Opinion
NO. 2014-CA-001604-ME
05-22-2015
JASON D. CAMPBELL APPELLANT v. AMBER B. CAMPBELL APPELLEE
BRIEF FOR APPELLANT: Lawrence R. Webster Pikeville, Kentucky BRIEF FOR APPELLEE: Tammy C. Skeens Pikeville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PIKE FAMILY COURT
HONORABLE LARRY E. THOMPSON, JUDGE
ACTION NO. 12-D-00210
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND STUMBO, JUDGES. ACREE, CHIEF JUDGE: Jason Campbell appeals from the September 15, 2014 Domestic Violence Order ("DVO") of the Pike Family Court entered against him in favor of his ex-wife, Amber Campbell. We affirm.
On September 6, 2014, Amber filed a domestic-violence petition against Jason, and a hearing was held. This was the fifth request in a long line of successive petitions, but only the first to be fully addressed by the court. Amber and Jason recently divorced and, in July 2014, Amber and her four children, two of which are Jason's issue, relocated to a new residence.
Amber agreeably dismissed the preceding four petitions, the first of which was filed in 2012. The parties expend considerable effort re-hashing the testimony offered during a March 17, 2014 hearing related to the fourth petition. Our review of the record reveals that the March 17, 2014 hearing was not made part of this record. Kentucky Rules of Civil Procedure (CR) 75.07(5). We decline to consider that evidence. In any event, it is particularly unhelpful to the issue now before us.
Amber acknowledged giving Jason the key code to the back door of her new home because he had helped the family move.
Amber testified that Jason repeatedly contacted her by telephone and text message, came to her home without invitation four times in a span of two weeks, and blatantly ignored Amber's repeated requests that he leave her property.
Jason painted an entirely different picture. He testified the parties, though freshly divorced, were contemplating reconciliation. They had been on good terms as of late and recently intimate. Jason claimed Amber came to his residence three days in a row during the first week of September 2014.
Amber testified she was afraid of Jason. She claimed he had: put holes in the walls; dragged her by her feet; and strangled her to the point of unconsciousness. She did not deny having had intercourse with Jason; however, she claimed submitting to his sexual advances was the only way she could assure herself that he would leave her home without engaging in violence. Without conceding to the specific acts described by Amber, Jason admitted to a history of domestic conflict, including his own violent acts.
On the night of September 5, 2014, Amber and all four children were leaving to visit a relative when Jason arrived. He blocked Amber's car with his and initiated a heated conversation with Amber. He engaged in a verbal altercation with Amber's oldest child, C.G. (Jason's minor step-son), resulting in Jason's taunting C.G. to hit him with a bat. Jason refused to leave and let her pass despite Amber's repeated demands. Amber testified Jason's prior acts of violence caused her to fear for her life.
Following the verbal altercation, C.G. went into the house, retrieved a baseball bat, and told Jason to leave. Jason and Amber both testified that Jason bent over, offered his head to C.G., and told C.G. to hit him.
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C.G. echoed Amber's fears. C.G. testified that when Jason advanced toward Amber, C.G. thought Jason was going to assault her, reiterating that Jason had done so before. Jason's other step-son described him as unpredictable. Jason's own daughter testified that the incident caused her to have a panic attack and stated she is "really scared of her dad" because of "things he has done over the years." And, Jason's own son testified that Jason "walked up like he was going to hurt us." C.G. eventually called the police and Jason left before they arrived.
According to Jason, Amber told him to come back later that evening; Amber denied doing so. In any event, later that night at approximately 11:00 p.m. and unknown to the occupants, Jason entered Amber's residence. The parties' son, who was watching television when Jason arrived, ran upstairs and called 911. The police responded. Upon arrival, two officers observed Jason leaning calmly against the doorway. They asked him to leave, and he did. The officers also made contact with Amber. One officer testified Amber began crying as soon as she opened the door. The other officer described Amber as agitated and anxious; Amber told this officer that she feared Jason.
At the close of the hearing, the family court entered a DVO against Jason, finding an act of domestic violence or abuse had occurred and may occur again. This appeal followed.
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)(emphasis added). A DVO is appropriate if the trial 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." Baird v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007) (citation omitted).
Our review of the trial court's decision to issue a DVO is limited to "whether the findings of the trial court were clearly erroneous or that it abused its discretion." Guenther v. Guenther, 379 S.W.3d 796, 802 (Ky. App. 2012). We will not set aside the trial court's factual findings 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, 354 (Ky. 2003). Substantial evidence is evidence of "sufficient probative value [as] to induce conviction" in the mind of a reasonable person. Moore, 110 S.W.3d at 354. Because the trial court is in the best position to 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). 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).
Jason contends that fear of imminent physical injury or assault between family members, by itself, is insufficient grounds to issue a DVO absent proof that the person against whom that order was entered inflicted such fear. There is no evidence in this record, Jason argues, that the fear experienced by Amber was inflicted by him. Citing case law from outside jurisdictions, Jason also argues that the DVO cannot stand because the family court made no finding that the Amber's fear was objectively reasonable. We are not persuaded.
The parties' relationship was tainted by violence, anger, and volatility. At the hearing, Amber portrayed recent acts of legally unacceptable violence perpetrated by Jason. These past acts of intimidation and aggression caused Amber to fear for her life on the evening of September 5, 2014. With emotions running high, Jason blocked Amber's car, engaged in a heated discussion with her, taunted Amber's oldest son in a manner unbecoming a father, and again refused to leave despite Amber's insistence that he do so. Amber perceived Jason as physically threatening. All of his children, biological children and step-children alike, testified that they thought Jason meant to cause them and Amber harm. Jason then entered Amber's residence later that night, well after dark, at which point he scared Amber and his own child to such a degree that the child believed it prudent to call 911. Amber plainly stated - both to the officers on the night of September 5th and during the hearing before the family court - that she feared Jason and was nervous when he was present due to his intimidating demeanor and prior violent conduct. The family court chose to believe the evidence presented by Amber.
We are aware that Jason offered opposing evidence and so was the family court. But conflicting evidence is an insufficient basis upon which to reverse the family court's finding. It is within the family court's province to believe whom it wishes. CR 52.01; B.C., 182 S.W.3d at 213.
We are cognizant of the significant impact a DVO has on the parties involved, Wright v. Wright, 181 S.W.3d 49, 52 (Ky. App. 2005), and although "domestic violence statutes should be construed liberally," they should not be interpreted unreasonably. Barnett v. Wiley, 103 S.W.3d 17, 19 (Ky. 2003). Based on the evidence presented, it was reasonable for the circuit court to conclude that the parties' history of past violence and Jason's refusal to vacate Amber's property after being asked to do so time after time, coupled with his uninvited entry into Amber's residence, at night, inflicted upon Amber a reasonable fear of imminent physical injury or assault. We cannot say that the family court erred in finding that Amber was more likely than not a victim of domestic violence.
For the foregoing reasons, we affirm the September 15, 2014 DVO entered by the Pike Family Court.
ALL CONCUR. BRIEF FOR APPELLANT: Lawrence R. Webster
Pikeville, Kentucky
BRIEF FOR APPELLEE: Tammy C. Skeens
Pikeville, Kentucky