Opinion
NO. 2016-CA-000202-ME
06-02-2017
PAUL WILLIAM MARTIN APPELLANT v. SAORI HANAKI APPELLEE
BRIEF FOR APPELLANT: Paul William Martin, pro se Lexington, Kentucky BRIEF FOR APPELLEE: Elizabeth S. Hughes Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LUCINDA CRONIN MASTERTON, JUDGE
ACTION NO. 15-D-00550-001 OPINION
AFFIRMING
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BEFORE: JONES, J. LAMBERT, AND MAZE, JUDGES. JONES, JUDGE: Paul William Martin appeals, pro se, from a Domestic Violence Order ("DVO") the Fayette Circuit Court entered against him in favor of Saori Hanaki. Paul argues that insufficient evidence exists in the record to support a finding that domestic violence occurred, or may occur again, or that Saori was in fear of imminent domestic violence. He also appeals from the trial court's decision or overrule his motion to alter, amend, or vacate the DVO. Because we hold that sufficient evidence existed in the record to support a finding of domestic violence and because Paul was not entitled to post-judgment relief, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Saori and Paul were previously married from 2007 until April 2015. At the time of their divorce, the parties were living in Lexington, Kentucky. Paul works from home as a software engineer. Saori has a doctorate in biomechanics and teaches at Transylvania University.
As a result of events during the parties' impending divorce, Saori sought and was granted a civil no-contact order on June 26, 2015. Thereafter, Saori filed a Petition for a DVO and an Emergency Protective Order ("EPO") on July 16, 2015. In her petition, Saori alleged the following:
We were divorced in April this year. Please look at what happened in my divorce case to see what he has been doing to make me afraid of him and why I asked my divorce judge for orders in June that Paul have no contact with me and stay away from my home and work. He fought these orders, then said he would agree to them, is now appealing them. He has been told by the judge and has said in his own words that he knows what he is doing makes me afraid of him. He is impulsive and erratic and angry - he did not want the divorce and is obsessed with me. What he has done to me so far has made me afraid of what he will/can do next. He does not seem to be able to tell the truth about anything. I am convinced that he is mentally ill and I am afraid that he will harm me physically when he 'snaps'. Since the last court on June 26th I left Lexington in part because of what he was doing and just came back and believe I need more protection
than the civil orders. Just since court, he joined my swim group, running group, has been to the Starbucks I go to, and started taking yoga classes where I go and they are all out of his way. He has asked my attorney to change the orders so he can come closer to my office when he drives for Uber. He petitioned to have his name changed to "Paul Hanaki" and drop his own last name of Martin but the judge on Monday said he would not do it and told him to stop harassing me or he would be in big trouble, just like Judge Masterton has said to him three times now. Only someone obsessed and disturbed would do this. But then he contacted my swim group and said he is using "common law" and is changing his name anyway to be my maiden name. He emails my divorce attorney a lot, he says he will do one thing, that he wants to follow the orders, that he wants to show "goodwill" and then goes and does something opposite. He threatened to email our friends and tell them how he has been the one to be abused even though I asked what he has put in the court record about me that is very hurtful and intimate be sealed. I am certain that he would continue harassing me by showing up at places where I regularly go to just be near me and that in his obsession he will hurt me if I do not get more protection.
Based on Saori's petition, the court entered an EPO against Paul. Subsequently, a hearing was held over the course of three days on Saori's petition for a DVO.
At the hearing, Saori offered detailed testimony explaining that she felt threatened by Paul's actions and that she feared that he would harm her. Saori described Paul's actions of intentionally holding her down and pulling her hair during sexual intercourse. Saori described Paul's controlling behavior, including telling her how to wear her hair, criticizing her, tracking her locations with a phone app, and monitoring her activities and conversations with others. Saori testified that Paul attempted to change his last name to "Hanaki" despite his knowledge of the importance of Saori's surname in her Japanese culture. Saori testified that Paul posted a list titled "25 reasons not to love Saori" in the marital home, displaying disparaging remarks about Saori. Saori explained that Paul's behavior caused her to put a lock on her bedroom door and lock it at night.
Saori explained that Paul's behavior caused her to leave the marital residence because she was afraid. Saori explained that her fears were proven true as Paul broke into her locked bedroom door with a credit card, taking Saori's personal photographs and clothing items relating to the marriage. Saori also testified about Paul's sudden appearances at the University of Kentucky pool, her yoga studio, Transylvania University, where she works, and Paul's alarming discovery of the address of her new home on the same day of her closing, despite her not disclosing the address to anyone.
Further, Saori testified about Paul's inability to control his behavior, explaining that he impulsively sends written communications via email, text, and Facebook posts. Saori testified that Paul sent an email to Saori's counsel threatening to move within 1,000 feet of her new home, sent an email threatening to purchase a gun, and made a Facebook post after a court hearing that Saori's counsel was "pissing all over" herself in fear of him. Saori also testified that Paul destroyed her personal property in a fit of anger, specifically her childhood photographs.
