Opinion
NO. 2014-CA-002084-ME
06-19-2015
DAVID MCINTOSH APPELLANT v. KAYLA CAMPBELL APPELLEE
BRIEF FOR APPELLANT: Melissa C. Howard Jackson, Kentucky BRIEF FOR APPELLEE: Rachel Fortner Richmond, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BREATHITT FAMILY COURT
HONORABLE LARRY MILLER, JUDGE
ACTION NO. 14-D-00033-001
OPINION
AFFIRMING
BEFORE: JONES, STUMBO, AND VANMETER, JUDGES. JONES, JUDGE: This appeal concerns the entry of a domestic violence order (DVO) restraining the Appellant, David McIntosh, from having any contact with the Appellee, Kayla Campbell. David asserts that the Breathitt Family Court should have dismissed Kayla's petition on standing grounds because he and Kayla were not cohabitating during the relevant time period. Alternatively, David maintains that Kayla presented insufficient evidence to prove that he committed an act of domestic violence. Upon a review of the record, we AFFIRM.
I. BACKGROUND
On July 10, 2014, Kayla filed a domestic violence petition against David. Therein, she alleged as follows:
I have been with this man for 2 months and he has been beating me for the last month in [sic] half and has pulled a gun on me 3 times the last day I was with him I was trying to leave and he was attacking me trying to get the phone so I couldn't leave. I'm in fear for my life.(R. at 1). Based on Kayla's petition, the family court entered an emergency order of protection that same day.
After numerous delays, the family court ultimately held a hearing on November 26, 2014. In addition to Kayla and David, several other witnesses testified at the hearing, including Gina Campbell, Kayla's sister; Nancy Campbell, Kayla's mother; and Brian Haddix, a police officer employed by the Jackson City Police Department. Additionally, twenty photographs dated July 9, 2014, allegedly depicting bruising on Kayla's body were introduced into evidence.
Kayla testified that she and David had a romantic and sexual relationship that began during the first half of 2014. She testified that in approximately May of 2014, she moved into David's doublewide mobile home located on Panbowl Road. Kayla testified that she slept at the mobile home for the next two months, with the exception of two nights when she stayed at her mother's house. Kayla also testified that she kept her clothing and other personal items in the mobile home. According to Kayla, at some point during the relevant time period, David helped her move her mattress and box springs from her mother's house to David's property, where the couple placed them in the storage shed.
Kayla testified that while living with David she used some of the money she earned working at a fast food restaurant to help David with the electric bill for the mobile home, paid some expenses related to David's Razor (a small fuel efficient vehicle), and gave David her cell phone, which he transferred over to his cellular plan. Otherwise, Kayla did not assist with the household expenses.
According to Kayla, David became verbally and physically abusive with her as their relationship progressed. She testified that David threatened to shoot her and otherwise caused her to fear for her safety. Kayla testified concerning a specific incident of violence that occurred on July 8, 2014, her last day at the mobile home. According to Kayla, she was trying to use the cell phone she had given David to arrange for a ride so that she could leave the mobile home when David became angry and attacked her. Kayla testified that during the course of their altercation, David pushed and otherwise physically assaulted her. Kayla testified that the following day, she took photographs of the injuries David inflicted upon her during this altercation. Those photographs were introduced into evidence.
For his part, David admitted having a sexual relationship with Kayla and that he and Kayla frequently engaged in sex in his mobile home. David testified that his relationship with Kayla lasted approximately two months during which time Kayla would occasionally spend the night at his trailer. However, David vehemently denied that Kayla ever lived with him. Likewise, he denied ever striking or threatening Kayla.
Kayla's sister, Gina, testified that Kayla moved out of their mother's house and into David's mobile home sometime in the summer of 2014. Gina testified that she regularly visited Kayla at David's residence and that she saw Kayla's clothing inside of the mobile home. Gina believed Kayla to be living with David during this entire period.
Kayla's mother, Nancy, testified that Kayla resided with her before moving into David's mobile home. Nancy testified that the only furniture Kayla owned was a bed, which she moved onto David's property. Nancy testified that whenever she wanted to talk to Kayla she would have to call David because Kayla had given David her cell phone. Nancy also believed Kayla was living with David.
Officer Haddix testified that he was dispatched to the mobile home on July 8, 2014, in response to a call concerning a domestic dispute. Officer Haddix recalled that when he arrived on the scene, he observed David on the porch and Kayla in the driveway. Officer Haddix testified that he did not see any fresh marks or bruising on either party, and therefore, he determined that the best course of action would be to separate the parties. He testified that Kayla became belligerent when he requested her to leave David's property leading him to arrest her.
Following the testimony, the family court stated on the record that it found by a preponderance of the evidence that: (1) Kayla and David cohabitated for approximately two months; (2) an act of domestic violence occurred when David threatened to shoot Kayla and inflicted physical violence on her; and (3) if not restrained, David was likely to commit further acts of domestic violence on Kayla. That same day, the court entered a standard form DVO against David.
II. STANDARD OF REVIEW
Appellate review of a trial court's decision regarding issuance of a DVO "is not whether we would have decided it differently, but whether the court's findings were clearly erroneous or that it abused its discretion." Gomez v. Gomez, 254 S.W.3d 838, 842 (Ky. App. 2008). As a reviewing court, we do not reach our own findings of fact or reweigh the evidence. We examine the trial court's findings only to determine if substantial evidence of record supports the findings. Kentucky Rules of Civil Procedure (CR) 52.01; Moore v. Asente, 110 S.W.3d 336 (Ky. 2003). Substantial evidence is defined as that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person. Stanford Health & Rehab. Ctr. v. Brock, 334 S.W.3d 883, 884 (Ky. App. 2010).
III. ANALYSIS
A. Standing
Kentucky Revised Statutes (KRS) 403.725 states that "[a]ny family member or member of an unmarried couple" may file a petition for a protective order under the domestic violence statutes. The definition of "member of an unmarried couple" is contained in KRS 403.720(3) and includes "each member of an unmarried couple which allegedly has a child in common, any children of that couple, or a member of an unmarried couple who is living together or have formerly lived together." (Emphasis added). "Living together" is not defined in the DVO statutes.
The Kentucky Supreme Court first considered the meaning of "living together" within the context of the DVO statutes in Barnett v. Wiley, 103 S.W.3d 17, 18 (Ky. 2003). While recognizing that the DVO statutes should be construed liberally to offer the greatest amount of protection possible, the Court was clear that any interpretation of the DVO statutes must be reasonable in light of the terms the General Assembly employed in the statute. Id. at 19. The Court held that in using the terms "living together," the General Assembly plainly intended to limit the DVO statutes to those cohabitating in some fashion. Id. Accordingly, the Court held that "there must be, at a minimum, proof that the petitioner seeking a DVO shares or has shared living quarters with the respondent before a finding can be made that the two are an 'unmarried couple' under KRS 403.725." Id. at 20-21 (Ky. 2003).
Instead of defining a precise test for determining cohabitation, the Barnett court identified six indicia of cohabitation: (1) sexual relations between the parties while sharing the same living quarters; (2) sharing of income or expenses; (3) joint use or ownership of property; (4) whether the parties hold themselves out as husband and wife; (5) the continuity of the relationship; and (6) the length of the relationship. Id. at 20. The Court explained that lower courts should appropriately consider these six factors when making "a factual determination as to whether a couple is cohabiting under the umbrella of chapter 236." Id.
