RENDERED: FEBRUARY 17, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0280-MR

MELISSA VANNATTER APPELLANT

APPEAL FROM HARDIN CIRCUIT COURT

v. HONORABLE KELLY MARK EASTON, JUDGE

ACTION NO. 19-CR-00590

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: JONES, KAREM, AND LAMBERT, JUDGES.

JONES, JUDGE: Melissa Vannatter appeals an order of the Hardin Circuit Court 

removing her from pretrial diversion, denying her probation, and sentencing her to 

a term of imprisonment consistent with her prior guilty plea to flagrant nonsupport. 

Upon review, we affirm.
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I. BACKGROUND

In 2017, Vannatter lost custody of her children1and was ordered to 

pay child support. As of May 31, 2019, she had an arrearage of $7,520. On June 

7, 2019, due to her arrearage, Vannatter was indicted and entered a plea of guilty in 

Hardin Circuit Court to the offense of flagrant nonsupport. Her resulting sentence 

of five years’ imprisonment was diverted for a period of five years or until the 

arrearage was paid in full, whichever occurred last. Afterward, Vannatter made a 

few more monthly payments, which ceased as of October 2019. This prompted a 

January 15, 2020 motion from the Commonwealth to void her diversion; by that 

time, due to Vannatter’s continued nonpayment of child support, her arrearage had 

increased to $9,246.62. The trial court scheduled a hearing on the 

Commonwealth’s motion for March 3, 2020. However, Vannatter did not appear

at the hearing, so the trial court issued a bench warrant. Elizabethtown Police later 

arrested Vannatter on March 26, 2020, and later that day Vannatter tested positive 

for marijuana at the Hardin County Detention Center.

On April 7, 2020, the trial court conducted a revocation hearing. 

There, Vannatter admitted failing to pay child support since October 2019, and she 

did not contest the positive result of her drug test. The trial court also determined 

1 As of January 18, 2022, Vannatter’s five children ranged in age from 14 years old to 22 years 

old. After Vannatter lost custody in 2017, the children’s father was granted custody. 

Subsequently, her youngest children were placed in foster care when the father lost custody due 

to allegations of abuse and neglect.
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that Vannatter’s nonpayment of child support and drug use constituted violations 

of her pretrial diversion. However, despite expressing frustration that Vannatter 

had stopped paying child support but could apparently afford marijuana, the trial 

court nevertheless denied the Commonwealth’s motion to void her diversion. 

Instead, it directed Vannatter to be assessed for drug treatment by a social service 

clinician, and to follow all treatment recommendations. It amended the terms of 

her diversion to require supervision and drug testing from Probation and Parole, 

ordering Vannatter to be tested for marijuana twice weekly. Further, it released 

Vannatter from custody, but directed Vannatter to resume making monthly child 

support payment starting thirty days after her release. The trial court entered 

written orders memorializing these findings and directives on April 10 and April 

15, 2020.

On October 18, 2021, Probation and Parole Officer Stephanie 

Beckwith filed a violation of supervision report. There, Beckwith indicated that on 

several occasions in 2021, she had reminded Vannatter to pay her court-ordered 

child support, but that Vannatter had failed to make any child support payments 

since July 2020. Beckwith also represented that Vannatter’s whereabouts were 

unknown, and that Vannatter had failed to report as required on August 11, 2021; 

September 20, 2021; September 22, 2021; October 11, 2021; and October 14, 
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2021.2 Due to these asserted violations (i.e., nonpayment of child support and 

absconding), Beckwith recommended against graduated sanctions, and favored

revoking Vannatter’s pretrial diversion.

On October 18, 2021, the trial court issued another bench warrant for 

Vannatter’s arrest. On December 19, 2021, Vannatter was again arrested. And on 

January 4, 2022, the Commonwealth filed another motion to void Vannatter’s 

pretrial diversion. In support of its motion, the Commonwealth relied upon the 

substance of Beckwith’s report; it also relied upon an affidavit of child support 

case worker Whitney Griffith, which stated that as of December 31, 2021, 

Vannatter’s child support arrearage stood at $11,543.33. 

On January 18, 2022, the trial court conducted another revocation 

hearing. After considering the evidence presented, it determined Vannatter had 

violated the terms and conditions of her diversion as alleged, and it voided 

Vannatter’s diversion after determining lesser sanctions were inappropriate. 

During its subsequent hearing of February 9, 2022, the trial court then denied 

Vannatter’s request for probation after again determining lesser sanctions were 

inappropriate, and instead sentenced her to a term of five years’ imprisonment

2 At the January 18, 2022 revocation hearing, Beckwith testified she was able to reach Vannatter 

by telephone on August 11, 2021 and September 22, 2021, but that this did not satisfy 

Vannatter’s obligation to report because Vannatter did not come to the office on those dates.
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consistent with her prior guilty plea. Vannatter now appeals. Other relevant facts

will be discussed in the context of our analysis.

II. ANALYSIS

A trial court’s decision to void pretrial diversion uses the same criteria 

as a decision to revoke probation. Richardson v. Commonwealth, 494 S.W.3d 495, 

498 (Ky. App. 2015); Kentucky Revised Statute (KRS) 533.256(2). “A decision to 

revoke probation is reviewed for an abuse of discretion.” Commonwealth v. 

Andrews, 448 S.W.3d 773, 780 (Ky. 2014) (citing Commonwealth v. Lopez, 292 

S.W.3d 878 (Ky. 2009)). “Under our abuse of discretion standard of review, we 

will disturb a ruling only upon finding that ‘the trial judge’s decision was arbitrary, 

unreasonable, unfair, or unsupported by sound legal principles.’” Id. (quoting 

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). “Put another way, 

we will not hold a trial court to have abused its discretion unless its decision cannot 

be located within the range of permissible decisions allowed by a correct 

application of the facts to the law.” McClure v. Commonwealth, 457 S.W.3d 728, 

730 (Ky. App. 2015) (citing Miller v. Eldridge, 146 S.W.3d 909, 915 n.11 (Ky. 

2004)). 

A circuit court has “broad discretion in overseeing a defendant’s 

[diversion], including any decision to revoke[.]” Andrews, 448 S.W.3d at 777. 

Historically, a circuit court could remove a person from diversion if there was 
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evidence that the diversioner failed to comply with the conditions of diversion or 

was not making satisfactory progress toward the completion of the provisions of 

the diversion agreement. KRS 533.256; Ballard v. Commonwealth, 320 S.W.3d 

69, 73 (Ky. 2010). The Kentucky General Assembly qualified the circuit court’s 

discretion when it enacted the Public Safety and Offender Accountability Act, 

commonly referred to as House Bill 463 (HB 463), in 2011. Andrews, 448 S.W.3d 

at 776. With that, and the creation of KRS 439.3106, the General Assembly 

provided new criteria for voiding diversion. 

Specifically, KRS 439.3106 provides as follows:

(1) Supervised individuals shall be subject to:

(a) Violation revocation proceedings and possible 

incarceration for failure to comply with the 

conditions of supervision when such failure 

constitutes a significant risk to prior victims of the 

supervised individual or the community at large, 

and cannot be appropriately managed in the 

community; or

(b) Sanctions other than revocation and 

incarceration as appropriate to the severity of the 

violation behavior, the risk of future criminal 

behavior by the offender, and the need for, and 

availability of, interventions which may assist the 

offender to remain compliant and crime-free in the 

community.

Following the implementation of HB 463, to void diversion the trial 

court must find by a preponderance of evidence: (1) that the diversioner violated a 
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condition of diversion; (2) that the violation constitutes a significant risk to prior 

victims or to the community at large; and (3) that the diversioner cannot be 

appropriately managed in the community. KRS 439.3106; KRS 533.256(1); 

Andrews, 448 S.W.3d at 778-79; Richardson, 494 S.W.3d at 499.

With these principles in mind, we note at the onset that addressing 

what Vannatter now presents on appeal is a moot point. By way of explanation, 

we must point out that the plain language of KRS 439.3106 requires only one

violation to justify voiding diversion and denying probation. Here, the trial court 

relied on two violations – and thus two alternative grounds. As set forth in its 

January 20, 2022 order, the trial court determined Vannatter had: (1) absconded

from supervision; and (2) continuously failed to pay her child support as set forth 

above. 

“When a judgment is based upon alternative grounds, the judgment 

must be affirmed on appeal unless both grounds are erroneous.” Milby v. Mears, 

580 S.W.2d 724, 727 (Ky. App. 1979). On appeal, however, Vannatter does not 

refute or otherwise address the trial court’s findings, set forth in its January 20, 

2022 order, that she absconded; that in absconding, she violated her diversion; and 

that this violation “constitute[d] a significant risk to prior victims of the supervised 

individual or the community at large,” and rendered her unable to “be 

appropriately managed in the community.” See KRS 439.3106(1). Instead, 
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Vannatter’s arguments are solely devoted to the proposition that her continued 

failure to pay child support was not a sufficient reason to void her diversion.

Vannatter’s failure to address the trial court’s determinations regarding her 

absconding is a confession, on her part, that the trial court did not err in this 

respect. See Osborne v. Payne, 31 S.W.3d 911, 916 (Ky. 2000). Therefore, we 

must affirm on this basis alone. Milby, 580 S.W.2d at 727.

In any event, the arguments Vannatter presents on appeal lack merit. 

It is uncontested that Vannatter continued failing to pay child support as set forth 

above. It was therefore her burden to persuade the trial court that her failure did 

not sufficiently violate her diversion agreement because she “made bona fide 

efforts to comply with payment conditions but was unable to do so through no fault 

of h[er] own.” Commonwealth v. Marshall, 345 S.W.3d 822, 834 (Ky. 2011). In 

this vein, Vannatter argues she did so. She notes that during the January 18, 2022 

revocation hearing, she testified that she was homeless for a time during her period 

of nonpayment. Furthermore, before losing custody of her children in 2017, she 

had mostly been a stay-at-home mother with little job experience; she had applied 

for jobs at fast-food restaurants, gas stations, and Wal-Mart, to no avail, and the 

various shutdowns that occurred during the height of the COVID-19 pandemic 

further hindered her job prospects. She also testified as to her belief that her 
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fiancé’s friend could now help her secure employment at a hotel as a housekeeper, 

and that the position would pay her enough to satisfy her support obligations.

However, after considering the other evidence, the trial court gave 

little credence to what Vannatter characterized as her bona fide efforts.

Specifically, over the course of its oral findings issued from the bench,3it noted 

Vannatter had acknowledged during her testimony that her period of homelessness 

had been limited to approximately one week in September 2020. The trial court 

also noted that, despite her limited work experience, Vannatter had been able to 

secure employment on at least two occasions since 2017. Specifically, Vannatter 

had worked for a janitorial service from August to November 2019, and she had 

also worked at a Captain D’s restaurant – and voluntarily quit from that position –

in July 2020. The trial court noted Vannatter never contacted the child support or 

probation offices to inform them of any difficulties she may have been having – or 

for assistance – in securing employment. It took judicial notice that shutdowns of 

businesses due to COVID-19 had largely ended well before January 18, 2022, and 

that a multitude of industries were advertising open positions for unskilled 

workers. It noted Vannatter’s admission that, after the trial court had imposed the 

3

In the context of revocation proceedings, findings can be either oral or written to satisfy both 

KRS 439.3106(1) and the defendant’s due process rights. See Commonwealth v. Gilmore, 587 

S.W.3d 627, 630 (Ky. 2019).
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supervision condition upon her diversion due to her positive drug test, she had also 

been arrested for and pleaded guilty to an alcohol-related offense. 

The trial court also questioned Vannatter’s unsupported claim that her 

fiancé’s friend could now secure employment for her as a hotel housekeeper, 

finding the timing of her claim dubious. Since 2020, the total amount of child 

support Vannatter had paid was only $28.29. But now, for the first time, and 

during a hearing that would determine whether she would be incarcerated, 

Vannatter represented that she would be able to secure employment without any 

difficulty at all. According to Vannatter, all she needed to do to obtain the 

housekeeping job was to show up to the hotel in question and ask for it. Assuming 

this job existed, the trial court also expressed its reservations, based upon 

Vannatter’s history, with how long Vannatter would choose to keep the job, and 

with whether Vannatter would voluntarily pay any amount of her wages toward 

child support.

Weighing the evidence, the trial court determined Vannatter had 

almost totally failed to fulfill her child support obligations for two years and that 

she had failed to demonstrate her nonpayment of child support was due to no fault 

of her own, as opposed to her own lack of effort. Marshall, 345 S.W.3d at 834. 

Weighing the evidence was the trial court’s prerogative, and we see no clear error 

in this respect. See Kentucky Rule of Civil Procedure (CR) 52.01.
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With that said, the only other aspect of the trial court’s judgment 

Vannatter takes issue with is its additional finding that her continued failure to pay

her child support obligations “constituted a significant risk to prior victims of the 

supervised individual or the community at large,” per KRS 439.3106(1). In the 

pertinent part of her brief, she argues:

While there is certainly a moral and societal obligation to 

care for one’s children, there was no evidence presented 

that the children were going without their basic needs 

being met. The child support order began on October 1, 

2017. They remained in their father’s care until they 

were recently moved to foster care due to allegations of 

abuse and neglect. While the state paying for the care of 

children is not ideal, this ensures that the children are 

clothed, housed, and fed properly. If nonpayment harms 

the child, it makes little sense to send the offending 

parent to prison where the child has no hope of being 

supported.

Thus, her argument appears to be two-fold: (1) her nonpayment of 

child support did not harm her children because other individuals and entities were 

supporting her children at all relevant times; and (2) incarcerating her for 

nonpayment of child support will prevent her from possibly supporting her children 

and will thus harm her children in the long run.

Vannatter’s former point is not well-taken. In Embry v. 

Commonwealth, 561 S.W.3d 360 (Ky. App. 2018), a father who was on probation 

for flagrant nonsupport, and who had made “weak at best” efforts to satisfy his 

ongoing support obligation and arrearage, similarly argued that his probation 
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should not be revoked because his continued failure to pay child support did not 

constitute “a significant risk to prior victims of the supervised individual or the 

community at large,” per KRS 439.3106(1). Id. at 363. Disagreeing, the trial court 

in that matter explained that the father’s lack of effort financially victimized both 

the child, as well as the Commonwealth of Kentucky for monies spent on the 

child’s behalf when the father failed to provide. Id. Upon review, this Court found 

no error or abuse in that respect. Id. 

Nor do we find any such error or abuse here, as the trial court in this 

matter rendered analogous oral findings on this issue during the sentencing 

hearing.4 Indeed, “Kentucky law imposes a duty upon a parent – and not the state

– to support his or her child regardless of whether or not a child support order has 

been entered against the parent.” C.A.W. v. Cabinet For Health & Family 

Services, 391 S.W.3d 400, 406 (Ky. App. 2013) (citation omitted). “Though [KRS 

439.3106(1)] clearly requires entry of a finding of ‘significant risk,’ surely it 

cannot be further read to require a probationer to commit some heinous act before 

he can be found to be a risk to someone other than himself. We sincerely doubt the 

4 During the sentencing hearing, and relative to this issue, the trial court explained:

These children are still not being provided for. We need to remember that failure 

to pay child support victimizes a child. It is not, you know, people look at it as 

somehow a different crime than other crimes. It is not. If somebody is not paying 

child support, it is a continuing harm for the victim, which is the person you’re 

supposed to be supporting.
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General Assembly intended to set so high, and potentially injurious, an evidentiary 

burden.” Embry, 561 S.W.3d at 363 (quoting McClure, 457 S.W.3d at 732).

As for Vannatter’s latter point, its premise – taken to its extreme 

conclusion – is that public policy should not condone imprisoning individuals for 

failing to support their children; and that doing so is counterintuitive, as it removes 

any possibility during the term of imprisonment that the parent will support his or 

her children. However, public policy is embodied in our statutes, and our statutes 

specify a term of imprisonment for flagrant nonsupport.

5 As set forth previously,

the mere possibility or hope that a parent will eventually begin to support their 

child – standing alone, and in the face of a sustained failure to do so – is an 

insufficient reason to permit the offending parent to avoid the consequences 

imposed by the law. 

III. CONCLUSION

The trial court committed no error in voiding Vannatter’s diversion, 

denying her probation, and sentencing her consistently with her prior guilty plea. 

We therefore affirm.

ALL CONCUR.

5 Flagrant nonsupport is a Class D felony, subject to a term of up to five years’ imprisonment. 

See KRS 530.050(6); KRS 532.060(2)(d).
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BRIEF FOR APPELLANT:

Jennifer Wade

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Perry T. Ryan

Assistant Attorney General

Frankfort, Kentucky