Opinion
NO. 2019-CA-001174-ME
04-24-2020
JOHN DAVID LEE APPELLANT v. ANGELA JEAN KING APPELLEE
BRIEFS FOR APPELLANT: John D. Lee, pro se Louisville, Kentucky BRIEF FOR APPELLEE: Dorislee Gilbert Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE TARA HAGERTY, JUDGE
ACTION NO. 15-D-502354-004 OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS AND LAMBERT, JUDGES; BUCKINGHAM, SPECIAL JUDGE. LAMBERT, JUDGE: John David Lee, proceeding pro se, has appealed from the domestic violence order (DVO) entered by the Jefferson Family Court on July 26, 2019, on Angela Jean King's petition. We affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
This case has been before the Court of Appeals in the past, and we shall rely upon the recitation of the early factual background as set forth in the opinion addressing Lee's 2016 appeal:
Based on the allegations in the record, Lee and King were in an on-again-and-off-again relationship between 2014 and 2016. During those years, King sought three protective orders against Lee. King first filed a Domestic Violence Petition/Motion ("EPO/DVO Petition") on September 17, 2015, which was denied the same day due to a lack of relationship. On October 1, 2015, King filed a second EPO/DVO Petition, this time asserting that the parties had lived together at some point. An EPO was issued on the same day.
A hearing was then held on October 13, 2015. Lee moved the Hon. Judge Paula Sherlock to recuse from the case. That motion was granted, and the judge entered a docket notation stating she was recusing for three reasons. First, she had prior knowledge of Lee's divorce case. Second, she had "recus[ed] from that case." Third, Lee "is a subject of controversy in his role as a baseball coach in a custody + visitation case between other parties pending in this division." The docket notation directed the court administrator's office to reassign the matter.
Two weeks later, and before the case was reassigned, King moved to dismiss the case against Lee. The parties orally agreed to set aside the October 13, 2015 recusal so Judge Sherlock could hear the case. Judge Sherlock then dismissed the EPO.
King then filed a third EPO/DVO Petition on January 11, 2016. An EPO was issued the same day, and a summons was issued for Lee to attend a hearing. The hearing was held on January 19, 2016. Judge Sherlock presided over the case. Lee appeared without his attorney and requested a continuance so his attorney could be present. That motion was denied. He also moved to prohibit Judge Sherlock from presiding over the case as she had previously recused herself. That motion was denied. Lee ultimately admitted he violated the terms of the EPO, and a DVO was then issued. Lee now appeals.Lee v. King, No. 2016-CA-000167-ME, 2017 WL 1102981, at *1 (Ky. App. Mar. 24, 2017). Lee argued that the family court lacked jurisdiction because the judge had recused herself from the case previously, and we agreed:
Accordingly, all orders entered by Judge Sherlock after she was disqualified from the case are nullified. As it pertains to the instant case, the DVO entered on January 19, 2016 is vacated, and the case is remanded for further proceedings on the EPO/DVO Petition with the EPO still in effect. For all future proceedings, the case should be reassigned to another judge unless one of the aforementioned exceptions to Judge Sherlock's lack of jurisdiction occurs.Id. at *2 (footnotes omitted).
In this petition, King stated that she was seeking protection on behalf of herself and her three minor children, who had all formerly lived with Lee. The petition detailed that Lee would follow her, demanded that she talk to him, said that if she "kept ignoring him that he would make it so that I never saw my children again[,]" pounded on her door and car window, harassed her friends and family, stole her mail, broke into her car and home to steal items and her computer account passwords, called her demeaning names, and stalked her.
Upon remand, the case was reassigned to Division 5, and Judge Hagerty became the presiding judge. We shall attempt to summarize the convoluted procedural history that followed. The family court entered an EPO on July 18, 2017, pursuant to agreement of the parties and in accordance with this Court's order, and it scheduled a hearing for November 28, 2017. We note that the 2016 EPO was based upon a January 10, 2016, incident described in a police report indicating that Lee had been arrested:
Police were notified of the DV incident by Nurse John at Norton's Hospital Brownsboro, where the victim was taken by the suspect.In her petition for a protection order, King stated: "The resp. and I got into a verbal altercation that turned physical. The resp. back-handed me with a closed fist, the resp. then slammed my face on the console, I screamed to the resp. 'I think you broke my nose.' I then punched the resp. in the arm, and that [was] when he bashed my head into the window." The court took judicial notice of Lee's guilty plea to fourth-degree assault entered in April 2016 related to this incident and his conviction for a violation of the EPO in August 2017.
The victim, Angela King stated that she was at the Mellwood Art Ctr. with her boyfriend, John Lee when she received a text from another man. John saw that she was texting him, became angry, and then left. He returned to get Angela. In the car on the ride home, Angela began striking John in the right arm. John "restrained" her. Angela stated that she was struck in the face several times by John. He also slammed her head into the window. When they arrived home, Angela realized that she was bleeding and asked to go to the hospital. She received cuts, a black eye, and two large contusions to her face. [Lee] stated that she injured herself!
Following the hearing on November 27, 2017, the court entered a DVO the same day that was to be effective for three years. The court found that Lee had perpetrated an act of domestic violence and abuse, and it restrained him from committing further acts of abuse or threats of abuse, from any unauthorized contact with King, and from disposing of or damaging any of her property. The court also ordered King to surrender his Kentucky concealed carry license to the court, to remain 500 feet away from her and from several locations, to participate in counseling as ordered in criminal court, and to not possess, purchase, or obtain a firearm, or attempt to do so.
Lee moved the court to set aside the DVO pursuant to Kentucky Rules of Civil Procedure (CR) 52.01, stating that he was being housed at the Franklin County Regional Jail the date the hearing was held. As such, a full evidentiary hearing was not held. He argued that because the court did not follow the provisions of Kentucky Revised Statutes (KRS) 403.735(2)(a), the court had lost jurisdiction and had to set aside the DVO. The court declined to hold a further hearing via a docket order entered August 24, 2018.
On January 14, 2019, Lee filed a motion to dismiss the DVO, stating that he and King had not had any contact. However, the court permitted Lee to take King's deposition via an amended DVO entered February 26, 2019. The court heard arguments from the parties on Lee's motion to dismiss on March 12, 2019. The court included notes on the docket order about Facebook messages Lee had sent to King about his hatred for her, her boyfriend, and her mental health. Lee reported that he had never been served with the DVO while he was incarcerated; he learned of it when he checked in with the Clerk's Office. On April 1, 2019, Lee filed a renewed motion to dismiss the DVO or to schedule an evidentiary hearing.
The court entered an order on April 3, 2019, following a hearing it held on March 12, 2019, on Lee's motion to dismiss the amended DVO entered February 26, 2019. The court noted that the November 26, 2017, DVO was an extension of the previously entered one and that it had taken judicial notice of his Alford plea to fourth-degree assault in April 2016 and the guilty findings against him for 2016 and 2017 violations of the DVO. The court stated that Lee had not been present when it granted King's motion to extend the DVO, indicating that it had ordered him to be produced from the wrong jail as he had been moved to a different facility. Lee had been permitted to present new evidence of communication between him and King's counsel and of actions King had taken, arguing that these would establish that no DVO was necessary. The court denied Lee's motion to set aside the current DVO, noting that he did not have a legal right to contact King. The court noted as well Lee's history of litigation in district court, the family court, and the Court of Appeals. "[H]is communications with Angela's counsel indicates an unhealthy and potentially dangerous need to control Angela and these legal proceedings." The court concluded that Lee's "continued behavior indicates to the Court that Angela needs further protection." Therefore, it ordered the DVO to remain in place until its expiration date of November 27, 2020, or any further order of the court.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
On April 9, 2019, Lee moved the trial judge to recuse herself based upon the use of extrajudicial sources and ex parte testimony not under oath. He also stated that he needed protection from King as she had been stalking and harassing him.
On April 11, 2019, Lee moved the court to alter, amend, or vacate its April 3 order pursuant to CR 59.05. He also argued that the trial judge should recuse because every ruling had been based on extrajudicial sources. By order entered April 26, 2019, the court scheduled a hearing on Lee's motion, including his motion to recuse, and amended the April 3, 2019, order to reflect that the DVO entered November 29, 2017, was an initial order, not an extension of a prior one. Lee moved to alter, amend, or vacate that order, arguing that the court had to rule on the recusal motion before hearing from any parties and, in effect, was announcing its intention to deny the motion to recuse prior to holding the hearing. Lee filed a motion in the Supreme Court of Kentucky in May 2019, seeking to disqualify the trial judge as he did not believe she would afford him fair and impartial treatment. The Supreme Court denied his motion for disqualification on May 15, 2019, holding that Lee had failed to demonstrate any disqualifying circumstance that would require the appointment of a special judge under KRS 26A.020. On June 11, 2019, the family court set the February 26, 2019, DVO aside, noting that King could file a petition to have it reinstated if she felt it was necessary. This ruling was based on Lee's argument that he had been incarcerated at the time of the hearing and was unable to be in court to present his evidence.
King moved the court to set aside the June 11, 2019, order setting aside the DVO, stating she had not been at the June 11 hearing due to confusion about the many filings. The court scheduled a hearing for July 9, 2019, and, with the agreement of King's attorney and Lee, rescheduled it for July 11, 2019. In a June 20, 2019, motion, Lee asked the court to issue a reciprocal DVO in the event a DVO was entered.
On June 18, 2019, King filed a new petition for an order of protection (Case No. 15-D-502354-004). She stated:
I the petitioner used to live with the respondent. The harassment doesn't stop. I already have an EPO but until July 9th I don't have protection. I need this EPO to keep me safe. I fear the resp will hurt me if the EPO is lifted. If not himself then he will have someone else do it. He assaulted me and a [criminal] case came out of it. This has been going on for 3 years. He got out of jail a year ago and he picked up where he left off. He emails and texts my family, my boyfriend, my family out of state. Sends mail to my address. I need this to stop. I am very scared and need this EPO today.The court (Judge L. Ogden) entered an EPO the same day. Lee was served with the summons on June 21, 2019, and a hearing was scheduled for July 2, 2019. That hearing date was changed to July 11, 2019, and the docket sheet for July 11, 2019, indicates that the court had 40 cases on the EPO docket that day and had to reschedule this case for July 26, 2019.
On July 12, 2019, Lee moved the court to dismiss the current EPO petition and King's motion to alter, amend, or vacate the June 11, 2019, order dismissing the DVO. He argued that the January 19, 2016, DVO had expired. To renew or extend the DVO, King would have had to file a motion to do so before the expiration of the DVO in January 2019. He then disputed the validity of the allegations in the recent EPO petition.
The court held the domestic violence hearing on July 26, 2019. Lee, who was proceeding without an attorney, stated that the original DVO had expired, but the judge pointed out that a new EPO had been entered on June 18, 2019, which was what was before the court that day. King testified first, and she affirmed the information she included in the latest petition. She discussed the altercation in the car in January 2016. She mentioned that prior to that, Lee had held her head down on a pillow and shoved her against a wall. He would tell her that she "would regret that" as a threat, and he would send messages to neighbors and her friends as well on social media lying about her to punish or hurt her. He would admit to this later when he was trying to make up with her. He broke in and stole things from her home, which he had his son return later. Lee kept contacting her after the January 2016 assault to convince her to recant her story to help with his criminal case. On cross-examination by Lee, King said they had communicated in the past through fake Facebook accounts at his request. He had begun reaching out to her through aliases, then he suggested that she do the same thing, which she did. The DVO was in place at the time. She said she wrote "leave me alone" on his car windshield with lipstick when he was at church. As Lee attempted to establish that King had been harassing him, the court pointed out that there was nothing in place to prevent her from doing this. He could have filed a petition on his own behalf. Lee played recordings of phone conversations with King from 2016 in an attempt to attack King's credibility.
Eric Carby testified that he had been in a relationship with King for two years and that they lived together. He did not know Lee prior to this relationship. He stated that Lee had attempted to contact him through social media and sent junk mail to King at Eric's address. This had gone on for the last two years except during the time when Lee was incarcerated. The harassment started again when Lee got out of jail. Eric started receiving social media requests from people he did not know, which he believed were from Lee, and Lee tried to communicate with Eric through his father on his father's cell phone. His father was receiving random text messages addressed to him about King. The most recent one was received a few weeks prior to this hearing.
Steve Carby testified next. He is Eric's father. He did not know Lee before Eric started a relationship with King. He had received 25 text messages from Lee, the last one on May 26, 2019, which Lee stipulated that he sent. He never responded to these messages. The messages included comments about King and her relationship with Eric. Steve thought they were meant for Eric.
