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March 13, 2026 Get Citation Alerts Download PDF Add Note

2026 Ca Admin - Non-Confidential Opinion - 003

Court of Appeals of Kentucky

• Citations: None known
• Docket Number: 2025-CA-0629, 0630, 0631, 0637, 0772, 0774
• Judges: Caldwell

• Disposition: OPINION AFFIRMING AND REMANDING

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (6.8K)

• PDF

Disposition

OPINION AFFIRMING AND REMANDING

Combined Opinion

RENDERED: MARCH 13, 2026; 10:00 A.M.
TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0629-ME

N.L. AND B.L. APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE LAURA P. RUSSELL, JUDGE
ACTION NO. 23-J-503496-002

COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES AND T.L., A
MINOR CHILD APPELLEES

AND

NO. 2025-CA-0630-ME

N.L. AND B.L. APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE LAURA P. RUSSELL, JUDGE
ACTION NO. 23-J-503495-003

COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES AND C.L., A
MINOR CHILD APPELLEES
AND

NO. 2025-CA-0631-ME

N.L. AND B.L. APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE LAURA P. RUSSELL, JUDGE
ACTION NO. 23-J-503494-003

COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES AND R.L., A
MINOR CHILD APPELLEES

AND

NO. 2025-CA-0637-ME

N.L. AND B.L. APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE LAURA P. RUSSELL, JUDGE
ACTION NO. 23-J-503494-002

COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES AND R.L., A
MINOR CHILD APPELLEES

AND

-2-
NO. 2025-CA-0772-ME

N.L. AND B.L. APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE LAURA P. RUSSELL, JUDGE
ACTION NO. 23-J-503496-003

COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES AND T.L., A
MINOR CHILD APPELLEES

AND

NO. 2025-CA-0774-ME

N.L. AND B.L. APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE LAURA P. RUSSELL, JUDGE
ACTION NO. 23-J-503495-002

COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES AND C.L., A
MINOR CHILD APPELLEES

-3-
OPINION
AFFIRMING AND REMANDING

---

BEFORE: CALDWELL, MCNEILL, AND MOYNAHAN, JUDGES.

CALDWELL, JUDGE: N.L. (“Father”) and B.L. (“Mother”) (collectively

“Parents”) appeal from a contempt finding and sanction. We affirm.

FACTS

By separate Opinion rendered this same date, the family court’s

finding Parents’ three youngest children to be abused or neglected has been

affirmed.1 See N.L. v. Cabinet for Health and Fam. Servs., Nos. 2025-CA-0080-

ME, 2025-CA-0083-ME, 2025-CA-0084-ME, 2025-CA-0086-ME, 2025-CA-

0087-ME, & 2025-CA-0088-ME, (Ky. App. Mar. 13, 2026). Henceforth, we refer

to the dependency, neglect, and abuse action as “the DNA proceeding.”

The family court had entered its disposition order in the DNA

proceeding on December 19, 2024. The family court allowed the children to

remain in Parents’ custody. But it also ordered that the Cabinet for Health and

Family Services (“the Cabinet”) and Jefferson County Public Schools (“JCPS”)

1
Since this appeal stems from proceedings in which minor children were adjudicated to be
abused or neglected, we do not refer to the individual children or their parents by name.
Kentucky Rules of Appellate Procedure (“RAP”) 5(B)(2) (“Initials or a descriptive term must be
used instead of a name in cases involving juveniles, allegations of abuse and neglect, termination
of parental rights, mental health, and expungements.”).

-4-
continue to monitor the family. The order also specifically stated that the children

must attend school in person each day and that Parents must cooperate with the

Cabinet and JCPS.

A couple of days after the disposition order’s entry, JCPS’ winter

holiday break began. Inclement weather delayed JCPS’ reopening until January

13th, 2025. On that day, Mother withdrew the children from JCPS. On all three

withdrawal forms, Mother listed a new address in Ann Arbor, Michigan. She also

indicated the children would be homeschooled in Michigan on some forms.

In mid-February 2025, the Cabinet filed a motion seeking to hold

Parents in contempt for violating the family court’s orders.2 The Cabinet attached

to the contempt motion an affidavit by Amy Logsdon Risley (“Risley”), a JCPS

social worker and keeper of the records. Risley averred that Mother told JCPS

staff she did not need to file paperwork in Michigan or forward her children’s

educational records to Michigan because Michigan did not require documentation

2
This Court granted Parents emergency relief (shortly before the contempt motion was filed) and
then a writ of prohibition in a related case stemming from the filing of an additional set of DNA
petitions in late January 2025. See Exhibits E and F to Appendix to Appellant red brief (Order
entered February 6, 2025, and Order Granting Writ of Prohibition entered March 31, 2025, in
No. 2025-CA-0158-OA). The writ of prohibition was granted a few days after the family court’s
hearing on the contempt motion.
The record for the case initiated by the late January 2025 petition(s) and leading to the
issuance of the writ is not before us. Moreover, the present appeal is from the resolution of
contempt proceedings in the separate DNA proceeding previously initiated in late 2023—not
from the DNA proceeding for which we issued a writ of prohibition.

