Opinion
NO. 2016-CA-001589-ME
05-05-2017
KARRAH SHEA HARBISON APPELLANT v. ANTHONY JEROME WOOD APPELLEE
BRIEF FOR APPELLANT: Katina B. Miner Bowling Green, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BARREN CIRCUIT COURT
HONORABLE J. GABRIEL PENDLETON, JUDGE
ACTION NO. 15-D-00029 OPINION
VACATING AND REMANDING
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BEFORE: JONES, J. LAMBERT, AND MAZE, JUDGES. JONES, JUDGE: Appellant, Karrah Shea Harbison, appeals the Barren Circuit Court's denial of a domestic violence order against Appellee, Anthony Jerome Wood. Based on the following, we vacate and remand to the Barren Circuit Court for proceedings consistent with this opinion.
I. BACKGROUND
On August 24, 2016 Karrah filed a petition for an emergency protective order ("EPO") against Anthony, her former boyfriend and the father of her child. In her petition, Karrah stated that she and Anthony are unmarried but have a child in common. Karrah alleged that when she went to pick the child up from Anthony's mother's home, where he was staying at the time, Anthony refused to give the child up, pushed Karrah down, and refused to hand over the child's belongings. She further alleged that, when she called the police for assistance, Anthony told her that if the police came to retrieve the child he would punch both Karrah and the police officers in the mouth. The court entered an EPO based on the petition, and the next day Karrah filed a petition for a domestic violence order ("DVO").
The court held a hearing on the domestic violence petition on September 23, 2016. Anthony was incarcerated on unrelated drug charges at the time of the hearing, but appeared pro se. At the hearing, Karrah testified that this was not the first time Anthony had been violent with her. She testified that when she first discovered she was pregnant, Anthony locked her in a room, pushed her repeatedly and tried to choke her, leaving marks on her neck and upper body. Karrah told the court that she attempted to reconcile with Anthony after the birth of their son, because she was hopeful that Anthony and the child would have a father-son relationship. While Anthony was in jail at the time of the child's birth on an attempted murder charge, Karrah stated that she would bring the child to visit with Anthony in jail. These visits continued following Anthony's release, however, they were always supervised by Karrah and on Karrah's terms. Anthony did not dispute any of Karrah's testimony regarding the prior abuse or his previous visits with the child.
The day of the incident giving rise to the EPO was the first time that Anthony had been permitted to spend time with the child unsupervised. Karrah testified that she had gotten a new job, where she worked second-shift, and she and Anthony had made plans to let Anthony keep the child overnight while she was working. Karrah testified that while she and Anthony had texted a few times throughout the day, Anthony soon stopped responding to her texts and would not answer her phone calls. Worried about her son's safety, Karrah contacted Anthony's then-girlfriend, who said she had not spoken with Anthony in several hours, and that when she did talk to him it was hard to hear him because there was loud music in the background. Anthony testified that he had not answered Karrah's messages or calls because he had left his cellphone in his cousin's car earlier that day.
Based on the unanswered calls and her worry that her son may be in an inappropriate environment, Karrah left work early and went to Anthony's mother's home to check on her son. Karrah testified that Anthony's mother let her into the home, and then led her to Anthony's bedroom which she then entered. Karrah stated that she found Anthony passed out on the bed with the child. When she picked the child up from the bed, Anthony awoke and started pushing her on her neck and shoulders. This caused Karrah to fall down, with the child in her arms, at which point Anthony took the child back. Karrah testified that this caused her to become fearful that, if she did not let Anthony keep the child, he would hurt either her or the child very badly. Anthony admitted to pushing Karrah, and to grabbing the child back. He stated, however, that Karrah entered his room unexpectedly, while he was sleeping, and "jerked" the child out of his arms. He further stated that he did not want to give the child back to Karrah, because they had agreed that the child could stay with him until the following morning.
Karrah testified that she then stepped outside and called the police to help her retrieve the child. She stated that when she did this, Anthony told her that if the police showed up he would punch them and her in the mouth. Karrah testified that she believed Anthony when he said this, as he had previously been charged with assaulting a police officer. Anthony denied threatening to punch Karrah, but admitted that he said the police officers would have to fight him before they could take the child from him.