Kevin King testified next. He is King's ex-husband. Lee had tried to contact Kevin over the last four years through Kevin's work email. Kevin would send the emails to King's attorney. He believed Lee was trying to threaten and manipulate him with these messages. The only time Kevin did not receive messages from Lee was during the time he was in jail. Kevin read several of the emails he received from Lee for the court.
Claude Sutherland was the last witness to testify for King. He knew King socially, and their children had attended school together since 2014. He or his wife got a telephone call on January 11, 2016, from King asking for help in removing her items from Lee's house. He said King was very distraught and saw that she had been beaten with a hand or an object. She needed immediate assistance. Her right eye and cheek were black and blue, and he did not believe the injuries were self-inflicted or from a fall. He went on to testify that Lee had been falsely claiming he (Sutherland) had been making disparaging comments about King.
In his time to present his defense, Lee argued that harassment was not domestic violence and that he was permitted to contact others not included in the protection order under the First Amendment. He had not threatened King or abused her. He thought King had harassed him more than he had harassed her. He said he had not contacted King for two and a half years, and he denied assaulting her in January 2016. Lee stated that there was no fear of danger in the future.
He also argued that the EPO had technically expired, from what he understood, because the hearing was being held more than fourteen days after the original hearing date had been set and he had not been reissued a summons. The court reminded King that the EPO would not expire for six months after it was issued, so it had not yet expired. The court did not believe he had to be re-summonsed when they appeared in court on July 11, when the date was changed because the court did not have the time necessary for the case; the court had never had to issue a re-summons in such a situation before.
The family court orally ruled on King's petition, first stating that its view of what domestic violence is differs fundamentally from Lee's view. It recognized that the statute did not specifically define domestic violence, and there was no law that required any physical aspect for a court to make a finding that domestic violence had occurred. The court found that an act of domestic violence occurred in 2016, that King's injuries were not self-inflicted but were caused by Lee's actions, and that domestic violence was likely to occur again. The court looked to its training and expertise in the area of domestic violence to find that continued contact between the parties, disparaging remarks, and remarks about knowing where King was and what was going on in her life, were part of the control and harassment cycle of domestic violence. And in this context, Lee did not have an unmitigated First Amendment right to contact people in King's life. The family court immediately entered a DVO that was valid for three years, until July 25, 2022. In the docket order, the judge made the following findings:
Ct makes finding that DV/assault occurred in 2016, resulting in severe injuries and likely to occur again, based upon Mr. Lee's contacts w/ 3rd parties whom he does not know or does not know well, disparaging her & connects [sic]/posts indicate he knows where she is & has info about her life - part of control/aspect of domestic violence harassment & [Facebook] posts.
On July 29, 2019, Lee moved the court to alter, amend, or vacate this order, stating that another three-year DVO was unfair to him. The same day, Lee filed his own petition for a protection order in Jefferson Family Court (Case No. 19-D-502234-001), stating that King had been stalking him. The court (Judge D. McDonald) entered an EPO, issued a summons to King, and scheduled a hearing. Following a hearing, the court found the alleged acts of stalking or domestic violence were at least two to three years old and there was no threat of harassment or domestic violence. The court did not find evidence of an act of domestic violence or that it was likely to occur again, and it therefore dismissed the petition. Lee did not appeal that ruling.
On July 30, 2019, Lee filed a notice of appeal from the July 26, 2019, DVO, raising issues related to the court's lack of jurisdiction for failing to issue a summons, the merits of the DVO, and the trial judge's failure to recuse.
First, we shall address King's argument that Lee's pro se brief was deficient and should be stricken. CR 76.12(4)(c) contains a list of requirements an appellant's brief must contain, including:
(iv) A "STATEMENT OF THE CASE" consisting of a chronological summary of the facts and procedural events necessary to an understanding of the issues presented by the appeal, with ample references to the specific pages of the record, or tape and digital counter number in the case of untranscribed videotape or audiotape recordings, or date and time in the case of all other untranscribed electronic recordings, supporting each of the statements narrated in the summary.
(v) An "ARGUMENT" conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.
