Opinion
NO. 2017-CA-001377-ME
05-25-2018
DUSTIN ALLEN MARTIN APPELLANT v. GRACE MARIE MARTIN APPELLEE
BRIEF FOR APPELLANT: Jennifer Thomas Somerset, Kentucky NO BRIEF FOR APPELLEE:
NOT TO BE PUBLISHED APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
ACTION NO. 17-D-00190-001 OPINION
AFFIRMING
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BEFORE: COMBS, JOHNSON, AND J. LAMBERT, JUDGES. JOHNSON, JUDGE: Dustin Allen Martin ("Dustin") filed this appeal from the July 26, 2017 Order of the Pulaski Circuit Court, Family Court Division, which granted a Domestic Violence Order ("DVO") against Dustin. After reviewing the record in conjunction with the applicable legal authorities, we affirm the order of the Pulaski Circuit Court.
BACKGROUND
Grace and Dustin were married and had a child who is still a minor. Sometime during the marriage, they separated with the minor child residing with Grace. At the time of these proceedings neither party had filed for a divorce. During the course of the separation, the marriage continued to deteriorate with each party accusing the other of various nefarious actions.
On July 14, 2017, Grace filed a Petition for an Order of Protection in the Pulaski Family Court Division. On July 17, 2017, Judge Marcus Vanover granted Grace an Emergency Protective Order ("EPO") against Dustin, requiring him to remain 500 feet away from Grace and the minor child, ordering that he not possess firearms, and granting temporary custody of the minor child to Grace.
On July 26, 2017, Judge Roderick Messer held a hearing on Grace's petition for a DVO with both Grace and Dustin testifying at the hearing. After hearing all testimony, the court granted a DVO in favor of Grace against Dustin for a period of two years, which included all of the provisions of the EPO and referred the matter to the Cabinet for Health and Family Services to investigate on behalf of the minor child.
On August 23, 2017, Dustin filed this appeal.
STANDARD OF REVIEW
Kentucky Rules of Civil Procedure ("CR") 52.01 provides that a trial court's findings of fact may be set aside if clearly erroneous. "[T]he 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." Gomez v. Gomez, 254 S.W.3d 838, 842 (Ky. App. 2008) (citing Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982)).
Findings of fact are not clearly erroneous if they are supported by substantial evidence. "Substantial evidence is 'evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.'" Commonwealth v. Jennings, 490 S.W.3d 339, 346 (Ky. 2016) (quoting Owens-Corning Fiberglas Co. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998)).
When the outcome of a case turns on an issue of law, our review is de novo. Western Kentucky Coca-Cola Bottling Co., Inc. v. Revenue Cabinet, 80 S.W.3d 787, 790 (Ky. App. 2001).
ANALYSIS
In the appeal before us, Grace has chosen not to file a brief. Therefore, pursuant to CR 76.12(8)(c), where an appellee has not filed a brief, "the court may: (i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case." The decision as to how to proceed is a matter committed to our discretion. Alcorn v. Deutsche Bank Nat. Trust Co., ex rel. Bosco Credit II Trust Series 2010-1, 427 S.W.3d 188, 190 (Ky. App. 2014). Because of the serious nature of a DVO, we will accept the appellant's statement of facts and the issues as correct.
Dustin's appeal centers upon two issues. First, he argues that the trial court erred when it referenced Kentucky Revised Statutes ("KRS") 403.270 and discussed the best interest of the child prior to granting the DVO. However, we do not read the trial court's decision as being based upon KRS 403.270. In the quote noted in Dustin's brief at page 4, the trial court at that time stated that "in light of protecting this child's interest[,]" the trial court would refer the matter to the Cabinet for Health and Family Services for an investigation. That is also noted in the trial court's DVO where the matter is referred to "CHFS to investigate."
In granting the DVO against Dustin, the trial court discussed the "preponderance of the evidence" standard as set forth in KRS 403.740(1). As Dustin referenced in his brief, the trial court held "that by a preponderance of the evidence Respondent [appellant] has made at least some statements that could be taken as a threat." We find no error in the trial court's application of the standard as set forth in KRS 403.740.
In Dustin's second issue on appeal, he argues that the trial court had insufficient evidence on the record of domestic violence.
As used in KRS 403.715 to 403.785:
(1) "Domestic violence and abuse" means physical injury, serious physical injury, stalking, 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).
As Dustin has noted, the burden of proving domestic violence rests upon the petitioner. Dustin argues that Grace had to prove that an incident of domestic violence occurred and is likely to occur again. What the trial court held in granting the DVO was "that by a preponderance of the evidence Respondent [Dustin] has made at least some statements that could be taken as a threat." The trial court focused on the statutory language that Grace established by a preponderance of the evidence that she was in fear of imminent physical injury.
We have previously ruled that domestic violence statutes should be construed liberally in favor of protecting victims from domestic violence and preventing future acts of domestic violence. However, we have also ruled that the construction cannot be unreasonable. Caudill v. Caudill, 318 S.W. 3d 112, 115 (Ky. App. 2010) (citations omitted). Our review in this Court is not whether we would have decided the case differently, but whether the trial court's findings were clearly erroneous or an abuse of discretion, Cherry, 634 S.W.3d at 425. The trial court noted that the ruling was a close call and pointed out that neither party had much credibility. However, the trial court also found, based upon a preponderance of the evidence, that some of the statements made by Dustin can be taken as threats, and we will not substitute our judgment for that of the trial judge who heard the evidence, weighed the credibility of the witnesses, and issued his ruling. Gomez, supra.
Under this standard, we affirm the family court's decision to grant the DVO finding that it was neither clearly erroneous nor an abuse of its discretion.
CONCLUSION
Based upon the foregoing, we affirm the July 26, 2017 Order of the Pulaski Circuit Court granting a DVO to Grace Martin.
ALL CONCUR. BRIEF FOR APPELLANT: Jennifer Thomas
Somerset, Kentucky NO BRIEF FOR APPELLEE: