Opinion
NO. 2015-CA-000959-ME
01-20-2017
KRISTIE BAILEY APPELLANT v. CHRIS EHRLER APPELLEE
BRIEF FOR APPELLANT: Eric E. Ashley Louisville, Kentucky BRIEF FOR APPELLEE: David B. Mour Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANGELA J. JOHNSON, JUDGE
ACTION NO. 15-D-500815-001 OPINION
AFFIRMING
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BEFORE: ACREE, J. LAMBERT AND THOMPSON, JUDGES. ACREE, JUDGE: Kristie Bailey appeals the April 20, 2015 Domestic Violence Order (DVO) of the Jefferson Family Court entered against her on behalf of Chris Ehrler. After review, we affirm.
The relationship between Kristie Bailey and Chris Ehrler began in November 2013. Bailey moved into Ehrler's home in July 2014. By November 2014, their relationship was deteriorating.
Ehrler maintained that prior to his petition he had asked Bailey to vacate the residence countless times, even offering her financial assistance to leave. The incident leading to Ehrler filing a petition for a DVO occurred on April 7, 2015, at his home. He stated he had been locking his bedroom door to keep her out and avoid any arguments, but she always managed to get in his room in the middle of the night. On the day of the incident, Ehrler stated that he had gone to Home Depot and bought stronger locks to put on his doors. Bailey arrived at his home around midnight trying to get in his room. She told him that if he did not open the door, he would be sorry. Bailey proceeded to kick in the door. She confronted Ehrler and told him she wanted to know why he was locking her out when she only wanted to talk. Ehrler stated that he needed to get some sleep because he had to work the next day. He tried to leave the house to get a hotel room, but Bailey had blocked his car in so he was unable to leave. He then went back inside the house and replaced one of the locks on the basement door to keep Bailey out. Ehrler stated she attempted to get inside for another hour before she finally gave up and left. He stated he had to put his shoulder to the door to prevent her from kicking it in again.
At the hearing on his DVO petition, Ehrler further stated that on one occasion about one week prior to the above incident, Bailey had broken into his room and attempted to put her finger in his anus to get Ehrler to wake up and talk to her. Ehrler said Bailey would get physical with him and scratch his arms when she would try to take his phone away from him. He had concerns that she had hacked into his phone, email account, Facebook account, and computer and was tracking his location. Ehrler stated that she would show up randomly wherever he might be when he was not expecting her to be there. Ehrler testified that he felt as though he were a prisoner in his own home and he was even becoming fearful of staying there because she would always get inside. He recounted an incident when, armed with mace, he hid from Bailey in a closet in his home. When she found him, he lied and told her he thought he heard an intruder.
The day following Ehrler's petition, Bailey filed her own petition for a DVO. Bailey alleged Ehrler was physically, emotionally, and verbally abusive on a regular basis. She stated he has spit in her face, shoved her, and pushed her down. She claimed that Ehrler takes money from her and uses it for drugs and alcohol. Bailey stated he has threatened her with mace. She claimed to have been to the Emergency Room on two occasions because of physical abuse by Ehrler. Bailey stated she did not have access to her belongings inside his house.
Both petitions were heard on April 20, 2015. Ehrler and Bailey each presented evidence and testified to the events of April 7, 2015, and the allegations of their petitions. The family court granted Ehrler's petition and entered a DVO against Bailey. Bailey's petition was denied. Bailey then filed a motion to reconsider wherein she claimed the court did not have important evidence before it at the hearing. She attached medical records, photographs, and police reports to her motion. The family court denied the motion. This appeal followed.
Our review of a family 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) (citation omitted). Findings of fact will not be set aside unless they are clearly erroneous, that is, unsupported by substantial evidence. Kentucky Rules of Civil Procedure (CR) 52.01; Moore v. Asente, 110 S.W.3d 336 (Ky. 2003). "[F]indings of fact are clearly erroneous only if they are manifestly against the weight of the evidence." Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008) (citation omitted). An abuse of discretion occurs only where the court's decision is "unreasonable, unfair, arbitrary or capricious." Caudill v. Caudill, 318 S.W.3d 112, 115 (Ky. App. 2010).
Bailey argues to this Court that there was not sufficient evidence to issue the DVO against her as the parties presented conflicting accounts of their interactions.
Domestic violence is governed by Kentucky Revised Statutes (KRS) Chapter 403, which defines "[d]omestic violence and abuse" 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 or members of an unmarried couple." KRS 403.720(1). A DVO is appropriate if the family court "finds from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur." KRS 403.750(1). The preponderance standard is satisfied upon sufficient evidence establishing "that the alleged victim was more likely than not to have been a victim of domestic violence." Buddenberg v. Buddenberg, 304 S.W.3d 717, 720 (Ky. App. 2010) (citation omitted).
We cannot say the family court erred in finding Ehrler was more likely than not a victim of domestic violence. He testified that Bailey refused to vacate his property after asking her to do so numerous times. She continued to forcibly enter Ehrler's home late at night uninvited, and she had threatened him when he had managed to keep her out. He testified to hiding from her in his own home and stated he was becoming fearful of staying at his home because Bailey always seemed to gain access. Their physical confrontations appeared to be escalating.
The family court chose to believe this evidence presented by Ehrler. The fact that Bailey offered contrary evidence, which the court did not find to be credible, is insufficient to reverse the family court's decision. Because the family court is in the position to best judge the credibility of the evidence, we will not substitute our opinion for that of the trial court with regard to the weight given to certain evidence, including the testimony of witnesses. CR 52.01; B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005). Based on the evidence presented, it was reasonable for the family court to conclude that Ehrler was more likely than not a victim of domestic violence. Accordingly, we find no error.
For these reasons, we affirm the April 20, 2015 DVO entered by the Jefferson Family Court against Bailey.
ALL CONCUR. BRIEF FOR APPELLANT: Eric E. Ashley
Louisville, Kentucky BRIEF FOR APPELLEE: David B. Mour
Louisville, Kentucky