Opinion
NO. 2019-CA-001476-ME
05-15-2020
ADAM RUDELL YOUNG APPELLANT v. AMY ELIZABETH HANLEY APPELLEE
BRIEF FOR APPELLANT: Jan Rochester Magnolia, Kentucky BRIEF FOR APPELLEE: Lori A. Kinkead Elizabethtown, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE M. BRENT HALL, JUDGE
ACTION NO. 19-D-00437-001 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES. LAMBERT, JUDGE: Adam Young appeals the Hardin Circuit Court's August 22, 2019, domestic violence order (DVO) in favor of Amy Hanley, on behalf of her two minor daughters, K.Y. and W.Y. After review, we affirm.
Hanley and Young, while once married, have been divorced for several years. On August 4, 2019, Hanley picked her two daughters up from court ordered visitation with Young, their father. At pick up, Hanley said the children got in the car, began crying hysterically, and asked Hanley to drive away. When they had a chance to calm down, the children told Hanley why they were so upset.
According to the girls, Young became mad at W.Y. when she did not answer a question he had asked. As a result, Young picked W.Y. up by her arms and threw her into a recliner, hurting her left arm. Young proceeded to scream at the children, telling them they were terrible and disgusting. He also yelled expletives at them. K.Y. told her mother that during the incident she was having an anxiety attack and was hyperventilating because she had seen Young throw W.Y., and she was afraid he would hurt them. Both children informed Hanley they feared Young. When Hanley was able, she examined W.Y.'s arm and discovered a finger-shaped bruise.
Based on what the children told her, Hanley filed a petition/motion for an order of protection on behalf of W.Y. and K.Y. against Young. She was granted an emergency protective order (EPO) on August 5, 2019. A hearing was set for August 19, 2019 to determine whether a DVO was necessary. Both Hanley and Young were present at the domestic violence hearing and represented by counsel.
The circuit court began the hearing by reading Young's criminal history and Hanley's statement into the record. After the witnesses were separated, Hanley was sworn in and questioned by her counsel and Young's. During her testimony, Hanley expressed concerns that Young had anger issues that were becoming worse. She also testified it was not unusual for the children to be crying when she picked them up from visitation with Young. Photographs of the bruise on W.Y.'s arm, taken by Hanley on the date of the incident, were introduced as evidence. Hanley said this was the first time something like this had happened, but she was afraid it would happen again.
Next, Young was also sworn in and questioned by both counsels. Young was able to present his version of the event to the court. According to Young, W.Y. became angry because he asked her not to play with slime and she tried to run past him. On her way past him, Young said he stopped her by grabbing her arms and placed her in the chair. When asked whether he placed the marks on W.Y.'s arm he said, "not intentionally." Hanley's counsel then attempted to introduce photographs taken by the children showing the condition of Young's home; however, the court did not find them relevant to the domestic violence hearing.
The last witness called was Joyce Young, Young's mother, who was also present during the altercation between Young and W.Y. Joyce also testified that the children were being disrespectful. However, she said that Young grabbed W.Y. by the shoulders, picked her up, and put her in the chair. This testimony corroborated what the children told Hanley.
As a final note, the hearing lasted around forty minutes. The two children were present, but the court did not believe it was necessary for them to testify. On at least four occasions, the court admonished both counselors to ask relevant questions. The parties had a pending custody case and the court believed some of the questions and testimony were better suited for that proceeding. The parties did not object. Moreover, Young's counsel did not make a single objection throughout the entirety of the hearing.
Based on the testimony and the photographs of the bruise on W.Y.'s arm, the court found that domestic violence and abuse had occurred and was likely to occur again. This appeal followed.
Young states "the [c]ourt found him guilty of child abuse. [DVO]. CR 16-18, Appendix Tab 1 See also KRS 600.020(1) and (2) referring to accidental injury as excluded from definition of child abuse." This is a blatant misrepresentation of the circuit court's order. The court filled out a standard AOC order of protection form. It is clearly indicated that the protection order is a DVO. In the same heading, the applicable Kentucky Revised Statute (KRS) chapters are clearly noted. The court's findings are clearly marked on the second page of the order under "Additional Findings." The terms "child abuse" and "KRS 600.020" are not mentioned in the court's order.
It is disturbing that, despite the assistance of counsel, we must first address Young's failure to comply with Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v). The rule provides an appellate brief shall contain
[a]n "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.Young's brief fails to contain ample citations to authority regarding the legal issues raised, nor does it include a preservation statement.
