funds from the joint account. He stated he did not know she

was going to do that ahead of time, and he believes by doing so, she violated the

court’s status quo order.

At the conclusion of the hearing, the family court determined that

because the parties could not agree about basically anything, it saw no way around

ordering the sale of the property and dividing the proceeds. The court also

declined to find Billie in contempt for moving her retirement funds or closing the

joint credit card account. The court stated that after this long period of separation,

the parties should not have still been using any joint accounts at all. Any joint

account was going to be closed eventually with whatever credit rating reduction

that would normally flow from that closing.

With no help from the parties in the form of suggested findings, the

court issued its Findings of Fact, Conclusions of Law, and Decree of Dissolution

almost a year later on August 2, 2023. Despite the considerable issues of

-7- allocation of and division of property decided by the family court, William now

only appeals the portion of the decree which declined to sanction Billie for her

alleged contemptuous actions. William hired a different attorney from his family

court counsel to prosecute this appeal.

STANDARD OF REVIEW

Abuse of discretion is the appropriate standard of review for decisions

regarding contempt. Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky. App. 2007). A

trial court abuses its discretion when its decision is “arbitrary, unreasonable, unfair,

or unsupported by sound legal principles.” Id. The clear error standard applies to

the findings of fact by the family court. Cabinet for Health and Family Services v.

Ivy, 353 S.W.3d 324, 332 (Ky. 2011).

ANALYSIS

As a preliminary matter, William has filed a Motion to Strike Billie’s

Brief for failure to comply with Kentucky Rules of Appellate Procedure (“RAP”)

32(B)(3) and 32(B)(4). These rules require ample citations to the record in both

the statement of the case and the argument sections of a brief. “When an appellate

advocate fails to abide by the appellate briefing rules, this Court has the option to:

(1) ignore the deficiency and proceed with the review; (2) strike the brief or its

offending portions, or (3) to review the issues raised in the brief for manifest

injustice only, if the briefing deficiency pertains to the appellant’s statement of

-8- preservation of error.” Swan v. Gatewood, 678 S.W.3d 463, 469 (Ky. App. 2023)

(citations omitted). However, “how to proceed in imposing such penalties is a

matter committed to our discretion.” Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky.

App. 2007).

Billie did cite to the record even if not as amply as William thinks she

should have. She also cited authorities, basically agreeing with much of the law

cited by William. In any event, the record in this matter is not particularly

voluminous, and any technical violation of the briefing rules does not significantly

interfere with our review. We decline to impose any sanctions, and we deny

William’s motion to strike.

William argues the family court erred by failing to enforce the parties’

agreed status quo order. But there is no order, only a notation on a docket sheet

with no explanation. A family court may use a docket sheet to record its order so

long as the sheet does not have more than one case addressed on it. CR1 58(1).

The use of signed docket sheets for entry of multiple decisions applies only to the

district courts. CR 58(2).

Overlooked in this case is that the family court did not intend for the

docket sheet to be its order for status quo. The family court expected the tender of

1 Kentucky Rules of Civil Procedure.

-9- an order specific to these parties. As would be seen throughout this case, the

parties did not follow through.

Regardless of the absence of a specific court order, William claims

Billie violated her status quo obligation in two ways; first, by diverting all her

retirement funds into her own personal account. Second, he believes it was a

violation to close the joint credit card account, which allegedly damaged his credit

score. The family court elected not to sanction Billie for any violations, as it

determined “the ‘status quo’ order generally lacked sufficient specificity for

enforcement purposes.”2

This leaves only the petty argument about the $250 limitation placed

on Billie in a later docket sheet order. As Billie explained, she had a good reason

for the fairly minimal draws from the account in excess of this monthly allowance.

When she finally got her two horses from William, what little horse tack William

gave her was in poor condition, and she had to spend some money just to basically

equip the horses.