(vii) An "APPENDIX" with appropriate extruding tabs containing copies of the findings of fact, conclusions of law, and judgment of the trial court, any written opinions filed by the trial court in support of the judgment, the opinion or opinions of the court from which the appeal is taken, and any pleadings or exhibits to which ready reference may be considered by the appellant as helpful to the appellate court. The first item of the appendix shall be a listing or index of all documents included in the appendix. The index shall set forth where the documents may be found in the record.King maintains that Lee's pro se brief contains deficiencies under these subsections, and she is correct. In his reply brief, Lee argued that his statement of the case was adequate, but that King's counterstatement should be stricken. We decline his request.
We recognize CR 76.12(8)(a) provides that "[a] brief may be stricken for failure to comply with any substantial requirement of this Rule 76.12." And Lee's status as a pro se appellant does not mean that he does not have to comply with the Civil Rules:
In sum, while Matthew is a pro se litigant, that does not exempt him from the rules. He is bound by the same rules of appellate procedure as his opposing counsel and any other party before this court. And it is not as if Matthew did not have opportunity to correct these errors. In his reply brief, after being made aware of his noncompliance, he could have supplied this court with sufficient citations to the record and authorities—but he did not.Koester v. Koester, 569 S.W.3d 412, 415 (Ky. App. 2019). Our review of Lee's brief confirms that it did contain some citations to the record in the argument section. Despite the overt deficiencies of his brief, we shall decline King's request to strike Lee's brief, but we shall disregard the "Background" section.
Turning to the merits of the appeal, Lee's first argument is that the family court lost jurisdiction when it rescheduled the EPO hearing one day past the fourteen-day period. KRS 403.735(2)(a) provides:
If the adverse party is not present at the hearing ordered pursuant to KRS 403.730 and has not been served, a previously issued emergency protective order shall remain in place, and the court shall direct the issuance of a new summons for a hearing set not more than fourteen (14) days in the future. If service has not been made on the adverse party before that hearing or a subsequent hearing, the emergency protective order shall remain in place, and the court shall continue the hearing and issue a new summons with a new date and time for the hearing to occur, which shall be within fourteen (14) days of the originally scheduled date for the continued hearing. The court shall repeat the process of continuing the hearing and reissuing a new summons until the adverse party is served in advance of the scheduled hearing. If service has not been made on the respondent at least seventy-two (72) hours prior to the scheduled hearing, the court may continue the hearing no more than fourteen (14) days in the future. In issuing the summons, the court shall simultaneously transmit a copy of the summons or notice of its issuance and provisions to the petitioner.We agree with King that the family court did not lose jurisdiction.
First, Lee failed to preserve this argument because he did not raise it until the end of the more-than-two-hour hearing and therefore waived his right to challenge it. This issue concerns particular-case jurisdiction rather than subject-matter jurisdiction, as Lee contends.
[T]he questions Steadman has raised do not go to subject-matter jurisdiction and instead concern only whether the trial court had particular-case jurisdiction. Or, more precisely, as "challenges to [the trial court's] subsequent rulings and judgment," they "are questions incident to the exercise of jurisdiction rather than to the existence of jurisdiction." [Hisle v. Lexington-Fayette Urban County Government, 258 S.W.3d 422, 429-30 (Ky. App. 2008)] (quoting Buckalew v. Buckalew, 754 N.E.2d 896, 898 (Ind. 2001)). In other words, they are allegations of pure legal error and not of a failure of the court's power to act at all. And particular-case jurisdiction is subject to waiver. [Commonwealth v. Griffin, 942 S.W.2d 289, 291 (Ky. 1997)] ("[A] lack of jurisdiction of the particular case, as dependent upon the existence of particular facts, may be waived.") (quoting Collins v. Duff, 283 S.W.2d 179 (Ky. 1955)). It is clear that Steadman waived particular-case jurisdiction here.Basin Energy Co. v. Howard, 447 S.W.3d 179, 186 (Ky. App. 2014) (quoting Commonwealth v. Steadman, 411 S.W.3d 717, 724-25 (Ky. 2013)). By failing to raise this question earlier in the proceeding below, Lee has waived his right to contest the family court's particular-case jurisdiction. Second, we agree with King that KRS 403.735(2)(a) was not violated as Lee was present when the hearing was rescheduled. There is no support in the record for Lee's argument that a bailiff told him this information in the lobby. Nevertheless, Lee was certainly aware that the hearing had been scheduled.
