Opinion
NO. 2013-CA-000881-ME
05-23-2014
ELDEN CLAY NORRIS APPELLANT v. SANDRA JEFFERSON APPELLEE
BRIEF FOR APPELLANT: Paul Joseph Dickman Covington, Kentucky NO BRIEF FOR APPELLEE. ENTRY OF APPEARANCE BY: Bryan K. Underwood Maysville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CAMPBELL FAMILY COURT
HONORABLE RICHARD A. WOESTE, JUDGE
ACTION NO. 13-D-00078
OPINION
REVERSING AND REMANDIING
BEFORE: ACREE, CHIEF JUDGE, JONES AND MAZE, JUDGES. MAZE, JUDGE: Elden Clay Norris (Norris) appeals from a domestic violence order (DVO) granted by the Campbell Family Court restricting his contact with Sandra Lynn Jefferson (Jefferson). He argues that Jefferson failed to establish by a preponderance of the evidence that an act of domestic violence occurred, or may occur again, or that she was in fear of imminent domestic violence. After reviewing the record, we must agree that the trial court's findings were not supported by substantial evidence. Hence, we reverse the trial court's entry of the DVO and remand for dismissal of the petition.
The essential facts of this matter are not in dispute. Norris and Jefferson were never married, but have a child, B.R.N., in common. Apparently, the child was the subject of a custody proceeding in Bracken County. On November 26, 2012, that court issued an order limiting Norris to supervised visitation. However, Jefferson continued to allow Norris to have unsupervised visitation with the child.
Since the custody order was not introduced, it is not clear which court in Bracken County issued the order. The district court may exercise concurrent jurisdiction over custody matters in paternity proceedings under KRS Chapter 406. Kentucky Revised Statutes (KRS) 406.051(2). On the other hand, the district court may decline to exercise jurisdiction if it finds that the matter should be heard in circuit court. Id. Since the trial court states that the order was issued by the Bracken Circuit Court, we shall presume that this is correct.
Jefferson discontinued that visitation following a disagreement on March 3, 2013. The dispute between the parties became increasingly heated after that point, with Norris sending Jefferson over 100 hostile text messages. Jefferson filed a complaint of harassment against Norris, and the Campbell County Attorney sent several warning letters to him about those contacts. However, no charges had been filed at the time of the hearing in this case.
Finally, following an incident at B.R.N.'s school, Jefferson filed a domestic violence petition against Norris, alleging as follows:
[H]e appeared at [our] daughter's school, knowing he has [a] suspended visitation court order with supervised
visitation. Clay has sent me over 50 text messages on one telling me to "keep it up"[.] I filed harassment charges 3/18 with a warning letter to not contact me. He is stating he will never stop. He is telling me I am sick in the head. Clay has guns in his possession and I have filed an EPO once before. He is very unstable. He's begging me to file charges against him. Clay is an alcoholic and has a history of violence!
After reviewing the petition, the court denied the motion for an emergency protective order (EPO) and issued a summons scheduling the matter for a hearing on April 18, 2013. At the hearing, Jefferson reiterated the allegations in her petition, stating that Norris's actions had given her cause to be afraid of him. She alleged that Norris was often verbally abusive and intimidating. On cross-examination, she admitted that Norris had never physically harmed her, but he had pushed her down one time approximately six years earlier. Jefferson did not file charges over that incident. Jefferson previously filed a domestic violence petition and harassment charges in 2007, but she dropped both of those matters. In his testimony, Norris denied that he owned any weapons. He admitted to sending numerous profane texts to Jefferson. However, he stated that he would never be violent toward Jefferson or his child.
After considering the evidence, the trial court admitted that Jefferson's allegations were a "close call." Nevertheless, the court granted the DVO, concluding that Jefferson was reasonably in fear of imminent physical injury or assault by Norris. The court ordered Norris to remain at least 500 feet away from Jefferson, except as provided by the Bracken Circuit Court in any orders relating to visitation. Thereafter, Jefferson filed a motion to alter, amend or vacate the DVO pursuant to Kentucky Rules of Civil Procedure (CR) 59, which the trial court denied on April 26, 2013. This appeal followed.
As a preliminary matter, we note that Jefferson has not filed an appellee's brief in this case. Although CR 76.12(8)(c) provides that when an appellee fails to file an appellate brief, this Court may accept the appellant's statement of facts and issues as correct or reverse the family court's judgment, we are not compelled to do so. Given our applicable standard of review, we may review the trial court's order based upon the record and without considering Jefferson's failure to file a brief.
