Opinion
NO. 2010-CA-000807-ME
11-09-2012
TIMOTHY J. BOWMAN APPELLANT v. RITA C. BOWMAN APPELLEE
BRIEF FOR APPELLANT: Kevan Morgan Georgetown, Kentucky BRIEF FOR APPELLEE: NO BRIEF FILED
NOT TO BE PUBLISHED
APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE TAMRA GORMLEY, JUDGE
ACTION NO. 92-D-00089
OPINION
AFFIRMING
BEFORE: CLAYTON AND TAYLOR, JUDGES; LAMBERT, SENIOR JUDGE. LAMBERT, SENIOR JUDGE: Timothy J. Bowman appeals from a domestic violence order (DVO) entered against him by the Scott Circuit Court, Family Division. Because the family court did not commit clear error or abuse its discretion in entering the DVO, we affirm.
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580. Senior Judge Lambert authored this opinion prior to the completion of his senior judge service effective November 2, 2012. Release of the opinion was delayed by administrative handling.
Appellant and Appellee were married for nearly thirty years before separating in January 2009. On February 3, 2010, Appellee filed a domestic violence petition seeking an emergency protective order (EPO) against Appellant. At the time Appellee filed her petition, the parties had a marital dissolution action pending in Fayette Circuit Court. As grounds for an EPO, Appellee alleged the following:
In the past, due to not taking proper meds for PTSD [Appellant has been known] to become violent, threaten others and myself, be physically aggressive and threaten to harm himself. I have copies of those threats if needed. I fear the next episode of violence against me and my family. I fear that I may not be able to defend myself against him and I fear for my life when he comes upon the property where I reside as I know from the past that he can snap at any time due to the PTSD. [Appellant] is saying that he will see that I get what I deserve, that he realizes that his violence perhaps caused my heart attack and other illness and that it is his nature to get even. He sends CDs of music that he wants played at his funeral. He says he wants others to hurt as he hurts. Says he never meant to hurt me in the past. He just meant to piss me off. He says he will see [his granddaughter] if it means going to jail because he was on someone's property uninvited. He has barged in on family game night and threw letters on the bar in front of family. He stalks and harasses and I am afraid.An EPO was entered, and a domestic violence hearing was held on April 7, 2010.
Post-traumatic stress disorder.
At the hearing, the family court heard testimony from Appellant, Appellee, and Appellant's sister, Lois Newman. In addition to reasserting the allegations set forth in her petition, Appellee testified that Appellant had sent her threatening letters since the parties' separation and had come around the marital residence without permission. She also indicated that Appellant had been physically violent towards her in the past - specifically on two occasions during the 1980s - and that these incidents caused her to fear for her safety. Appellee affirmed that she remained in fear of Appellant at the present time.
Appellee alleged that on one of these occasions, Appellant's actions caused her to break a hand and a foot. According to Appellee, Appellant grabbed her by the hair while the two were sitting in a car and tried to force her into shooting him with a pistol.
The family court judge then asked Appellee about medications for PTSD that Appellant was allegedly taking and whether she believed that he had been abusing those medications. Appellee testified that she believed Appellant may have abused prescription pain medication when he injured his back, but she acknowledged that she had no personal knowledge of his use of medication during the previous fourteen months. Appellee noted that Appellant was more prone to violence when he was not taking his medications.
Appellee further testified that she filed the domestic violence petition after receiving a text message from Appellant that made her fear for her life and the life of her daughter. Although Appellee could not remember the exact language of the text message, she testified that Appellant informed her that he would do anything to see his granddaughter - even risk going to jail. Appellee indicated that this message was "extremely frightening" to her because she feared that she could be put in harm's way and that Appellant could even resort to coming into her house and kidnapping the granddaughter. Appellee further testified that about a week before receiving this text, Appellant had left compact discs (CDs) on her vehicle containing music Appellant wanted played at his funeral. Appellee indicated that this also made her fear for her safety and that she would not have sought an EPO if she had lacked this concern.
Appellee additionally testified that Appellant had verbally threatened her over the phone six months earlier and that he had told her on another occasion that he would see her one more time and she would get what she deserved. She then referred to a letter Appellant had sent her nearly nine months prior to the filing of the EPO in which Appellant warned her that if anything bad happened to the granddaughter "that involves booze because you did not do what I asked you to, I will hold you responsible. You can take that to the bank. You will hear from me." When Appellee was asked if this letter was written out of concern for the granddaughter possibly being around people who were drinking and if it was asking her to take action because of that concern, Appellee acknowledged that this was the case. She also noted that things had been "quiet and calm" since the EPO had been issued and that she had had no problems with Appellant since then.
Appellant testified next and denied all of Appellee's allegations of past violence during their marriage. When asked about the text message, Appellant testified that while the message indicated that he was willing to see his granddaughter even if it meant he would go to jail, Appellee took it out of context. Appellant noted that he sent the message because he had been invited to see his granddaughter but believed the invitation was a trap designed to have him arrested under false pretenses. He ultimately did not visit the granddaughter out of fear of being arrested. Appellant's sister also testified and indicated that Appellee had never told her that Appellant had hit her or otherwise gotten physical with her during the parties' marriage.
Following the hearing, the family court judge found that Appellee had met her burden of proof and consequently issued a DVO restraining Appellant from any contact or communication with Appellee for three years. The DVO further provided that Appellant was to remain at all times and places at least 1,000 feet away from Appellee, with the only exception to this order being those occasions on which the parties were required to be near each other due to legal proceedings.
