Opinion
NO. 2014-CA-000658-ME
04-24-2015
CORINA JEAN BLAND APPELLANT v. TRENT NATHAN SEARS APPELLEE
BRIEF FOR APPELLANT: Jennifer Thomas* Somerset, Kentucky * COUNSEL FOR APPELLANT: (After submission of Brief) Richard Kenniston Somerset, Kentucky NO BRIEF FOR APPELLEE
NOT TO BE PUBLISHED APPEAL FROM PULASKI CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE MARCUS L. VANOVER, JUDGE
ACTION NO. 13-D-00158
OPINION
REVERSING AND REMANDING
BEFORE: J. LAMBERT, TAYLOR, AND VANMETER, JUDGES. TAYLOR, JUDGE: Corina Jean Bland brings this appeal from an April 2, 2014, Order of the Pulaski Circuit Court, Family Court Division III, denying her petition for issuance of a Domestic Violence Order (DVO). We reverse and remand.
Corina Jean Bland and Trent Nathan Sears were not married but had one child in common. On February 20, 2014, Bland filed a petition for an Emergency Order of Protection (EPO) in the family court. Bland alleged that Sears perpetrated an act of domestic violence against her. The family court issued an EPO and, thereafter, conducted an evidentiary hearing on Bland's petition for issuance of a DVO pursuant to Kentucky Revised Statutes (KRS) 403.740(4). The family court heard testimony from Bland, Sears, and Bland's boyfriend, Ernest Simpson. Following the hearing, the family court entered an order on April 2, 2014, dismissing Bland's petition for a DVO. This appeal follows.
Bland contends that the family court erred by dismissing her petition for a DVO. Bland alleges that the family court did not apply the requisite standard of proof - by a preponderance of the evidence - as required by KRS 403.750(1). Specifically, Bland also asserts the family court failed in its fact-finding responsibilities.
Domestic violence is governed by KRS Chapter 403. Domestic violence is defined as "physical injury, serious physical injury, . . . or infliction of fear of imminent physical injury . . . between family members or members of an unmarried couple[.]" KRS 403.720(1). KRS 403.750(1) specifically provides that the family court may enter a DVO "if it finds from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur[.]" The preponderance of evidence standard requires the petitioner to demonstrate that more likely than not she was a victim of domestic violence. Guenther v. Guenther, 379 S.W.3d 796 (Ky. App. 2012).
A petition for domestic violence is heard by the court without a jury. In a case tried without a jury, the court becomes the fact-finder and is required to make specific findings of fact. Kentucky Rules of Civil Procedure 52.01. See Skelton v. Roberts, 673 S.W.2d 733 (Ky. App. 1984). And, more importantly, the fact-finder is ultimately responsible for weighing the evidence and accessing the credibility of witness testimony. Jones v. Miller, 243 S.W.2d 933 (Ky. 1951). In a DVO hearing, the evidence presented is often directly conflicting, and the court's decision is highly dependent upon its assessment of the weight and credibility of witnesses' testimony.
In the case sub judice, the family court conducted an evidentiary hearing on April 2, 2014. At the hearing, the family court stated: "I'm left with Ms. Bland's version and Mr. Sears' version; and they're so different that the Court cannot make a determination that one is more likely to be truer than the other." Bland's Brief at 5. Consequently, the family court concluded that it could not "find by a preponderance of the evidence that a threat or act of domestic violence occurred or may occur again." Bland's Brief at 3. The family court's written order stated "lack of proof beyond p.o.e."
In this case, we believe the family court committed an error of law by concluding that it could not "make a determination that one [version of events] is more likely truer than the other." Bland's Brief at 5. The family court, as fact-finder, had the duty to determine the weight and credibility of Bland's and Sears' testimony, as well as any other witness. The family court cannot simply disregard this duty and fail to weigh the credibility of witnesses' respective testimony.
Therefore, we vacate the family court's order denying the DVO. Upon remand, we direct the family court to reconsider the evidence and to specifically determine the credibility of Bland's and Sears' testimony in deciding whether Bland proved by a preponderance of evidence that acts of domestic violence have and may occur again.
We view all remaining contentions of error as moot or without merit.
For the foregoing reasons, the Order of the Pulaski Circuit Court, Family Court Division II, is reversed and this case is remanded for proceedings consistent with this Opinion.
J. LAMBERT, JUDGE, CONCURS.
VANMETER, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
VANMETER, JUDGE, DISSENTING: I respectfully dissent. The legislature enacted the statutes governing domestic violence proceedings, KRS 403.715, et seq., and in so doing, directed that the petitioner shall bear the burden of proof by a preponderance of the evidence. KRS 403.750(1). In this case, the trial court entered an order denying the issuance of a domestic violence order based on "lack of proof beyond p.o.e. [preponderance of evidence]." As stated by Professor Lawson:
The burden of proof concept called risk of nonpersuasion is used to describe the obligation of a party to persuade the ultimate decision maker (the jury in jury trials and the judges in bench trials) of the existence of facts still in dispute at the end of the evidence phase of a case. Labeling it the "risk of nonpersuasion" is appropriate and informative, for in civil litigation the concept serves only to give fact finders a rule of law that resolves disputes for them when deliberations produce what is sometimes called "equipoise" (i.e, beliefs that are in perfect balance on issues submitted for decision). . . . The following statement is descriptive of its implementation . . . :Robert G. Lawson, The Kentucky Evidence Law Handbook § 9.00[3][a] (5th ed., LexisNexis Matthew Binder 2013) (quoting J. Palmore & R. Eades, Kentucky Instructions to Juries 11-12 (4th ed. 1989)).
. . . Unless the jury is convinced from the evidence that the stated proposition is so, it is obligated to find for the party who does not bear the burden of proof on that issue, and this is true even though it may not be convinced one way or the other.
In this case, Bland had the burden to prove by a preponderance of evidence "that an act or acts of domestic violence and abuse have occurred and may again occur[.]" KRS 403.750(1). As noted by the majority opinion, she had to demonstrate that more likely than not, she was a victim of domestic violence, Guenther v. Guenther, 379 S.W.3d 796, 802 (Ky. App. 2012). She thus bore the risk of nonpersuasion in the event the trial judge was not convinced one way or the other, as the trial judge so stated on the record. While we might weigh the evidence or judge the credibility of the witnesses differently, those matters are left to the discretion of the fact finder, in this case the trial judge. See CR 52.01 (stating that findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses[]").
Kentucky Rules of Civil Procedure.
I would affirm the Pulaski Family Court's order. BRIEF FOR APPELLANT: Jennifer Thomas*
Somerset, Kentucky
* COUNSEL FOR APPELLANT:
(After submission of Brief)
Richard Kenniston
Somerset, Kentucky
NO BRIEF FOR APPELLEE