In Caudill v. Caudill, 318 S.W.3d 112 (Ky. App. 2010), this Court addressed the DVO process as well as an appellate court's review:
Prior to entry of a DVO, the court must find "from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur…." KRS 403.750(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. Baird v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007). The definition of domestic violence and abuse, as expressed in KRS 403.720(1), includes "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…." The standard of review for factual determinations is whether the family court's finding of domestic violence was clearly erroneous. CR 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). Findings are not clearly erroneous if they are supported by substantial evidence. Moore v. Asente, 110 S.W.3dCaudill, 318 S.W.3d 114-115.
336, 354 (Ky. 2003). "[I]n reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion." Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted). Abuse of discretion occurs when a court's decision is unreasonable, unfair, arbitrary or capricious. Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994) (citations omitted).
….
While "domestic violence statutes should be construed liberally in favor of protecting victims from domestic violence and preventing future acts of domestic violence[,]" Barnett v. Wiley, 103 S.W.3d 17, 19 (Ky. 2003), "the construction cannot be unreasonable." Id. (citing Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994)). Furthermore, we give much deference to a decision by the family court, but we cannot countenance actions that are arbitrary, capricious or unreasonable. See Kuprion, 888 S.W.2d at 684.
In several recent cases, this Court has set aside DVOs based upon insufficient evidence. In Caudill, this Court held that mere unwanted touching and obnoxious behavior "does not satisfy the definition of domestic violence and abuse as stated in KRS 403.720(1)." Id. Likewise, in Fraley v. Rice-Fraley, 313 S.W.3d 635 (Ky. App. 2010), this Court reversed a DVO which was based solely on the impact of the opinions of a marriage counselor, rather than upon any evidence of violence or threatened violence. Id. at 640.
Similarly, in Pasley v. Pasley, 333 S.W.3d 446 (Ky. App. 2010), this Court again reversed the entry of a DVO, where the wife stated only that she was unsure of what her husband would do and was afraid of him. Id. at 448. In the absence of any violence or threats, the Court concluded that the wife had failed to show that she was in any fear of imminent injury. Id. at 449. And finally, in Telek v. Daugherty, 376 S.W.3d 623(Ky. App. 2012), the mother's statement that the father had grabbed and pushed her during a visitation exchange, combined with the father's repeated refusal to comply with court orders, was insufficient to meet the statutory definition of domestic violence. Id. At 627-628
Jefferson's allegations in this case are substantially similar to those presented in these recent cases. There is no allegation in this case that Norris has inflicted any physical injury - only that he has caused Jefferson to be in fear of physical injury. However, the statute requires that the fear be of "imminent" physical injury. "'Imminent' means impending danger, and, in the context of domestic violence and abuse as defined by KRS 403.720, belief that danger is imminent can be inferred from a past pattern of repeated serious abuse." KRS 503.010(3).
Jefferson does not allege that Norris has used physical force against her recently. She only stated that Norris shoved her once six years earlier. Even if substantiated, that act would not meet the definitions of domestic violence under KRS 403.720(1), or "imminent" under KRS 503.010(3).
The trial court was most concerned with Norris's violation of the custody order and his sending of over 100 hostile text messages to Jefferson. We do not condone any of this behavior. However, Norris's violation of the Bracken Circuit Court's custody order is not controlling, particularly considering that Jefferson admitted that she allowed Norris to have unsupervised contact with B.R.N. following the issuance of that order.
Furthermore, the text messages, while clearly meant to be intimidating, were not overtly threatening. Apart from the profanity and name-calling, the only message which was arguably threatening stated, "You're gonna pay." Jefferson testified that she took this message as a possible threat of violence. However, she admitted that her fear was based upon not knowing what Norris might do, rather than upon any direct or implicit threat of violence. Jefferson also stated that, while Norris's demeanor and pattern of verbal abuse was intimidating, he never showed any means or intention of carrying out any violence against her during their most recent arguments.
Even if the text messages meet the definition of harassing communications under KRS 525.080, there was no evidence that Norris made any threat of imminent harm to Jefferson. Viewing the evidence as a whole, we must hold that Jefferson failed to establish by a preponderance of the evidence that an act of domestic violence occurred, or may occur again, or that she was in fear of imminent domestic violence. Therefore, the trial court abused its discretion in granting the DVO.
Accordingly, the DVO entered on April 18, 2013, is reversed and this matter is remanded to the Campbell Family Court for dismissal of the petition.
ACREE, CHIEF JUDGE, CONCURS.
JONES, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
JONES, JUDGE, DISSENTING: Respectfully, I dissent. I would affirm the Campbell Family Court's issuance of the DVO. As recognized by the trial court, this case presents a close call. In such a case, I believe that we are not to substitute our own judgment or reweigh the facts. Rather, our job is to determine whether substantial evidence supports the trial court's decision. Upon review, I believe such evidence exists in this case.