-5-
for homeschooling. She also averred that despite Mother’s telling JCPS staff the

family had relocated to Michigan over the holiday break, school personnel

observed some of the children in the Louisville area in January 2025. Risley

expressed concerns the children would be placed at risk of further educational

neglect if homeschooled by Mother rather than attending school in person.

In late March 2025, the family court conducted an evidentiary hearing

to determine if Parents were in contempt. The Cabinet called Risley to testify.

Risley testified that in February 2025 she contacted Ann Arbor public school

district personnel, who reported the children were not enrolled in school there.

Risley also stated that Ann Arbor district personnel later told her the children were

first signed up for school on March 11, 2025. She also reported being told the

youngest child went to school that same day, but the two older children had not

attended school in Ann Arbor.

After Risley’s testimony concluded, Parents’ attorney called Mother

to testify. Mother testified to being told by a Cabinet worker that there would be

no problem with the family moving to Michigan and there was nothing further she

had to do. She took this statement to mean it would be fine to homeschool in

Michigan. She also testified to consulting attorneys and believing Kentucky court

orders no longer applied once the family moved to Michigan.

-6-
Mother stated that when she heard of the pending contempt motion

based on Parents’ not sending the children to in-person school in Michigan, she

tried to enroll the children in school in Ann Arbor public schools to comply with

the court’s orders. Mother also testified the Ann Arbor school district was a

desirable one which required extensive documentation of residency, and it took

several weeks to complete the process of enrolling the children in school.

Mother testified that on March 11, 2025, all three children had been

signed up for school in Ann Arbor and the youngest child went to school that day.

Mother admitted, however, that the other two children had not yet started attending

school in Michigan as of the late March hearing. She stated the other two children

would start attending in-person school on March 31, 2025. She said the oldest

minor child would turn eighteen just a few weeks after the hearing.

At the end of the hearing, the family court judge stated she would be

finding Parents in contempt and entering a written order to that effect. However,

she scheduled an additional hearing to determine an appropriate sanction.

In early April 2025, the family court issued its written order finding

Parents in contempt. The court found JCPS had 39 school days from January 13,

2025, until the youngest child attended his first day of school in Michigan on

March 11, 2025. It also found it heard no testimony that the older two children had

attended any days of school since being withdrawn from JCPS.

-7-
The court noted Risley testified to Mother’s saying she would go back

to homeschooling once the court cases were done and Risley’s replying that the

court’s orders would remain in place even when the cases were over. The court

indicated it found Risley’s testimony credible.

On the other hand, the court did not find Mother’s testimony credible.

The court noted Mother could not identify a date on which the family moved.

Also, the court noted Mother testified to Ann Arbor being where Mother’s in-laws

had lived for 35 years and to the family’s deciding to move there over holiday

break. The court found it odd that Mother also testified to not doing any research

about the school district or the schools the children would attend despite planning

to send the children to school there. The family court stated it did not believe

Mother’s explanation that she wrote “homeschool” on forms because she had to

say where the children would attend school after leaving JCPS and she did not

know what school the children would be attending in Michigan yet.

The court also found that despite Mother’s claiming a Cabinet worker

made a statement in January 2025, which Mother thought meant she could

homeschool the children in Michigan, Mother testified to enrolling the children in

Ann Arbor schools in mid-February 2025. The court also noted Mother’s claimed

mid-February enrollment date conflicted with the actual enrollment date provided

-8-
by the Ann Arbor school district (3/11/2025).3 The court found Mother offered no

extrinsic evidence to support her claims.

The family court found, by clear and convincing evidence, that

Parents had withdrawn the children from JCPS on January 13, 2025, and had not

enrolled them in Ann Arbor schools until March 11, 2025, thus violating the

December 2024 disposition order. The court found Parents did not show they were

unable to comply with the court’s order or that their non-compliance was justified.

The family court conducted an additional hearing to determine an

appropriate sanction for contempt in late April 2025. A few days later, it entered

its written order imposing a sanction.

The family court indicated it found Parents to be in civil contempt,

citing authority about appropriate sanctions for civil contempt. It further stated

that for their willful contempt, Mother and Father “are each sentenced to ninety

days[’] incarceration, conditionally discharged for a period of two years.” (Page 2

of Order entered May 5, 2025, Record (“R.”), p. 213—also attached as Appendix

B to Appellant red brief.)

3
Mother’s and Risley’s testimony reflected different understandings of what enrollment entailed.
Mother seemingly viewed signing up for school as the same thing as enrollment. However,
Risley explained that, at JCPS, signing up for school meant filling out forms which might be
done online, while enrollment meant that a student showed up to start attending school. She
testified that sometimes parents signed children up for school, but a long time passed before the
children showed up to attend school and were therefore considered enrolled.

