Opinion
NO. 2018-CA-001500-ME
05-10-2019
YUNIOR CASTELLO MIRANDA APPELLANT v. RYSSEL ALEJANDRA PALANCIA LEON APPELLEE
BRIEF FOR APPELLANT: Rob Eggert Louisville, Kentucky Mark Wettle Louisville, Kentucky BRIEF FOR APPELLEE: Shelley Santry Heend Sheth Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GINA KAY CALVERT, JUDGE
ACTION NO. 18-D-502634-001 OPINION
AFFIRMING
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BEFORE: ACREE, NICKELL, AND L. THOMPSON, JUDGES. NICKELL, JUDGE: Yunior Castello Miranda, appeals the domestic violence order ("DVO") entered by the Jefferson Circuit Court, Family Division, on September 17, 2018. After careful review of the record, we affirm.
On September 4, 2018, Ryssel Alejandra Palancia Leon petitioned the Jefferson Circuit Court for a DVO against Miranda, her husband. Therein, Leon alleged Miranda had threatened her with a pair of scissors. She further claimed she feared him because she knew "what he was capable of" doing. She also alleged he followed her and had been physically abusive in the past.
The family court held a hearing on Leon's petition. Evidence presented consisted of testimony from the parties, several photographs, and a single email. Leon testified to the scissors incident. She also described past threats made by Miranda, including one involving a knife. Leon further alleged previous acts of physical violence, including Miranda punching her with a closed fist. She explained she did not have photographs of the resulting bruises from these incidents because Miranda had taken her phone and deleted them. Additionally, Leon testified to Miranda's controlling behaviors, including following her to and from work. Leon stated she was fearful of Miranda and wished to have no contact with him.
On cross-examination, Leon was questioned about several photos of bruises on Miranda's body. When asked to identify them, Leon stated she thought one of them may have been a work-related injury. She then explained another bruise may have been caused by her pushing and kicking Miranda in self-defense. Although these photos were entered into the record, they were not identified or addressed by Miranda, leaving Leon's explanations the only testimony regarding the origins of the bruising.
During his testimony, Miranda denied ever having threatened or physically abused Leon. He claimed she initiated each alleged incident, including the one involving the scissors. He testified Leon had been physically aggressive toward him throughout the marriage, but he never hit her, not even in self-defense. He attributed her aggression to a brain tumor he claims to have previously diagnosed when he was working as a physician and she was his patient. He presented no documentation or other evidence to support this alleged diagnosis.
At the close of evidence, the family court found by a preponderance of the evidence an act of domestic violence or abuse had occurred and was likely to occur again in the future. The family court entered the DVO and ordered it remain in effect for one year. This appeal followed.
"[T]he standard of review for factual determinations is whether the family court's finding of domestic violence was clearly erroneous." Dunn v. Thacker, 546 S.W.3d 576, 578 (Ky. App. 2018) (citations omitted). A family court's findings are not clearly erroneous if they are "supported by substantial evidence." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citation omitted).
Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, due regard shall be given to the opportunity of the [family] court to judge the credibility of the witnesses because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the [family] court.Id. (citations and internal quotation marks omitted).
A court may enter a DVO if it finds "by a preponderance of the evidence that domestic violence and abuse has occurred and may again occur[.]" KRS 403.740(1). "The preponderance of the evidence standard is satisfied when sufficient evidence establishes the alleged victim was more likely than not to have been a victim of domestic violence." Dunn, 546 S.W.3d at 580 (citing Baird v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007)). "Domestic violence and abuse" includes "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[.]" KRS 403.720(1).
Kentucky Revised Statutes. --------
Miranda claims the family court clearly erred in entering the DVO because there was insufficient evidence presented regarding acts or threats of abuse.
As detailed above, the evidence presented at the hearing primarily consisted of conflicting testimony by the parties. This Court must give due regard to the family court's judgment on the credibility of witnesses. Moore, 110 S.W.3d at 354. Here, the family court found Leon's testimony credible, in light of all of the evidence presented, regarding multiple acts of physical abuse and threats of physical abuse. We conclude, based on the record, the family court did not clearly err in finding by a preponderance of the evidence an act of domestic violence had occurred and was likely to occur again without entry of a protective order. Therefore, entry of the DVO was proper.
For the foregoing reasons, the judgment of the Jefferson Circuit Court, Family Division, is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Rob Eggert
Louisville, Kentucky Mark Wettle
Louisville, Kentucky BRIEF FOR APPELLEE: Shelley Santry
Heend Sheth
Louisville, Kentucky