Opinion
NO. 2012-CA-000355-ME
11-16-2012
BRANDON KEENE APPELLANT v. CHRISSY JO ABSHIRE APPELLEE
BRIEF FOR APPELLANT: Brandi Lynn Simon Lexington, Kentucky BRIEF FOR APPELLEE: Stephanie A. Litteral Georgetown, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM SCOTT FAMILY COURT
HONORABLE TAMRA GORMLEY, JUDGE
ACTION NO. 12-D-00011
OPINION
AFFIRMING
BEFORE: CAPERTON, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: Brandon Keene appeals the Scott Family Court's domestic violence order (DVO). He alleges that the DVO was based on insufficient evidence and that the family court was without authority to suspend his timesharing with the parties' minor child and order supervised visitation. He further alleges that the family court was without authority to order a mental health assessment and that he attend batterer's intervention classes. Finally, he alleges that the family court erred when it did not order his ex-girlfriend, Chrissy Jo Abshire, to submit to a mental health assessment.
Brandon and Chrissy lived together sporadically before and following the birth of their son in September, 2010. Their relationship had a history of conflicts, and they permanently separated in March, 2011. On May 11, 2011, they entered into a mediated agreement, agreeing to joint custody and a temporary timesharing arrangement. On January 9, 2012, the parties entered into a new mediated timesharing agreement, with the joint custody arrangement unaltered.
On January 14, 2012, Chrissy filed a petition for an emergency protective order (EPO) and DVO, alleging that Brandon secretly videotaped her through the windows of her home on January 13, 2012, and, when combined with past incidents of violence, she was placed in imminent fear. Chrissy was granted an EPO. Brandon filed a response and affidavit to the petition for DVO claiming that Chrissy was attempting to circumvent the agreed mediated timesharing, and past incidents between them were instigated by her.
At the DVO hearing, the family court heard testimony from Chrissy and Brandon. Chrissy testified that on the evening of January 13, 2012, she went outside to retrieve a snow shovel and saw Brandon crouched beside her kitchen window, with a camera pressed to the window. She confronted him, and went inside. She introduced pictures she took to show impressions from his body, footprints, and marks in the snow. Brandon testified that he was not present at Chrissy's house on the evening of January 13, 2012, and had not videotaped her.
Chrissy also testified to past incidents. She testified that in August, 2010, when she was eight months pregnant, Brandon called her names and curse words, poured a can of pop on her head and threw the can. She testified that in September, 2010, Brandon became angry after she confronted him about talking to another woman. He called her names, threw a picture frame at her, knocked a hole in the wall, threw food, shoved her into a wall, and slammed the bathroom door on her when she was trying to escape. She called the police. Chrissy also testified that later in the same month, Brandon repetitively rang her door bell and refused to leave.
Brandon testified that the first September incident was caused by Chrissy who called him names, screamed, cursed, pushed him in the chest twice and slapped him. He left to give her time to calm down, and he later moved out. He admitted that he rang her door bell once but testified when she did not respond, he left.
Chrissy expressed concern that Brandon had been previously admitted to a mental health facility for a week. Brandon testified that twenty years previously, he had been at a mental health facility for two and a half days after three friends were killed in a car accident. At that time, he was diagnosed with depression.
Chrissy testified that based upon the past incidents and the videotaping, she was afraid of Brandon and was fearful that he would again become violent. She testified that he still wanted a romantic relationship with her and, although she did not want to keep him from their child, she needed protection because she did not feel safe.
Brandon claimed that Chrissy's motive for filing a petition for DVO was to alter the timesharing agreement. He testified that she did not fear him and desired to prevent him from spending time with their child.
The family court found that domestic violence had occurred and may again occur, and entered a DVO. Further it found there was a risk of harm to the child's custodian, and a mental health assessment was needed to determine whether Brandon was a risk to the child. It found that it was in the child's best interest to suspend all timesharing and granted supervised visitation until the mental health assessment was completed. Brandon was ordered to complete batterer's intervention classes.
Following a hearing, a court may grant 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). KRS 403.720(1) defines domestic violence as follows: "[P]hysical 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[.]" Under the preponderance standard, the court must determine that the victim "was more likely than not to have been a victim of domestic violence." Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996). The family court is in the best position to determine the credibility of the witnesses and its finding of domestic violence will only be disturbed if it was clearly erroneous. Buddenberg v. Buddenberg, 304 S.W.3d 717, 720 (Ky.App. 2010).
Although Chrissy and Brandon gave conflicting accounts of Brandon's behavior, it was within the family court's discretion to find Chrissy more credible than Brandon. Chrissy's testimony regarding the videotaping and past incidents of violence were sufficient for the court to find that domestic violence occurred and may again occur. Accordingly, we affirm the finding of domestic violence.
The family court believed it to be in the child's best interest to suspend timesharing until a mental health assessment was completed. Specifically, it stated:
Mental health assessment to determine risk of harm to child and to petitioner. Complete Batterer's Intervention classes. . . . Supervised visitation between child and respondent until mental health assessment of risk of harm to child and petitioner is completed. Visitation at any court approved visitation center. Petitioner to cooperate in setting up visitation. Respondent to pay cost of exams and visits.Brandon contends that the family court was without authority to alter the custody and timesharing agreement without making the requisite findings under KRS 403.270 and KRS 403.320.
Although the family court's written order does not explicitly state it was in the child's best interest to suspend timesharing pending completion of the mental health assessment, it did so orally. We believe that it is well within the authority of the court to suspend timesharing temporarily to adequately assess the risk to the child. Indeed, emergency action to protect a child's best interest is not novel, whether arising from a dissolution action or a DVO.
Moreover, the suspension of Brandon's timesharing was not a final and appealable order. It was a temporary order entered pending a final adjudication. Although decided in the context of a dissolution action, in Frances v. Frances, 266 S.W.3d 754, 757 (Ky. 2008), the Court pointed out that temporary orders regarding custody are "interlocutory," or "non-final." Similarly, the temporary suspension of timesharing entered in this case was an interlocutory order and not appealable. CR 54.01. After receiving the mental health assessment, if the family court enters a final order, that order may be appealed.
Brandon challenges the DVO requiring that he submit to a mental health assessment and attend batterer's intervention classes. He also argues that the family court erred when it denied his request that Chrissy be ordered to undergo a mental health assessment.
Under KRS 403.750(1)(h), the family court had the discretion to order that Brandon receive a mental health assessment and participate in batterer's intervention classes. Under that same statute, it was within the family court's discretion to deny Brandon's request that Chrissy also be assessed. We conclude there was no abuse of discretion.
Based on the foregoing, the order of the Scott Family Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Brandi Lynn Simon
Lexington, Kentucky
BRIEF FOR APPELLEE: Stephanie A. Litteral
Georgetown, Kentucky