Opinion
NO. 2016-CA-001310-ME NO. 2016-CA-001311-ME
06-16-2017
JOHN A. GREER APPELLANT v. MELISSA A. BILBREY APPELLEE
BRIEFS FOR APPELLANTS: Tim Hendrix Bowling Green, Kentucky BRIEFS FOR APPELLEES: Katina B. Miner Bowling Green, Kentucky
NOT TO BE PUBLISHED APPEALS FROM ALLEN CIRCUIT COURT
HONORABLE G. SIDNOR BRODERSON, JUDGE
ACTION NOS. 16-D-00052-001 AND 16-D-00063-001 OPINION
AFFIRMING
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BEFORE: J. LAMBERT, STUMBO, AND TAYLOR, JUDGES. LAMBERT, J., JUDGE: John A. Greer appeals from the Allen Circuit Court's order granting Melissa A. Bilbrey a Domestic Violence Order (DVO) against him. Greer also appeals the Allen Circuit Court's order denying Greer's petition seeking a DVO against Bilbrey. We affirm both orders.
The two cases emanate from the same set of facts and were consolidated for purposes of appeal. We shall focus on the events leading up to and including May 16, 2016, the date of the incident from which the parties sought protection from each other.
Greer and Bilbrey had been in a relationship for approximately fourteen years. The couple had a child together, a son (S.G.) who was eleven years old at the time of the incident. Greer and Bilbrey had ceased living together in March 2016. The parties remained in contact, mainly because of S.G., although Bilbrey stated that she still loved Greer. They had been intimate as recently as one week prior to the May 16, 2016, episode.
Bilbrey has three other children that have reached the age of majority; none were involved in this incident.
On that date, Bilbrey had suggested that the family have supper together. She and S.G. arrived at Greer's home, and Greer ordered a pizza. The adults drank alcohol: Greer had a beer with his supper, and Bilbrey had wine. It wasn't long before an argument ensued, sparked by a phone call that Greer received from a woman whom he had been seeing and had allowed to spend the night over the weekend.
Bilbrey stated that she had a glass of wine while Greer testified that she consumed an entire bottle.
Although the parties disagreed on the exact series of events, both stated that there was a battle of cell phones: Bilbrey stated that Greer seized hers and stomped on it until it was no longer functional; after that Bilbrey grabbed Greer's phone and stuck it in the waistband of her pants, and she refused to return it to him. At some point Bilbrey used the bathroom in the master bedroom and dumped the contents of the trash can. During the argument S.G. retreated to his room and played video games. Greer told Bilbrey that she needed to leave his home. When Bilbrey did not leave, Greer went out on the front porch and shouted for someone to call the police.
The couple continued to fight, and both claimed that the other party got violent. Bilbrey stated that Greer yanked her by the hair and pushed her against the kitchen counter, causing a bruise. Greer stated that Bilbrey kicked him, pushed him, shoved him, and screamed at him. He claimed that she threw herself against the counter and fell to the ground of her own accord. Greer insisted that he never used force on Bilbrey "other than a forceful voice when [he] asked her to leave."
The fighting parties ended up in the bedroom, and at some point Greer retrieved a handgun from the nightstand. Bilbrey testified that Greer aimed it at her, but Greer maintained that he only wanted to let her know that he was armed in case Bilbrey had a weapon on her.
Bilbrey was licensed to carry a concealed weapon; she had a handgun given to her by Greer. Bilbrey admitted that she normally had the gun with her but stated that on the evening in question it remained in her purse, locked in her car. --------
Things eventually quieted down, and Greer and Bilbrey attempted to console their son who was very upset that his parents were fighting. The police arrived and spoke with everyone. Bilbrey was given a breathalyzer test, the results of which were 0.02% blood alcohol content. After leaving Greer's home, Bilbrey placed S.G. with a friend and went to the police station to file for an Emergency Protective Order (EPO); she also filed criminal charges against Greer.