-9-
The court stated Parents had the opportunity to purge themselves of

contempt by making sure their minor children attend school daily unless medically

excused and by providing to the court and County Attorney quarterly certified

records of the children’s school attendance during the conditional discharge period.

The court further found Parents were presently able to make sure their children

attend school daily and may avoid incarceration by complying with this order. It

further stated the sanction was imposed to coerce Parents to comply with its order

for the children’s benefit.

Parents filed a timely appeal, challenging both the contempt finding

and the sanction imposed. Further facts will be provided as needed in our analysis.

ANALYSIS

Before we address the parties’ arguments about the contempt finding

and sanction, we first note that Parents have raised no issues about the family

court’s jurisdiction in this appeal. (In other words, they have not argued that the

family court lacked jurisdiction when conducting these contempt proceedings.)

However, we are aware that some people might perceive that the family court’s

jurisdiction might be questionable after a family relocation to Michigan.

Despite any such perceptions, the family court clearly had subject

matter jurisdiction here. Subject matter jurisdiction, which cannot be established

by consent or waiver, is the court’s power to hear and rule on a particular type of

-10-
case. Nordike v. Nordike, 231 S.W.3d 733, 737-38 (Ky. 2007). Clearly, the family

court had the power to hear and make rulings in this type of case—dependency,

neglect, and abuse proceedings—pursuant to KRS4 610.010(2)(d).

Unlike subject matter jurisdiction, however, personal jurisdiction and

particular-case jurisdiction issues may be waived by failure to raise such issues.

See generally Basin Energy Co. v. Howard, 447 S.W.3d 179, 184-85 (Ky. App.

2014); Baum v. Aldava, 713 S.W.3d 96, 105 (Ky. 2025). Because Parents do not

challenge the family court’s jurisdiction in their appellate briefs, we decline to

reach any issues about personal or particular-case jurisdiction in this Opinion.

Instead, we simply address the parties’ arguments about the contempt finding and

sanction imposed.

Standards of Review

We review the family court’s contempt decision for abuse of

discretion, keeping in mind courts have broad discretion to enforce their orders by

exercising their contempt powers. Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky.

App. 2007). See also Commonwealth, Cabinet for Health and Family Services v.

Ivy, 353 S.W.3d 324, 332 (Ky. 2011) (hereinafter “Ivy”). However, we review

factual findings for clear error. Id. In other words, we may not disturb factual

4
Kentucky Revised Statutes.

-11-
findings which are supported by substantial evidence and thus not clearly

erroneous. Sewell v. Sweet, 637 S.W.3d 330, 334 (Ky. App. 2021); CR5 52.01.

With these parameters in mind, we first consider Parents’ allegation

that the family court erred in finding them in contempt.

Parents Were Not in Compliance with the Family Court’s Order at Time of
Contempt Finding; Family Court Did Not Err in Finding Them in Contempt

Parents assert the contempt finding was in error because, in their

view, they were in compliance with family court orders at the time of the late

March 2025 contempt hearing since they had “enrolled” the children in Ann Arbor

schools on March 11, 2025.

We disagree. The family court found that Parents willfully violated

the December 2024 disposition order, which it had noted required them to make

sure their three minor children attend school every day unless medically excused.

The family court also found that although the youngest child started

attending school in Michigan on March 11, 2025, it heard no testimony showing

the two older children had attended any days of school since their withdrawal from

JCPS that January. (In fact, Mother admitted the two older children had not yet

started attending Ann Arbor schools as of the late March 2025 contempt hearing

date based on our review of the recorded hearing.)

5
Kentucky Rules of Civil Procedure.

-12-
Thus, there was no error in the family court’s finding Parents in

violation of the Disposition Order, and the evidence does not compel a finding that

Parents were presently in compliance with court orders at the time of the late

March 2025 contempt hearing.6

The family court’s factual findings were supported by substantial

evidence, especially considering its prerogative to assess witness credibility and to

weigh the evidence. See generally CR 52.01; Moore v. Asente, 110 S.W.3d 336,

354 (Ky. 2003). Moreover, we detect no abuse of discretion in its finding Parents

in contempt for willfully violating its orders based on the record before us.

In sum, we discern no reason to disturb the contempt finding—

especially since we reject Parents’ assertion that they were presently in compliance

with the family court’s orders by the contempt hearing date.7 Next, we address

Parents’ arguments about the sanction imposed.