In my opinion, Jefferson's testimony regarding Norris's frequent and excessive sending of profanity-laden hostile text messages calling her names and, in at least one instance, warning her, "you're going to pay," coupled with his allegedly unstable personality and past behavior was sufficient evidence from which the trial court judge could reasonably conclude that Norris caused Jefferson to fear imminent physical injury. Although perhaps not the strongest case, I believe that the trial court acted well within its discretion in granting the DVO.
In my opinion, the following evidence is substantial enough to foreclose any conclusion that the trial court abused its discretion in granting the DVO: 1) the parties were engaged in a bitter custody dispute; 2) Norris sent Jefferson over a hundred hostile text messages in a relatively short amount of time; 3) Norris told Jefferson that "you're going to pay" in one of the texts, which Jefferson testified that she took as a threat of imminent physical harm; 4) Jefferson testified that Norris had pushed her in the past, threatened her in the past, and that she once took out an EPO on Norris after he stalked and threatened her; 5) Jefferson testified she that believed Norris was unstable, his demeanor frightened her, and she believed he was going to physically harm her; 6) Norris's texts were hostile and verbally abusive to Jefferson; 7) Norris sent the "you're going to pay" text and several others to Jefferson after having already received a warning letter from the Campbell County Attorney regarding possible harassment charges as related to his unwanted and repeated contacts with Jefferson; and 8) Norris violated a custody order from Bracken County for only supervised visitation with the parties' minor child by showing up unannounced at their child's school on April 8, 2013, and then texting Jefferson about it, which occurred just ten days prior to the DVO hearing.
Regardless of whether the majority may have decided the case differently, based on the testimony and evidence presented, I believe that we are compelled to conclude that sufficient evidence supports the trial court's determination that Jefferson was more likely than not a victim of domestic violence as defined by our General Assembly.
I find this case sufficiently similar to Hohman v. Dery, 371 S.W.3d 780, 782 -83 (Ky. App. 2012), in which we upheld a DVO:
We frame our review by noting there is no evidence Jennifer suffered physical injury or assault perpetrated by Joseph. Our inquiry turns on whether substantial evidence supports a finding that Joseph inflicted upon Jennifer a fear of imminent physical injury or assault.
Joseph relies on his own testimony, where he either denied or minimized the allegations, to support his argument that there was no evidence he caused Jennifer to fear imminent physical injury. Despite Joseph's assertions to the contrary, Jennifer specifically testified she felt threatened when he clenched his fists and yelled at her through gritted teeth. Jennifer explained that she believed Joseph was unable to control his emotions and that she feared his aggressive confrontations would escalate "to the next level." Jennifer further expressed her concern with Joseph's frequent "drive-bys," coupled with text messages that indicated Joseph knew Andrew's work schedule and messages that expressed Joseph's anger at Jennifer for ruining his life.
We reiterate that the family court is in the best position to judge the credibility of the witnesses and weigh the evidence presented. Id. Here, Joseph and Jennifer gave conflicting accounts of Joseph's conduct. As the fact-finder, the court relied on the testimony of Jennifer and Andrew and found them to be more credible than Joseph. Based on the record, we conclude the evidence presented was sufficient for the court to reasonably infer that Joseph's conduct caused Jennifer to fear imminent physical injury; accordingly, the court's finding of domestic violence was not clearly erroneous. As the finding of domestic violence was supported by substantial evidence, the court likewise did not err by denying Joseph's post-judgment motion to vacate the DVO.
Id.
Additionally, I believe that the effect of the majority opinion is to place a higher burden of proof on individuals seeking DVOs based on threats inducing fear of imminent physical harm than on those seeking DVOs based on allegations of past physical harm. While it may be a natural tendency to treat actual past physical acts as more serious, we must 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. Furthermore, 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."L. Graham and J. Keller, 15 Kentucky Practice Series, Domestic Relations Law, § 5.13.
. . . .
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 assess 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.
Appellate review of a trial court's decision regarding issuance of a DVO "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). Findings of fact will not be set aside unless they are clearly erroneous, that is, unsupported by substantial evidence. CR 52.01; Moore v. Asente, 110 S.W.3d 336 (Ky. 2003). As explained by our Supreme Court, the appellate court is not to reweigh the evidence on appeal:
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 trial 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 trial court. Thus, "[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal," and appellate courts should not disturb trial court findings that are supported by substantial evidence. (internal citations omitted).Moore, 110 S.W.3d at 354.
Upon review, I believe that there was substantial evidence to support the trial court's decision to grant the DVO pursuant to KRS 403.750. I believe that in reversing the trial court, the majority has impermissibly reweighed the evidence and impermissibly substituted their judgment for that of the trial court. I would affirm the Campbell Family Court's judgment. BRIEF FOR APPELLANT: Paul Joseph Dickman
Covington, Kentucky
NO BRIEF FOR APPELLEE.
ENTRY OF APPEARANCE BY:
Bryan K. Underwood
Maysville, Kentucky