Opinion
NO. 2014-CA-000257-MR
01-30-2015
MELVIN DON BETHEL APPELLANT v. KIMBERLY MICHELLE AUBREY, A/K/A BALLINGER APPELLEE
BRIEF FOR APPELLANT: Griffin Terry Sumner Meagan R. Winters Louisville, Kentucky NO BRIEF FOR APPELLEE
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON FAMILY COURT, DIVISION I
HONORABLE JOAN L. BYER, JUDGE
ACTION NO. 13-D-501537
OPINION
VACATING AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; JONES AND J. LAMBERT, JUDGES. J. LAMBERT, JUDGE: Melvin Don Bethel (Bethel) appeals from the Jefferson Family Court's January 29, 2014, entry of a Domestic Violence Order (DVO). After careful review, we vacate and remand.
Kimberly Aubrey and Bethel dated and lived together for approximately one year but were never married. In June 2013, Ms. Aubrey filed for an Emergency Protective Order (EPO). She alleged the following:
Melvin and I lived together in a relationship for 1 year. We have been separated for 6 months. On 6/13/2013, he has called me several times and told me to kill myself. Melvin said he would sell his car in order to buy enough drugs to make me overdose. He took the flowerpot from my mother's funeral. Melvin went to my house and busted the pot on my back door. My sister's boyfriend saw Melvin bust the pot. He sent me several text messages. He said "You're my enemy". He said he was going to "put me in prison". He said, "How does it feel to kill your mother and your brother" and that my family hates me. On 6/11/2013, he took my belongings and dumped them in the alley. He is making false allegations to my employers. He told them I was using drugs. He sent me over 200 text messages in two days. We have had domestic disputes in the past. In 2012, he held me down and choked me. He has defecated in my car. He breaks my property. He messes with my car while I am asleep and unhooks wires. I do not know what he will do to me. I want him to stay away.The family court entered a DVO on June 24, 2013. Subsequently, in December 2013, Ms. Aubrey asked the court to dismiss the DVO, and the family court entered an order in December 2013 dismissing.
Approximately three weeks later, on January 21, 2014, Ms. Aubrey filed for another DVO, this time alleging:
The resp (Melvin) is my ex-boyfriend. We lived together for a little over 1 yr. We have no children in common. The most recent incident happened today, Tuesday January 21, 2014 via phone. I returned the resp's calls from last night. I received no answer; so I texted the resp asking him what he wanted. The resp responded via 50
texts, which are very hostile and threatening. The resp is threatening to do bodily harm to me. One text he says: "You really don't know me. When you made me mad in the past what would I go and do?" Then the resp called me and told me, "You better be careful getting in your car." I am afraid of the resp. I am afraid of what the resp. will do next. I want no contact w/ the resp in any way. I want the resp to stay away from me, my home and my work. The resp has a history of physical abuse towards me: held me down and choked me until I could not breathe. Also, when the resp gets angry w/me he finds pleasure in damaging things that my mother gave (?) me—my mother passed in 2010, damaged by car, kicked in my apt doors, told and tells me to go kill myself, blames me for the deaths of my mother and brother, and etc...I am terrified of the resp. I am afraid of what the resp will do when he finds out that I have filed for an EPO. I fear for my safety and welfare at this time. Note: I have proof of all 50 texts to present to the judge if necessary.The family court held a hearing on January 29, 2014, at which both Ms. Aubrey and Bethel testified. Ms. Aubrey testified that she was in fear for her life, that she was tired of Bethel harassing her, and that she only requested the court to dismiss the 2013 DVO because Bethel told her he was moving to California, and she did not think it would be necessary. Bethel's counsel asked Ms. Aubrey about a claim in her petition that there was a "history of physical abuse." Before she could answer, the court stopped her from answering. The family court stated that it had already found that acts of domestic violence had occurred in its prior, dismissed order.
At this time, Bethel's counsel asked the court to stay the hearing in order for her to be able to examine the evidence on which the court was relying, but the court denied the request and instructed the parties to proceed. Bethel testified that he did not wish to have any further contact with Ms. Aubrey and that she only wanted the DVO entered so he could not contact her probation officer to report that she had been seen with a firearm and was on drugs.
At the conclusion of the testimony, the court orally ruled that it would be entering a DVO, effective for three years. After Bethel's counsel requested specific findings, the court stated that domestic violence had occurred and would again occur, that Ms. Aubrey was in fear for her life, and that 50 text messages constituted threatening behavior. The court entered its written order the same day. This appeal now follows.
