Opinion
NO. 2014-CA-000085-MR
01-09-2015
JAMES SHAWN TAYLOR APPELLANT v. RONDA TAYLOR APPELLEE
BRIEF FOR APPELLANT: Allen McKee Dodd Louisville, Kentucky Richard Irwin Williams Jr Louisville, Kentucky BRIEF FOR APPELLEE: Scott E. Karem Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ELEANORE GARBER, JUDGE
ACTION NO. 07-D-502536
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS, VANMETER, JUDGES. COMBS, JUDGE: James Shawn Taylor (Shawn) appeals the domestic violence order (DVO) entered against him by the Jefferson Circuit Court. The DVO also awarded temporary custody of their children to Ronda Taylor. After reviewing the record and the law, we affirm.
Judge Caperton concurred in this opinion prior to Judge Debra Lambert being sworn in on January 5, 2015, as Judge of Division 1, Third Appellate District. Release of this opinion was delayed by administrative handling.
The DVO [will expire or expired] on November 11, 2014. Nonetheless, we have considered the appeal because of "[t]he continuing consequences of the DVO[.]" Caudill v. Caudill, 318 S.W.3d 112, 114 (Ky. App. 2010).
Shawn and Ronda divorced in 2008. They shared custody of their four children - Oldest Daughter, Son, Middle Daughter, and Youngest Daughter. The children spent alternate weeks with each parent. On October 21, 2013, Ronda filed a petition for a DVO, alleging that Shawn had been hitting and inappropriately yelling at their children. Oldest Daughter refused to participate in visitation with Shawn and had been residing solely with Ronda for several months.
Since the petition was filed, Oldest Daughter has reached the age of majority.
On November 12, 2013, the trial court held a hearing. Oldest Daughter, Son, and Youngest Daughter testified. Son and Youngest Daughter related specific recent occurrences of yelling and hitting. Both indicated that they feared Shawn because he would hit them and yell at them for minor incidents, such as spilling a drink. Son also testified that Shawn would often hit him for no reason at all. Oldest Daughter testified about the continual violent behavior which had led to her refusal to return to Shawn's home, including injuries which Shawn had inflicted upon her. She corroborated Son's testimony about unprovoked hitting, and she pleaded for the court to not send her younger siblings back to their father.
Ronda adopted her petition as part of her testimony. She also advised the court that she had witnessed Shawn's violent outbursts. Ronda asked for temporary custody of the children. Shawn testified that he had not hit the children and that they all had lied to the court.
At the end of the hearing, the court granted the DVO. It ordered the entire family to participate in counseling and awarded temporary custody of the children to Ronda. This appeal follows.
Our standard of review is governed by Kentucky Rule[s] of Civil Procedure (CR) 52.01. Ghali v. Ghali, 596 S.W.2d 31, 32 (Ky. 1980). CR 52.01 applies to domestic cases, providing that when reviewing actions without juries, we may not reverse the trial court's findings of fact unless they were clearly erroneous. Clear error occurs only when substantial evidence is lacking in the record to support the trial court's findings. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998).
Three of Shawn's arguments essentially boil down to one claim: that the trial court did not have jurisdiction to grant temporary custody to Ronda. He contends that the trial court should have utilized Kentucky Revised Statutes (KRS) Chapter 620, which governs dependency, neglect, and abuse proceedings. Instead, as already mentioned, the petition was filed and the hearing was conducted pursuant to KRS 403.270.
Shawn correctly argues that both chapters authorize courts to make custody determinations, but actions under Chapter 620 originate in district court. Mauldin v. Bearden, 293 S.W.3d 392, 400 (Ky. 2009).
It makes little sense, however, to continue to treat this subject matter as separate actions, if the purpose of the family court system is "one family, one judge."Id.
When a family court is involved, custody is a single issue, subject to several different statutory schemes. So long as a family court is acting within its statutory authority, it makes little difference what docket is involved.
Under KRS 403.270(1)(f), if a court finds that domestic violence has occurred, it may award temporary custody according to the criteria set forth in KRS 403.270, 403.320, and 403.822. KRS 403.822 governs jurisdiction involving multiple states and is not at issue in this case. Both KRS 403.270 and 403.320 authorize a trial court to grant custody and visitation as the result of a finding of domestic violence according to the meaning of KRS 403.720. That statute defines domestic violence as "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[.]" KRS 403.270(1). The trial court found that Shawn had indeed inflicted physical injury and the fear of imminent physical injury upon his children. Consequently, we are persuaded that the trial court properly acted within the parameters of its statutory authority.
Parenthetically, we note that in Mauldin, the court was concerned that temporary custody had been granted without a hearing. Mauldin, supra. That was not the case here. The trial court did not award Ronda temporary custody until after a hearing had been conducted.
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Shawn's next argument is that the trial court impermissibly admitted the testimony of Oldest Daughter. Our standard of review for evidentiary issues is whether the trial court abused its discretion. Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996) (overruled on other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky. 2008)). Our Supreme Court has defined abuse of discretion as a court's acting arbitrarily, unreasonably, unfairly, or in a manner "unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Shawn alleges that Oldest Daughter should not have been allowed to testify because she did not have personal knowledge of what had occurred at his home during the time that Oldest Daughter lived with Ronda. The record supports his contention that Oldest Daughter lacked personal knowledge of the instances that Son and Youngest Daughter related in their testimony. Nonetheless, the court allowed Oldest Daughter to testify in order to establish that there had been a continuing pattern of abusive behavior. It limited her to relating only those events that had occurred to her or that she had witnessed directly.
Our Supreme Court has held that evidence of a pattern of conduct is admissible if the acts were close in time to the conduct at issue. Clark v. Commonwealth, 223 S.W.3d 90, 100-01 (Ky. 2007). In Clark, several years had lapsed between the events alleged and the trial. In this case, at the time of her testimony, Oldest Daughter had been away from Shawn's home for only six months. The court did not abuse its discretion by allowing her limited testimony.
Next, Shawn argues that the finding of domestic violence was not supported by sufficient evidence.
KRS 403.750 authorizes a family court to issue a domestic violence order "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[.]" We reiterate that the definition of domestic violence and abuse is "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[.]" KRS 403.720(1).
Because of the serious restrictions placed on a person subject to a DVO, trial courts should not enter them lightly. Buddenberg v. Buddenberg, 304 S.W.3d 717, 721 (Ky. App. 2010). In hearings for a DVO petition, a trial court must make at least minimal findings concerning "(a) specific evidence of the nature of the abuse; (b) evidence of the approximate date of the respondent's conduct; and (c) evidence of the circumstances under which the alleged abuse occurred." Rankin v. Criswell, 277 S.W.3d 621, 626 (Ky. App. 2008).
Shawn alleges that the testimony of the children was deficient because the second factor of Rankin was not met; i.e., Son and Youngest Daughter were unable to provide precise dates for the specific acts which they related. However, the case before us is distinguishable from Rankin, in which the court did not hold a hearing to gather evidence. Instead, it silently read the petition and documents from past cases in the presence of the parties. There was no evidence of the approximate dates of the alleged offenses other than a range of several years. Our Court held that such a review was insufficient to serve as the basis for the grave consequences of a DVO. Therefore, it set forth the requirements of a full hearing as recited above.
In this case, the family held a full hearing. The children provided approximate dates for the acts of abuse, which had occurred within several weeks prior to the hearing. Unlike the respondent in Rankin, Shawn had the opportunity to respond to the accusations in the petition to the adverse testimony. Shawn took advantage of that opportunity when he denied the allegations under oath.
Shawn has pointed out minor flaws in the children's testimony, but our governing standard is not proof beyond a reasonable doubt that abuse had occurred. The trial court must base its decision upon the lesser standard of preponderance of the evidence. KRS 403.750. Its finding of abuse was supported by sufficient evidence; i.e., the testimony of the children. The court did not commit clear error when it found the children's testimony credible. See Kentucky Civil Rule[s] of Procedure (CR) 52.01.
Shawn's final argument is that the family court erred when it overruled his motion for a new trial pursuant to CR 59.01. He claims that he should have been permitted to provide the court with evidence that contradicted the testimony of Ronda and the children. There is no merit to this argument.
It is established law that Rule 59 may not be used "to raise arguments and to introduce evidence that should have been presented during the proceedings before the entry of the judgment." Gullion v. Gullion, 163 S.W.3d 888, 893 (Ky. 2005). Shawn offers evidence that contradicts Ronda's testimony along with a letter from a social worker whom he claims to be an indispensible witness. The record shows that all the evidence proposed by Shawn was available prior to the hearing. At the hearing, however, he did not attempt to impeach Ronda; additionally, the record does not show that he attempted to subpoena the social worker to testify. Consequently, there is no evidence to serve as grounds for the necessity of a hearing.
We affirm the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Allen McKee Dodd
Louisville, Kentucky
Richard Irwin Williams Jr
Louisville, Kentucky
BRIEF FOR APPELLEE: Scott E. Karem
Louisville, Kentucky