Opinion
NO. 2019-CA-000009-ME
07-12-2019
SARAH L. FRANCIS APPELLANT v. BRIAN L. HALL, A.K.A. BRIAN L. LACKEY APPELLEE
BRIEFS FOR APPELLANT: Cynthia A. Millay Covington, Kentucky BRIEF FOR APPELLEE: Stacey L. Graus Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON COUNTY FAMILY COURT
HONORABLE DAWN M. GENTRY, JUDGE
ACTION NO. 09-D-00376-005 OPINION
AFFIRMING
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BEFORE: GOODWINE, SPALDING, AND L. THOMPSON, JUDGES. SPALDING, JUDGE: Respondent-Appellant, Sarah L. Francis ("Sarah"), appeals a Domestic Violence Order ("DVO") entered by the Family Court Division of the Kenton County Circuit Court at the request of Petitioner-Appellee, Brian L. Hall ("Brian"). Sarah alleges three (3) separate errors on the part of the family court: (1) failing to transfer venue; (2) finding that an act of domestic violence occurred; and (3) making insufficient findings of fact and conclusions of law. Having reviewed the record, the parties' briefs, and the law, we affirm the judgment of the Kenton County Family Court.
On November 5, 2018, Brian filed a Petition/Motion for Order of Protection ("petition") against Sarah in Kenton County Family Court. Within that petition, Brian made a series of allegations surrounding Sarah's actions in October and November of 2018, two (2) of which are particularly relevant. Specifically, Brian alleged that, on October 30, 2018, Sarah, accompanied by her boyfriend ("Stephen"), had broken into and burglarized his home. Brian further alleged that, on November 4, 2018, Sarah and Stephen once again broke into his home, and that, on this occasion, Stephen had committed an assault upon him. While the assault was taking place, Brian claims that Sarah was rummaging through his apartment, collecting items of personal property. Where this last incident is concerned, Brian wrote in his petition that he was "afraid that [Sarah and Stephen] are going to end up killing me."
On November 28, 2018, a hearing was held on Brian's petition. Prior to commencement of the hearing, Sarah verbally moved the court to transfer the matter to Boone County Family Court. Sarah indicated that the parties had filed "dueling protective order petitions" against one another in Boone County the previous month. Sarah additionally informed the court that a juvenile case involving the parties' minor children was pending in the Boone County Family Court and that she had alleged a violation of a DVO previously issued by that court, the hearing for which was set for December 3, 2018. In further support of her motion, Sarah stated that she intended to file for divorce in Boone County. Brian opposed Sarah's motion, arguing that he lived in Kenton County and that the events giving rise to the petition at issue occurred in Kenton County. The family court denied Sarah's motion.
During the hearing, Brian testified that, on the day of October 30, 2018, upon arriving at his residence, he discovered that his home had been burglarized. Particularly, Brian recalled that his television, PlayStation, computer, medication, rent money, and some paperwork had been taken by the perpetrator. Brian specifically alleged that Sarah had been the offender in the petition.
Brian further testified that, on November 4, 2018, he heard a noise emanating from the back door of his apartment. As he approached the rear of his home, with the intent to lock his door, he found that Sarah and Stephen were attempting to gain entry. According to Brian's testimony, after having entered the home, Sarah began running through the apartment, taking multiple items of Brian's personal property, while Stephen "held [him] down." After this altercation had occurred, Sarah and Stephen left Brian's home, at which time Brian called law enforcement.
During cross-examination, Brian agreed that he was arrested and jailed on October 30, 2018, and that he was not released until the following day. He also conceded that he "did not see" Sarah or Stephen on October 30, 2018. Where the November 4, 2018 incident is concerned, Brian acceded that it was Stephen that assaulted him - not Sarah - and that he did not sustain any injuries as a result of the confrontation.
Sarah generally denied all the allegations contained in Brian's petition and accompanying testimony. Sarah claimed that she had not been anywhere near Brian's apartment on the day of October 30, 2018; in fact, with the exception of appearing for court, she stated that she had been at her mother's house for the entire day and that she had spent the day with her mother. She testified that she did not break into, nor take anything from, Brian's house on October 30, 2018.
Sarah further repudiated all the allegations relating to November 4, 2018. She specifically testified that she did not break into Brian's home and that no assault occurred. Additionally, she claimed that she had not had contact with Stephen since October 8, 2018.