Next, Lee argues that the family court judge should have recused. He takes issue with the family court's entry of an earlier DVO that he claims was based upon the court's extrajudicial knowledge of the case. This knowledge includes the court's taking judicial notice of his Alford plea as well as its knowledge of his incarceration and litigation history in Kentucky's court system. As King points out, the 2017 DVO was vacated at Lee's request, and it was for the 2017 DVO that Lee had sought the judge's recusal earlier in the case. Lee did not seek recusal as to the present DVO that is before this Court for review, and in any event, we find no merit in Lee's argument.
For his final argument, Lee contends that there was insufficient evidence to support the family court's entry of the DVO. We disagree.
In Clark v. Parrett, 559 S.W.3d 872, 875 (Ky. App. 2018), this Court set forth the statutory definition of domestic violence and abuse and the appropriate standards of proof and review:
"Domestic violence and abuse" is defined as "physical injury, serious physical injury, stalking, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple[.]" [KRS] 403.720(1). "Any family member or any member of an unmarried couple may file for and receive protection . . . from domestic violence
and abuse[.]" KRS 403.750(1). "Following a hearing . . . if a court finds by a preponderance of the evidence that domestic violence and abuse has occurred and may again occur, the court may issue a domestic violence order[.]" KRS 403.740(1). "Our review in this Court is not whether we would have decided the case differently, but rather whether the trial court's findings were clearly erroneous or an abuse of discretion." Gibson v. Campbell-Marletta, 503 S.W.3d 186, 190 (Ky. App. 2016).Lee disagrees with the family court's reliance upon harassment as a factor in deciding whether to grant a DVO and upon the testimony that he had contacted others who were not named in the EPO or the previous DVO. He also contends that there was no finding of physical or sexual abuse. We disagree with Lee's argument in its entirety, including his reliance on Pasley v. Pasley, 333 S.W.3d 446 (Ky. App. 2010), as the family court specifically made a finding that Lee had assaulted King in 2016.
As we review this case, we are mindful that "[t]he domestic violence and abuse statutes are to be interpreted by the courts to allow victims to obtain protection against further violence and abuse." Kingrey v. Whitlow, 150 S.W.3d 67, 70 (Ky. App. 2004). And courts are permitted to consider past acts to determine whether to grant a new DVO:
KRS 403.735 expressly allows courts to look back and consider prior protective orders. It authorizes courts to "obtain the respondent's Kentucky criminal and protective order history and utilize that information to assess what relief and which sanctions may protect
against danger to the petitioner . . . ." KRS 403.735(1)(a). While that provision concerns what relief is appropriate rather than the entitlement to relief itself, the fact that the provision allows for prior orders to be considered is illustrative. Further, the illustrative nature of KRS 403.735(1)(a) becomes all the more persuasive when examining KRS 403.740, which does not exclude prior orders from consideration. In fact, on this issue KRS 403.740 only requires a court determine whether domestic violence has occurred at some point in the past. KRS 403.740(1).Walker v. Walker, 520 S.W.3d 390, 392 (Ky. App. 2017).
King has appropriately cited to this Court many cases addressing the cycle of violence present in domestic violence situations. The United States Supreme Court has recognized that
"DOMESTIC Violence" is not merely a type of "violence"; it is a term of art encompassing acts that one might not characterize as "violent" in a nondomestic context. . . .United States v. Castleman, 572 U.S. 157, 165-66, 134 S. Ct. 1405, 1411-12, 188 L. Ed. 2d 426 (2014). The Supreme Court of Vermont has recognized that it is "the pattern of controlling behavior that distinguishes intimate abuse from other forms of violence[.]" Raynes v. Rogers, 2008 VT 52, ¶ 8, 183 Vt. 513, 516-17, 955 A.2d 1135, 1137 (2008). And the Ninth Circuit Court of Appeals in Hernandez v. Ashcroft, 345 F.3d 824, 836-37 (9th Cir. 2003), described the cyclical pattern of domestic violence:
Minor uses of force may not constitute "violence" in the generic sense. . . . But an act of this nature is easy to describe as "domestic violence," when the accumulation of such acts over time can subject one intimate partner to the other's control.
