Opinion
NO. 2016-CA-000783-ME
03-17-2017
ROBERT WAYNE BOWMAN APPELLANT v. KATHARYN GAIL MONROE APPELLEE
BRIEF FOR APPELLANT: Natalie R. Lile Frankfort, Kentucky BRIEF FOR APPELLEE: No brief filed.
NOT TO BE PUBLISHED APPEAL FROM ANDERSON CIRCUIT COURT
HONORABLE S. MARIE HELLARD, JUDGE
ACTION NO. 16-D-00028 OPINION REVERSING
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BEFORE: ACREE, CLAYTON AND J. LAMBERT, JUDGES. ACREE, JUDGE: Robert Wayne Bowman brings this appeal from the Anderson Circuit Court's grant of an Interpersonal Protective Order (IPO) to Katharyn Gail Monroe. After review, we reverse.
As a preliminary procedural matter, we note that Bowman's notice of appeal lists the circuit court's order of May 11, 2016, denying a Kentucky Rules of Civil Procedure (CR) 59.05 motion filed after the IPO was granted, rather than the actual order of protection awarded on April 12, 2016. CR 73.03(1) provides that "[t]he notice of appeal shall . . . identify the judgment, order or part thereof appealed from." Orders denying CR 59.05 relief "are interlocutory, i.e., non-final and non-appealable[.]" Tax Ease Lien Investments 1, LLC v. Brown, 340 S.W.3d 99, 103 (Ky. App. 2011). Thus, this appeal is taken from a non-final order. "However, since 1986, Kentucky has adopted a policy of substantial compliance rather than strict compliance regarding precisely this issue." Bruner v. Discover Bank, 360 S.W.3d 774, 776 (Ky. App. 2012). Because no appellee's brief has been filed demonstrating any substantial harm or prejudice stemming from this error, we will address the merits of this appeal. See id.
Katharyn Gail Monroe filed a petition for a temporary IPO against Bowman on April 5, 2016. She made the following allegations in the petition: in August 2005, Bowman pushed her down the stairs, slammed her against a brick wall and raped her; that at that time he had a spray-painted "hit list" on his wall that had her name in the number one spot, and that he had nude photos of her on his phone without her knowledge or consent; and that he attempted to contact her from that point until 2011. She further alleged that he drove past her home four to five times from April 4, 2016, to April 5, 2016, and followed her to work on April 4, 2016. The temporary IPO was granted and a hearing was set for April 12, 2016, to determine if a permanent IPO should be entered.
The parties appeared pro se at the hearing. Bowman contested the allegations relating to the events of 2005, testifying that they were unsubstantiated and that no criminal charges were ever filed against him. He stated that the police seized his computer and cell phone at that time but did not find anything incriminating. Bowman testified he had moved on with his life and was now married with two children. He stated that when Monroe observed him recently driving by her residence, he was actually on his way to and from the leasing office of the trailer park where he had recently rented a home with his family. Bowman stated he had been checking on some repairs the landlord had undertaken. He testified that his family had moved to the trailer park because it was a cheaper place to live. Bowman stated he did not know where Monroe resided. He submitted a copy of the lease signed on March 28, 2016. He admitted that he had seen Monroe at the local Dollar Tree where she works, but had his wife go into the store for purchases to stay away from Monroe.
Monroe testified that she had lived in the trailer park her whole life, but now did not feel safe in her own home.
The trial court commented that it appeared Bowman and Monroe had a long and bitter history, and stated that "it sounds like she's afraid, rightly or wrongly, I don't know. If someone is in fear for their safety, then they are eligible to get an order." Bowman explained that because the IPO would require him to stay 500 feet away from Monroe, he would have to move his family. The trial court stated that it believed Bowman's account of his lease of the trailer, but stated that Monroe had a fear for her safety based on their past history, and therefore, she was entitled to a permanent IPO. On the AOC-275.2 form granting the IPO, the trial court placed a check mark in a box indicating "that an act of domestic violence and abuse . . . has occurred and may again occur." (R. at 22). The trial court made no additional written findings. Bowman subsequently filed a motion to alter, amend, or vacate the family court's order which was denied. This appeal followed.
Bowman argues to this Court that there was insufficient evidence to issue an IPO under KRS Chapter 456. We agree.
