Opinion
NO. 2018-CA-000805-ME
04-05-2019
AARON HUNTER APPELLANT v. JASMINE JOHNSON APPELLEE
BRIEF FOR APPELLANT: Zack McKee Louisville, Kentucky NO BRIEF FOR APPELLEE
NOT TO BE PUBLISHED APPEAL FROM MADISON CIRCUIT COURT
HONORABLE KIMBERLY BLAIR WALSON, JUDGE
ACTION NO. 18-D-00042-001 OPINION
REVERSING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES. DIXON, JUDGE: Aaron Hunter appeals from a domestic violence order (DVO) entered by the Madison Circuit Court restricting his contact with Jasmine Johnson. After reviewing the record, we conclude there was insufficient evidence to support the court's conclusion that domestic violence may again occur. We reverse the DVO and remand for dismissal of the petition.
Jasmine and Aaron were never married. They have one child together, B.M.J., who was born in April 2014. Jasmine ended her relationship with Aaron in November 2015. A custody action was filed in Fayette County; however, the case was dismissed for lack of prosecution in January 2018. Aaron had exercised overnight visitation with B.M.J. every other Saturday since December 2016. The parties exchanged the child at a Frankfort McDonald's, as it was the halfway point between Jasmine's home in Madison County and Aaron's home in Jefferson County. On March 4, 2018, Jasmine and her fiancé, Ryan, met Aaron at McDonald's to pick up B.M.J. In her petition for an order of protection, Jasmine alleged, in part, as follows:
Aaron parked around back and approached me from behind on driver's side. Then he took [B.M.J.] to passenger's side. I got out of car to go to passenger's side, and Aaron's behavior was extremely aggressive and erratic. He was staring me down, and I immediately felt unsafe. I picked my daughter up, and he got in my face and said "what's up" a.k.a. trying to insinuate a threat. My fiancé who was restrained in the passenger seat immediately stepped in to see what his problem was and told Aaron to get back. This led to a vocal dispute with Aaron putting his face into our car. My fiancé and I both at separate times told him to leave and he would not. He finally ran off after I said I was going to call the cops. My daughter was crying, and we were very scared of the situation.After reviewing the petition, the court denied the motion for an emergency protective order and issued a summons scheduling the matter for hearing.
At the hearing, Jasmine elaborated on the allegations contained in the petition and asserted that Aaron had committed acts of abuse in the past when they were dating, including hitting her, choking her, and busting her lip. Jasmine asserted that Aaron owned knives during their relationship and contended that she went to counseling for post-traumatic stress disorder after they broke up. Jasmine testified that she had consciously excluded Aaron from learning any details of her personal life, including her current address. She described Aaron as erratic and hostile during the incident at McDonald's, noting that his demeanor that day reminded her of the past incidents of abuse. Jasmine testified that she feared for her safety at McDonald's because of their history, though she conceded that Aaron made no direct threat, nor did he physically touch her during the incident. On cross-examination, Jasmine admitted that there was a dispute between Ryan and Aaron that began the day before when Aaron witnessed Ryan kiss B.M.J. on the mouth. Jasmine acknowledged that a verbal argument reignited at McDonald's between the two men because Aaron believed it was inappropriate for Ryan to kiss B.M.J. on the mouth.
Aaron testified that around the time of the McDonald's incident, he had asked Jasmine to allow him additional parenting time with B.M.J. According to Aaron, while he was outside the car giving the child to Jasmine, Ryan made a snide remark and brought up the prior day's dispute about kissing B.M.J. on the mouth. Aaron asserted that he did not make any threats toward Jasmine or Ryan, and he walked away as Ryan screamed and cursed at him. Aaron denied any history of domestic violence during the parties' relationship and stated that he only owned kitchen knives. Aaron acknowledged that he and Jasmine argued during their relationship, but he denied any physical altercations.
At the end of the hearing, the court addressed the parties from the bench, stating it believed Jasmine had satisfied her burden of proof of domestic violence. The court asserted that the DVO did not need to last long because it was likely the situation would de-escalate and issued a 90-day DVO against Aaron restraining him from any contact with Jasmine. The court made specific written findings, which stated:
The court finds that domestic violence has occurred between these parties in the past resulting in [Jasmine's] need for counseling for PTSD from [Aaron's] controlling behavior. [Jasmine] viewed [Aaron's] demeanor on the day in question to exhibit similar behavior patterns - all in presence of child. Court also chastised [Jasmine] for allowing paramour to escalate the situation.The court subsequently denied Aaron's motion to alter, amend, or vacate the DVO, and this appeal followed. Jasmine did not file an appellee's brief with this Court.
