Opinion
NO. 2012-CA-000988-ME
05-10-2013
EBONY EVANS APPELLANT v. PAUL EVANS APPELLEE
BRIEF FOR APPELLANT: Steven J Kriegshaber Louisville, Kentucky BRIEF FOR APPELLEE: Jason A. Bowman Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE M. BRENT HALL, JUDGE
ACTION NO. 11-D-00417
OPINION
AFFIRMING
BEFORE: CAPERTON, MOORE, AND NICKELL, JUDGES. NICKELL, JUDGE: Ebony Evans has appealed from the Hardin Circuit Court's May 7, 2012, entry of a Domestic Violence Order (DVO), based on a petition filed by her husband, Paul Evans. We affirm.
Although unclear from the record, it appears dissolution proceedings were initiated sometime in 2011, but the parties continued to reside in the same home.
On April 23, 2012, Paul filed a Domestic Violence Petition alleging, inter alia, he and Ebony engaged in an altercation on April 20, 2012, in front of the parties' six-week-old daughter and Ebony's eight-year-old son from a prior relationship. He stated that during the argument, Ebony had become enraged when he attempted to feed the infant, violently "snatched" bottles from his hands, tried to "grab" the child from his arms, and was continuously yelling or screaming obscenities and degrading him. He stated Ebony's actions nearly caused him to drop the baby on more than one occasion that evening. Paul averred he attempted to take the child into a neutral area of the house to protect himself and the infant but Ebony followed him and would not permit him to close the door. He was ultimately able to "push" Ebony away long enough to close and lock the door. However, Ebony kicked the door open and forced her way into the room. Paul called the police who arrived and diffused the situation. Paul also alleged in his petition that he was afraid Ebony would inflict bodily harm on him or the children based on numerous statements she made that evening and at times before and after the altercation.
On April 27, 2012, Ebony filed a Domestic Violence Petition based on the April 20, 2012, incident. Her petition was denied but that denial is not properly before us in this appeal.
Based on the allegations, the trial court issued an Emergency Protective Order and a domestic violence summons for Ebony and set a hearing date for May 7, 2012. Following the hearing, the trial court issued a DVO against Ebony that is in effect until May 7, 2014. This appeal followed.
Our standard of review when reviewing the entry of a DVO is whether the trial court abused its discretion, that is, "whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." McKinney v. McKinney, 257 S.W.3d 130, 133 (Ky. App. 2008). We may not substitute our findings of fact for the trial court's unless they are clearly erroneous. Bennett v. Horton, 592 S.W.2d 460 (Ky. 1979). A factual finding is not clearly erroneous if it is supported by "substantial evidence" which has been defined as "evidence of substance and relevant consequence sufficient to induce conviction in the minds of reasonable people." Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky. App. 2002). In addition, CR 52.01 instructs: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."
Kentucky Rules of Civil Procedure.
To issue a DVO, the trial court must first conduct a hearing and find "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 of the evidence standard is satisfied 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). Domestic violence and abuse is defined in KRS 403.270 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."
Kentucky Revised Statutes.
Although Ebony challenges the sufficiency of the evidence, the record on appeal does not contain a copy of the hearing held on May 7, 2012. In their briefs, both parties reference the hearing and the testimony elicited. However, nothing was provided for our review outside the written record and neither party discusses or explains the omission.
A review of the record indicates Ebony did not file a designation of record as required by Kentucky Rules of Civil Procedure (CR) 75.01. A properly filed designation of record provides the court clerk with a list of the "untranscribed portions of the proceedings stenographically or electronically recorded as appellant wishes to be included in the record on appeal." CR 75.01(1).
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It is the duty of an Appellant to ensure that the record on appeal is "sufficient to enable the court to pass on the alleged errors." Burberry v. Bridges, 427 S.W.2d 583, 585 (Ky. 1968). "It has long been held that, when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court." Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985). Accordingly, we assume the testimony presented at the hearing supports the trial court's decision to issue a DVO against Ebony.
For the foregoing reasons, the order of the Hardin Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Steven J Kriegshaber
Louisville, Kentucky
BRIEF FOR APPELLEE: Jason A. Bowman
Louisville, Kentucky