The field of domestic violence and our own case law reflect the fact that Refugio's actions represent a specific phase that commonly recurs in abusive relationships. Abuse within intimate relationships often follows a pattern known as the cycle of violence, "which consists of a tension building phase, followed by acute battering of the victim, and finally by a contrite phase where the batterer's use of promises and gifts increases the battered woman's hope that violence has occurred for the last time." Mary Ann Dutton, Understanding Women's Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome, 21 HOFSTRA L. REV. 1191, 1208 (1993); Evan Stark, Re-Presenting Women Battering: From Battered Woman Syndrome to Coercive Control, 58 ALB. L. REV. 973, 985-86 (1995); see also Dillard v. Roe, 244 F.3d 758, 763-64 (9th Cir. 2001) (describing domestic violence expert's testimony that "[a]fter the violent episode, . . . the man is scared that the woman will tell the police or decide to leave him. He tells the woman he loves her and minimizes the seriousness of his violent outburst. . . ."). Indeed, Hernandez's relationship with Refugio reflected just such a cycle: as described in Hernandez's testimony, following each violent episode, Refugio would for a time again become the man she had loved.
The literature also emphasizes that, although a relationship may appear to be predominantly tranquil and punctuated only infrequently by episodes of violence, "abusive behavior does not occur as a series of discrete events," but rather pervades the entire relationship. Dutton, supra, at 1208. The effects of psychological abuse, coercive behavior, and the ensuing dynamics of power and control mean that "the pattern of violence and abuse can be viewed as a single and continuing entity." Id.; see also Stark, supra, at 985-86. Thus, "the battered
woman's fear, vigilance, or perception that she has few options may persist, . . . even when the abusive partner appears to be peaceful and calm." Dutton, supra, at 1208-09. The psychological role of kindness is also significant in understanding the impact of Refugio's actions on Hernandez, since in combination with the batterer's physical dominance, such kindness often creates an intense emotional dependence by the battered woman on the batterer. Id. at 1206, 1225. Significantly, research also shows that women are often at the highest risk of severe abuse or death when they attempt to leave their abusers. Id. at 1212; see also H.R. REP. 103-395, at 24.
In the bench ruling, the family court rejected Lee's claim that King's injuries from the 2016 incident were self-inflicted. And it found that domestic violence could occur again based on the control and harassment cycle evident in this case. The court pointed to the disparaging remarks Lee had made about King, his continued attempts to contact people close to her, and his remarks indicating that he knew where she was and what was going on in her life. We agree with these findings. In her brief, King eloquently explains the cycle of abuse she established through the evidence presented during this case:
In this case, the family court heard evidence of John's prior physical abuse of Angela, which was followed by a period of reconciliation during which John continued to exert control over and manipulate Angela in hopes that she would recant her statements about the assault and help him generate evidence to call her original statements into question. While John was in custody, Angela was able to move on and away from him. The evidence reveals that John is unwilling to do the same. He still wants to control Angela. When he
cannot do so directly, he attempts to do so through harassing, intimidating, even threatening those she cares about. He degrades Angela on social media. He tells the people who care about her bad things to try to interfere with and control those relationships. John's behavior, when considered in its totality from the time he assaulted Angela, shows the type of power and control that often characterizes domestic violence. If John's behavior is allowed to continue, Angela will likely again be a victim of "domestic violence and abuse." The family court acted appropriately to protect Angela from future acts of domestic violence and abuse by John.
Contrary to John's arguments, his contacts are not innocent expressions of his First Amendment rights. Rather, John's acts are aimed specifically at Angela and those she cares about. His actions are designed to control Angela by driving those she cares about away and leaving her again helpless and dependent on him. John's behaviors are him continuing the control of domestic violence. If left uninterrupted by a DVO, it is likely that John will subject Angela to domestic violence and abuse again in the future. The family court properly granted the DVO.
We agree with King that the family court did not abuse its discretion in granting the DVO on review in this case. The court had a wealth of evidence to support this ruling, from Lee's original assault on King to the pattern of harassing conduct Lee used in his attempt to control and manipulate her over the ensuing years.
For the foregoing reasons, the domestic violence order entered by the Jefferson Family Court on July 26, 2019, is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: John D. Lee, pro se
Louisville, Kentucky BRIEF FOR APPELLEE: Dorislee Gilbert
Louisville, Kentucky