6
The family court did not expressly declare in the contempt finding order that Parents were not
presently complying with its orders as of the contempt hearing date. But this order reflects an
implicit finding that Parents were not presently in compliance with the December 2024
disposition order at that time. After all, the court found Parents willfully violated the disposition
order after earlier noting the disposition order required the children’s daily attendance at school
unless medically excused and finding two of the children were still not attending school as of the
contempt hearing date. We further note Parents have not asserted that the children’s absence
from in-person school was medically excused, nor have they pointed to any evidence showing
that all three children were presently attending school as of any later pertinent date—such as the
sanction hearing on April 30 or the entry of the sanction order shortly thereafter.
7
At most, Parents presented evidence that they were partially complying with the disposition
order by sending their youngest child to school beginning on March 11, 2025. But the evidence
is undisputed that none of these three children attended school in person from the date of their
JCPS withdrawal (January 13, 2025) until the youngest child started attending in-person school

-13-
Family Court Imposed a Proper Sanction for Civil Contempt

Parents contend the family court erred in imposing the sanction for

civil contempt. They assert that civil contempt sanctions cannot be properly

imposed when a party has already achieved compliance with court orders and

suggest they were fully compliant with the court’s orders by the sanctions hearing.

However, we have already rejected the argument that they were in compliance by

the contempt hearing date. And Parents point to no evidence that all three children

were attending school by the sanctions hearing date.

Having rejected Parents’ assertion that they were in full compliance

with court orders by the sanctions hearing, we also reject their argument that the

sanction was punitive rather than coercive because there was nothing for the family

court to coerce them into doing. On the contrary, the family court had recently

found a lack of evidence that the two older children had attended school since

leaving JCPS that January—despite the disposition order’s requirement that all

three children attend school daily unless medically excused. Thus, there was

something for the family court to coerce Parents to do and the court did coerce

them to do something—namely, to send the children to school daily unless

in Michigan approximately two months later and that the two older children were still not
attending in-person school on the late March 2025 hearing date.

-14-
medically excused (as previously ordered) and to provide quarterly certified

records of the children’s school attendance.

That being said, we must still grapple with Parents’ arguments that the

sanction imposed was not a proper sanction for civil contempt.

Contempt sanctions are classified as either
criminal or civil depending on whether they are meant to
punish the contemner’s noncompliance with the court’s
order and to vindicate the court’s authority and dignity,
or are meant to benefit an adverse party either by
coercing compliance with the order or by compensating
for losses the noncompliance occasioned.

Ivy, 353 S.W.3d at 332. “For the punishment to retain its civil character, the

contemnor must, at the time the sanction is imposed, have the ability to purge the

contempt by compliance and either avert the punishment or at any time bring it to

an end.” Id. at 334-35.

Parents assert that the family court improperly imposed a punitive

rather than a coercive sanction despite finding them to be in civil contempt, not

criminal contempt. They also argue that the sanction improperly punished future

conduct and did not properly accord them an opportunity to purge their contempt.

Parents point to our Supreme Court’s criticism of the contempt

sanction in Ivy. In Ivy, the Supreme Court held the family court erred in finding

Ms. Ivy in contempt because it failed to properly consider her ability to pay her

child support obligation. It emphasized the Social Security Administration’s

-15-
determinations that Ms. Ivy was disabled and needed the full amount of her Social

Security benefits for her own subsistence. Id. at 333-34. The family court had

sentenced Ms. Ivy to thirty days in jail, but stayed the execution of this sentence so

long as she paid her ongoing child support obligation and made additional

payments until the arrearage was paid in full. Id. at 335.

Our Supreme Court held that the family court’s threatening Ms. Ivy

with incarceration for future violations of the child support order “did not provide

her with a true opportunity for purging, and thus was invalid.” Id. It further stated:

the purge condition of a coercive order must be
something presently within the contemnor’s ability to
perform. Ivy had no present ability to perform future
obligations. By itself, moreover, a future failure to pay
would not, in and of itself, the court’s order
notwithstanding, justify Ivy’s incarceration. That future
conduct was not, and could not be, the subject of the
pending contempt motion because it had yet to occur. If
Ivy did fail to pay, she would be entitled to notice, a new
hearing, and a finding that at that future point in time she
had the ability to comply.

Id.

In addition to Ivy, Parents also cite Crandell v. Cabinet for Health and

Family Services ex rel. Dilke, 642 S.W.3d 686 (Ky. 2022) (hereinafter “Crandell”),

to argue the contempt sanction imposed here was improper. Specifically, they

emphasize our Supreme Court’s holding that the family court abused its discretion

-16-
by issuing a contempt sanction that “seeks to punish future contempt rather than

present contempt[.]” Id. at 688.

Crandell briefly noted that the family court made a finding of civil

contempt and discussed the burden of proof for civil contempt. Id. at 689-90.

Ultimately, our Supreme Court upheld the contempt finding, but not the sanction

imposed. Id. at 691-92.

