Opinion
NO. 2013-CA-001347-ME
05-23-2014
JEFFREY L. PETTINGILL APPELLANT v. SARA YOUNT PETTINGILL APPELLEE
BRIEF FOR APPELLANT: William D. Tingley Louisville, Kentucky BRIEF FOR APPELLEE: Bryan D. Gatewood Dina Bartlett Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JERRY J. BOWLES, JUDGE
ACTION NO. 13-D-501731
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. NICKELL, JUDGE: Jeffrey L. Pettingill has appealed from a domestic violence order (DVO) entered on July 11, 2013, by the Family Division of the Jefferson Circuit Court at the request of Sara Y. Pettingill. After reviewing the record, the briefs and the law, we affirm.
Sara and Jeffrey are married but were separated at the time Sara filed a petition seeking a DVO against Jeffrey. The marriage produced one minor daughter. In her petition, Sara alleged Jeffrey's controlling and erratic behavior had placed her in fear for her own safety as well as that of their child. She indicated Jeffrey had recently become angry and abused the family pet while the couple was on a walk with their daughter. She also alleged Jeffrey had locked her out of the couple's banking accounts; hacked into her e-mail and Facebook accounts; set up surveillance cameras in their home; destroyed her cell phone; told her he had a firearm hidden in the home; indicated he was an ex-CIA agent and talked about "putting hits on" his ex-wife who had filed domestic violence charges against him in Tennessee; was a convicted felon; showed no caution around children; and had "mental issues because [of] all of the things that are going on." Sara further stated she would be filing for divorce and was afraid of what Jeffrey might do when he found out. She stated she wanted Jeffrey to stay away and she wanted no contact with him. No allegations were made that Jeffrey had physically abused Sara or the child.
The trial court entered an emergency protective order (EPO) on July 2, 2013, based on Sara's allegations. The Jefferson County Sheriff was unable to personally serve Jeffrey, noting on the summons, he "is avoiding, someone told him about paperwork." Although the details are unclear from the record, Jeffrey received notice of the EPO and summons prior to the scheduled hearing on July 11, 2013. Both parties appeared at the hearing and were represented by counsel. At the conclusion of the hearing, the trial court entered the DVO against Jeffrey, finding a preponderance of the evidence had established acts of domestic violence had occurred and may occur again. In support of its conclusion, the court noted Jeffrey had avoided service of the EPO and made numerous factual findings from evidence adduced at the hearing. The trial court specifically found Jeffrey had: abused the family pet; cyber-stalked Sara; threatened the life of his ex-wife in Sara's presence; displayed possessive and jealous behavior; damaged Sara's property; engaged in "rule making behavior" by prohibiting Sara from driving her vehicle; was previously convicted of a felony; and, recently purchased a firearm. Coupled with the parties' recent separation, the trial court determined these findings indicated an extreme risk to Sara of physical harm from Jeffrey. Jeffrey's subsequent motion to vacate the July 11, 2013, protective order was denied. This appeal followed.
Jeffrey raises three allegations of error in seeking reversal. First, he argues the trial court erred in entering the DVO absent evidence of physical abuse. Next, he contends it was error for the trial court to base its decision on "domestic violence lethality factors" rather than the standard set forth in KRS 403.750. Finally, Jeffrey alleges the trial court erroneously took judicial notice of the domestic violence lethality factors.
Kentucky Revised Statutes.
In his brief, Jeffrey cites to KRS 403.720 in support of his contention that the trial court utilized an incorrect legal standard. However, KRS 403.720 contains only definitions for domestic violence and abuse, family member, global positioning monitoring system, and member of an unmarried couple. The standard Jeffrey references actually appears in KRS 403.750. We believe the incorrect citations in his brief were likely the result of typographical errors and shall analyze Jeffrey's arguments utilizing the correct statutory provision.
Domestic violence is governed by KRS Chapter 403, which provides domestic violence petitions must contain "[t]he facts and circumstances which constituted the alleged domestic violence and abuse." KRS 403.730(1)(c). "Domestic violence and abuse" 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 between family members or members of an unmarried couple.KRS 403.720(1) (emphasis added).
Jeffrey first argues the DVO was erroneously entered because there was insufficient evidence to support the trial court's finding that an act or acts of domestic violence and abuse had occurred and may occur again. He contends Sara's admission that Jeffrey never touched her is sufficient to defeat the petition and, thus, the trial court erred in failing to dismiss the action. We disagree.
A trial court may enter a DVO "if it finds 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 met when sufficient evidence establishes that 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) (citation omitted). Our 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) (citation omitted). 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). "[F]indings of fact are clearly erroneous only if they are manifestly against the weight of the evidence." Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008) (citation omitted). Because the trial court is in the best position to judge the credibility of the 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). An abuse of discretion occurs only where the trial court's decision is "unreasonable, unfair, arbitrary or capricious." Caudill v. Caudill, 318 S.W.3d 112, 115 (Ky. App. 2010).
