Opinion
NO. 2019-CA-000938-ME
02-14-2020
DARIAN CLAY APPELLANT v. MARICARMEN RIVERA APPELLEE
BRIEFS FOR APPELLANT: Darian R. Clay, pro se Louisville, Kentucky BRIEF FOR APPELLEE: Ben Wyman Carrollton, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 17-D-00035-002 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON AND L. THOMPSON, JUDGES. THOMPSON, L., JUDGE: Darian R. Clay ("Father"), pro se, appeals from a domestic violence order ("DVO") entered by the Oldham Circuit Court on May 17, 2019. He argues that venue and jurisdiction over the matter should have been exercised in Jefferson Circuit Court rather than Oldham Circuit Court, that no reliable evidence was offered in support of the DVO, and that the DVO infringed his parental rights. For the reasons addressed below, we find no error and AFFIRM the order on appeal.
FACTS
On May 1, 2019, the Oldham Circuit Court rendered an amended emergency protective order ("EPO") barring Father from any contact with his minor child "H.C." (hereinafter "Child"). The EPO was based on an allegation of Child's biological mother, Maricarmen Rivera ("Mother"), that Child had bruises and was acting withdrawn after having been in Father's care. Mother had noticed the bruising on Child's bottom, and took her to a pediatrician who alerted Child Protective Services of possible abuse. Mother stated that when she asked Father about the bruises, he indicated that he had "whooped her" because she had broken a karaoke machine.
Because H.C. is a minor, we will use her initials only.
On May 17, 2019, the Oldham Circuit Court entered a DVO which forms the basis of the instant appeal. Via the DVO, the circuit court ordered Father not to have any contact with Child other than supervised, scheduled visitation. The DVO had a term of one year. Father now appeals from the DVO.
ARGUMENTS AND ANALYSIS
Father first argues that the Oldham Circuit Court did not have jurisdiction to consider Mother's DVO petition, and that venue in Oldham County was otherwise improper. He contends that the matter should have been transferred to Jefferson Circuit Court, because the parties' custody and visitation matters were under consideration or had been under consideration by the Jefferson Circuit Court. After directing our attention to Section 112 of the Kentucky Constitution and Kentucky Revised Statutes ("KRS") 23A.100, Father argues that the Jefferson Circuit Court is a court of general jurisdiction that could properly consider the DVO petition. Citing KRS 403.725, Father acknowledges that Mother may properly file an EPO/DVO petition in the county where she resides. He asserts, however, that the DVO entered in Oldham County should not take precedence over any custody action in Jefferson County whether established or pending. He seeks an opinion dismissing the DVO and reinstituting custody and visitation rights established by the Jefferson Circuit Court.
We must note that Father has not complied with CR 76.12(4)(c)(v), which requires the appellant to state at the beginning of the written argument if the issue was preserved and, if so, in what manner. We are not required to consider portions of the appellant's brief not in conformity with CR 76.12, and may summarily affirm the trial court on the issues contained therein. Skaggs v. Assad, By and Through Assad, 712 S.W.2d 947 (Ky. 1986). As the deficiency does not affect the outcome of the appeal, we have chosen to ignore the deficiency and consider the raised issues. --------
KRS 403.725 states,
(1) A petition for an order of protection may be filed by:
(a) A victim of domestic violence and abuse; or
(b) An adult on behalf of a victim who is a minor otherwise qualifying for relief under this subsection.
(2) The petition may be filed in the victim's county of residence or a county where the victim has fled to escape domestic violence and abuse.
. . . .
(6)(a) Jurisdiction over petitions filed under this chapter shall be concurrent between the District Court and Circuit Court and a petition may be filed by a petitioner in either court, except that a petition shall be filed in a family court if one has been established in the county where the petition is filed.
. . . .
(c) The Court of Justice may authorize by rule that petitions in a specific county be filed in accordance with a supplemental jurisdictional protocol adopted for that county. This protocol may provide for petitions to be filed in or transferred to a court other than those specified in paragraph (a) of this subsection.
In Holt v. Holt, 458 S.W.3d 806 (Ky. App. 2015), a panel of this Court considered venue and jurisdiction in the context of DVO petitions. It stated that:
Having reviewed the statute, we conclude that KRS 403.725(1), (4) and (7) make clear that venue is appropriate both in the county where the victim resides (or has fled to) and any county circuit court where ongoing dissolution proceedings involving the same parties are pending.Id. at 811.
In Holt, the panel also determined that venue is proper in both the county of residence and the county where any dissolution or custody proceedings are pending. Said the Court,
James, a resident of Nelson County, filed his petition for a DVO in Nelson County. This was proper under KRS 403.725(1). Since there was an on-going dissolution action pending before the Bullitt Family Court, however, venue was also appropriate in that court.Id. at 812 (footnote and citation omitted).
