Opinion
NO. 2012-CA-000284-ME
09-21-2012
KYLE ANDREWS FLOYD APPELLANT v. ASHLEY TATE APPELLEE
BRIEF FOR APPELLANT: David Russell Marshall Nicholasville, Kentucky BRIEF FOR APPELLEE: Brandie M. Ingalls Josh Fain Legal Aid of the Bluegrass Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. MICHAEL DIXON, JUDGE
ACTION NO. 11-D-000195
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; KELLER AND MOORE, JUDGES. MOORE, JUDGE: Kyle Floyd appeals the Jessamine Family Court's order granting a domestic violence order (DVO) to Ashley Tate. After a thorough review of the record, we affirm.
Ashley's allegations of domestic violence arise from a physical altercation the parties had while she was picking up the parties' daughter from Kyle's residence. The testimony elicited at the DVO hearing revealed that the parties had recently ended their eight-year relationship. Both parties proffered contradictory accounts of the incident with each saying that the other had initiated the physical altercation. Ashley claimed that Kyle began threatening her when she entered the home, took her cell phone, and began pushing her and put her in a headlock after Ashley attempted to retrieve her cell phone. Kyle asserts that he merely attempted to deflect Ashley's pushes, kicks, and strikes.
Additionally, both parties testified that shortly before their altercation they each had been threatened by the other. Ashley claimed that Kyle had told her that "he wished [she] was a man that he would beat the crap out of me" and that "[she] wouldn't be around to see him go to jail." Ashley also briefly testified that she and Kyle had been involved in a physical altercation earlier in the year and that the police had been called to the home. Kyle claimed that Ashley sent him a text message shortly before the altercation giving rise to this action stating she was "way past mad" at him and that she would cause him a "bumpy road" if he did not stop seeing her step-sister. Both parties denied having made any such threats, and neither party presented any additional evidence to support or refute these contentions.
An officer from the Nicholasville Police Department also testified at the hearing. He indicated that he was not present during the parties' altercation and that when he met with Ashley after the incident she had no visible injury. He did note that her face was red and, consequently, any marking she claimed to have had may not have been visible. He testified that Ashley did not inform him that Kyle had put her in a headlock and held her down although she later alleged these facts in her petition. He nevertheless found that there was sufficient evidence to arrest Kyle based upon the information Ashley provided.
The family court found that Kyle had committed an act of domestic violence and that such an act may occur again. Upon Kyle's motion, the family court entered additional findings of fact which revealed that the trial court had accepted Ashley's version of the facts. Kyle now appeals.
On appeal, Kyle argues that the family court's decision was not supported by sufficient evidence. We disagree.
Before issuing a domestic violence order, the [family] court must first conduct a hearing and find by a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur. . . . 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. KRS 403.720(1) defines domestic 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.Gomez v. Gomez, 254 S.W.3d 838, 842 (Ky. App. 2008) (internal citations and quotations omitted). Additionally, we are always mindful of the fact that the family court is in a better position to assess the credibility of the witnesses. CR 52.01.
Kentucky Rules of Civil Procedure (CR) 52.01 provides that a [family] court's findings of fact may be set aside if clearly erroneous. However, we are mindful that in reviewing the decision of a [family] court the test is not whether we would have decided it differently, but whether the court's findings were clearly erroneous or that it abused its discretion. Abuse of discretion occurs when a court's decision is unreasonable or unfair.
. . .
The 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.
As mentioned, the family court found Ashley's testimony to be more credible and accepted her version of the facts. Based upon Ashley's testimony, we find no error with the family court's determination that an act of domestic violence occurred. Likewise, where the family court accepted Ashley's claims that Kyle had threatened her in the past, it was not error for the family court to conclude that such acts might occur again in the future.
Kyle also appears to assert that Ashley did not sustain any injury severe enough to constitute physical injury pursuant to KRS 500.080(13). However, KRS 500.080 is a criminal statute and has no applicability in a domestic violence context.
Kentucky Revised Statute.
Additionally, Kyle appears to argue that any force used was privileged for his protection in his own home. This argument assumes that the family court accepted Kyle's version of the facts surrounding the parties' altercation, i.e. that Ashley initiated the altercation. Again, it was in the family court's discretion to determine that Ashley's account of events was more credible and we find no abuse of discretion.
Accordingly, we AFFIRM.
ALL CONCUR. BRIEF FOR APPELLANT: David Russell Marshall
Nicholasville, Kentucky
BRIEF FOR APPELLEE: Brandie M. Ingalls
Josh Fain
Legal Aid of the Bluegrass
Lexington, Kentucky