Bilbrey's EPO was granted on May 17, 2016. Nearly four weeks later Greer filed for a petition for a DVO against Bilbrey. When asked about the delay, Greer stated that he wanted to avoid anything that would complicate visitation with his son. But after the situation between Greer and Bilbrey continued to deteriorate, Greer felt that he should protect himself by seeking the DVO.
The Allen Circuit Court ultimately held a hearing on the cross-petitions on August 4, 2016. Each party testified, and each party called two additional witnesses. At the conclusion of all testimony the circuit court ruled in Bilbrey's favor, granting her petition and denying Greer's. The court's findings of fact and conclusions of law were made orally, and the accompanying orders were entered into the record the same day. Greer appeals from both orders. Although the two appeals have been separately briefed by the parties, the statements of the case for both appeals are identical, and the arguments mirror each other. As the appeals have been consolidated, we consider the arguments together as well.
Greer first argues that the Allen Circuit Court made erroneous findings of fact. Greer is critical of two findings in particular, namely: (1) that Greer did not act in self-protection when he defended himself with a pistol; and (2) that the evidence of two prior instances of domestic violence (both of which involved Greer's use of a handgun) were uncontested. In the first instance Greer insists that his belief that Bilbrey was armed was reasonable; in the second instance Greer maintains that his denials of the two previous instances of domestic violence were ignored by the circuit court in its finding that the earlier incidents occurred.
We agree with neither assertion. The circuit court clearly enunciated in its oral findings that its review was guided by a standard of preponderance of the evidence. This comports with applicable statutory and case law. Kentucky Revised Statute (KRS) 403.740(1); Holt v. Holt, 458 S.W.3d 806 (Ky. App. 2015). The circuit court, in finding that it was not reasonable for Greer to wave a handgun at Bilbrey during the course of the couple's argument (especially with the minor child present), acknowledged Greer's frustration with Bilbrey's refusal to leave Greer's home. The circuit court, however, instructed Greer that the better course of action would have been for Greer to depart and contact the police. As for the prior incidents of domestic violence, Greer did not deny them; rather he downplayed the role that his handgun played in each, saying that in the first instance he was joking and in the second he was cleaning his gun.
"[I]n 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 judge were clearly erroneous or that he abused his discretion." Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982). See also, Gomez v. Gomez, 254 S.W.3d 838, 842 (Ky. App. 2008). "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) (citations omitted). We have examined the record in its entirety, including the video of the lengthy evidentiary hearing, and cannot discern error in the circuit court's factual findings.
Greer secondly argues that the circuit court erred in holding as a matter of law that Greer was not entitled to defend himself against Bilbrey. Greer contends that he was within his right to defend himself and his property when Bilbrey refused to leave Greer's home. KRS 503.085. A similar argument (albeit under different circumstances) was defeated in the recent decision of Gibson v. Campbell-Marietta, 503 S.W.3d 186 (Ky. App. 2016). Here the circuit court considered Greer's testimony that Bilbrey refused to leave as well as Greer's claim regarding Bilbrey's subsequent repeated attempts to call Greer in the days following this incident. The circuit court commented on the fact that Bilbrey had been known to act aggressively toward Greer, but her actions never escalated to the point of domestic violence. The circuit court went so far as to caution Bilbrey to avoid any attempt to contact Greer other than for issues involving S.G. In other words, the circuit court did not ignore Greer's proffered evidence. It simply ruled in favor of Bilbrey under these circumstances. Gomez, supra.
Finding neither error of fact nor law, we decline to discuss Greer's third argument that the circuit court abused its discretion. Id.
The Orders of the Allen Circuit Court are affirmed. Bilbrey's motions to strike portions of Greer's brief are thus rendered moot and need not be considered.
STUMBO, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANTS: Tim Hendrix
Bowling Green, Kentucky BRIEFS FOR APPELLEES: Katina B. Miner
Bowling Green, Kentucky