At the conclusion of the hearing, the family court announced verbal findings from the bench. The court ruled that "an act of domestic violence did occur" and that "Respondent broke into Petitioner's residence with her boyfriend and stole property and that said act is what caused Petitioner to fear for his safety." These verbal findings were memorialized in the court's Order of Protection, written on the AOC form, entered on the same day, which contained the following, handwritten findings: "Respondent broke into Petitioner's residence w/her B.F. and stole property. Said caused Pet. fear for his safety." The appellant moved for more specific findings to which the court essentially responded it had written its findings. This is the exchange that occurred between the court and appellant at the conclusion of the hearing:
Appellant: Your Honor, I would ask for specific findings on that in case my client wants to file an appeal.
Court: Those were my specific findings, that I specifically found Respondent broke into Petitioner's residence with her boyfriend and stole property, that said act is what caused Petitioner to fear for his safety.
Appellant: I understand, Your Honor.
The Court will first turn to the issue of venue. Sarah argues that the family court erred in failing to transfer the case from Kenton County to Boone County. As explained supra, Sarah grounds her argument upon two (2) principle contentions: (1) the parties had pending cases before the Boone County Family Court; and (2) failure to transfer the case to Boone County would, essentially, undermine the "underlying mission that the unified family court system was founded upon."
At the risk of sounding repetitive, Sarah pointed to the fact that the parties had filed "dueling protective order petitions" and had a pending juvenile case before the Boone County Family Court. Additionally, Sarah noted that she had alleged a violation of a DVO previously entered by the Boone County Family Court and intended to file for divorce in that venue, as well. --------
Although Sarah never explicitly - neither at the hearing, nor in her brief - relied upon it, her primary argument is, essentially, an argument based upon the principle of forum non conveniens. Roos v. Kentucky Ed. Ass'n, 580 S.W.2d 508 (Ky. App. 1979). "Forum non conveniens presupposes proper venue, but posits that another county where venue would be proper also is a more convenient forum, and calls for a discretionary ruling by a [family] court to that effect." Dollar Gen. Stores, Ltd. v. Smith, 237 S.W.3d 162, 166 (Ky. 2007). In other words, "[i]n certain cases, venue may properly lie in more than one county." Holt v. Holt, 458 S.W.3d 806, 811 (Ky. App. 2015) (citing Stipp v. St. Charles, 291 S.W.3d 720, 725 (Ky. App. 2009)).
Because Sarah never expressly addressed the principle at the family court hearing, nor during her brief, we need not directly address the applicability of the doctrine here. Even if she had, we would nonetheless affirm the family court's denial of her motion for transfer because of applicable statutory authority which supports venue in Kenton County.
Sarah did directly challenge venue, and because she argues the family court's ruling regarding venue is erroneous on appeal, we must dispose of this procedural issue before proceeding on to her substantive claims of error. "In general, venue derives from a statutory mandate as to which county or counties is the proper place for a claim to be heard." Dollar Gen. Stores, Ltd., 237 S.W.3d at 166 (emphasis added); see also Baze v. Commonwealth, 276 S.W.3d 761, 766 (Ky. 2008). Indeed, Kentucky Revised Statutes ("KRS") 403.725 governs venue in cases in which a party has filed a petition for order of protection. Subsection 2 of that statute unambiguously provides as follows: "[t]he 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." KRS 403.725(2) (emphasis added).
Brian stated he resides at 311 Hawthorne, Apartment 2, Covington, Kenton County, Kentucky. The statute is dispositive of the matter. Kenton County was a proper venue pursuant to KRS 403.725(2). The underlying mission of a unified family court system does not invalidate the statute.
Having determined that the family court did not err in overruling Sarah's motion to transfer venue, we now turn to the central issue in this case; that is, whether the family court erred in determining that an act of domestic violence occurred and, by extension, whether it was error to sustain the Petition/Motion for Order of Protection. At the outset, the Court would note that "[f]indings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the family court to judge the credibility of the witnesses." Kentucky Rules of Civil Procedure ("CR") 52.01. Findings are "clearly erroneous" only if they are unsupported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). "Substantial evidence" is defined as "[e]vidence that a reasonable mind would accept as adequate to support a conclusion." Id. (brackets in original) (citations omitted). "[I]n reviewing the decision of a [family] court the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion." Dunn v. Thacker, 546 S.W.3d 576, 578 (Ky. App. 2018) (citing Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982)). A trial court abuses its discretion when the decision below was "arbitrary, unreasonable, unfair, or unsupported by legal principles." Lawson v. Lawson, 290 S.W.3d 691, 694 (Ky. App. 2009) (citing Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)).