Crandell does not engage in a detailed discussion of the differences

between civil contempt and criminal contempt. For example, it does not cite

authority discussing how civil contempt sanctions serve to coerce compliance or

compensate adverse parties whereas criminal contempt sanctions serve to punish

prior acts of contempt. See Ivy, 353 S.W.3d at 332. See also Meyers, 233 S.W.3d

at 215 (“When a court seeks to coerce or compel a course of action, the appropriate

sanction is civil contempt. However, when a court seeks to punish conduct that

has already occurred or to vindicate its authority, the appropriate sanction is

criminal contempt.”) (citations omitted).

After discussing its reasons for upholding the finding that Crandell

was in contempt, our Supreme Court vacated the contempt sanction imposed,

stating as follows:

Here, the family court’s order required that should
Crandell fail in the future to meet his support obligation,
he would be incarcerated. The order contains the same
error written about in Ivy: the family court made future

-17-
conduct “the subject of the pending contempt motion,”
even though “it had yet to occur.” Id. at 335. Doing so
was improper. Just as in Ivy, here, Crandell should have
been “entitled to notice, a new hearing, and a finding that
at [the future points] in time, [he] had the ability to
comply” for each new finding of future contempt. Id.
(citation omitted). Instead, the family court ordered that
Crandell’s future failure to pay would be punishable by a
20-day period of incarceration each month he failed to
meet his support obligation. There was no termination
provision to the order—presumably, for the rest of his
life, Crandell was to be subject to monthly 20-day jail
stays if he failed to pay.

Because the family court sought to coercively
punish Crandell’s future conduct, the order was an abuse
of discretion. The family court may only purge present
contempt in executing a remedy. We therefore remand
the issue of the remedy for further findings or other
proceedings as necessary and consistent with this
Opinion.

Crandell, 642 S.W.3d at 691-92.

Next, our Supreme Court discussed how it was practically impossible

for Crandell to fully comply with the court’s orders and how there was no end date

to the contempt sanction’s application:

Having concluded the ordered remedy was
erroneous, we find it instructive to further consider the
practicality of the order itself. The order approaches
impossibility. Technically, the $251 Crandell would owe
each month amounts to roughly five full working days of
minimum wage earnings. Logistically, however, the
requirement is practically infeasible. The family court in
this case had a clear and convincing showing of
Crandell’s present lack of work. That means that
Crandell, before the 11th of the next month, would need

-18-
to find work. It takes time to apply and be accepted to
work, then more time to receive your first check
(assuming you find an employer willing to hire you with
the knowledge that you may be either restricted by work
release, or absent fully for almost three weeks at a time).
In the likely event that Crandell fails to find work and
work enough to make the future payment amount, he will
be put in jail. If released, he must try all over again with
only 8, 10, or 11 days, depending on the month, before he
had to report to jail again. This system of twenty days in,
a bit over a week out—for the rest of Crandell’s life—is a
Sisyphean cycle that will likely manage to both expend
county resources and fail to accomplish the goal of
satisfying Crandell’s outstanding arrearage. The order is
completely impractical from a compliance perspective,
and makes it less likely that Crandell will ever satisfy the
arrearage.

Id. at 692.

Parents’ argument does not focus on the Supreme Court’s discussion

of the lack of a termination date for the contempt sanction in Crandell, nor its

expression of concerns that the imposed sanction could easily lead to a person

being incarcerated without notice or a hearing for being unable to pay a child

support obligation. Nor do Parents emphasize how our Supreme Court reversed

the contempt finding in Ivy for lack of proper consideration of her ability to pay her

child support obligation, or its focus on the principle that courts may not compel

people to perform impossible acts.

-19-
Instead, Parents emphasize our Supreme Court’s general language

about persons’ lacking the present ability to perform future acts to suggest that any

form of conditional discharge in a civil contempt sanction is improper.

Moreover, Parents assert that this Court applied the same principle

forbidding contempt sanctions aimed at punishing future contempt to a case not

involving child support in a recent unpublished opinion.8 Parents argue:

“Imposing sanctions to ensure future compliance serves no coercive purpose and

amounts to a punitive measure for potential future behavior.” (Appellant red brief,

page 11.)

The Cabinet points out that Ivy and Crandell are distinguishable as

child support cases involving issues about whether the parents had the ability to

8
See Armstead v. Armstead, Nos. 2023-CA-0590-ME & 2023-CA-0894-MR, 2024 WL
3075029, at *4 (Ky. App. Jun. 21, 2024) (unpublished) (hereinafter “Armstead”) (“Furthermore,
the conditional probation exists to potentially punish Amy for future contempt violations, which
is not permitted.”).

Unpublished opinions are not binding authority. RAP 41(A). Nonetheless, we discuss
this unpublished opinion to respond to the parties’ arguments about it in their appellate briefs.
Also, we may consider such an unpublished opinion persuasive, though not binding. See, e.g.,
Lazar v. Lazar, 678 S.W.3d 472, 477 n.5 (Ky. App. 2023). Moreover, we are unaware of any
published authority directly on point concerning contempt sanctions involving conditional
sentences probated on future compliance in a non-financial context. See RAP 41(A)(3) (“A
party may cite to and rely on a ‘Not To Be Published’ opinion for consideration if[,]” in addition
to fulfilling other RAP 41(A) requirements, “there is no published opinion of the Supreme Court
or the Court of Appeals that would adequately address the point of law argued by the party[.]”).