The Kentucky General Assembly recently amended legislation governing domestic violence protection to now include "dating relationships." KRS 456.010(1). Victims in such relationships can now file petitions for an "interpersonal protective order." KRS 456.030. The statute provides that "[a] petition for an interpersonal protective order may be filed by: (a) A victim of dating violence and abuse; (b) A victim of stalking; (c) A victim of sexual assault; or (d) An adult on behalf of a victim who is a minor otherwise qualifying for relief under this subsection." Id.
The ruling and review of a petition for an IPO is similar to that of domestic violence protective orders. Following a hearing as provided under KRS 456.040, "if a court finds by a preponderance of the evidence that dating violence and abuse, sexual assault, or stalking has occurred and may again occur, the court may issue an interpersonal protective order[.]" KRS 456.060(1).
The preponderance of the evidence standard is met when sufficient evidence establishes that the petitioner is "more likely than not" to have been a victim of dating violence and abuse, sexual assault, or stalking. See Baird v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007) (applying the preponderance of the evidence standard in the context of the issuance of a domestic violence order).
When we review a decision of the circuit court, "[t]he test is not whether the appellate court would have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion." Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008).
In this case, the trial court's findings consisted of its verbal statements at the hearing that the parties had a long and bitter history; that Monroe was afraid, rightly or wrongly; and that her fear for her safety based on this past history entitled her to obtain the protective order. However, the court also stated it believed Bowman's testimony of his reasons for being in the same neighborhood as Monroe.
The court made no express findings relating to the IPO statute as to whether "dating violence and abuse, sexual assault, or stalking" occurred and may again occur in the future in its form order. The box which the trial court checked on the AOC form, making a finding that an act of domestic violence and abuse had occurred and may again occur, is not pertinent to the issuance of an IPO but rather one of the prerequisites for the issuance of a domestic violence order (DVO). See KRS 403.740(1). The form includes acts of dating violence and abuse, sexual assault, and stalking listed within the IPO statute, but the court did not find any of those circumstances had been established.
Bowman was accused in Monroe's petition of stalking or sexual assault. Yet, absent from the record is any evidence supporting those allegations. Her petition mentions altercations occurring between herself and Bowman over ten years prior to the petition's filing. Those previous allegations never resulted in any charges being filed against Bowman, even after law enforcement investigated the claims. More recently, Monroe accused Bowman of stalking her because she had seen Bowman drive past her home several times over the course of a few days. Bowman explained his presence in the neighborhood to the court, which stated on the record it believed his testimony. Monroe's petition further stated that Bowman had attempted to contact her until 2011. Even presuming this allegation to be true, the parties have had no contact for approximately five years prior to Monroe's petition for an interpersonal protective order. "Stalking" as is used in the IPO statute, refers to conduct defined in KRS 508.140 or KRS 508.150, which requires intent by the alleged perpetrator, which is blatantly absent from the record in this case. There was no evidence presented that Bowman was a threat to Monroe or that dating violence and abuse, stalking, or sexual assault may again occur.
While Monroe's fear is certainly important to the family court's consideration of whether dating violence or abuse, sexual assault, or stalking has occurred and may again occur, a mere allegation of fear without more does not entitle one to the issuance of a protective order. Similarly to a DVO, an IPO "entered improperly, hastily, or without a valid basis can have a devastating effect on the alleged perpetrator." Boone v. Boone, 463 S.W.3d 767, 769, (Ky. App. 2015) (citing Wright v. Wright, 181 S.W.3d 49, 52 (Ky. App. 2005)).
Additionally, we question whether the relationship between Bowman and Monroe even qualifies for an IPO as a "dating relationship." The order of protection explicitly states that none of the relationships, including being "currently or previously in a dating relationship" listed on the order, applies to Bowman and Monroe.
Based on the foregoing, we reverse entry of the IPO because the family court's findings were not supported by "evidence of substance and consequence when taken alone or in light of all the evidence that is sufficient to induce conviction in the minds of reasonable people." McManus v. Kentucky Retirement Systems, 124 S.W.3d 454, 458 (Ky. App. 2003) (citations omitted). Accordingly, the Anderson Circuit Court's April 12, 2016 interpersonal protective order against Bowman is reversed.
ALL CONCUR. BRIEF FOR APPELLANT: Natalie R. Lile
Frankfort, Kentucky BRIEF FOR APPELLEE: No brief filed.