Opinion
NO. 2012-CA-000432-ME
04-05-2013
JOHN DAVID LEE APPELLANT v. JILL LEANNE STANLEY (F/K/A LEE) APPELLEE
BRIEF FOR APPELLANT: John D. Lee, Pro Se Louisville, Kentucky BRIEF FOR APPELLEE: No brief filed.
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE STEPHEN M. GEORGE, JUDGE
ACTION NO. 08-D-503650
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: John David Lee appeals the reissuance of a domestic violence order (DVO) to protect his former wife Jill Leanne Stanley (f/k/a Lee). John alleges that the family court lacked jurisdiction because his affidavit seeking to have the same judge disqualified in a related case was pending before the Chief Justice, and there was insufficient evidence to extend the DVO.
John and Jill were married on July 20, 1991, and had three sons. They separated on November 14, 2008, after Jill received an emergency protective order (EPO). On November 24, 2008, through an order in their divorce action, John and Jill agreed to restrict their contact, not engage in disparaging comments about one another and not contact each other's co-workers or clients. Subsequently, Jill dismissed the EPO.
On February 2, 2009, Jill filed for another EPO and to hold John in contempt for violating the agreed order. On February 24, 2009, in a hearing on the entry of a DVO and contempt, the family court made specific findings that an act of domestic violence or abuse had occurred and was likely to occur again and entered a DVO. On March 9, 2009, the family court found John in contempt because he sent threatening and inappropriate emails and text messages to Jill, repeatedly disparaged her to their children and enmeshed the children in their relationship and litigation.
On January 26, 2010, in the judgment in the divorce action, the family court found that John's harassment of Jill continued and made factual findings that John had improper contact with Jill by taking mail from her mailbox and leaving items inside it for the children, jogging in the vicinity of her home, disparaging Jill to others and using Jill's password to obtain unauthorized access to her credit card.
On June 21, 2010, the family court entered a DVO restricting John from having any contact or communication with Jill and requiring him to remain 1,000 feet away from her and the children. The court determined that John violated the DVO by approaching their son at a ballpark but did not find John in contempt. Instead, it amended the DVO to shorten the restricted distance to 500 feet.
On February 9, 2012, John and Jill appeared pro se before the family court for motions in the divorce proceeding and on Jill's motion to renew the DVO. They appeared before Judge Stephen M. George, who presided in the divorce action and the domestic violence case. Judge George explained that he could not hear the motions in the divorce action because John filed an affidavit to disqualify him in the divorce action that was pending before the Chief Justice. Judge George stated that he did not believe this affidavit applied to the domestic violence case and asked John whether he agreed. John explained that he intended for the affidavit to disqualify the judge from all actions for bias.
Judge George and John both referred to this affidavit as a motion to disqualify. However, it is clear from reviewing the record that John did not file a motion to disqualify on the basis of bias under KRS 26A.015(2)(a) with the family court. Instead, John filed an affidavit with the circuit clerk that Judge George could not afford him a fair and impartial trial, which was certified to the Chief Justice for a ruling under KRS 26A.020(1). To avoid confusion between the two statutory provisions, we will refer to the document which John filed as an affidavit.
Judge George offered to allow John to file an affidavit of bias in the domestic violence case and grant John a continuance on the DVO hearing. However, because the DVO was set to expire later in the month, Judge George stated he would briefly extend the DVO to allow the Chief Justice time to rule on a new affidavit. John declined the option of a continuance and elected to proceed without filing a new affidavit. The same day, the Chief Justice declined to appoint a special judge in the divorce action. The family court then held a hearing on the motion to extend the DVO.
At the hearing, Jill testified that the DVO had not improved John's behavior. He continued to harass and stalk her, post negative comments about her online, call her answering machine, yell at her and her husband at a ballpark, not obey court orders and sued her and her new husband multiple times, resulting in over $200,000 in legal fees.
Jill testified that she was afraid of John and worried when she traveled by herself for business that she might encounter him at an airport. She stated that she was afraid of physical violence if he were allowed near her and believed that he would be willing to jeopardize his visitation with their children to harm her.
John attempted to impeach Jill's credibility by accusing her of lying, providing evidence that Jill sent him harassing emails and phoned him. She denied those actions and accused John of fabricating the emails.
