Opinion
NO. 2013-CA-001451-ME
03-28-2014
MONICA MONIQUE LOVE APPELLANT v. LAFOND COMER WRIGHT APPELLEE
BRIEF FOR APPELLANT: Cherie M. Hinkle Louisville, Kentucky NO BRIEF FOR APPELLEE:
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN M. GEORGE, JUDGE
ACTION NO. 08-D-500001
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. CLAYTON, JUDGE: This is an appeal from a decision of the Jefferson Family Court Division 9 which found there was not sufficient evidence to grant a Domestic Violence Order. Based upon the following, we affirm the decision of the trial court.
Appellant, Monica Monique Love, filed a petition for a Domestic Violence Order (DVO) against Appellee, LaFond Comer Wright, on July 3, 2013. In the petition, Love asserted that Wright was seen on her regular mail route on more than one occasion on July 2, 2013. A hearing was held on the matter on July 22, 2013 in Division 9 of Jefferson Family Court. During the hearing, Wright testified that on July 2, 2013, from 7:00 a.m. until 3:00 p.m., he had been taking an exam to obtain his Commercial Driver's License (CDL). As proof, he produced a copy of a receipt of payment tendered to the Jefferson County Circuit Court Clerk for a CDL Permit at 2:56 pm.
Love also contended that Wright's mother, Vanessa Foster, was with Wright and that she had received text messages from her. Foster testified that she had been at work on July 2, 2013 from 7:00 a.m. until 3:00 p.m.
A continuance was granted at the Appellant's request in order to allow her time to produce a witness who resided in the area of her mail route. The witness did not appear, but provided an affidavit stating that she had observed a red car pull up near Love's mail truck and honk its horn.
After the evidence was presented, the trial court dismissed the DVO finding that it was not established, by a preponderance of the evidence, that an act of domestic violence or abuse had occurred, or may occur again. Love then filed this appeal.
A trial court may issue a DVO if, after an evidentiary hearing, it finds by a preponderance of the evidence, that an act of domestic violence occurred or may again occur. Baird v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007). A preponderance of the evidence is evidence sufficient that the petitioner is more likely than not a victim of domestic violence. Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996). In reviewing the trial court's findings, an appellate court must determine whether the findings were clearly erroneous. Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). Findings are clearly erroneous if they are not supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Substantial evidence is evidence of sufficient probative value that a reasonable person would accept as true. Id. A reviewing court must give due regard to the trial court's judgment regarding the credibility of the witnesses. Id.
In the present case, Wright presented proof to the trial court that he was in another place at the time Love said he was following her on her mail route. The proof Wright submitted was substantial and Love could not refute it. Thus, the trial court had substantial evidence and the decision to dismiss the petition was not clearly erroneous. We, therefore, affirm the decision of the trial court.
ALL CONCUR. BRIEF FOR APPELLANT: Cherie M. Hinkle
Louisville, Kentucky
NO BRIEF FOR APPELLEE: