RENDERED: JANUARY 29, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0102-MR

BRANDI CAFFEE APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE HUGH SMITH HAYNIE, JUDGE

ACTION NO. 17-CI-502402 

CHRISTOPHER WATERS AND L.W., 

A MINOR CHILD APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: DIXON, KRAMER, AND LAMBERT, JUDGES.

KRAMER, JUDGE: Brandi Caffee (“Mother”) appeals from an order of the 

Jefferson Circuit Court finding her in contempt of the parties’ court-ordered 

visitation schedule and sentencing her to seven days’ incarceration. We affirm.

Factual and Procedural Background

Christopher Waters (“Father”) filed a petition to establish custody and 

parenting time of the parties’ minor child (“Child”) in August 2017. There was 
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also a separate paternity action pending before the family court at the time. A

visitation schedule had been put into place in that action.1 One month later, Father 

filed his first motion to hold Mother in contempt, alleging that she refused to 

follow the court-ordered visitation schedule. Before the motion was heard by the 

family court, Father filed a supplemental affidavit indicating that Mother had 

refused more visitation since his motion was filed and that he had not seen Child in 

three months. He also filed a motion asking the family court to order the sheriff to 

accompany him to pick up Child for his visitation. Mother did not appear for the 

hearing on Father’s motions. The family court ordered temporary custody of Child 

to Father and suspended Mother’s parenting time until she appeared before the 

family court. The order warned Mother that failure to follow orders of the family 

court could result in up to six months in jail and/or a $500.00 fine. 

The following month, the parties agreed to a parenting schedule, and 

Father’s motion for contempt was remanded. The parties entered several agreed 

orders changing the parenting schedule throughout 2018, the last one being in 

December 2018. On this agreed order, the family court added, “THIS ORDER 

MUST BE FOLLOWED. CONTEMPT CARRIES UP TO SIX MONTHS IN 

JAIL.” Just a few weeks later, Father filed a motion for contempt, again alleging 

that Mother refused to follow the schedule and denied him visitation with Child. 

 

1

Jefferson County Case No. 17-J-500762.
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The family court entered an order on April 9, 2019, which found, in relevant part, 

that Mother’s behavior at that point did not rise to the level of contempt. In issuing 

other orders, the family court again reminded the parties of the possible penalties 

of incarceration and/or a fine for failure to follow court orders.

The parties were before the family court again in August 2019. At 

that time, the family court entered a civil restraining order preventing Mother from 

(1) any acts of abuse or threats against Father and (2) any contact or 

communication with Father. At that time, a week-on week-off parenting schedule 

was ordered by the family court. Less than one month later, Father filed another 

motion for contempt, alleging that Mother was once again refusing his visitation 

with Child. Father sought a penalty of 180 days’ incarceration for Mother’s failure 

to obey orders of the family court. Mother’s attorney filed a response stating that 

her attorney of record was out of the country and that stand-in counsel was in St. 

Louis, Missouri, for a prior commitment. Mother did not appear at motion hour. 

The family court entered an order setting an emergency contempt hearing for the 

following day. The order also stated, “CONTEMPT CARRIES UP TO 6 

[MONTHS] IN JAIL” and “[MOTHER] MUST FOLLOW [COURT] ORDERS.”

Mother did not appear for the emergency contempt hearing the 

following day; however, she was represented by counsel. The family court stated 

that Father’s motion would not normally be considered an emergency. However, 
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the family court pointed out the numerous and ongoing court appearances by the 

parties, including Father’s recent attempt to obtain an emergency protective order,

and Mother’s “never ending” allegations to the Cabinet for Health and Family 

Services (“CHFS”) and subsequent investigations. Mother’s counsel requested a 

continuation, but the family court denied her request and proceeded with the 

hearing.2 

Father testified regarding his missed visitation with Child, and 

Mother’s counsel cross-examined Father. Child’s guardian ad litem (“GAL”) also 

questioned Father. Mother’s counsel did not call any witnesses on Mother’s 

behalf. The family court initially ruled from the bench that it was finding Mother 

in civil contempt and ordered her to serve seven days’ incarceration. However, if 