"Before issuing a domestic violence order, the trial 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[.]'" Gomez v. Gomez, 254 S.W.3d 838, 842 (quoting KRS 403.750(1)). KRS 403.720(1), in turn, defines "domestic violence and abuse" as "physical injury, serious physical injury, stalking, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault[.]" Read together, the above authority stands for the proposition that a trial court may find that an act of domestic violence has occurred when an alleged victim establishes that he or she "'was more likely than not to have been a victim of domestic violence.'" Gomez, 254 S.W.3d at 842 (quoting Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996)).
There was substantial evidence that it was "more likely than not" that an act of domestic violence had been committed upon Brian. The family court found that "an act of domestic violence did occur" because the "Respondent broke into Petitioner's residence with her boyfriend and stole property[,]" and that this act resulted in Petitioner "fear[ing] for his safety." Indeed, evidence presented during the hearing - specifically, Brian's testimony - established that Petitioner feared for his safety. The following exchange between Brian and counsel is illustrative:
Q: Are you frightened that Sarah's going to come back to your home?
A: I'm very frightened [. . . .]
And later:
Q: Were you frightened when you heard somebody trying to get into your house?
A: Yes, sir.
Q: Were you frightened when Sarah and her boyfriend entered your house?
A: Yes, sir.
Q: Were you frightened when Mr. Thornton and you were tussling and Sarah was running through your house?
A: Yes, sir [. . . .]
Q: Were you frightened of Sarah as well as her boyfriend?
A: Yes.
Q: Are you still frightened of Sarah as well as her boyfriend?
A: Yeah. Yes.
Q: Are you concerned that she could do something to harm you at this point?
A: Yes, sir.
By definition, the acts described by appellant constitute burglary or complicity thereto. See, e.g., KRS 511.030-040. We hold that home invasion burglary constitutes an act of domestic violence under applicable statutory authority because such an act would put one in eminent fear of physical injury. The fact that appellant denied any of this happening does not preclude this finding. The court was well within its authority to find the appellee credible and find the appellant not credible. Because the evidence sufficiently established that it was more likely than not that an act of domestic violence occurred, the family court did not err in granting the DVO at issue. Thus, the judgment of the Kenton County Family Court is affirmed in this regard.
Sarah's last claim of error concerns whether the family court made insufficient findings of fact and conclusions of law. As recounted earlier, in this case, the family court judge, at the conclusion of the hearing, made verbal findings from the bench, ruling that "an act of domestic violence did occur" and that "Respondent broke into Petitioner's residence with her boyfriend and stole property and that said act is what caused Petitioner to fear for his safety." In addition to these oral findings, the court entered a written form order on an AOC-275.3 form. Contained within that form, under the "additional findings" header, were additional, written findings - "Respondent broke into Petitioner's residence w/her B.F. and stole property. Said caused Pet. fear for his safety."
Sarah argues that the above-described findings were legally insufficient. Specifically, Sarah points to CR 52.01, which provides, in part, that a trial court "shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment[.]" Sarah also relies upon Boone v. Boone, 463 S.W.3d 767 (Ky. App. 2015), arguing that the duty contained within CR 52.01 "extends to findings made in DVO cases," and that the failure to satisfy this duty "is reversible error."
In Boone, the family court entered a protection order following a hearing that was held on the petitioner's motion. Id. at 767. At the conclusion of the hearing, the court "orally recounted" the evidence undergirding its decision. Id. Despite a request by the respondent for the court to enter findings, "the only written communication" by the court was "a notation on a docket sheet in the record." Id. at 768. The written record included a docket sheet with a handwritten note that read "DVO granted - findings on record." Id. On appeal, this Court held that, although the lower court's findings were adequate, they needed to be rendered in writing. Id. at 769.
As appellee correctly points out, Boone is distinguishable from the matter sub judice. Unlike the court in Boone, the family court here made oral findings, but later reduced those findings to writing on the AOC-275.3 form. A court may use AOC-275.3 with a good faith effort at fact finding with the facts found included in a written order. Pettingill v. Pettingill, 480 S.W.3d 920, 925 (Ky. 2015). That is exactly what occurred in this matter. This Court has reviewed this petition based on the family court's written findings of fact and applied them to the law. The findings at issue are sufficient to establish the grounds for entry of a domestic violence order.
The family court did not err in denying the motion to transfer venue. It was not clearly erroneous in finding that an act of domestic violence occurred, and its findings of fact and conclusions of law were sufficient. Accordingly, the judgment of the Kenton County Family Court is AFFIRMED in its entirety.
ALL CONCUR. BRIEFS FOR APPELLANT: Cynthia A. Millay
Covington, Kentucky BRIEF FOR APPELLEE: Stacey L. Graus
Covington, Kentucky