Although the court did not enter a formal order setting forth findings of fact and conclusions of law, the court's docket sheet from the hearing contains what appear to be findings in support of its decision. The docket sheet notes that the parties were married for thirty years and had been separated for fifteen months. Somewhere around the end of January 2010 or the beginning of February 2010, Appellant sent a text message to Appellee and left compact discs on her car that contained "songs for his funeral." The docket sheet further provides that Appellant admitted texting a message to Appellee indicating that he would risk "going to jail" in order to see his stepgranddaughter and that he testified that he was "'willing to take [the] chance' of being set up" in order to do so. The docket sheet also sets forth Appellant's belief that Appellee "takes things out of context" and had attempted to "trap" him in the past and that he "feared they would arrest him for something."
On appeal, Appellant argues that Appellee failed to present sufficient evidence to support the issuance of a DVO. A trial court may enter a DVO after an evidentiary hearing only "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[.]" KRS 403.750(1). "Domestic violence and abuse" is defined as "physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminentphysical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple[.]" KRS 403.720(1). In order for the preponderance-of-the-evidence standard to be met, "the evidence must establish that the alleged victim was more likely than not to have been a victim of domestic violence" as defined by KRS Chapter 403. Rankin v. Criswell, 277 S.W.3d 621, 624 (Ky. App. 2008); see also Wright v. Wright, 181 S.W.3d 49, 52 (Ky. App. 2005).
"For purposes of KRS 403.720, the term '"[i]mminent" means impending danger, and, in the context of domestic violence and abuse ...[,] belief that danger is imminent can be inferred from a past pattern of repeated serious abuse.'" Fraley v. Rice-Fraley, 313 S.W.3d 635, 640 (Ky. App. 2010), quoting KRS 503.010(3).
The gravity of a domestic violence petition and the ultimate decision to grant or deny such a DVO are well-established:
If granted, it may afford the victim protection from physical, emotional, and psychological injury, as well as from sexual abuse or even death. It may further provideWright, 181 S.W.3d at 52. In light of these potentially severe consequences, a DVO can be entered only following a full evidentiary hearing and "after the court finds that there is an immediate and present danger of domestic violence[.]" Rankin, 277 S.W.3d at 626. Ultimately, we may reverse a family court's entry of a DVO only if the findings of fact supporting it are clearly erroneous or if the court otherwise abused its discretion in reaching its decision. See Gomez v. Gomez, 254 S.W.3d 838, 842 (Ky. App. 2008). The fact that this Court may have decided the case differently is of no consequence. Id.
the victim an opportunity to move forward in establishing a new life away from an abusive relationship. In many cases, it provides a victim with a court order determining custody, visitation and child support, which he or she might not otherwise be able to obtain. The full impact of EPOs and DVOs are not always immediately seen, but the protection and hope they provide can have lasting effects on the victim and his or her family.
On the other hand, the impact of having an EPO or DVO entered improperly, hastily, or without a valid basis can have a devastating effect on the alleged perpetrator. To have the legal system manipulated in order to "win" the first battle of a divorce, custody, or criminal proceeding, or in order to get "one-up" on the other party is just as offensive as domestic violence itself. From the prospect of an individual improperly accused of such behavior, the fairness, justice, impartiality, and equality promised by our judicial system is destroyed. In addition, there are severe consequences, such as the immediate loss of one's children, home, financial resources, employment, and dignity. Further, one becomes subject to immediate arrest, imprisonment, and incarceration for up to one year for the violation of a court order, no matter what the situation or circumstances might be.
"A finding supported by substantial evidence is not clearly erroneous." Hunter v. Mena, 302 S.W.3d 93, 97 (Ky. App. 2010). Substantial evidence is "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." Bowling v. Natural Res. and Envtl. Prot. Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994).
"The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
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Applying this standard, we conclude that the family court's decision to enter a DVO against Appellant was not clearly erroneous or an abuse of discretion. In reaching this decision, we believe that the question is a close one, but given the deference afforded to family courts in such matters, we are compelled to uphold the court's determination.
As is generally the case, the family court was presented with somewhat differing accounts of what occurred, so the court's decision hinged in large part on its assessment of the credibility of the witnesses and the weight to be afforded their testimony. Issues of weight and credibility rest firmly in the hands of the trier of fact. See Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996); S.D.O. v. Commonwealth, 255 S.W.3d 517, 521 (Ky. App. 2008). As noted by the family court, Appellant sent a text message to Appellee indicating that he would do anything - including risk imprisonment - to see his granddaughter, and he left compact discs on Appellee's car containing "songs for his funeral." Moreover, Appellee testified that Appellant had been physically violent with her during the parties' marriage and had verbally threatened her over the phone. These events led Appellee to fear for her safety. While Appellant presented conflicting testimony, given the evidence before the family court, we cannot conclude that its finding that the elements of KRS 403.750 had been satisfied was clearly erroneous or that its decision constituted an abuse of discretion.
Appellant also complains that the family court failed to make adequate findings of fact in support of its decision. However, since this alleged failure was not first brought to the trial court's attention, the issue is waived. See Kentucky Rules of Civil Procedure (CR) 52.02; CR 52.04; Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
Appellant finally argues that the family court erroneously allowed Appellee to present hearsay testimony concerning what sheriff's deputies had told her about Appellant some time before the EPO was issued. While the admission of this testimony was questionable, we ultimately believe that any error in this regard was harmless. According to Appellee, the deputies merely told her that Appellant had been "walking in a straight line" and "covering his tracks" in order to avoid an EPO. We fail to see how this evidence was overly prejudicial. Indeed, the family court failed to even reference it in its findings of fact. Consequently, we do not believe that reversible error occurred with respect to the admission of this testimony.
For the foregoing reasons, the decision of the Scott Circuit Court, Family Division, is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Kevan Morgan
Georgetown, Kentucky
BRIEF FOR APPELLEE: NO BRIEF FILED