We remind the parties’ attorneys of the obligation to note the non-binding nature of
unpublished opinions when citing such unpublished opinions for our consideration. RAP
41(A)(4).

-20-
pay. It suggests Ivy and Crandell focus on the principle that a court cannot hold a

party liable for failing to perform an impossible act. The Cabinet asserts that the

family court’s contempt sanction here does not require Parents to pay any amount

of money, and that Parents are clearly able to comply with the court’s simple

condition that they send their minor children to school.9

As for this Court’s unpublished opinion stating that sanctioning future

conduct is impermissible in a context not involving issues about one’s ability to

meet financial obligations, the Cabinet points out some significant distinctions.

For example, it points out the parent held in contempt for failure to comply with a

parenting time order (Ms. Armstead) was denied her request for counsel or a

continuance of the contempt hearing and was called to testify against herself.10 In

contrast, Parents were represented by counsel throughout the family court

proceedings, including the contempt and sanction hearings.

The Cabinet also notes this Court determined that the sanction for Ms.

Armstead was “criminal in nature”11 and failed to provide her with an opportunity

9
The sanction order also required Parents to provide quarterly certified records of their
children’s school attendance which could potentially involve some time and expense, albeit
likely minimal.
10
Armstead, 2024 WL 3075029, at *4.
11
Id.

-21-
to purge the contempt.12 In contrast, the Cabinet asserts that the civil contempt

sanction here provided Parents an opportunity to purge contempt by making sure

the children attend school regularly.

On the other hand, Parents emphasize our Supreme Court’s statement

in Crandell that: “Because the family court sought to coercively punish Crandell’s

future conduct, the order was an abuse of discretion. The family court may only

purge present contempt in executing a remedy.” 642 S.W.3d at 692.

Again, Parents argue there was no present contempt, which we have

previously rejected. Nonetheless, though the record does not compel a finding that

they were not presently in contempt, we recognize the sanction imposed may

appear questionable considering certain statements in Crandell and Ivy. (We note

our Supreme Court reversed the contempt finding in Ivy, though it also criticized

the sanction. See 353 S.W.3d at 332-25. In contrast, our Supreme Court upheld

the contempt finding in Crandell, but it reversed the contempt sanction based in

part on its discussion of sanctions in Ivy. See Crandell, 642 S.W.3d at 691-92.)

Despite the seemingly broad prohibitions against any contempt

sanction conditioned on any future conduct in Crandell and Ivy, we disagree with

any argument that such precedent forbids any sort of conditionally discharged

12
Id. (“Though the imprisonment was conditionally probated on her compliance with all orders
of the circuit court, the condition did not allow Amy to purge herself of the contempt.”).

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sentence of imprisonment as a civil contempt sanction. Instead, we construe the

Supreme Court’s statements seemingly forbidding any conditions about future

conduct in contempt sanctions as specific to their context (child support cases

involving potential issues about ability to pay) and as focused on the prohibition

against compelling impossible acts.

Prior to the rendition of Crandell, this Court rejected an argument

that a family court erred in imposing a sanction of incarceration subject to a set

period of conditional discharge for civil contempt, noting prior precedent did not

forbid this practice:

Finally, Nienaber argues the family court erred in
imposing a period of conditional discharge in a civil
contempt case. Again, Nienaber cites Ivy in support of
her argument. Ivy held that the family court erred in
holding the obligor in contempt because she lacked the
ability to pay her child support and never reached the
issue of sanctions. Therefore, Ivy does not support
Nienaber’s argument, and she cites no other pertinent
authority. Furthermore, in Schaffeld v. Commonwealth
ex rel. Schaffeld, 368 S.W.3d 129 (Ky. App. 2012) and
C.C. v. Commonwealth ex rel. S.B., 568 S.W.3d 878 (Ky.
App. 2019), the obligor’s jail time in each contempt case
was conditionally discharged, and this Court did not
condemn the practice. As such, we cannot hold that the
family court abused its discretion in imposing a period of
conditional discharge in this case.

Nienaber v. Commonwealth ex rel. Mercer, 594 S.W.3d 232, 237 (Ky. App. 2020)

(hereinafter “Nienaber”). We note Schaffeld, 368 S.W.3d 129, and C.C., 568

S.W.3d 878, were both appeals from revocation of conditional discharge imposed

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as contempt sanctions for failure to pay court-ordered child support obligations.

We reversed the revocation in Schaffeld due to the family court’s failure to make

specific findings about whether Schaffeld attempted to make bona fide payments

of support but was unable to do so for reasons beyond his control or whether his

previous non-compliance with a court order was willful. 368 S.W.3d at 135. Yet

in both Schaffeld and C.C., this Court did not identify the imposition of conditional

discharge itself as a problem.

