RENDERED: MARCH 10, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0237-MR

JOHN H. SCHNATTER APPELLANT 

v. 

APPEAL FROM OLDHAM CIRCUIT COURT

HONORABLE DOREEN GOODWIN, JUDGE

ACTION NO. 19-CI-00740

ANNETTE M. COX AND MELANIE

STRAW-BOONE APPELLEES

OPINION AFFIRMING IN PART

AND REVERSING IN PART

**   **  **

BEFORE: ACREE, EASTON, AND JONES, JUDGES.

EASTON, JUDGE: The Appellant, John H. Schnatter (“John”), seeks relief from 

the Oldham Family Court’s order, which found him in contempt for violation of 

that court’s order incorporating the parties’ Dissolution Settlement Agreement

(“DSA”). The family court ordered John to pay attorney’s fees. The family court 

also prohibited John from entering a specific condominium building at any time. 
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Having reviewed the record, we affirm the finding of contempt and the awarding 

of attorney’s fees but reverse the order banning John from the condominium 

building at any time, as that is contrary to the DSA and was not requested. 

FACTUAL AND PROCEDURAL HISTORY

John and the Appellee, Annette M. Cox (“Annette”), were married in 

1987. Prior to the filing of the divorce by Annette in late 2019, John and Annette 

reached an agreement after a mediation in September of 2019. This agreement 

became the DSA. The Oldham Family Court entered a final decree of dissolution, 

incorporating the DSA, on December 18, 2019. 

For the purposes of the contempt order, the governing portion of the 

DSA revolves around condominium units in the Remington at Bay Colony (the 

“Remington”) in Naples, Florida. The parties owned and used unit 2201 in the 

Remington during the marriage for over twenty years. Eight days prior to the 

parties’ mediation, John purchased unit 404 in the Remington for $4.3 million. 

The price usually would not be relevant, but it became relevant in the context of 

John’s future actions with respect to the sale of that unit.

 Under the terms of the DSA, Annette was awarded condo unit 2201. 

John was awarded unit 404; however, John agreed to “sell” unit 404 within a 

“reasonable period” after the completion of the mediation. Additionally, John 
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agreed he would not be present at the Remington if Annette was going to be there. 

The controlling DSA provision states:

3.(A)(2) Remington Bay Colony Unit 404 Naples, 

Florida. John shall retain the condominium property 

located at the Remington Bay Colony, Unit 404, Naples, 

Florida and held by 404 Acquisition, LLC, free from any 

claims on the part of Annette and John shall be 

responsible for all claims, assessments, charges, liens and 

obligations related thereto. Annette agreed to quitclaim 

her interest in said property to John. However, John shall 

sell this unit within a reasonable period of time from 

September 20, 2019, and shall not purchase or lease 

another unit in the same condominium regime so long as 

Annette owns Unit 2201 there. Moreover, John agrees 

not to be present or in occupancy at this condominium 

while Annette is present or in occupancy in her 

condominium, Unit 2201 Remington Bay Colony. 

Annette shall provide John notice, either direct or 

through his business assistant, of her plans to be in 

occupancy three days in advance and shall exercise good 

faith not to serve notice of intended occupancy and then 

fail to follow through. 

 It is undisputed John did not attempt to sell unit 404 until February 

2020, approximately five months after he agreed to sell it within a reasonable 

period. When John put unit 404 on the market, he listed it for $5.95 million. The 

substantial increase ($1.65 million) in the price is odd given John’s testimony that 

unit 404 needed extensive repairs and updates, not to mention the impact coming 

with the beginnings of the COVID-19 pandemic. 

 No renovations or improvements were made on unit 404 from 

September 2019 through February 2020. John testified that prior to any 
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renovations, only one person viewed unit 404 as a potential buyer. The unit’s

listing became inactive in September 2020 and was not reactivated until after 

Annette filed her motion for contempt on December 3, 2020. 

 While the record is unclear as to when exactly renovations to unit 404

began, it appears renovations were stirring in November 2020. John testified he 

had to get special permission from the condo association to perform renovations 

during this time, because the condo association restricts owners from performing 

any construction work on the units between November and May of each year. Of 

course, this restriction did not prevent John from doing renovations between June 

and October of 2020 of which there is no specific evidence. John also testified that 

due to supply chain and staffing issues caused by COVID-19, it was difficult to get 

contractors and needed supplies in a timely manner. 

In late November 2020, Annette emailed John’s assistant to 

advise she would be in residence at the Remington from November 27 to 

December 8. During this period, John was also in Naples, at least partly to oversee

the renovations to unit 404. John’s assistant responded to Annette’s email, 

advising her John would still be in Naples during those dates and would be staying 

at the Ritz-Carlton Hotel next door to the Remington. 

 Annette testified she saw John in the Remington parking garage on 

November 28, 2020. John admitted to being at the condo during that time. John 
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testified he does not recall seeing Annette, but he “could have been at the condo on 

that day.” 

 On December 3, 2020, Annette filed a motion for contempt, alleging 

John was in violation of their DSA, both by being at the Remington at a time when 

he knew Annette would be there, and by failing to sell unit 404 in a reasonable 

time. It is undisputed no listing for unit 404 was active at the time the contempt 

motion was filed. 

 On December 21, 2020, prior to any hearing on the contempt motion,

John transferred condo unit 404 to a trust, the GAB Irrevocable Trust (“Trust”). 

John is the Grantor of the Trust, and John’s daughter, Kristine Nole, was named as 

the trustee. John contends this transfer of unit 404 to the Trust satisfies the DSA’s 

provision requiring him to sell the unit. 

 The Trust was created on the same day as the property transfer. 

Additionally, Trust Article 1, Section B is titled “Power to Substitute Other Trust 

Property for Trust Corpus.” It reads as follows: “The Grantor shall have the right, 

without the approval or consent of any person in a fiduciary capacity, to reacquire 

all or any part of the trust corpus by substituting other property of an equivalent 

value in place of such reacquired trust corpus, until such time as the Trustee 

receives an acknowledged instrument from the Grantor stating that the Grantor 

releases said right.” 
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 Unit 404 was placed back on the market supposedly by the Trust on 

December 31, 2020, now at an asking price of $7.25 million. This represents an 

overall increase in the price of $2.95 million as compared to the original purchase 

price of unit 404. This is an increase of almost 70% in just over one year. John 

signed this listing agreement with the realtor. Of course, assuming any legitimacy 

of the Trust, John would have no authority to list unit 404, as he supposedly did 

not own it. An amended listing agreement was signed on April 13, 2021, in which 

John’s daughter, the trustee Kristine, signed as seller. 

 Two days after the amended listing, the family court held a hearing on 

April 15, 2021, on Annette’s motion for contempt. Annette argued John’s transfer 

of the property to the Trust (for consideration of $10.00 per the Deed) was not a 

sale within a reasonable time per the terms of their DSA. She additionally argued

John being present at the Remington on November 28 was a breach of their DSA, 

as he knew that she would be there on that date. She moved the family court to 

find John in contempt based on these two breaches. At the hearing, she asked the 

family court to award her attorney’s fees as a sanction.

John argued the transfer of unit 404 to the Trust satisfied the 

term of the DSA requiring him to sell the property. He stated he no longer had

control over the unit. He argued Annette did not specify in the DSA that it had to 

be an arms-length transaction or that the unit had to be sold to a stranger. He 
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argued because he no longer owned the condo unit on the date of the contempt 

hearing, the issue had become moot. He additionally claimed the timeframe was 

reasonable, due in part to the COVID-19 pandemic. 

Lastly John argued he did not intentionally defy the terms of

the DSA by being present in the building on November 28. He stated that once he 

knew Annette was going to be there during the specified dates, he had to make a 

choice to either stay away or to continue the renovations on unit 404 to sell it per 

the terms of the DSA. Annette testified she saw him in the garage on November 

28. John stated it is possible she saw him on that one occasion. 

During the hearing, John, Charles Jobson, and Kristine Nole testified

on John’s behalf. Annette was the only witness to testify on her behalf. Charles 

Jobson is an attorney, licensed in both Kentucky and Florida. He practices in 

estate planning. He testified the property being transferred to the irrevocable trust 

was a sale. He testified that in his opinion, the legal effect of John deeding the 

property to the Trust is the same as if John had deeded it in fee simple to another 

person. Kristine Nole also testified on John’s behalf. She testified that as 

trustee of the Trust, she has full legal control over the property. 

The family court found John in contempt for violating two provisions

in the DSA. It found John violated the term of not being present at the same time 

Annette was present at the condominium. It additionally ruled John had failed to 
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sell condo unit 404 within a reasonable time. The family court ruled the transfer of 

the unit to the Trust was not a sale per the terms of the parties’ DSA. It also 

determined even if the transfer did constitute a sale, 15 months was not a 

reasonable timeframe for a sale. 

The family court ordered John to pay Annette’s attorney’s fees. 

Additionally, the family court ordered John could not be at the Remington at all for 

as long as Annette continues to own unit 2201. John filed a motion to alter, 

amend, or vacate which was denied by the family court. This appeal followed. 

STANDARD OF REVIEW

Appellate review of a finding of contempt is governed by the abuse of 

discretion standard. Meyers v. Petrie, 233 S.W.3d 212, 214 (Ky. App. 2007). “The 

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

unreasonable, unfair, or unsupported by sound reasonable principles.” Penner v. 

Penner, 411 S.W.3d 775, 779-80 (Ky. App. 2013). The clear error standard 

applies to the findings of fact. Cabinet for Health and Family Services v. Ivy, 353 

S.W.3d 324, 332 (Ky. 2011). The terms of a settlement agreement made part of a 

decree of dissolution of marriage are enforceable as contract terms. KRS1

403.180(5). Interpretation of contract terms is a matter of law and shall be 

reviewed de novo. Money v. Money, 297 S.W.3d 69, 71 (Ky. App. 2009). 

1 Kentucky Revised Statutes.
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ANALYSIS

We start with a necessary recognition of what the DSA requires of 

John. There are three separate requirements. First, John “shall sell” unit 404. 

Second, John shall sell unit 404 within a “reasonable period of time from 

September 20, 2019.” Third, John may not be at the Remington when Annette is 

there.

 When these requirements are considered together, the intent is clear. 

John was to divest himself of ownership of unit 404 by selling it. He was to do so 

promptly, whether he did so at a profit or loss. Finally, John is not to be anywhere 

at the Remington when Annette is there. This was designed to achieve a total 

separation of John and Annette as far as the Remington was concerned. 

As we look at the question of contempt, we start with its legal 

definition. “Contempt is the willful disobedience toward, or open disrespect for, 

the rules or orders of a court.” Commonwealth v. Burge, 947 S.W.2d 805, 808 

(Ky. 1996). “Civil contempt consists of the failure of one to do something under 

order of court, generally for the benefit of a party litigant.” Id. 

 The evidence presented supports the family court’s factual findings as 

we have recounted them in the preceding background. We focus then on the 

contentions about what the facts mean for a determination of contempt. We 

conclude the family court did not err in determining John acted with the required 
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willful disobedience to justify a finding of contempt. In this regard, we are 

reminded of the maxim that our actions usually speak louder than our words. 

 The first issue is the determination of whether the transfer of unit 404 

to the Trust was a sale pursuant to the terms of the DSA. John argues the DSA 

does not require an arms-length transaction. John believes the testimony of 

Charles Jobson made it clear the legal effect of the transfer to the Trust was the 

same as if the property were sold to a third party. 

John’s argument that the transfer to the Trust is a sale stretches the 

meaning of the word when considered in the confines of the DSA. The transfer 

certainly was a violation of its spirit. Particularly telling, is the provision in the 

Trust which allows John, solely by his will, to reacquire any property put into the 

trust, so long as he substitutes property of equal value. This provision allows John 

to reacquire unit 404 if he wishes, so long as he puts something of equal value into 

the Trust. Such a transfer of a $4.3-$7.5 million property for $10 is not a sale as 

contemplated by the parties or the family court when the DSA was made part of 

that court’s order. This was a clear attempt to get around the agreement in the 

DSA to sell unit 404.

 The terms of a settlement agreement incorporated into a decree of 

dissolution are enforceable as contract terms. Cagata v. Cagata, 475 S.W.3d 49, 56 

(Ky. App. 2015). The parties’ intentions are to be discerned from the four corners 
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of the document. Id. When we read the DSA as a whole, the parties’ intention in 

requiring John to sell the condo unit was clearly to avoid John and Annette being 

in the same condominium at the same time. A transfer of the property to a trust in 

which John can reacquire the property should he wish is clearly against the intent 

of the parties. We conclude the family court did not err in its finding of contempt

in this regard.

 Even if we disagreed with the family court’s conclusion about the “sale” 

requirement of the DSA, the analysis cannot end there. The next issue is if the sale

was made “in a reasonable time.” John argues the family court abused its 

discretion in finding 15 months is not a reasonable time to sell the condo. Again, 

based on the facts, we do not believe the family court made an erroneous finding of 

fact nor abused its discretion.

John urges us to take notice of the COVID-19 pandemic that began in 

the United States in approximately March 2020 upending all manner of business in 

the country. John agreed he would sell the property in September 2019. It is 

undisputed the property was not put on the market until February 2020, 

approximately five months later. There was little explanation for the delay.

 Additionally, John bought the condo in September 2019 for $4.3 

million. When it was listed in February 2020, he listed it for $5.95 million, a 

difference of $1.65 million. John’s only argument for such a large increase in 
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price is that he believed the property would increase in value, and he listed it at that

price based on the advice of his realtor.