Kentucky Rules of Civil Procedure.
Our review in this matter is severely hampered by the lack of a complete record. Although both parties cite to specific testimony proffered at the hearing, as well as the digital counter number where such testimony could be located, no copy of the videotape has been provided to us, though it appears it should have been certified by the clerk and transmitted to us as part of the appellate record. CR 98(2). It is the duty of the appellant to ensure the record on appeal is "sufficient to enable the court to pass on the alleged errors." Burberry v. Bridges, 427 S.W.2d 583, 585 (Ky. 1968). Therefore, we cannot review the actual testimony, but rather, "must assume that the omitted record supports the decision of the trial court." Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985). The trial court made detailed factual findings based on the testimony it heard and concluded Sara was the victim of domestic abuse. Contrary to Jeffrey's strenuous arguments, Sara's admission that he "never touched" her is not fatal to the trial court's decision to enter the DVO. As stated earlier, the infliction of fear of imminent physical injury is sufficient to justify a finding of domestic violence and abuse, and Sara plainly alleged such fears in her petition. After hearing sworn testimony from the parties, the trial court weighed the evidence, determined which witness was most credible, and based its decision thereon. As we have no record from the hearing to review, and the trial court's findings are consistent with the allegations set forth in Sara's petition, we cannot say the decision was manifestly against the evidence. Under the circumstances, we must assume the record supports the decision of the trial court and, therefore, we have no basis on which to reverse.
In pertinent part, CR 98(2) states: "Upon the filing of a notice of appeal, one of the two video recordings, or a court-certified copy of that portion thereof recording the court proceeding being appealed shall be filed with the clerk and certified by the clerk as part of the record on appeal."
Jeffrey next contends the trial court utilized an incorrect standard in determining acts of domestic violence had occurred. He argues the use of "lethality factors" is not recognized under Kentucky law and the correct standard is the preponderance test set forth in KRS 403.750 as quoted previously. Thus, he posits the trial court's decision is infirm as a matter of law and must be reversed. We disagree.
Initially, we note Jeffrey cites us to numerous cases in support of his argument that the appropriate standard is contained in KRS 403.750. We agree with his assessment, but contrary to his allegation, we believe the trial court did, in fact, employ the correct standard. The trial court utilized an AOC-275.3 standard form Order of Protection in addition to notations of additional factual findings made on the official docket sheet from the day of the hearing. On the AOC-275.3 form, the trial court checked the appropriate box indicating it was finding for Sara against Jeffrey "in that it was established by a preponderance of the evidence, that an act(s) of domestic violence or abuse has occurred and may again occur . . . ." This language clearly mirrors that found in KRS 403.750. Although the trial court made additional findings on the docket sheet regarding specific instances and examples of Jeffrey's acts upon which it based its decision, those factual findings cannot in any way be seen to indicate the trial court was unaware of the correct standard or made findings based on anything other than the testimony adduced at the hearing. The mere fact that the trial court referenced the so-called "lethality factors" does not render its decision infirm. Thus, we discern no error.
Finally, we are unconvinced by Jeffrey's contention that the trial court improperly took judicial notice of the theory of domestic violence lethality factors. Citing KRE 201 and Commonwealth v. Howlett, 328 S.W.3d 191 (Ky. 2010), Jeffrey alleges the trial court erred in utilizing its unique judicial knowledge to resolve adjudicative or historical factual issues. He believes the trial court's sua sponte reference to the lethality factors deprived him of the opportunity to question the court's reliance on the theory. Jeffrey argues the taking of judicial notice of a fact peculiarly known to the judge is wholly inappropriate and requires reversal. We disagree with Jeffrey's assertions.
Kentucky Rules of Evidence.
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We have thoroughly reviewed the orders entered in this matter and find absolutely no inference by the trial court that it was taking judicial notice of any fact. As previously noted, the trial court identified its factual findings on the docket sheet as being in conformity with the lethality factors, but there can be no reasonable argument that its findings were based on anything other than the evidence adduced during the course of this proceeding. Comparing its findings to the lethality factors does not change the nature or character of the adjudicated facts. The trial court was tasked with determining whether Jeffrey's acts, as alleged by Sara, rose to the level of domestic violence and abuse under the definition set forth in KRS 403.720 sufficient to warrant issuance of a DVO. At the conclusion of the proof, the trial court made specific findings regarding Jeffrey's bad acts before concluding an act or acts of domestic violence had occurred, and entering the DVO. The record is devoid of any indication of the trial court's use of judicial notice in deciding adjudicative or historical facts. Thus, Jeffrey's assertion is without merit.
For the foregoing reasons, the judgment of the Jefferson Circuit Court, Family Division, is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: William D. Tingley
Louisville, Kentucky
BRIEF FOR APPELLEE: Bryan D. Gatewood
Dina Bartlett
Louisville, Kentucky