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Day v. Day

Commonwealth of Kentucky Court of Appeals
Jan 23, 2015
NO. 2014-CA-000511-ME (Ky. Ct. App. Jan. 23, 2015)

Opinion

NO. 2014-CA-000511-ME

01-23-2015

JOHN BLAIR DAY APPELLANT v. CRYSTAL SABRINA DAY APPELLEE

BRIEF FOR APPELLANT: Jeremy M. Mattox Georgetown, Kentucky BRIEF FOR APPELLEE: Stephanie A. Litteral Georgetown, Kentucky


NOT TO BE PUBLISHED APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE TAMRA GORMLEY, JUDGE
ACTION NO. 14-D-00019-001
OPINION
AFFIRMING
BEFORE: MAZE, NICKELL AND STUMBO, JUDGES. NICKELL, JUDGE: John Blair Day appeals from entry of a Domestic Violence Order (DVO) by the Scott Circuit Court barring him from contact with his ex-wife, Crystal Sabrina Day, and their two minor children and awarding temporary custody of the children to Crystal. He contends there was an insufficient factual basis to support entry of the DVO. Discerning no error after carefully reviewing the record, the law and the arguments of the parties, we affirm.

John and Crystal were divorced in November 2013 and enjoyed a split timesharing arrangement in regard to their minor children until December 20, 2013, when John's timesharing was suspended by an order entered in the divorce action. On February 12, 2014, Crystal filed a Domestic Violence Petition seeking an Emergency Protective Order (EPO) against John. The petition alleged John had, earlier that same day without Crystal's knowledge or permission, attempted to get the children off the bus when it dropped them off. Crystal averred John's actions contravened a court order granting sole temporary custody of the children to Crystal based on sexual abuse allegations levied against John by his stepdaughter. Just before the bus arrived, John had driven by the house yelling and making obscene gestures toward Crystal's sister who was awaiting the children's imminent arrival. Crystal indicated John had been verbally abusive during the marriage and his erratic and threatening behavior had been escalating since the divorce and included harassing text messages, phone calls, and inappropriate behavior. She indicated she feared for her own safety as well as that of her children based on John's behavior.

A hearing on the custody matter had been scheduled for earlier in the day but, for reasons unclear in the record, was postponed.

Based on the allegations, the trial court issued an EPO and a domestic violence summons for John and set a hearing date for February 26, 2014. The court heard testimony from John, Crystal, and Crystal's sister. The testimony presented on Crystal's behalf closely paralleled the allegations set forth in the petition, but with significantly more detail. John's description of the events differed and tended to minimize his culpability. For example, while he admitted twice violating the trial court's "no contact" order with the children, he indicated those incidences were merely coincidences. Following the hearing, the trial court issued a DVO against John that remains in effect until February 26, 2017. John was ordered to undergo a mental health assessment, follow any recommendations for treatment, and have "absolutely no contact" with Crystal or the children pending entry of further orders. This appeal followed.

To issue a DVO, a court must conduct a hearing as provided for in KRS 403.745 and may only enter a DVO if the petitioner shows by "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); Bissell v. Baumgardner, 236 S.W.3d 24, 29 (Ky. App. 2007). The preponderance of the evidence standard is met when the evidence establishes the petitioner "was more likely than not to have been a victim of domestic violence." Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996); Baird v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007). The definition of domestic violence and abuse, found in KRS 403.720(1), includes "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."

Kentucky Revised Statutes.

We bear in mind that in reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial court were clearly erroneous or that it abused its discretion. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982); CR 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). Findings are not clearly erroneous if they are supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Substantial evidence is evidence of sufficient probative value that permits a reasonable mind to accept as adequate the factual determinations of the trial court. Id. A reviewing court must give due regard to the trial court's judgment on the credibility of the witnesses. Id. "Abuse of discretion in relation to the exercise of judicial power implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision." Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994) (citations omitted). Additionally, while domestic violence statutes should be construed liberally in favor of protecting victims from domestic violence and preventing future acts of domestic violence, the construction cannot be unreasonable. Barnett v. Wiley, 103 S.W.3d 17, 19 (Ky. 2003).

Kentucky Rules of Civil Procedure.
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Under the foregoing standards, we cannot conclude the trial court's decision to enter the DVO against John was clearly erroneous, or constituted an abuse of discretion. We conclude the trial court properly determined it was more likely than not that John inflicted upon Crystal a fear of imminent physical injury or assault, and that such incidents may recur. The parties obviously presented conflicting accounts of the events precipitating the filing of the instant action and the trial court was required to determine whom to believe.

[T]he trier of fact has the right to believe the evidence presented by one litigant in preference to another. The trier of fact may believe any witness in whole or in part. The trier of fact may take into consideration all the circumstances of the case, including the credibility of the witness.
Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996) (internal citations omitted). The trial court found Crystal's contention that John caused her to fear physical injury or assault to be credible—a determination supported by the record. When examining the totality of the record and the law, we cannot conclude the trial court's actions were arbitrary, capricious or unreasonable, Kuprion, and accordingly find no error.

Finally, we have considered John's contention that the trial court failed to consider the factors set forth in KRS 403.270 prior to making its determination to grant temporary custody to Crystal and find it to be lacking in merit. The issue of custody was not at issue in this action. Rather, an order had been entered in the parties' divorce action on December 20, 2013, granting temporary custody to Crystal. Here, the trial court merely reiterated the holding of that earlier order—perhaps more forcefully and clearly given John's allegation he was unsure of its meaning—and continued it in force pending further orders. No custody determination having been made nor placed in issue, the provisions of KRS 403.270 were inapplicable. There was no error.

For the foregoing reasons, the judgment of the Scott Circuit Court is affirmed.

ALL CONCUR. BRIEF FOR APPELLANT: Jeremy M. Mattox
Georgetown, Kentucky
BRIEF FOR APPELLEE: Stephanie A. Litteral
Georgetown, Kentucky


Summaries of

Day v. Day

Commonwealth of Kentucky Court of Appeals
Jan 23, 2015
NO. 2014-CA-000511-ME (Ky. Ct. App. Jan. 23, 2015)
Case details for

Day v. Day

Case Details

Full title:JOHN BLAIR DAY APPELLANT v. CRYSTAL SABRINA DAY APPELLEE

Court:Commonwealth of Kentucky Court of Appeals

Date published: Jan 23, 2015

Citations

NO. 2014-CA-000511-ME (Ky. Ct. App. Jan. 23, 2015)