Mother complied with all scheduled visitation prior to the family court’s next 

motion hour, the court would reconsider imposition of the sentence. Child’s GAL 

and Father’s counsel voiced their concerns and argued that if Mother did not face 

serious consequences, the parties would soon be before the court again. Father’s 

counsel asked for a bench warrant and argued that Mother had been given too 

many chances. After a short recess, the family court issued a bench warrant and 

 

2 There was a question by the family court and counsel as to whether there was an active 

investigation by CHFS in regard to Mother’s most recent allegations against Father and whether 

a safety plan was in place. It appears from the record before us that family court staff reached 

out to CHFS during the hearing and confirmed that no safety plan was in place and the 

investigation was closed. Father also testified that he had never seen paperwork saying he could 

not visit Child, nor had CHFS contacted him and, to his knowledge, there was no investigation. 
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ordered Mother to serve seven days’ incarceration for contempt. An order was 

entered on October 3, 2019. Father was given temporary custody of Child. 

Mother filed a motion to alter, amend, or vacate the family court’s 

order, arguing, in part, that Mother’s penalty was criminal contempt, not civil, and 

that Mother had not been afforded due process. The family court amended its 

order to find Mother in criminal contempt, beyond a reasonable doubt, but 

otherwise denied Mother’s requested relief. This appeal followed.

Standard of Review

 We review the family court’s exercise of its contempt powers for 

abuse of discretion, Lewis v. Lewis, 875 S.W.2d 862, 864 (Ky. 1993). “The test for 

abuse of discretion is whether the trial judge’s decision was arbitrary, 

unreasonable, unfair, or unsupported by sound legal principles.” Sexton v. Sexton,

125 S.W.3d 258, 272 (Ky. 2004) (citation omitted). We further note that the 

family court has broad authority to enforce its orders, and contempt proceedings 

are part of that authority. Lewis, 875 S.W.2d at 864.

3

 

3 We are mindful that the Kentucky Supreme Court has stated that “[a]ppellate review of 

criminal contempt sanctions should be commensurate with the review provided in regular 

criminal cases of a comparable seriousness, as suggested by the penalties imposed.” Cabinet for

Health and Family Services v. J.M.G., 475 S.W.3d 600, 624 (Ky. 2015). Although it is unclear 

what is meant by the “review provided in regular criminal cases[,]” other than the requirement of 

proof beyond a reasonable doubt, we note that the punishment was not as “substantial” as those 

contemplated by the high court in J.M.G. Therefore, we see no reason to deviate from applying 

the abuse of discretion standard in the case at bar. See, e.g., Meyers v. Petrie, 233 S.W.3d 212

(Ky. App. 2007) (this Court reviewed a penalty of 181 days’ incarceration for contempt under 

the abuse of discretion standard).
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Analysis

 We first note that Father did not file an appellee brief, nor was an 

appellee brief filed by the GAL on behalf of Child. When a responsive brief has 

not been filed, the Court may: (i) accept the appellant’s statement of the facts and 

issues as correct; (ii) reverse the judgment if the appellant’s brief reasonably 

appears to sustain such action; or (iii) regard the appellee’s failure as a confession 

of error and reverse the judgment without considering the merits of the case. CR4

76.12(8)(c). “The decision as to how to proceed in imposing such penalties is a 

matter committed to our discretion.” Cabinet for Health and Family Services v. 

Loving Care, Inc., 590 S.W.3d 824, 826 (Ky. App. 2019) (quoting Roberts v. 

Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007)). Given the nature of the underlying 

action and the fact that this matter may be decided based upon the law and the 

undisputed evidence of record, we exercise our discretion to not impose any 

penalties herein; however, we do caution that such leniency may not be extended 

in the future.

 Mother’s first two arguments focus on what she perceives as a lack of 

due process. Mother also argues that the family court erred in “its determination 

that the violation of the parenting time order was sufficiently culpable to be 

 

4 Kentucky Rules of Civil Procedure.
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sanctioned as contempt” or, in the alternative, that the court erred in finding there 

was sufficient proof of willful or intentional disobedience of its order.5 

 The distinctions between civil and criminal contempt have been 

thoroughly reviewed by this Court and the Kentucky Supreme Court. 

