Family Law

Crowder v. Rearden, __ S.W.3d __ (Ky. App. 2009)

    This is a companion appeal to Rearden v. Rearden, No. 2006-CA-002362-MR. 

Kimberly Joy Crowder, formerly Rearden, appealed from two orders, in which the trial court found her in contempt for failure to cooperate with the sale of the marital residence and for failure to pay her portion of the mortgage.  The trial court sentenced her to thirty days in jail.  She only served five days with work release and the remainder of the time was probated for two years.  Crowder also appealed the denial of her motion to alter, amend or vacate the contempt orders.  On appeal Crowder argued that 1) the court jailed her solely for nonpayment of the mortgage without determining her ability to pay, 2) her failure to comply with court orders was not the result of disrespect, but rather impossibility, and 3) the court did not require the husband to mitigate his damages. 

    COA affirmed, finding that the trial court was more than patient with Crowder and did not abuse its discretion in finding her in contempt for failing to obey multiple orders.  Crowder was found in contempt for failure to comply with a myriad of court orders, not just nonpayment of the mortgage.  The original order requiring her to pay the mortgage was based on a review of her finances as submitted in the mandatory case disclosure.  Crowder never challenged that order and allowed it to become final.  She also made three full mortgage payments on the residence.  Thus, the record shows she had the ability to pay.

The Court found Crowder?s mitigation of damages argument ironic at best.  She claims that the husband should have paid the mortgage to avoid having the house fall into foreclosure and damage his credit rating.  She made the argument while offering no proof that the husband could access enough funds to pay the full mortgage himself, the same thing she criticized the trial court for doing when holding her in contempt.  Crowder also failed to cite any case law that demonstrates a party is required to mitigate damages so a former spouse could avoid being held in contempt.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates