RENDERED: JUNE 3, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1298-MR

ANTONIO T. BUNTIN APPELLANT

APPEAL FROM KENTON CIRCUIT COURT

v. HONORABLE ACENA JOHNSON BECK, JUDGE

ACTION NO. 10-J-01330

COMMONWEALTH OF KENTUCKY, 

EX REL. SHANNON DERKSON APPELLEE

OPINION

AFFIRMING IN PART, REVERSING IN PART, 

AND REMANDING

**   **  **

BEFORE: ACREE, CETRULO, AND L. THOMPSON, JUDGES.

THOMPSON, L., JUDGE: Antonio T. Buntin appeals from an order of the Kenton 

Family Court which found him in contempt for failing to pay child support. 

Appellant argues that he should not have been held in contempt because he did not 

know he was ordered to pay child support. Alternatively, Appellant argues that the 
-2-

amount of money the court ordered which would allow him to purge the contempt 

was excessive. We conclude that the trial court did not err in holding Appellant in 

contempt; however, we hold that the purge amount was too high. 

FACTS AND PROCEDURAL HISTORY

In August of 2010, the Commonwealth filed a motion seeking to 

declare Appellant the father of a minor child born in 2007. The Commonwealth 

was seeking child support from Appellant if he was declared the father. Appellant 

denied being the father. The court ordered DNA testing. In October of 2010, 

Appellant was incarcerated; therefore, DNA testing was performed at the jail in 

which Appellant was located. The court appointed a guardian ad litem (“GAL”) to 

represent Appellant because of his incarceration. The DNA analysis proved 

Appellant was the father of the child. 

A child support hearing was scheduled for January of 2011. The GAL 

informed the court that Appellant had been released from custody in November of 

2010, and that she had sent Appellant correspondence via mail informing him of 

the January 2011 hearing. The GAL also requested financial information from 

Appellant. The GAL received no response from her correspondence. 

On January 12, 2011, the child support hearing took place. Appellant 

did not appear. The trial court found Appellant to be the child’s father and 

imputed minimum wage income to him. The court ordered that Appellant pay 
-3-

$206 per month in child support. Appellant was also ordered to reimburse the 

Commonwealth $90 for the DNA test.

Later in 2011, Appellant was arrested for first-degree robbery.1 In

January of 2012, Appellant pleaded guilty to the charge and was sentenced to ten 

years in prison. Appellant was paroled on December 9, 2019. 

On June 30, 2021, the Commonwealth filed a motion to hold 

Appellant in contempt for failing to pay child support. As of May 31, 2021, there 

was a child support arrearage of over $32,000. The Commonwealth indicated that 

there had been a single child support payment since Appellant’s parole, a payment 

of $1,200 on November 20, 2020. 

A contempt hearing was held on October 6, 2021. Appellant did not 

stipulate to the contempt. Appellant testified that he did not have a stable job and 

that he worked odd jobs for his family. Appellant testified that he had been 

unsuccessful in finding regular employment due to his criminal record. He 

testified that he made, at most, $1,000 a month, but sometimes less than that. He 

also testified that he did not know he had been ordered to pay child support. 

Finally, he testified that he believed he had signed away his parental rights to the 

child, but discovered that he had only agreed to give up custody.

1 Kentucky Revised Statutes (KRS) 515.020.
-4-

At the conclusion of the hearing, the court held Appellant in 

contempt. The court believed that Appellant knew of the child support because he 

had a GAL at the time the order was entered. The court inferred that he would 

have been notified by the GAL of the child support order. The court sentenced 

Appellant to six months in jail, but held that the sentence was to be conditionally 

discharged after a period of two years. The court ordered him to keep current on 

his child support and pay an extra $60 a month toward the arrearages. 

Appellant’s counsel requested that the court enter a purge amount for 

the conditionally discharged sentence. Counsel requested the amount be $100. 

The court agreed that a purge amount should be set, but set the amount at $5,000. 

Appellant’s counsel objected and argued that the amount was too high and there 

was no realistic expectation that Appellant could pay that amount. The court did 

not alter the purge amount. This appeal followed.

ANALYSIS

[A] trial court has broad authority when exercising its 

contempt powers; consequently, our review is limited to 

a determination of whether the court abused its 

discretion. Kentucky River Community Care, Inc. v.

Stallard, 294 S.W.3d 29, 31 (Ky. App. 2008). “The test 

for abuse of discretion is whether the trial judge’s 

decision was arbitrary, unreasonable, unfair, or 

unsupported by sound legal principles.” Goodyear Tire

and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 

2000). The trial court’s underlying findings of fact are 

reviewed for clear error. Commonwealth, Cabinet for
-5-

Health and Family Servs. v. Ivy, 353 S.W.3d 324, 332 

(Ky. 2011).

Nienaber v. Commonwealth ex rel. Mercer, 594 S.W.3d 232, 235 (Ky. App. 2020).

There are two types of contempt, civil and criminal. 

A civil contempt occurs when a party fails to 

comply with a court order for the benefit of the opposing 

party, while criminal contempt is committed by conduct 

against the dignity and authority of the court. It is not the 

fact of punishment but rather its character and purpose, 

that often serve to distinguish civil from criminal 

contempt.

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. Once the moving party 

makes out a prima facie case, 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. at 235-36 (internal quotation marks and citations omitted).

Having found a party in contempt, the court’s next 

task is to fashion a remedy. Sanctions for criminal 

contempt are meant to punish the contemnor’s 

noncompliance with the court’s order and to vindicate the 

court’s authority[.] In contrast, sanctions for civil 

contempt are meant to benefit an adverse party either by 

coercing compliance with the order or by compensating 

for losses the noncompliance occasioned. For the 

punishment to retain its civil character, the contemnor 

must, at the time the sanction is imposed, have the ability 

to purge[.] [T]he defining characteristic of civil 

contempt is the fact that contemnors carry the keys of 

their prison in their own pockets. Significantly, the purge 
-6-

condition of a coercive order must be something 

presently within the contemnor’s ability to perform. It is 

logically unsound to use the power of civil contempt to 

compel the doing of an impossible act.

Id. at 236 (internal quotation marks and citations omitted). The case at hand 

concerns civil contempt.

With the above framework in mind, we now move on to Appellant’s 

arguments. Appellant first argues that the trial court should not have found him in 

contempt. He claims that he did not receive notice that he was ordered to pay child 

support and that he was financially incapable of providing said support. We 

disagree.

First, Appellant had a GAL during the period when the child support 

was ordered. While there was no definitive proof that Appellant received a copy of 

the child support order, and Appellant claimed he did not receive the order, it was 

reasonable for the court to infer that the GAL performed her job and forwarded the 

order to Appellant. In addition, even though Appellant was only sporadically 

employed once he was paroled in December of 2019, he was making some money 

and could have at least made partial payments. In fact, he made a single payment 

of $1,200 in November of 2020. We acknowledge that this amount would equate 

to around six months’ worth of payments; however, it was a single payment made 
-7-

in the one and a half years since Appellant was released on parole.2 We conclude 

that the trial court did not err in holding Appellant in contempt.

Appellant’s second argument on appeal is that the trial court erred in 

setting the purge amount at $5,000. He claims that this amount was too high and 

that it would be impossible for him to pay that amount. We agree with Appellant’s 

argument. As stated above, a purge condition must be something presently within 

Appellant’s ability to perform. Appellant testified that he could realistically pay 

$100 that day to purge his contempt. In addition, he testified to his inability to find 

steady employment and that he made small amounts of money working odd jobs 

for his family. He also testified that he lived with his uncle, paid his uncle $100 a 

month in rent, had no vehicle, paid $50 a month for a cell phone, and paid $50 a 

week for groceries. Based on Appellant’s lack of meaningful employment and his 

testimony regarding his expenses, a $5,000 contempt purge amount is 

unreasonable. It is clear from his testimony that Appellant did not have a present 

ability to pay that amount of money. It was an abuse of discretion to set the purge 

amount at such a high amount in this case.

2 The Commonwealth indicated that it was seeking contempt for Appellant’s failure to pay child 

support only for the time period after he was paroled in 2019. The Commonwealth 

acknowledged that he would have been unable to pay support during his incarceration.
-8-

CONCLUSION

Based on the foregoing, we affirm the trial court’s judgment that 

Appellant was in contempt for failing to pay child support. We do believe that the 

court erred in setting the purge amount at $5,000 as it was an unreasonable amount 

based on Appellant’s finances; therefore, we reverse and remand and direct the 

trial court to set another purge condition.

ACREE, JUDGE, CONCURS.

CETRULO, JUDGE, CONCURS IN PART, DISSENTS IN PART,

AND FILES SEPARATE OPINION.

CETRULO, JUDGE, CONCURRING IN PART AND DISSENTING

IN PART: I would affirm the order of the Kenton Family Court. I do not agree 

that the Appellant’s “purge” amount of $5,000 was too high. Appellant’s own 

testimony was that he made anywhere from $330 a week to $1,000 a month 

depending on how much he worked. This employment was “under the table” and 

thus not subjected to the normal deductions from W-2 employment. The Appellant 

testified on cross examination that in the month preceding the hearing he had made 

approximately $600 and had paid nothing towards his child support obligation.

When being evaluated for a public defender at arraignment, he 

testified he was making $110 per day, at least three days per week. The family 

court set the purge amount after hearing all the testimony concerning the prior 
-9-

child support order and Buntin’s current work and expense situation, and did so 

with no determinative date for the amount to be paid.

Appellant is under a conditionally discharged sentence for two years, 

and has two years to pay $5,000. Thus, I do not agree that the family court abused 

its discretion in making that determination based upon the Appellant’s own 

evidence of earnings and the two-year time period afforded to him to make that

payment.

I would affirm the decision below.

BRIEFS FOR APPELLANT:

Emily Holt Rhorer

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky 

Frankfort, Kentucky

Ashley M.A. McNeese

Special Assistant Attorney General

Covington, Kentucky