Deputy Maggard, who was present during the court hearings in June 2015 also testified about Paul's physical behavior. He testified that during the court proceedings Paul turned red in the face and clenched his fists and jaw, which caused Deputy Maggard to fear for the safety of Saori and the court. Deputy Maggard also testified that Saori's counsel was afraid to be left alone in the courtroom with Paul as a result of his behavior.
Paul also testified at the hearings. Paul generally denied that he had done anything wrong. However, Paul's own testimony largely confirmed all of the allegations submitted by Saori. Several exhibits including text messages, copies of the discussed emails, Facebook posts, the list of 25 reasons not to love Saori, and GPS information were also introduced during the hearing.
Following the hearing, the court entered an order granting Saori a DVO on Administrative Office of the Courts (AOC) Form 275.3. In so doing, the court found by a preponderance of the evidence that acts of domestic violence or abuse had occurred and may occur again. The court also restricted Paul from being within 500 feet of Saori's Zandale Drive residence, Transylvania University, the University of Kentucky pool, Sterling Yoga, and a home on Main Street in Georgetown.
Paul filed a motion to alter, amend, or vacate, and requested factual findings. The court denied Paul's motion to alter, amend or vacate, and entered an extensive 21 page order detailing its findings in support of its decision.
This appeal followed.
II. STANDARD OF REVIEW
A court may issue a DVO following an evidentiary hearing if it "finds by a preponderance of the evidence that domestic violence and abuse has occurred and may again occur . . . ." KRS 403.740(1). "'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." KRS 403.720(1).
Kentucky Revised Statutes.
"The preponderance of the evidence standard is met when sufficient evidence establishes that the alleged victim was more likely than not to have been a victim of domestic violence." Gomez v. Gomez, 254 S.W.3d 838, 842 (Ky. App. 2008) (internal quotation marks and citation omitted).
In our review of a DVO, "the test is not whether we would have decided it differently, but whether the court's findings were clearly erroneous or that it abused its discretion." Id. at 842. Because the trial court is in the best position to judge the credibility of evidence, we will not substitute our opinion for that of the trial court with regard to the weight given to certain evidence, including the testimony of witnesses. CR 52.01; B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005).
Kentucky Rules of Civil Procedure. --------
III. ANALYSIS
Under the foregoing standards, we cannot conclude that the trial court's decision to enter a DVO against Paul was clearly erroneous, or constituted an abuse of discretion. While this case represents a close call, in such cases we must not substitute our own judgment or reweigh the facts. Rather, our review hinges upon whether substantial evidence supports the trial court's decision. Upon careful review, we find that such evidence exists in this case.
Paul argues that insufficient evidence existence in the record to support a finding that domestic violence occurred, or may occur again, or that Saori was in fear of imminent domestic violence. In support of this argument, Paul largely relies on his own testimony, where he denied and minimized the allegations against him. Paul points to the fact that, despite his concerning behavior, he never physically harmed Saori. Conversely, Saori specifically testified that she felt threated and feared imminent physical injury. Saori explained that she felt Paul was unable to control his emotions. Further, Saori expressed her deep concern and alarm as a result of Paul's behaviors, which caused her to be in fear of imminent physical injury. She also testified to the physical act of Paul pulling her hair and holding her down during sexual intercourse, which she described as intentional and fear inducing.
We find this case to be analogous to Hohman v. Dery, 371 S.W.3d 780 (Ky. App. 2012), where, despite there being "no evidence [the victim] suffered physical injury or assault[,]" this Court held that the victim's belief that the perpetrator's "aggressive confrontations would escalate 'to the next level'" was sufficient to uphold the trial court's finding of domestic violence. Id. at 782-83. Here, despite there being little evidence Saori suffered physical injury or assault perpetrated by Paul, we find that substantial evidence supports a finding that Paul inflicted upon Saori fear of imminent physical injury or assault.
The following evidence supports such a finding by the trial court that Paul inflicted upon Saori a fear of imminent injury or assault: 1) Saori testified that she believed Paul was unstable, his behavior frightened her, and she believed he was going to physically harm her. Paul admitted Saori feared him; 2) Paul admitted to holding Saori down during sexual activity and pulling her hair. This resulted in the parties ceasing sexual activity; 3) Paul repeatedly disclosed intimate personal information about Saori and the parties' intimate relationship and used such information to harass, humiliate, and inflict fear upon Saori; 4) Paul broke into Saori's locked bedroom and removed personal items, including clothing related to important events in the parties marriage, and destroyed irreplaceable photos in a fit of anger; 5) Paul was monitoring Saori's locations, activities, and conversations; After the issuance of a no contact order, Paul made direct efforts to go to locations where he believed Saori would be, including purchasing access to the University of Kentucky pool within 24 hours of the entry of the civil no contact order; beginning hot yoga classes where Saori regularly attended classes; and visiting the Transylvania University campus and surrounding areas; 6) Paul discovered the address of Saori's new home on the same day she closed on the purchase of it, despite Saori only revealing the location to her realtor; he also threatened to move 1000 feet from Saori's new home; 7) Paul made legal threats, including sending threatening emails to Saori's counsel and, on one occasion, threatening to purchase a gun, and impulsively posting on Facebook; Paul also tried to convince Saori to drop the case via a contract that he drafted; 8) Paul tried to change his last name to Saori's maiden name, despite knowing the significance of her last name to the Japanese culture; 9) Paul left a document titled "25 reasons not to love Saori" in the marital residence containing degrading remarks; 10) Deputy Maggard observed Paul's physical behavior during court proceedings, including turning red in the face and clenching his fists and jaw, which caused Maggard to fear for the safety of Saori and the court at each appearance. The court found that Paul demonstrated inability to control his words and actions on multiple occasions created a fear of imminent physical harm.