Contempt is the willful disobedience toward, or open 

disrespect for, the rules or orders of a court. Contempt 

can be classified as civil or criminal. Civil contempt is 

when someone fails to follow a court order to do 

something. That something is usually for the benefit of a 

party litigant (e.g., pay child support, allow visitation, fix 

something by a certain date, move a driveway, clean up a 

spill, close a business by a certain hour, provide 

discovery, etc.). A judge may incarcerate someone for 

civil contempt in order to motivate the person to obey the 

court order, but the contemptuous one is entitled to be 

released upon compliance with the court’s order. 

Criminal contempt, on the other hand, is when a person 

disobeys a court order out of disrespect for the rules or 

orders of court. A contemptuous person can be 

incarcerated for criminal contempt; but unlike civil 

contempt, the primary purpose of criminal contempt is to 

punish the contemptuous conduct.

Criminal contempt can be either direct 

or indirect. A direct contempt is committed 

in the presence of the court and is an affront 

to the dignity of the court. It may be 

punished summarily by the court, and 

requires no fact-finding function, as all the 

elements of the offense are matters within 

the personal knowledge of the court. In re

Terry, 128 U.S. 289, 9 S. Ct. 77, 32 L. Ed. 

 

5 Mother also argues that the matter is not moot simply because she has served her sentence. 

Because we address the merits of Mother’s other arguments, we agree that the matter is not moot 

and will not further address the issue of mootness.
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405 (1888). Indirect criminal contempt is 

committed outside the presence of the court 

and requires a hearing and the presentation 

of evidence to establish a violation of the 

court’s order. It may be punished only in 

proceedings that satisfy due process. Cooke

v. United States, 267 U.S. 517, 45 S. Ct. 

390, 69 L. Ed. 767 (1925).

Gormley v. Judicial Conduct Commission, 332 S.W.3d 717, 725-26 (Ky. 2010)

(internal quotation marks and footnotes omitted).

 Mother’s actions were indirect and, because the penalty imposed by 

the family court did not afford her the opportunity to comply with the family 

court’s order, the sanction was criminal in nature. Accordingly, the proceedings 

must satisfy due process. Mother claims she was denied due process, in part, 

because the family court failed to appoint “someone else to prosecute the case.” 

We disagree. The family court was well within its authority to engage in contempt 

proceedings.

That those accused of indirect or serious direct 

criminal contempts are entitled to “full criminal process” 

does not mean, the United States Supreme Court has 

explained, that “any prosecution of contempt must now 

be considered an execution of the criminal law in which 

only the Executive Branch may engage.” Young, 481 

U.S. at 799-800, 107 S. Ct. 2124.[6] On the contrary, lest 

the judicial power be reduced to “‘a mere mockery,’” it 

has long been deemed essential that the Judiciary have “a 

 

6

Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S. Ct. 2124, 95 L. Ed. 2d 740 

(1987).
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means to vindicate its own authority without complete 

dependence on other Branches.” Young, 481 U.S. at 796, 

107 S. Ct. 2124 (quoting Gompers, 221 U.S. at 450, 31 S.

Ct. 492).[7] Contempt proceedings are that means, and 

accordingly, “[c]ourts cannot be at the mercy of another 

Branch in deciding whether such proceedings should be 

initiated.” Id.

J.M.G., 475 S.W.3d at 612.

 Mother alleges at least eight other reasons why she was denied due 

process. Rather than address each allegation individually, we look to the due 

process requirements in contempt proceedings to decide the matter.

Due process of law, therefore, in the prosecution of 

contempt, except of that committed in open court, 

requires that the accused should be advised of the charges 

and have a reasonable opportunity to meet them by way 

of defense or explanation. We think this includes the 

assistance of counsel, if requested, and the right to call 

witnesses to give testimony, relevant either to the issue of 

complete exculpation or in extenuation of the offense and 

in mitigation of the penalty to be imposed. 

Cooke, 267 U.S. at 537, 45 S. Ct. at 395.