Despite citing Schaffeld and C.C. as authority supporting the use of

conditional discharge as a contempt sanction, we reversed the contempt order in

Nienaber. We explained:

Based on the family court’s findings, we must reverse the
order of contempt. The family court clearly found
Nienaber was unable to pay the purge amount. The court
seemingly set an unattainable purge amount to ensure
Nienaber would be discharged on the condition that she
complete inpatient treatment, obtain employment as soon
as permitted by her treatment program, and stay current
on child support payments thereafter. Although we
understand the family court’s hope that Nienaber would
successfully complete substance abuse treatment, she was
required to complete the program as a condition of her
parole in another case. The family court abused its
discretion in setting the purge amount as the court found
it was impossible for Nienaber to pay it.

594 S.W.3d at 236. Essentially, the contempt order was reversed in Nienaber

because it was impossible for Nienaber to pay the amount to purge her contempt.

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Somewhat similarly, our Supreme Court more recently reversed the

contempt sanction (though not the finding of contempt) in Crandell on

impossibility grounds since the sanction imposed could result in Crandell’s

imprisonment for future failure to pay court-ordered amounts for child support

which he would likely lack the resources to pay. 642 S.W.3d at 691-92.

Similarly, our Supreme Court stated in Ivy: “the court should be

mindful of the contemnor’s overriding interest in not being required to perform an

impossible act.” 353 S.W.3d at 335. Despite the clear prohibition against a court’s

compelling a party to perform an impossible act, we are aware of no authority

prohibiting a court from using its contempt powers to compel the doing of a

possible act.

While obviously focused on issues about ability to pay in child

support contempt cases and the impropriety of using contempt sanctions to order

an impossible act in Crandell, our Supreme Court also more generally stated that

the family court abused its discretion by issuing a contempt sanction which “seeks

to punish future contempt rather than present contempt[.]” 642 S.W.3d at 688.

See also id. at 692 (“Because the family court sought to coercively punish

Crandell’s future conduct, the order was an abuse of discretion.”).

In making these statements, did our Supreme Court mean to cast

doubt on the validity of any period of conditionally discharged incarceration as a

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civil contempt sanction? After all, a period of such conditional discharge, by its

nature, suggests that one may be subject to incarceration if he or she does not

comply with the terms of the conditional discharge. In other words, one’s future

conduct may affect whether one is later incarcerated for failure to comply with the

terms of conditional discharge.

But is the possibility of incarceration for future conduct in civil

contempt sanctions prohibited, where it is possible for the contemnor to comply

with the terms of conditional discharge? Obviously, Kentucky precedent forbids

subjecting parents to incarceration for failure to pay court-ordered child support if

this failure stems from inability to pay. See, e.g., Ivy, Crandell, Nienaber. But

courts also have a duty to protect children. See Morris v. Morris, 439 S.W.2d 317,

318 (Ky. 1969) (in child custody appeal, stating: “We are not unmindful of our

rule that the paramount consideration is the welfare of the children. The court

continues to be the protector of the children with power to act in the future for their

protection.”) (citations omitted). See also KRS 620.010 (“Children have certain

fundamental rights which must be protected and preserved, including but not

limited to, . . . the right to develop physically, mentally, and emotionally to their

potential; and the right to educational instruction[.]”).

Moreover, our Supreme Court indicated that it was only following

prior precedent including Ivy in Crandell. See generally 642 S.W.3d at 690-91.

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Ivy expressly notes that a court may use civil contempt sanctions to

compel compliance with its orders. 353 S.W.3d at 334. And it further states that

such coercive sanctions for civil contempt may properly include periods of

incarceration imposed until the contempt is purged by compliance so long as the

court does not require the performing of an impossible act:

Coercive sanctions, such as daily fines or incarceration,
are punishments imposed until the contempt is purged by
compliance with an order. For the punishment to retain
its civil character, the contemnor must, at the time the
sanction is imposed, have the ability to purge the
contempt by compliance and either avert the punishment
or at any time bring it to an end. The contemnor bears
the burden of proving his or her inability to meet the
purge condition, but in imposing that burden the court
should be mindful of the contemnor’s overriding interest
in not being required to perform an impossible act.

Id. at 334-35 (citations omitted).

Parents had the burden to prove their inability to purge their contempt.

Id. at 335. But they have pointed to no evidence showing it is impossible for them

to send their minor children to attend school; they have not even clearly asserted

they could not do so. The family court found they had the present ability to send

the children to school and it stated they can avoid incarceration simply by sending

the children to school and providing appropriate documentation.