Also at the hearing, Anthony admitted that he was currently facing methamphetamine, marijuana, and drug paraphernalia charges. He additionally admitted that he was facing two pending charges of attempted murder, and five charges of wanton endangerment arising out of a drive-by shooting. Further, Anthony admitted that he had previously pleaded guilty to fourth-degree assault on a former girlfriend, as well as third-degree assault on a police officer. When questioned by the trial judge, Karrah admitted that she was aware of these charges, but believed that the attempted murder charge had been dropped or found to be untrue.
Following a brief recess, the trial court announced that it was denying the DVO. The court then went over its written order with the parties. The written order acknowledged that there were reasonable grounds to believe that Anthony had "violent propensities" - which the court verbally clarified fell under the "umbrella" of "a pattern of repeated serious abuse" - and that Anthony had admitted that a "belligerent confrontation" had occurred between him and Karrah, and between him and a police officer. The court verbally explained that "belligerent confrontation" was meant to include Anthony's pushing of Karrah and his verbal threats. Despite these findings, the order stated that it could not find that Karrah had met the burden of proof under KRS 403.720. The order stated that:
Kentucky Revised Statutes.
Under the circumstances a reasonably prudent person would have foreseen the possibility of conflict upon demand of return of the parties' child and, before entering upon [Anthony's] mother's premises - and, especially, before entering [Anthony's] bedroom where [Anthony] was asleep - would have obtained the aid of either or both the Glasgow Police Department or (more probably, if [Karrah] had any reasonable grounds to believe that the parties' child then and there was in danger of dependency, neglect, or abuse) the Cabinet for Health and Family Services; however, [Karrah's] cell phone call to the Glasgow Police Department was not timely made.(Emphasis in original). The court stated that Karrah knew, or should have known, that Anthony had dangerous propensities, and should not have provoked Anthony by going into his bedroom when uninvited. Further, the court stated that it believed that the situation could have been prevented on a number of levels, although it was not incorporating them into the written order: that Karrah should have gotten a timely paternity test, so that this kind of situation would not happen; that Karrah should have gotten help before going into a man's bedroom uninvited; and that Karrah should have refrained from provoking Anthony.
At the hearing, Karrah acknowledged that she had been advised to get a paternity test done and was in the process of doing so; however, she stated that had always believed Anthony to be the Father. There is nothing in the record suggesting that the incident giving rise to this proceeding stemmed from a paternity dispute.
This appeal followed.
II. STANDARD OF REVIEW
A trial court may enter a DVO following a hearing if it finds "by a preponderance of the evidence that domestic violence and abuse has occurred and may again occur." KRS 403.740(1). KRS 403.720(1) defines "domestic violence and abuse" as "physical injury, serious physical injury, stalking, sexual abuse, assault, or the infliction of fear of imminent physical injury . . . ." "When reviewing a trial court's issuance of a DVO, we review the trial court's finding for clear error and with considerable deference." Carpenter v. Schlomann, 336 S.W.3d 129, 131 (Ky. App. 2011) (citing CR 52.01; Bissel v. Baumgardner, 236 S.W.3d 24 (Ky. App. 2007)).
Kentucky Rules of Civil Procedure. --------
III. ANALYSIS
On appeal, Karrah contends that the trial court committed clear error in that it misapplied the applicable domestic violence statutes by incorporating an additional standard - namely a "reasonably prudent person" standard - and the concept that provocation excuses violence into its decision. We agree.
As stated above, the standard for issuing a DVO is that the court finds "by a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred or may again occur . . . ." KRS 403.740(1). "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.'" Baird v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007)(quoting Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996). "[D]omestic violence statutes should be construed liberally in favor of protecting victims from domestic violence and preventing future acts of domestic violence." Barnett v. Wiley, 103 S.W.3d 17, 19 (Ky. 2003) (citing KRS 500.030 "All provisions of this code shall be liberally construed according to the fair import of their terms, to promote justice, and to effect the objects of the law.").
In the instant case, Karrah testified to the fact that Anthony had inflicted physical injury on her at least twice - in 2014 when he pulled her hair, pushed her, tried to choke her, and locked her in a room, and in 2016 when he pushed her, leaving marks on her body, while she was holding their child and threatened to punch her. Anthony did not deny that these events happened, and even admitted in open court that he pushed Karrah in an attempt to take their child back from her. This is sufficient evidence to establish that Karrah had been a victim of domestic violence - Anthony admitted to assaulting Karrah. See KRS 403.720(1). Further, Karrah testified to her fear that Anthony would escalate the violence, resulting in serious harm to her or her child. See id. Additionally, Anthony admitted that he had pleaded guilty on a domestic violence assault charge against a former girlfriend. See KRS 403.735(1) (stating that courts may utilize a respondent's criminal and protective order history in assessing relief and protection for a petitioner in a hearing for an order of protection).
We are cognizant of the fact that "the family court is in the best position to judge the credibility of the witnesses and weight the evidence presented." Hohman v. Dery, 371 S.W.3d 780, 783 (Ky. App. 2012)(citing Buddenberg v. Buddenberg, 304 S.W.3d 717, 720 (Ky. App. 2010)). However, this is not a case where the judge found one witness more credible than the other - it would not have mattered if he had, as both parties testified that Anthony had assaulted Karrah. Rather, the court found that, despite all of the above evidence and testimony, Karrah had not met her burden of showing by a preponderance of the evidence that domestic violence and abuse had occurred, because "a reasonably prudent person would have foreseen the possibility of conflict upon demand of return of the parties' child."
We find the trial court's assessment troubling on a number of levels. To begin with, there is no mention in the domestic violence statutes, or in the case law interpreting and applying those statutes, of a "reasonably prudent person" standard. The court is "not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used." Beckham v. Bd. of Educ. of Jefferson Cty., 873 S.W.2d 575, 578 (Ky. 1994). "In construing a statute, the courts must consider 'the intended purpose of the statute - and the mischief intended to be remedied.'" Monumental Life Ins. Co. v. Dep't of Revenue, 249 S.W.3d 10, 19 (Ky. App. 2008) (quoting SmithKline Beecham Corp. v. Revenue Cabinet, 40 S.W.3d 883, 885 (Ky. App. 2001)). "The express purpose of the domestic violence statutes is '[t]o allow persons who are victims of domestic violence and abuse to obtain effective short-term protection against further violence and abuse in order that their lives will be as secure and uninterrupted as possible.'" Crabtree v. Crabtree, 484 S.W.3d 316, 318 (Ky. App. 2016)(quoting KRS 403.715(1)). Adding an additional requirement that the victim must have been acting as a reasonably prudent person would have does not help to achieve this purpose, it impedes it. Perhaps the trial court is correct that, had Karrah had the foresight to call the police before the incident occurred, Anthony would not have assaulted her; this, however, is completely irrelevant in a court's determination of whether to enter a domestic violence order.
Additionally, while the express words are not mentioned in the court's order, the court verbally expounded on its finding that Karrah was not acting as a reasonably prudent person would by noting that Karrah knew of Anthony's violent propensities and provoked him by going into his bedroom, in search of her child, without invitation. This is very concerning. "Provocation" does not justify domestic violence. See Flood v. Flood, 194 S.W.2d 166, 172 (Ky. 1946). "The striking and beating of a [person] without complete justification of self-defense is reprehensible and inexcusable." Scalf v. Scalf, 312 S.W.2d 467, 470 (Ky. 1958). There was no claim of self-defense in this case, and the court did not try to construe Anthony's assault of Karrah as an act of self-defense. The court simply found that Karrah could not meet her statutory burden because she had provoked the act of violence against her by going into Anthony's bedroom uninvited, while knowing that he had violent propensities. We again remind the trial court that the purpose of the domestic violence statutes is to protect domestic violence victims and prevent future acts of domestic violence. Placing the blame on the victim for her abuser's actions in no way furthers that purpose.
IV. CONCLUSION
Based on the above analysis, we vacate and remand to the Barren Circuit Court for entry of an appropriate DVO.
ALL CONCUR. BRIEF FOR APPELLANT: Katina B. Miner
Bowling Green, Kentucky