 With those guideposts in mind, Mother’s arguments quickly fall part. 

We will, nonetheless, briefly discuss them.

Mother asserts that the family court failed to give adequate notice of 

the contempt proceedings. This is unsupported by the record. It is undisputed that 

the family court had previously entered an order regarding the parties’ visitation 

 

7 Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797 (1911).
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schedule with Child. It is also undisputed that Mother received Father’s motion for 

contempt setting the motion to be heard on September 30, 2019. The motion 

detailed the dates that Mother failed to comply with the family court’s order. 

Mother failed to appear at the motion hour when Father’s motion was called. The 

family court set an emergency hearing for the following day, and Mother does not 

dispute the family court’s finding that she knew of the hearing. The order setting 

the emergency hearing, as well as numerous orders previously entered by the 

family court, warned that failure to comply with court orders could result in 

incarceration and/or a fine. Mother was given the opportunity to be heard at the 

emergency hearing, but she again failed to appear and now argues she was denied 

due process. We are not persuaded. Mother was represented by counsel8at the 

contempt hearing, who did have the opportunity to cross-examine Father and call 

witnesses, although none were called on Mother’s behalf. Accordingly, due 

process requirements were met, and the family court did not abuse its discretion. 

 Mother next argues that there was insufficient evidence that she

willfully violated the family court’s order. We disagree.

We have construed “willful” in the contempt 

context to mean not merely knowing but intentional, and 

the difference is along the lines of a conscious purpose to 

 

8 We note the record also shows that the family court appointed a public defender to represent 

Mother in a prior contempt hearing when she was unrepresented by counsel and facing 

incarceration as a penalty.
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disobey the authority of the court. The disobedience may 

be reluctant, polite, and regretful, as it appears to have 

been in Poindexter[9](“[T]here need not be a showing of 

malice or disrespect in order for a trial court to hold an 

attorney in criminal contempt.” 389 S.W.3d at 118), or it 

may be openly defiant, as it was in Norton v.

Commonwealth, 37 S.W.3d 750, 754 (Ky. 2001) (After 

being found guilty, “[a]ppellant erupted in what he now 

modestly describes as an ‘emotional outburst.’ ”), but to 

be contemptuous the violation of a duty must involve a 

duty the court meant to enforce.

J.M.G., 475 S.W.3d at 620.

 Mother argues that, by withholding Father’s court-ordered visitation, 

she was “trying to protect her child” during an ongoing investigation by CHFS.10 

The record does not support this allegation. In its order, the family court noted that 

it was “very familiar with [Mother’s] extensive history of denying [Father] his 

parenting time and her numerous unsubstantiated claims to [CHFS] that [Father] 

has sexually abused [Child].” This is borne out by the record before us.11 Father 

filed at least four motions for contempt against Mother for denying his parenting 

time with Child. Although this was the first finding of contempt against Mother by 

 

9 Poindexter v. Commonwealth, 389 S.W.3d 112 (Ky. 2012).

10 We generously treat this argument as preserved because, although objected to by Father, 

Mother’s counsel did attempt to explain the reason why Mother withheld Father’s visitation to 

the family court. As previously stated in this Opinion, there was an extensive discussion by the 

family court and counsel prior the outset of the emergency hearing regarding whether there was 

(1) an active investigation by CHFS and (2) a safety plan in place.

11 The records of the paternity action and the domestic violence petitions are not before us. 

Likewise, the record before us does not contain documentation from any investigation by CHFS.
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the family court, she was warned on each occasion that violation of any order 

could result in jail time and/or a fine. Rather than appear before the family court 

and present the defense she now argues to this Court, Mother simply failed to 

appear. We find no error in the family court’s conclusion that Mother willfully 

violated the visitation order.

Conclusion

 For the reasons stated herein, we hold that Mother was afforded due 

process in the contempt proceedings and that the family court did not commit error 

therein. Accordingly, we affirm the Jefferson Circuit Court.

ALL CONCUR.

BRIEF FOR APPELLANT:

Mary Stewart Tansey

Louisville, Kentucky

NO APPELLEE BRIEF FILED