Opinion
NO. 2013-CA-000229-ME
03-07-2014
MICAH INGRAM APPELLANT v. NICOLE INGRAM DROTTS APPELLEE
BRIEF FOR APPELLANT: Micah Ingram, pro se Glendive, Montana BRIEF FOR APPELLEE: No brief filed.
NOT TO BE PUBLISHED
APPEAL FROM SCOTT COUNTY FAMILY COURT
HONORABLE TAMRA GORMLEY, JUDGE
ACTION NO. 12-D-00034
OPINION
AFFIRMING
BEFORE: STUMBO, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Micah Ingram, pro se, challenges a domestic violence order (DVO) claiming substantial evidence did not support a finding of a threat of physical harm to Nicole Ingram Drotts.
Drotts filed a petition for an emergency protection order (EPO) and DVO against Ingram. In her affidavit, she stated as follows:
I have fear that my husband might try to hurt me. He has told me that he wished I were dead on multiple occasions and that if I called the law about anything there would be a gun fight. He has [a] concealed weapon permit. He is violent and has broken items and cussed and threatened violence many times.On March 5, 2012, the family court granted the EPO and ordered Ingram to remain five hundred feet away from Drotts and her children and to turn over his guns and concealed weapons permit to law enforcement. The children were Drotts's from a previous marriage and lived with the couple.
Both parties were represented at the DVO hearing. Drotts testified consistently with her affidavit and stated Ingram threatened to kill her by putting cyanide in her food and choking her to death. She explained she was afraid because Ingram openly wore his gun in a holster while at home and when they argued he would put his hand on his gun to threaten her. He cursed at her and called her names in front of the children, broke things and punched a hole in the wall.
Drotts testified regarding the incidents that occurred on July 3, 2012, which led to her filing the Petitions for EPO and DVO. Ingram became angry about some Pinewood Derby cars he was building. Drotts tried to calm him down and he began cursing and using abusive language directed toward her, swiped the cars off the counter, punched himself in the face and punched down so hard on a barstool that he broke it. He then rested his hand on his gun as he continued using abusive language. She became scared and locked herself and her children in their room until he left and then left for her parents' house.
Drotts testified she had a car accident and totaled their vehicle while driving to her parents' house. When she phoned Ingram about the accident, he was very angry, cursed at her, called her names, claimed she was lying about the cause, blamed her for the damage and told her she would have to pay the deductable and any increased insurance premiums out of her child support payments. She testified he was unconcerned with her welfare. She testified his statements made her believe he wished she had died in the car accident because later he stated he was "glad the kids were okay, you . . ." and he thought she would get the hint when he did not come to get her. After she returned home, he treated her in a cold manner and she worried he would shoot her. Fearing violence, Drotts collected her personal belongings under the supervision of the law enforcement officers and moved to her parents' house.
Ingram did not testify but his attorney played a recording of Drotts leaving a message for Ingram in which she cursed and stated maybe if she had gotten killed in the car accident, he would be happy. The recording was used to suggest Ingram did not threaten to kill Drotts and it was her idea that he wanted her dead. Drotts admitted to leaving Ingram the message but testified it was his reaction to her suggestion which scared her. He stated he was happy the kids were okay, but did not make similar statements about her.
The family court orally ruled there had been an act of domestic violence because there was a threat of violence from Ingram's use of his gun, his threatened "gun fight" comments and his purchase of gun parts on the internet. On March 14, 2012, the family court granted the DVO for three years.
Ingram timely filed a motion to reconsider, alter, amend or vacate the DVO. His new counsel argued the DVO hearing did not give Ingram a sufficient opportunity to state his case, because prior counsel failed to appropriately argue Drotts was not afraid and did not have a reason to be afraid and Ingram should have the opportunity to testify and explain his gun purchases.
The family court explained a motion to reconsider, alter, amend or vacate was not an appropriate method for attacking prior counsel's decision that Ingram should not testify and Ingram had been given an opportunity to testify at the DVO hearing. The court's written order explained it was upholding its previous ruling that domestic violence had occurred and was likely to occur again because Drotts had a reason to fear imminent physical injury:
The purchases of the guns for whatever reason could cause one to believe that he would do so in the future. Court has to err on the side of safety with the lower standard and the case law guides the Court. It was relevant to her state of mind and what she thought was going on at that time.
Ingram appealed, claiming there was no substantial evidence of domestic violence. Drotts has not filed an appellate brief.
We note that although Kentucky Rules of Civil Procedure 76.12(8)(c) provides when an appellee fails to file an appellate brief, we may accept the appellant's statement of facts and issues as correct or reverse the family court's judgment, we are not compelled to do so and in this case will consider the matter on the merits.
"'Domestic violence and abuse' means 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[.]" Kentucky Revised Statutes (KRS) 403.720(1). After a hearing, a court may enter a DVO "if it finds from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur[.]" KRS 403.750(1).
Because a DVO can be entered only after the court finds that there is an immediate and present danger of domestic violence, at a minimum, the statute requires the following: (a) specific evidence of the nature of the abuse; (b) evidence of the approximate date of the respondent's conduct; and (c) evidence of the circumstances under which the alleged abuse occurred.Rankin v. Criswell, 277 S.W.3d 621, 626 (Ky.App. 2008). A full evidentiary hearing must be provided in which each party has a meaningful opportunity to be heard and may offer testimony. Wright v. Wright, 181 S.W.3d 49, 53 (Ky.App. 2005). The family court acts within its discretion in choosing to believe one party's version of the events over another. Gomez v. Gomez, 254 S.W.3d 838, 842 (Ky.App. 2008).
We review the family court's finding of domestic violence under the clearly erroneous standard. We will not substitute our judgment for that of the family court and will uphold the court's findings if they are supported by substantial evidence. Caudill v. Caudill, 318 S.W.3d 112, 114-115 (Ky. App. 2010).
There was substantial evidence to support the entry of the DVO and to deny the motion to alter, amend or vacate. Ingram received due process in the course of the evidentiary hearing. Ingram had the right to testify at the hearing, but he did not exercise this right. Even if he had testified, Drotts's testimony would provide a sufficient basis for the family court's finding Drotts was more likely than not to have been a victim of domestic violence. Although Ingram claims the only threat to Drotts was her threat to herself on the voicemail Drotts left him, Drotts testified about many threats, both expressed and implied, Ingram previously made. These were sufficient for the entry of the DVO.
Accordingly, we affirm the Scott Family Court's entry of the DVO and order denying the motion to alter, amend or vacate.
ALL CONCUR. BRIEF FOR APPELLANT: Micah Ingram, pro se
Glendive, Montana
BRIEF FOR APPELLEE: No brief filed.