We begin first with Young's failure to include ample "citations of authority pertinent to each issue of law." CR 76.12(4)(c)(v). In his brief, Young raises four issues for the court's review. For each issue, there is a substantial amount of precedent Young could have utilized to develop his "argument." Instead, Young relied upon two Kentucky cases, one of which is unpublished and is therefore only persuasive authority, and two statutes, one of which is wholly irrelevant to this case.
"Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action." CR 76.28(4)(c). While Young did include a copy of the unpublished opinion in his brief he did not even attempt a proper citation of said opinion nor did he indicate to the court the opinion was unpublished. We further stress that unpublished opinions should be cited "if there is no published opinion that would adequately address the issue." Id. Based on our independent research, we find it hard to believe there were no published opinions that could adequately address the issues presented herein.
See footnote 1, supra. --------
Moreover, Young's "argument" consists entirely of conclusory statements and a self-serving interpretation of the facts. When the cases and statutes are referenced in the body of the "argument," there are no quotations, paraphrases, or any further explanation as to how or why the authority is relevant to the issue. Furthermore, Young in no way explains to the court how the authority he cites supports his assertion the circuit court erred in its decision to grant the DVO. This is not an argument.
"It is not our function as an appellate court to research and construct a party's legal arguments." Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005). We will not search the record to construct [the appellant's] argument for him, nor will we go on a fishing expedition to find support for his underdeveloped arguments.Prescott v. Commonwealth, 572 S.W.3d 913, 923 (Ky. App. 2019).
Next, Young neglected to include "a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." CR 76.12(4)(c)(v). We have said before this requirement is not merely for judicial convenience but, "[it] help[s] assure the reviewing court that the arguments are intellectually and ethically honest." Hallis v. Hallis, 328 S.W.3d 694, 697 (Ky. App. 2010).
CR 76.12(4)(c)(iv) in providing that an appellate brief's contents must contain at the beginning of each argument a reference to the record showing whether the issue was preserved for review and in what manner emphasizes the
importance of the firmly established rule that the trial court should first be given the opportunity to rule on questions before they are available for appellate review. It is only to avert a manifest injustice that this court will entertain an argument not presented to the trial court.Mullins v. Ashland Oil, Inc., 389 S.W.3d 149, 153-54 (Ky. App. 2012) (internal quotation marks and citation omitted).
Given that Young's brief is substantially deficient, it is within our discretion to strike his brief and dismiss the appeal. Id. at 154; see also CR 76.12(8)(a). However, given the severe nature of DVOs, we instead choose to impose a lesser sanction and review for manifest injustice. Hallis, 328 S.W.3d at 696.
In the case sub judice, there was a hearing on Hanley's petition for a protective order on behalf of W.Y. and K.Y. The parties were both present and represented by counsel, and each was given the opportunity to present their case. Additionally, Hanley and Young were both sworn in as witnesses and given the opportunity to testify. Both parties had ample opportunity to present their version of the events to the circuit court. The circuit court judge was strict in his requirement that the parties keep their questions and testimony to relevant matters. Again, neither party objected.
KRS 403.740(1) states, "[f]ollowing a hearing ordered under KRS 403.730, 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[.]" "Domestic violence and abuse" is defined as "physical injury, serious physical injury, stalking, sexual abuse, strangulation, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, strangulation, or assault between family members or members of an unmarried couple[.]" KRS 403.720(1). It is clear from the hearing that the circuit court was aware of this definition and considered it in determining whether a DVO was appropriate.
Hanley testified that on the day W.Y. and K.Y. returned from visiting Young she observed "finger marks" on W.Y.'s arm. Pictures of this bruise were introduced into evidence. Young acknowledged that he could have placed the bruises on W.Y.'s arm, although "not intentionally." The bruising of W.Y.'s arm is a physical injury. Moreover, Hanley testified that this was the first time something like this had happened, but she was afraid it would happen again because she believed Young's behavior problems were escalating.
The circuit court examined the evidence and the testimony and found Hanley's argument more credible, justifying the entry of a DVO. We discern no "error that so seriously affects the fairness, integrity, or public reputation of the proceeding as to be shocking or jurisprudentially intolerable." Davidson v. Commonwealth, 548 S.W.3d 255, 261 (Ky. 2018) (internal quotation marks, brackets, and citation omitted).
For the foregoing reasons, we affirm the Hardin Circuit Court's DVO granting protection to Hanley on behalf of W.Y. and K.Y.
ALL CONCUR. BRIEF FOR APPELLANT: Jan Rochester
Magnolia, Kentucky BRIEF FOR APPELLEE: Lori A. Kinkead
Elizabethtown, Kentucky