Opinion
NO. 2019-CA-001447-ME
06-19-2020
ARLIE CLEARY APPELLANT v. JESSICA RAE BOGAN APPELLEE
BRIEF FOR APPELLANT: Mary Catherine Brashear Caleb T. Bland Elizabethtown, Kentucky NO BRIEF FOR APPELLEE
NOT TO BE PUBLISHED APPEAL FROM HARDIN FAMILY COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 19-D-00443-001 OPINION
VACATING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES. MAZE, JUDGE: Arlie Cleary (Cleary) appeals from a domestic violence order (DVO) entered by the Hardin Family Court on behalf of Jessica Bogan (Bogan) and her minor children, J.B., L.B., and K.B. We agree with Cleary that the family court clearly erred by considering Bogan's hearsay testimony and that there was no other substantial evidence supporting entry of the DVO. Hence, we vacate the DVO and remand with directions to dismiss the petition.
On August 6, 2019, Bogan filed a petition for an order of protection on behalf of herself and her minor children. In her petition, Bogan alleged that Cleary, who is her grandfather and the children's great-grandfather, had inappropriate contact with seven-year-old J.B. Based on the allegations in the petition, the family court granted the emergency protective order (EPO) and scheduled the matter for a hearing.
The family court conducted that hearing on August 19, 2019. Bogan testified that Cleary visited her house on August 2 to deliver a birthday card for J.B. Bogan stated that she then walked outside to speak with her grandmother, leaving the three children with Cleary. After Bogan returned, the children said goodbye to Cleary and he left. J.B. looked up at Bogan and said, "Papaw gave me lots of kisses today."
Bogan then asked J.B., "How did Pawpaw kiss you today?" J.B. initially did not want to answer. But sometime later and after further questioning by Bogan, J.B. stuck her tongue in and out of her mouth. Bogan asked J.B. if Cleary had put his tongue in her mouth and J.B. said yes. Bogan also asked J.B. if this was the first time he had done this, and J.B. answered no. J.B. added that Cleary did the same thing the last time he was at their house. Bogan testified that Cleary had done this to her when she was a child. Based on this information, Bogan contacted the police and filed the petition.
J.B. did not testify at the hearing and Cleary's counsel objected to the admission of the hearsay statements. The family court indicated that it was not going to consider the hearsay as truth of the matter asserted but only as it related to J.B.'s state of mind. However, no additional evidence was presented, and the family court granted the DVO. Cleary now appeals.
Cleary primarily challenges the sufficiency of the evidence supporting entry of the DVO. KRS 403.740(1) provides that "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 . . . ." The preponderance of the evidence standard is met when sufficient evidence establishes that the alleged 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). KRS 403.720(1) defines "[d]omestic violence and abuse" 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[.]" As an appellate court, we review the family court's issuance of a DVO to determine "whether the court's findings were clearly erroneous or . . . it abused its discretion." Holt v. Holt, 458 S.W.3d 806, 812 (Ky. App. 2015). In making this determination, we must be mindful of the family court's opportunity to assess the credibility of the witnesses. CR 52.01. However, this Court will engage in a de novo review with regard to the family court's application of law to those facts. Buddenberg v. Buddenberg, 304 S.W.3d 717, 720 (Ky. App. 2010).
Kentucky Revised Statutes.
Kentucky Rules of Civil Procedure.
Cleary focuses on the family court's reliance on hearsay evidence in granting the DVO. A DVO petition is subject to the same evidentiary standards as other forms of evidence. Rankin v. Criswell, 277 S.W.3d 621, 625 (Ky. App. 2008). Therefore, unless an exception applies, hearsay cannot be considered as evidence. Id. In the current case, the family court relied entirely on Bogan's hearsay testimony relating J.B.'s statements. Bogan did not bring J.B. to the hearing, and there was no inquiry whether she would have been competent to testify under KRE 601.
Kentucky Rules of Evidence.
As noted, the family court indicated that it intended to consider those statements only as it related to J.B.'s then-existing state of mind. See KRE 803. But in the absence of any other evidence of Cleary's actions while Bogan was out of the room, it is clear that the family court considered Bogan's testimony for the proof of the matters asserted. We must conclude that the hearsay testimony was improperly admitted for this purpose.
Since no other evidence regarding Cleary's conduct was introduced, we also conclude that the family court's entry of the DVO was not supported by any admissible evidence. Furthermore, mere unwanted touching does not satisfy the definition of domestic violence and abuse as stated in KRS 403.720(1). Caudill v. Caudill, 318 S.W.3d 112, 115 (Ky. App. 2010). Thus, Bogan's testimony, even if admissible, would not have supported entry of a DVO in this case.
In reaching this conclusion, we in no way express approval of Cleary's alleged conduct. If true, his actions represent a serious crossing of boundaries with the child. Having said this, a family court should not lightly enter a DVO against the weight of the evidence or merely out of caution. Buddenberg, 304 S.W.3d at 721 (citing Wright v. Wright, 181 S.W.3d 49, 52-53 (Ky. App. 2005)). Without admissible evidence which would support the statutory factors under KRS 403.740(1), we must conclude that that the family court erred by granting the DVO in this case.
We would also point out that Cleary, as the child's great-grandfather, has no statutory or common-law right to visit J.B. or any of the other children. Rather, any future visitation is entirely at the discretion of the parents. --------
Accordingly, we vacate the DVO entered by the Hardin Family Court and remand for dismissal of the petition.
ALL CONCUR. BRIEF FOR APPELLANT: Mary Catherine Brashear
Caleb T. Bland
Elizabethtown, Kentucky NO BRIEF FOR APPELLEE