In the matter at bar, Mother could properly file her petition in her county of residence, Oldham County, or the county of any pending dissolution proceeding. Mother and Father are not married, and no dissolution action was pending in Jefferson Circuit Court. Even if venue was proper in Jefferson Circuit Court based on the adjudication of ongoing custody matters—which Father has not shown—venue would have been proper in either Oldham or Jefferson Circuit Court. Father has not demonstrated that Oldham Circuit Court was an improper venue, and we find no error on this issue.
As for whether jurisdiction was properly exercised,
The concepts of venue and jurisdiction are commonly confused with one another. "[T]here are fundamental distinctions between the concepts of jurisdiction and venue, the former relating to the power of courts to adjudicate and the latter relating to the proper place for the claim to be heard." Baze v. Commonwealth, 276 S.W.3d 761, 766 (Ky. 2008) (quoting Stipp v. St. Charles, 291 S.W.3d 720, 724 (Ky. App. 2009)). "While
the concept of venue is important, it does not reach the fundamental level of jurisdiction, a concept whereby the authority of the court to act is at issue." Fritsch v. Caudill, 146 S.W.3d 926, 927 (Ky. 2004).Holt, 458 S.W.3d at 810. As there is one circuit court for the entire state, with all its judges having equal power to act throughout the Commonwealth, Oldham Circuit Court properly exercised jurisdiction over the DVO petition.
"[S]ubject-matter jurisdiction relates to a court's ability to hear a particular kind of case, not [a] particular case." Davis v. Wingate, 437 S.W.3d 720, 726 (Ky. 2014). It is likewise important to recognize that a circuit court's power to act is not constrained by territorial limitations. Winstead v. Commonwealth, 327 S.W.3d 386, 410 (Ky. 2010). "[T]here is one circuit court for the entire state, and all of its judges are members of the same court with equal power to act throughout the Commonwealth." Id.
Father next argues that Mother offered no substantial or reliable evidence to satisfy the burden of proving that domestic violence had occurred or was likely to occur. Citing Kentucky Rules of Evidence ("KRE") 803, he asserts that Mother's allegations were mere hearsay. He also claims that, being motivated to keep Child away from Father, Mother could coerce Child into saying anything. Finally, he argues that Mother's claims were otherwise unreliable. Father argues that he administered proper corporal punishment, which was not excessive or unreasonable, and that Child was given alternatives to her punishment. In sum, Father argues that Mother failed to sustain her burden of proof, and that the circuit court erred in failing to so rule.
A court may grant a DVO, following a full hearing, "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' means 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 . . . members of an unmarried couple[.]" KRS 403.720(1). To satisfy the preponderance standard, the evidence believed by the fact-finder must show that the victim "was more likely than not to have been a victim of domestic violence." Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996). "On appeal, we are mindful of the trial court's opportunity to assess the credibility of the witnesses, and we will only disturb the lower court's finding of domestic violence if it was clearly erroneous." Buddenberg v. Buddenberg, 304 S.W.3d 717, 720 (Ky. App. 2010).Hohman v. Dery, 371 S.W.3d 780, 782 (Ky. App. 2012).
Having closely examined the record, we conclude that the Oldham Circuit Court's finding of domestic violence was not clearly erroneous. Proof in support of the DVO was adduced in the form of testimony that Father struck Child; of photographs of the bruising taken the day of and the day after the incident; that the "whooping" was intense enough to cause pain; and that Father grabbed Child by the collar while striking her. While we do not assess the credibility of the witnesses, we do conclude that the evidence was sufficient to support the circuit court's conclusion. We find no error.
Lastly, Father argues that the circuit court's ruling abrogates his "constitutional liberty of parental privilege." Father contends that parental privilege, like self-defense, is a complete defense to the claim of domestic violence. Father cites federal case law which he claims supports the proposition that parents have a fundamental right to direct the education and upbringing of their children, including the use of reasonable or moderate physical force to control behavior. While acknowledging the Commonwealth's interest in preventing and deterring the mistreatment of children, Father maintains that the facts do not support the DVO, and the issuance of the DVO is violative of his reasonable right to discipline his child.
We do not find this argument persuasive. The distinction between a parental right to exercise reasonable control of his child, and violence sufficient to support a DVO, is addressed in KRS 403.750(1). Again, the circuit court examines the facts to determine if from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur. As noted above, the evidence supports the DVO, and we do not conclude that the finding of domestic violence runs afoul of Father's right to exercise reasonable control over Child. We find no error.
CONCLUSION
The Oldham Circuit Court was a correct venue for the DVO petition, and the court properly exercised jurisdiction. Based on the totality of the evidence, the court's finding was not clearly erroneous. Lastly, we do not conclude that the DVO improperly infringed upon Father's parental rights. For these reasons, we AFFIRM the May 17, 2019 domestic violence order of the Oldham Circuit Court.
CLAYTON, CHIEF JUDGE, CONCURS.
THOMPSON, K., JUDGE, DISSENTS. BRIEFS FOR APPELLANT: Darian R. Clay, pro se
Louisville, Kentucky BRIEF FOR APPELLEE: Ben Wyman
Carrollton, Kentucky