On February 17, 2012, the family court issued its order renewing the DVO. The family court detailed the history of the DVO, motions for contempt in the domestic violence case and the divorce case. The family court found that Jill feared physical abuse should the DVO be removed and that John had previously violated the DVO. The family court found that John's behavior had not improved while the DVO was in place and while there had been no additional acts of domestic violence, the harassment of Jill had escalated. It determined that Jill felt threatened and feared physical harm. Therefore, the family court extended the DVO for three years, requiring John to remain 500 feet away from Jill, her children, family and household except as permitted by the visitation orders in the divorce action.
After his motion to alter or amend was denied, John appealed. Although Jill has not submitted a brief to this Court, we decline to reverse pursuant to CR 76.12(8)(c).
John raises numerous overlapping issues on appeal, only two merit any substantive discussion. John's first claim of error is that Judge George was without jurisdiction to hold the hearing while his affidavit claiming bias was pending before the Chief Justice.
There are two separate methods to recuse a judge from a case. Either, as John did, a party can proceed under KRS 26A.020(1) and file an affidavit with the circuit clerk that the judge would not afford him a fair and impartial trial, in which case the Chief Justice determines whether to designate a special judge, or a party can proceed under KRS 26A.015(2) and file a motion with the court to recuse. Diaz v. Barker, 254 S.W.3d 835, 838 (Ky.App. 2008).
Because the affidavit to disqualify Judge George is not in the record before us, we must assume that the family court was correct in ruling that this affidavit only applied to the divorce action. "Clearly, a silent record is presumed to support the decision of the trial court." Diaz, 254 S.W.3d at 838. "In the absence of the evidence in the record, we must presume that the judgment of the trial court was supported by the evidence." Miller v. Commonwealth, Dept. of Highways, 487 S.W.2d 931, 933 (Ky. 1972).
Additionally, we cannot review John's underlying claim that Judge George was biased because John failed to file a motion to disqualify in this action under KRS 26A.015. Therefore, the family court never made a ruling on such a motion and there is nothing for us to review. Kenney v. Hanger Prosthetics & Orthotics, Inc., 269 S.W.3d 866, 876 (Ky.App. 2007).
John's second claim of error is that the evidence was insufficient to support the reissued DVO. John is essentially requesting that this Court review the evidence and decide in his favor.
We review the family court's reissuance of the DVO under KRS 403.750(2) to determine whether the evidence supported the continuing need for a DVO by a preponderance of the evidence. Rupp v. Rupp, 357 S.W.3d. 207, 209 (Ky.App. 2011). The family court is the trier of fact in this matter. We will only reverse the family court's factual determinations if they are clearly erroneous. Id. at 208. We defer to the family court's ability to assess the credibility of witnesses:
It has long been held that the trier of fact has the right to believe the evidence presented by one litigant in preference to another. 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) (internal citations omitted). Findings supported by substantial evidence are not clearly erroneous. Rupp, 357 S.W.3d. at 208.
In order to determine whether a DVO should be reissued, the family court does not need to find that domestic violence or abuse occurred during the prior period. The fact that the DVO was effective in preventing violence is an appropriate reason to reissue it. Kingrey v. Whitlow, 150 S.W.3d 67, 70 (Ky.App. 2004). Whether additional acts of domestic violence or other violations occurred since the issuance of the DVO are factors to be considered in determining whether the DVO should be renewed. Id; Rupp, 357 S.W.3d. at 208.
The evidence before the family court was sufficient to support the reissuance of the DVO. The family court explained that the previous DVO was properly supported by a finding that an act of domestic violence or abuse had occurred and may again occur. It found Jill's testimony credible that she continued to fear John, it determined that the record established previous violations of the DVO and that the DVO had been effective in protecting Jill from further acts of domestic violence. The family court's findings were not clearly erroneous.
John's other arguments are without merit. John is incorrect that the DVO improperly denies his rights to visitation. John receives all of the visitation rights he has under the terms of the divorce action.
John's constitutional challenges are without merit. All evidence supports the determination that John received appropriate process.
Accordingly we affirm the Jefferson Family Court's reissuance of the DVO.
ALL CONCUR. BRIEF FOR APPELLANT: John D. Lee, Pro Se
Louisville, Kentucky
BRIEF FOR APPELLEE: No brief filed.