 It is uncontested no renovations had occurred during this time which

would justify such a large increase in asking price. In fact, John testified he had 

trouble selling the unit initially because the unit was in such bad shape. There was 

no testimony presented which would suggest that other condo units in the building 

had increased in value during that timeframe. The family court believed that John 

increased the price to “thwart any real offers to purchase it.” This is a reasonable 

conclusion from the evidence, and we will not disturb the family court’s finding. 

John is correct that a party cannot be punished for contempt for 

his failure to perform an act which is impossible. However, “the inability to 

comply must be shown clearly and categorically by the defendant, and the 

defendant must prove he took all reasonable steps within his power to insure 

compliance with the court’s order.” Crowder v. Rearden, 296 S.W.3d 445, 450-

451 (Ky. App. 2009). “Kentucky only recognizes impossibility as a defense to 

contempt where the party claiming it can prove that he is not at fault for his 

inability to comply.” Kentucky Retirement Systems v. Foster, 338 S.W.3d 788, 801 

(Ky. App. 2010). Thus, it was John’s burden to prove impossibility. The family

court found John had not met that burden, and we find no basis to reverse this 

decision by the family court. The directive was to sell unit 404, not to sell it only 
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when John decided to do so or only if a profit could be realized. A sale was not 

impossible. 

John asserts the issue was moot at the time of the hearing because 

he no longer owned the condo unit, and thus complying with the DSA’s 

requirement to sell it then was impossible. However, John still owned the unit at 

the time the motion was filed, and only after the filing of the motion did he transfer 

the property to a trust created the same day. At that time, the condo unit had not 

been actively listed on the market for approximately three months. The timing of 

the creation of the trust and the transfer of the unit into the trust is suspect.

 If John truly believed that the transfer to the Trust satisfied the terms 

of the DSA, it is questionable why he did not do so earlier. Instead, he waited until 

a motion for contempt was filed, and then made this transfer as a last-ditch effort to 

avoid contempt and claim it was impossible to comply with the DSA. John cannot 

have it both ways. If the trust transfer was legitimate under the DSA, John could 

have done this immediately. There was no reason for fifteen months to pass before 

the transfer. Again, the circumstances suggest the transfer was done with an intent 

to avoid the real requirement of a sale of the property. 

The issue of what a “reasonable” timeframe looks like is a question of 

fact for the circuit court. Campbell County v. Commonwealth of Kentucky, 

Corrections Cabinet, 762 S.W.2d 6, 15 (Ky. 1988). A circuit court’s answer to
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this question should not be set aside unless clearly erroneous. Id. The family court 

did not believe John took all necessary steps to ensure compliance. The family

court found that John “escalated the sales price of the condo so as to thwart any 

real offers to purchase it.”

 There is no justification given for a $1.65 million increase in a condo 

unit over the period of five months, when no renovations or improvements had 

been completed. Additionally, John waited five months to list the condo unit, with 

no reason given for the delay. While the COVID-19 pandemic certainly made it 

substantially more difficult to sell real estate post-March 2020, it does not explain 

the delay in the listing of the property or the huge increases in asking price.

The second issue we address is the family court’s finding that John 

violated the provision of the DSA prohibiting him from being present at the condo 

while Annette is there. Annette testified she provided notice to John, via email to 

his assistant, that she would be at the condominium from November 27 to 

December 8. John acknowledges having been notified. John’s assistant replied 

stating John would be in Naples during those dates, but he would be staying at the 

Ritz-Carlton which was next door to the condominium. 

Annette further testified she saw John in the parking garage of the 

condominium on November 28, 2020. John admits he was at the condo during this 

timeframe, as he was overseeing the renovations of unit 404. Since John’s counsel 
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inexplicably brought up the issue, we note John may have also been using the 

private beach the Remington and the Ritz-Carlton share, as if that would provide 

any legitimate excuse for the DSA violation. John cannot be on any Remington 

property, including a shared private beach, when Annette is there. 

John insists because Annette was at the condo during the time 

when renovations were occurring, he had to be there to obey the provision to sell 

the condo unit. This is a false dichotomy. John provides no meaningful reason 

why he had to go to the Remington in person during the period when Annette was 

there. John obviously had no issue with delaying renovations. They could have 

been delayed while Annette was there. Also, there is adequate technology 

available to communicate with any workers who would be providing services. The 

family court found that John went to the condo, knowingly and willingly violating 

the court’s order, and we do not believe that finding is clearly erroneous. The 

family court’s finding that John was in contempt of both provisions in the DSA 

was not an abuse of discretion. 