Given the varied ages, socioeconomic backgrounds, and lifestyles of modern-day couples, it would be virtually impossible to come up with a definitive test for cohabitation. Cohabitation is sometimes the product of a carefully thought out plan whereby the couple selects a residence together, shares household chores, comingles their finances, and plans for their futures together. Other times, it occurs with little or no thought or planning by the couple. One couple might purchase a joint residence and furnish it together. Another might decide to live together in an already established residence that is in one of their names alone. Some couples may equally share the household expenses. In other couples, one party might cover most of the expenses. The scenarios are varied and vast. For this reason, it is important to recognize that the six indicia identified by the Barnett court do not make up a litmus test. Rather, the indicia are meant to be part of a larger analysis. The overall analysis should take into account the six indicia in combination with the unique circumstances of the couple at issue.
David maintains that the family court's determination that he and Kayla were cohabiting is unsupported by substantial evidence. In support of his argument, David points to the relatively brief period he and Kayla were in a romantic relationship, the absence of any furniture of Kayla's at his residence, the fact that Kayla did not change the address on her driver's license, and the lack of Kayla's name on any of the household bills.
Certainly, it does not appear that David and Kayla were in a longstanding relationship with one another. Likewise, it does not appear that the couple put a great deal of thought or planning into their living arrangements or that Kayla had been living with David for an extended period of time. However, these facts do not mean that the couple was not living together. Some couples may live together for years before an act of domestic violence occurs. Other couples might experience domestic violence in the first few days or weeks of cohabitation. The statute contains no minimum period of time the couple must have cohabitated before there is standing to seek a DVO.
While David has pointed to contradictory evidence in the record, we cannot agree with him that the record is devoid of evidence sufficient to support the family court's cohabitation finding. It is uncontested that David and Kayla were in a sexual relationship with one another and regularly had sex at David's mobile home. It is likewise undisputed that Kayla, with David's help, moved her bed from her mother's house to David's property. Kayla's clothing and personal hygiene items were also in the mobile home. While disputed by David, Kayla testified that for a period of approximately two months she slept at David's mobile home almost every night. Kayla's mother and sister testified that they believed Kayla to be living with David and visited Kayla at David's mobile home during the two months in question. Kayla testified that she assisted David with the electric bill and other expenses during the two months in question.
Having reviewed the record, we are confident that substantial evidence of record supported the family court's finding that David and Kayla were cohabitating. Therefore, we agree with the family court that Kayla had standing to seek a DVO under Kentucky's domestic violence statutes.
B. Domestic Violence
The trial court may render 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 occur again. KRS 403.750(1). The preponderance of the evidence standard is met when sufficient evidence establishes that the alleged victim "was more likely than not to have been a victim of domestic violence." Gomez v. Gomez, 254 S.W.3d 838, 842 (Ky.App.2008) (quoting Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996)).
Domestic violence is defined as a "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 or members of an unmarried couple." KRS 403.720(1).
Kayla's testimony that David hit and threatened her in the past was sufficient evidence from which the family court could properly find that Kayla had been a victim of domestic violence. Additionally, Kayla testified that David had threatened to harm her in the future.
Certainly, Kayla's testimony was disputed. David denied ever harming or threatening Kayla. He disputed that he caused the bruising shown in the pictures Kayla introduced and pointed to Officer Haddix's testimony that he did not see any bruising on the day Kayla was arrested.
At the end of day, this case boiled down to a credibility determination. The family court had to determine whether to believe Kayla or David. Ultimately, the family court found Kayla to be more credible. The family court did not abuse its discretion in this regard.
Having determined Kayla to be a credible witness, the family court appropriately relied on her testimony to make a finding that domestic abuse had occurred. As Kayla's testimony, in and of itself, was sufficient evidence upon which to base a finding of domestic violence, we find no error on the family court's part.
IV. CONCLUSION
For the reasons set forth above, we affirm the DVO entered by the Breathitt Family Court.
ALL CONCUR. BRIEF FOR APPELLANT: Melissa C. Howard
Jackson, Kentucky
BRIEF FOR APPELLEE: Rachel Fortner
Richmond, Kentucky