This Court has repeatedly emphasized that, while DVOs provide important protection for true victims, the enormous impact of such an order bestows an awesome responsibility on lower courts and requires careful balancing of conflicting interests to avoid a great injustice. See e.g. Wright v. Wright, 181 S.W.3d 49, 52 (Ky. App. 2005). This Court has further recognized that "there are severe consequences, such as the immediate loss of one's children, home, financial resources, employment and dignity." Id. Those consequences are continuing because "entry of a DVO follows the alleged perpetrator forever in terms of background checks for employment purposes and volunteer work such as coaching Little League sports." Caudill v. Caudill, 318 S.W.3d 112, 114 (Ky. App. 2010).
Prior to entry of a DVO, the court must find "from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur...." Kentucky Revised Statutes (KRS) 403.750(1). The preponderance of the evidence standard is satisfied when sufficient evidence establishes the alleged victim was more likely than not to have been a victim of domestic violence. Baird v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007). The definition of domestic violence and abuse, as expressed in KRS 403.720(1), includes "physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members...." The standard of review for factual determinations is whether the family court's finding of domestic violence was clearly erroneous. Kentucky Rules of Civil Procedure (CR) 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). Findings are not clearly erroneous if they are supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). "[I]n reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion." Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted). Abuse of discretion occurs when a court's decision is unreasonable, unfair, arbitrary or capricious. Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994).
Bethel argues that the trial court improperly relied on the previously dismissed DVO as evidence of domestic violence in the current case. A review of the hearing indicates that the family court specifically stated it was relying on its prior finding of domestic violence and the prior DVO entered in 2013 when it made its oral rulings. At this point, Bethel's counsel requested a recess or a stay in the proceedings to allow her to review the evidence that the court was considering. The family court denied this request. A review of KRS 403.741 indicates this was in error. KRS 403.741 states:
(1) Prior to a hearing on a domestic violence order, the petitioner or the respondent may request the court to obtain the information specified in this subsection, or the court on its own motion may obtain the information specified in this subsection:
(a) Obtain the respondent's Kentucky criminal history from the Department of Kentucky State Police or the Administrative Office of the Courts; and
(b) Obtain the history of any Kentucky emergency protective orders or domestic violence orders relating to the respondent, and the record of compliance with those orders from the Administrative Office of the Courts.
(2) After obtaining the information requested in subsection (1) of this section, the court shall review the documents which have been received and shall:
(a) Consider the respondent's criminal history, paying particular attention to the respondent's record of past violence, threats of violence, and danger to others;
(b) Consider the record of any past emergency protective orders or domestic violence orders entered by any Kentucky court relating to the respondent and the record of the respondent's compliance or noncompliance with those orders; and
(c) Utilize that information at any hearing required by KRS 403.740 or 403.745 to assess which
Subsection (3) states that the court shall provide a copy of the criminal history, EPO history, and DVO history to both the petitioner and the respondent. (Emphasis added). In the instant case, Bethel's counsel specifically requested a copy of this information from the family court or time to investigate the evidence, but that request was denied. We agree with Bethel that KRS 403.741 clearly requires that a copy of this information be provided to him. Without a copy and the opportunity to refute the allegations, Bethel did not receive a fair hearing, to which he is fundamentally entitled. See Isaacs v. Isaacs, 2012 WL 1813057 *2 (2010-CA-001862-ME) (Ky. App. May 18, 2012) ("KRS 403.741(1)-(2) permits a trial court to consider a party's criminal history record or records of prior EPOs and DVOs prior to a hearing on a DVO. The trial court is required to provide a copy of the records to the respondent. KRS 403.741(3).sanctions may protect against danger to the petitioner or a family member or member of an unmarried couple for whom protection is being sought.
(3) The court shall provide a copy of the respondent's criminal history information, emergency protective order history information, and domestic violence order history information to the petitioner and to the respondent or counsel for the petitioner and counsel for the respondent in accordance with the provisions of CR 26, including CR 26.03, of the Rules of Civil Procedure.
"Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court." CR 76.28(4)(c).
Because we believe that the family court abused its discretion by not following the mandates of KRS 403.741(3), we vacate the family court's entry of the January 29, 2014, DVO and remand for proceedings consistent with this opinion.
ACREE, JUDGE, CONCURS.
JONES, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE OPINION. BRIEF FOR APPELLANT: Griffin Terry Sumner
Meagan R. Winters
Louisville, Kentucky
NO BRIEF FOR APPELLEE