“Contempt is the willful disobedience toward, or open disrespect for,

the rules or orders of a court.” Commonwealth v. Burge, 947 S.W.2d 805, 808

(Ky. 1996). “Civil contempt consists of the failure of one to do something under

order of court, generally for the benefit of a party litigant.” Id.

2 Findings of Fact, Conclusions of Law, and Decree of Dissolution, page 3, Record at 271.

-10- “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).

Before contempt can be found, the first requirement is a valid court

order. William paints this non-existent status quo order as an “agreed order.” An

agreed order, if properly entered, is a contract. Cagata v. Cagata, 475 S.W.3d 49,

56 (Ky. App. 2015). “The fundamental elements of a valid contract are offer and

acceptance, full and complete terms, and consideration. For the terms to be

considered complete they must be definite and certain and must set forth the

promises of performance to be rendered by each party.” Waggoner v. Waggoner,

-11- 644 S.W.3d 548, 552 (Ky. App. 2022) (citing Energy Home, Div. of Southern

Energy Homes, Inc. v. Peay, 406 S.W.3d 828, 834 (Ky. 2013)).

None of those elements are present here. It cannot be reasonably

argued that the singular phrase “Non-diss order to enter” contains “full and

complete terms.” In order to determine if a party has violated a valid court order,

the substance of the order must be ascertainable by its written terms. The status

quo “order” William claims Billie violated is a docket sheet from November 2019.

The notation indicates the family court intended the parties to submit a more

detailed order. This was not done. William cannot show Billie violated a valid

court order, because no valid status quo order ever existed. We agree with the

family court that the “order” William attempted to enforce was not specific enough

to be enforceable.

Prior to redirecting her Kentucky retirement funds3 away from the

joint checking account, Billie specifically asked the family court for permission to

do so. The court responded that no order existed that would prohibit Billie from

taking this action. For William to argue that Billie violated a court order under

these circumstances is disingenuous at best, bordering on frivolous. Additionally,

3 We note the protection provided to Billie to treat her Kentucky retirement as her property by Kentucky Revised Statutes (“KRS”) 161.700. The existence of other accounts for William or Billie impacted this protection. KRS 403.190. Again, William does not question the overall division of the substantial property these parties had at the time of the divorce, just the non- finding of contempt.

-12- William requested sanctions against Billie in the amount of $48,000 with

absolutely no explanation whatsoever as to a valid basis for this number. If a party

is seeking compensation from an alleged contempt, said party must prove that

amount. Ivy, supra, at 332.

If William could overcome the problems with the lack of a specific

court order, he cannot show the family court’s refusal to find contempt was

erroneous. Despite William’s assertions to the contrary, the choice to decline to

sanction a party for contempt is within the family court’s discretion. “A court has

broad discretion when exercising its contempt power. A court’s discretion in this

regard necessarily encompasses the discretion to determine when to apply its

contempt powers and when to refrain from imposing sanctions and fines. Absent

an abuse of the court’s discretion we will not disturb its decision on appeal.” Cary

v. Pulaski Cnty. Fiscal Ct., 420 S.W.3d 500, 520 (Ky. App. 2013) (citations

omitted). Considering the slow walking engaged in by William in this case, the

family court was justified in evaluating the equities and declining to hold Billie in

CONCLUSION

To the extent a valid “status quo” order existed, it was without any

specifics. With the long history of this case, the family court was not required to

agree with William’s punitive motivation in seeking contempt sanctions. With

-13- what little evidence was presented about excess draws from the joint account by

Billie, the family court was within its rights to accept the explanation offered and

not find contempt.

Contempt is for the court to decide; it is not a weapon to be used by

the parties. If any punishment is deserved in this case, it may well be that Billie’s

request that we consider this appeal frivolous is the better candidate to serve as a

basis for such action. But we decline that invitation so that these parties may

finally move on from their divorce. We affirm the Madison Family Court.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

William D. Tingley Daniel L. Gaus Louisville, Kentucky Rodney G. Davis Richmond, Kentucky

-14-