Additionally, in considering the facts of this case it is important to apply the statute enacted by our General Assembly. The statute does not distinguish between acts inducing a fear of imminent harm and acts of actual past harm. Further, there is no requirement that a threat of harm must be accompanied by an act of present or past physical conduct to make it fear inducing.
The hearing standard can be satisfied by threats or infliction of fear. It need not necessarily be met by actual physical injury because of the definition of domestic violence. Domestic violence is defined as "physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault."
....
The statute spans a wide range of behavior, ranging from serious physical injury to threats of imminent physical injury. Legal training may make members of the bar, both judges and attorneys, draw unwarranted distinctions between those cases in which the victim receives a serious physical injury and those in which the perpetrator injures the victim only slightly or threatens to harm the victim, but has not yet carried out the threat. Elsewhere the law does define culpability and assesses punishment along a continuum indicating the level of social harm involved in the activity, but there are serious problems in carving out those distinctions in the domestic violence area.
A number of arguments mediate against refusing to enter a domestic violence order on the ground that the victim has been threatened or injured, but not seriously enough to warrant the issuance of an order. In the first instance, the legislature has defined all of the activity in the spectrum, including threats, as domestic violence. The statute does not require a victim to prove that she was beaten seriously to receive a protective order. There is no so-called "threshold of violence" that must be shown. In the second place, public policy requires that courts intervene to protect family members before harmful acts
occur, particularly if the threat demonstrates that the harm is imminent. Protection benefits both the victim and the perpetrator, who may be prevented from committing a more serious offense if protection is offered. If the trial court finds that the defendant's activity falls within the statute, it should enter an EPO without requiring the victim to prove that a particular, additional threshold of violence has been met.L. Graham and J. Keller, 15 Kentucky Practice Series, Domestic Relations Law, § 5.13. In construing these statutes, we must read them liberally and in favor of protecting domestic violence victims while taking care not to adopt an unreasonable construction. See Barnett v. Wiley, 103 S.W.3d 17, 19 (Ky. 2003) (citing Beckham v. Bd. of Educ. of Jefferson Cty., 873 S.W.2d 575, 577 (Ky. 1994)).
Accordingly, we find that there was substantial evidence to support the trial court's decision to grant the DVO. As the finding of domestic violence was supported by substantial evidence, the court likewise did not err by denying Paul's post-judgment motion to vacate the DVO.
We also find that the trial court properly restrained Paul from various locations. In her Petition for entry of a DVO, Saori requested that the court restrain Paul from going to or coming within a certain distance of specified locations. The locations were her Zandale residence, Transylvania University (where she is employed), the University of Kentucky pool, Sterling Yoga, and a home on Main Street in Georgetown. The written record as well as Saori's testimony confirmed the importance of these locations to her.
Paul was put on notice of Saori's intent to have him restricted from the above locations at the time the EPO was entered. Over the course of the extensive hearings, Paul did not dispute or object to Saori's testimony. Paul never questioned Saori's reasoning for listing these locations in her domestic violence petition or otherwise provided any evidence as to why he should not be restrained from the locations.
Saori articulated her desire to feel safe at and around her workplace on Transylvania's campus. The evidence supports that Paul repeatedly sought to be in and around the area of Transylvania University and Saori's office. Additionally, his sudden attendance at Sterling Yoga and the University of Kentucky pool immediately following the court's entry of the no contact order; Saori's testimony that her friend's home on Main Street in Georgetown is a safe harbor for her from Paul; and Paul's frightening discovery of the location of her Zandale home address despite Saori's attempts to keep the address from being disclosed and Paul's threats to move within 1,000 feet of Saori's Zandale Drive home, all support the trial court's restriction of Paul from the listed locations.
In light of the evidence and testimony on the record about the importance of the locations to Saori and Paul's failure to object to the locations when given the opportunity to do so at the hearings, we find that the court properly restricted Paul from the above listed locations.
IV. CONCLUSION
For the foregoing reasons, we affirm the Orders of the Fayette Circuit Court, Family Division.
ALL CONCUR. BRIEF FOR APPELLANT: Paul William Martin, pro se
Lexington, Kentucky BRIEF FOR APPELLEE: Elizabeth S. Hughes
Lexington, Kentucky