When an appellee fails to file a responsive brief, under CR 76.12(8)(c), "the court may: (i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case." Due to the nature of this case, we elect to review the merits of the appeal rather than sanction Jasmine for failing to file a brief. --------
We are mindful of the trial court's opportunity to assess the credibility of the witnesses, and we will only disturb the lower court's finding of domestic violence if it was clearly erroneous. CR 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). A finding of fact is not clearly erroneous if it is supported by substantial evidence, which is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998).
On appeal, Aaron contends that the DVO must be reversed because there was insufficient evidence to support the court's finding that domestic violence occurred and that such an act may occur again. Aaron also asserts that the court erred by denying his motion to transfer the domestic violence petition to Fayette County, and in attempting to coerce him into a settlement before he had the opportunity to testify.
Pursuant to KRS 403.740, the court may issue 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[.]" Under the preponderance standard, the court must believe from the evidence that the petitioner "was more likely than not to have been a victim of domestic violence." Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996). Further, KRS 403.720(1) defines "[d]omestic 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 between family members or members of an unmarried couple[.]"
We first address the court's finding that Aaron committed an act of domestic violence against Jasmine. During the hearing, Jasmine testified regarding past incidents of physical abuse perpetrated by Aaron during their dating relationship. Jasmine also indicated that, due to her history with Aaron, she was scared during the incident at McDonald's because she did not know what Aaron was going to do. In turn, Aaron denied that he had ever committed an act of domestic violence against Jasmine, and he blamed Ryan for causing the incident at McDonald's. The court found Jasmine's testimony to be the most persuasive. "KRS 403.740 only requires a court determine whether domestic violence has occurred at some point in the past." Walker v. Walker, 520 S.W.3d 390, 392 (Ky. App. 2017). Here, the court relied on Jasmine's testimony regarding the history of physical abuse and being fearful of a physical confrontation during the McDonald's incident because of her familiarity with Aaron's past behavior. Although this Court may have decided this issue differently, we are mindful that our concern is whether the court's findings were clearly erroneous. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982). After careful review, we conclude substantial evidence supported the court's finding that Jasmine was more likely than not a victim of domestic violence perpetrated by Aaron.
Next, we must address the second prong of KRS 403.740, which requires a finding from a preponderance of the evidence that an act of domestic violence "may again occur" in the future. "The predictive nature of the standard requires the family court to consider the totality of the circumstances and weigh the risk of future violence against issuing a protective order." Pettingill v. Pettingill, 480 S.W.3d 920, 925 (Ky. 2015).
The court issued the DVO for 90 days because it believed the situation would likely "de-escalate." Both parties testified the verbal argument at McDonald's was between Aaron and Ryan regarding kissing B.M.J. The court commented from the bench that Aaron was correct to be frustrated with Ryan, and the court chastised Jasmine for Ryan's involvement in the situation. The only testimony on the issue of the risk of future domestic violence was when counsel asked Jasmine if she was afraid of future harm, and she responded, "Absolutely." In Guenther v. Guenther, 379 S.W.3d 796 (Ky. App. 2012), a panel of this Court reversed a DVO due to insufficient evidence of future violence. The Court explained:
While we are mindful of the trial court's difficult role, we agree with Keith that the record sub judice does not support a finding that by a preponderance of the evidence that an act or acts of domestic violence and abuse may
again occur in the future as contemplated by KRS 403.750 or KRS 403.720.Id. at 802.
Rachelle's monosyllabic responses to her attorney's leading questions regarding verbal abuse and her fear of future abuse similar to the altercation between the parties is insufficient to base a finding that domestic violence may occur again. Thus, we reverse the decision of the trial court because entry of a DVO based on the evidence presented exceeded the discretion of the court.
In the case at bar, the McDonald's incident was between Ryan and Aaron. The evidence established that Aaron did not threaten Jasmine (or Ryan), he did not know where Jasmine lived, and the parties only communicated via text messages about exchanging the child. The parties had successfully exchanged the child for approximately one year without issue before the McDonald's incident, and the court stated its belief that the situation was likely to "de-escalate." We have carefully reviewed the record. The court's finding that Aaron would more likely than not commit a future act of domestic violence against Jasmine was not supported by substantial evidence. Therefore, we reverse the DVO entered against Aaron and remand this matter to the trial court for entry of an order dismissing the petition. We need not address Aaron's remaining arguments, as our decision to reverse the DVO renders those issues moot.
For the reasons stated herein, we reverse the order of the Madison Circuit Court and remand this case for further proceedings consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Zack McKee
Louisville, Kentucky NO BRIEF FOR APPELLEE