We next address the family court’s sanctions for John’s contempt 

findings. The family court ordered John to pay Annette’s attorney’s fees of $4,419 

and ordered him to refrain from going to the condominium so long as Annette 

owns her unit there. John contends the order of attorney’s fees was an abuse of 
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discretion and that the court erred as a matter of law in prohibiting him from being 

present at the condominium. 

We will first discuss the award of attorney’s fees. We do not find this 

sanction an abuse of discretion. “The purpose of civil contempt authority is to 

provide courts with a means for enforcing their judgments and orders, and trial 

courts have almost unlimited discretion in applying this power.” Smith v. City of 

Loyall, 702 S.W.2d 838, 838-39 (Ky. App. 1986). “The trial courts are afforded 

wide latitude in the use of their contempt powers to enforce their judgments and 

remove any obstructions to such enforcement.” Lanham v. Lanham, 336 S.W.3d 

123, 128 (Ky. App. 2011). “Indeed, trial courts have almost unlimited discretion 

in exercising their contempt powers and we will not disturb a trial court’s exercise 

of its contempt powers on appeal absent an abuse of that discretion.” Id. 

The Court found, based on Annette’s testimony, she had concerns 

for her safety when John was in the same building. John asked the court to strike 

that finding, which the family court denied. Whether Annette feared for her safety 

in John’s presence is clearly a factual finding. “A family court operating as finder 

of fact has extremely broad discretion with respect to testimony presented, and 

may choose to believe or disbelieve any part of it. A family court is entitled to 

make its own decisions regarding the demeanor and truthfulness of witnesses, and 

a reviewing court is not permitted to substitute its judgment for that of the family 
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court, unless its findings are clearly erroneous.” Bailey v. Bailey, 231 S.W.3d 793, 

796 (Ky. App. 2007). The award of attorney’s fees may serve to get John’s 

attention before sanctions became more severe for future infractions. 

The granting of attorney’s fees is a common sanction for contempt in 

civil and family court hearings. See Crowder, 296 S.W.3d 445, Foster, 338 

S.W.3d 788. An award of attorney’s fees has been granted to parties in family 

cases as a sanction for bad behavior even absent an official finding of contempt. 

See Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990), Smith v. McGill, 556 S.W.3d 

552 (Ky. 2018). Had John obeyed the orders in the parties’ DSA, there would 

have been no need to file a contempt motion, and therefore no need for Annette to 

have incurred attorney’s fees. “The amount of an award of attorney’s fees is 

committed to the sound discretion of the trial court with good reason.” Gentry, 

798 S.W.2d at 938. “[T]here is no abuse of discretion nor any inequity in requiring 

the party whose conduct caused the unnecessary expense to pay it.” Id.

We do find that the family court erred in prohibiting John from being 

present at the condo, even when Annette is not there. The family court is 

essentially altering a term of the parties’ DSA sua sponte. The “terms of [a]

separation agreement are binding on the court.” Tilley v. Tilley, 947 S.W.2d 63, 65 

(Ky. App. 1997). A family court lacks power to modify a negotiated settlement 

agreement in a dissolution action. Richey v. Richey, 389 S.W.2d 914 (Ky. App. 
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1965). Neither party asked for a modification of the terms of the DSA, and it was 

error for the family court to modify a term on its own.

Nor is this amendment an appropriate use of the family court’s 

contempt power. When contempt is civil in nature, “the sanction may serve either 

to coerce the contemnor to comply with a court order, to compensate a party for 

losses caused by the contempt, or both.” Ivy, 353 S.W.3d at 334. The new 

condition imposed in this case does neither. Rather, it changed the DSA 

incorporated in the court order. 

 While an award for attorney’s fees compensated Annette for the cost of 

bringing the successful contempt motion, disallowing John to be at the condo, even 

when Annette is not present, serves no purpose with respect to future compliance. 

Annette testified that she was concerned by John’s behavior around her, which was 

why the parties agreed for him not to be present in the condo building when she 

was in residence. No further purpose is served by prohibiting him from being there 

when she is not.

CONCLUSION

For the foregoing reasons, we AFFIRM the Oldham Family Court’s 

finding of contempt and award of attorney’s fees and REVERSE the family court’s 

order prohibiting John from being at the Remington condo at any time while 
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Annette owns her unit. The parties’ agreement in the DSA barring John from 

being present when Annette is in residence remains controlling.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Allison S. Russell

Rebecca M. Simms

Shanna R. Ballinger

Louisville, Kentucky

BRIEF FOR APPELLEES:

Melanie Straw-Boone

Stuart A. Scherer

Louisville, Kentucky