Far from threatening a parent with incarceration for future failure to

pay financial obligations which the parent may lack the ability to pay, the family

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court allowed Parents to purge themselves of contempt simply by sending their

children to school and providing documentation of the children’s school

attendance. Surely, a family court has the power and duty to enforce its orders to

make sure that the children it found to be educationally neglected attend school—

especially when this does not require any financial outlay by the parents and when

there is no evidence that it is impossible for the parents to send their children to

school. Also, this case is distinct from Crandell, which contains language which

Parents suggest forbids any conditions related to future conduct in contempt

sanctions. Unlike Crandell (who offered some evidence of inability to pay child

support and for whom the threat of incarceration had no termination date), Parents

have pointed to no evidence that they would lack the ability to send their minor

children to school for the two-year conditional discharge period.

Moreover, despite Parents’ contention that the family court

improperly sought to punish future conduct and/or future contempt violations, the

family court stated its motivation for the sanction was to compel Parents to comply

with its orders to send the children to in-person school. Moreover, despite the

possibility of incarceration for any further non-compliance with the family court’s

orders for the children to attend school in person, Parents had the key to their own

jail door and could avoid incarceration entirely by making sure that their minor

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children attend school daily unless medically excused and providing quarterly

documentation of school attendance. See, e.g., Nienaber, 594 S.W.3d at 236.

In sum, despite Parents’ contentions that the contempt sanction was

punitive or criminal in nature, the family court fashioned a proper civil contempt

sanction to compel compliance with its orders in accordance with Kentucky law.

Despite Parents’ arguments to the contrary, the contempt sanction

imposed here was clearly aimed at coercing compliance with court orders for the

children to attend school in person and not obviously aimed at punishing past

failure to comply with court orders. Had the family court wished to punish Parents

for past instances of contempt, it could have imposed a non-conditional term of

imprisonment or fee assuming it made a proper supported finding of criminal

contempt and complied with procedural requirements for doing so. See Blakeman

v. Schneider, 864 S.W.2d 903, 906 (Ky. 1993) (“The conditional nature of

sentences renders actions to be civil contempt proceedings for which indictment

and jury trial are not constitutionally required. . . . If the contemnor absolutely has

no opportunity to purge himself of contempt, then such imprisonment can be

deemed punitive in nature and in the nature of a proceeding for criminal

contempt.”). However, the family court did not find Parents in criminal contempt

and the civil contempt sanction it imposed is not legally invalid.

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Parents are not subject to incarceration based on failure to pay any

amount—the family court did not order them to pay anything. Compare Crandell,

Ivy, Nienaber. Nor have Parents even claimed that it is impossible for them to

comply with the specific conditions set forth in the contempt sanction order—

simply sending their minor children to in-person school and providing

documentation of school attendance quarterly.

Moreover, Parents had counsel at all relevant times—unlike the parent

found in contempt for failure to comply with parenting time orders and subjected

to incarceration conditionally discharged upon future compliance with court orders

in our unpublished, non-binding Armstead opinion.13

At most, the contempt sanction order was perhaps problematic in not

expressly stating that Parents were entitled to notice, a hearing, and findings about

their ability to comply should any future violations of their conditional discharge

be alleged. See Crandell, 642 S.W.3d at 691 (“Just as in Ivy, here, Crandell should

have been ‘entitled to notice, a new hearing, and a finding that at [the future points]

in time, [he] had the ability to comply’ for each new finding of future contempt.”).

See also Ivy, 353 S.W.3d at 335 (“If Ivy did fail to pay, she would be entitled to

13
Armstead, 2024 WL 3075029, at *1-2, 4.

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notice, a new hearing, and a finding that at that future point in time she had the

ability to comply.”).

Although this case does not involve issues about ability to pay,

perhaps some future conditions beyond their control might make it impossible for

Parents to comply with the family court’s orders to send their minor children to

school. So, pursuant to Crandell and Ivy, the sanction order should explicitly state

that Parents are entitled to notice, a hearing, and findings on their ability to comply

to make sure their conditional discharge is not revoked for failure to perform an

impossible act or without due process.

Though we otherwise affirm the sanction imposed as well as the

contempt finding, in an abundance of caution, we remand the case to the family

court to amend its contempt sanction order to explicitly provide that Parents are

entitled to notice, a hearing, and findings on their ability to comply prior to any

revocation of conditional discharge.

Further arguments in the parties’ briefs which are not discussed herein

have been determined to lack merit or relevancy to our resolution of this appeal.

CONCLUSION

For the foregoing reasons, we AFFIRM and REMAND the case for

entry of an amended contempt sanctions order explicitly stating that Parents have a

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right to notice, a hearing, and findings on their ability to comply prior to any

revocation of conditional discharge.

ALL CONCUR.

BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE
COMMONWEALTH OF
Jason A. Bowman KENTUCKY, CABINET FOR
Louisville, Kentucky HEALTH AND FAMILY
SERVICES:

Michael J. O’Connell
Jefferson County Attorney

David A. Sexton
Assistant Jefferson County Attorney
Louisville, Kentucky

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