Opinion
NO. 2014-CA-001849-ME
05-22-2015
ROGER DAYLON RENICK APPELLANT v. HEATHER ILISA BAALKE APPELLEES
BRIEF FOR APPELLANT: Jason C. Hays Bowling Green, Kentucky BRIEF FOR APPELLEE: John N. Nicholas Bowling Green, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HONORABLE CATHERINE R. HOLDERFIELD, JUDGE
ACTION NO. 14-D-00312
OPINION
AFFIRMING
BEFORE: J. LAMBERT, STUMBO, AND THOMPSON, JUDGES. J. LAMBERT, JUDGE: Roger Daylon Renick (Daylon) appeals from the Warren Circuit Court's entry of a Domestic Violence Order (DVO) entered against him on October 13, 2014. After careful review, we affirm the trial court's orders.
Daylon and Heather began a relationship in the mid 2000s, and they had a child together, A.R.R., born in 2007. Heather and Daylon ended their relationship in 2009, and they entered into an agreed custody arrangement in 2010, which contemplated joint custody, with Heather designated as the primary residential parent. The parties were never married.
On October 1, 2014, Heather filed a petition for a DVO, and the matter came before the trial court for a hearing on October 13, 2014. Both parties were represented by counsel. The trial court heard evidence and testimony from Heather, Daylon, and Steve Sparks, Daylon's step-father. The trial court also took judicial notice of a hearing that occurred on August 21, 2014, which restricted Daylon's visitation to supervised visitation.
The testimony at the hearing reflected that during the parties' relationship, Daylon held a gun to Heather's head while she was holding their child and threatened to kill her. Daylon would not let Heather leave, and he broke her cell phone. Heather also testified that another time, Daylon took possession of the parties' minor child and told Heather he was going to kill her and then kill himself.
Heather testified that after the parties' relationship ended, the situation did not get better between them. Heather's father had to call the police when Daylon threatened to kill her and himself. Furthermore, Steve Sparks, Daylon's step-father, once pulled a shotgun on Heather during a child exchange, an event which Steve admitted while testifying at the hearing in this matter.
Heather testified that this repeated escalation of fear caused her to be "absolutely terrified for her life" and made her "afraid that he (Daylon) will show up on her doorstep and shoot her." In 2014, Heather sought the assistance of the courts by filing a petition for an Emergency Protective Order against Daylon. An EPO was granted based upon the allegations named therein. In her EPO petition, Heather cited the past instances of domestic violence outlined herein, as well as events that immediately precipitated the filing.
On August 14, 2014, Heather and A.R.R. went to see an early movie in Bowling Green, Kentucky. When the parties left the movie theater, Daylon was in his truck driving very slowly around the parking lot. He then proceeded to drive within six feet of Heather and A.R.R. Daylon did not attempt to speak to them or communicate in any other way other than driving near them. During the hearing, Daylon was asked why he was at the movies that day. He testified he went to see a movie himself, which was corroborated by his ticket stub. However, the record reflects that the movie Daylon watched ended 45 minutes before Heather and A.R.R. left the theater.
Heather described several other separate instances of threatening behavior, which she alleges caused her to fear for her life. Daylon made several anger-driven posts on a social media site, Facebook, including the post, ". . . you will regret it, on your last breath. I mean it. You mess with the best you will die like the rest. That's how I was raised." He also posted, "Don't give a fuck if you like it, fuck you and the high horse you rode [sic] on;" and most alarmingly, "Fixin to be a scene on Scottsville Road if anyone has the balls to follow me. Come get you a piece," which was posted on September 30, 2014. That same day, Daylon repeatedly drove by Heather's place of work, Jewelry Barn, located on Scottsville Road in Bowling Green, Kentucky, the same place Daylon was indicating there would be a "scene" where people could "come get a piece."
At the conclusion of the hearing, the trial court concluded that, based upon all instances elucidated from the testimony and other evidence, a domestic violence order should be entered for Heather and on behalf of A.R.R. Daylon's counsel asked that written findings be entered as well. On October 23, 2014, the trial court entered written findings of fact in support of the entry of the DVO, where the court determined that, taken in the aggregate, all the facts and circumstances of this case warranted the entry of a DVO. This appeal now follows. We note that the DVO was set to expire on April 13, 2015, but the record reflects that it was extended through July 1, 2015, and thus is still in effect. Therefore, we will address the merits of the parties' arguments.
Daylon argues that the trial court erred in its application of the facts to the law in regards to domestic violence when it entered the DVO against him. 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 . . . ." Kentucky Revised Statutes (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. Kentucky Rules of Civil Procedure (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.3d 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).
In support of his argument that the trial court improperly entered the DVO, Daylon cites to cases where this Court has overturned the entry of a DVO. For instance, in Caudill, supra, this Court overturned the DVO, stating that the incident was, at most, an unwanted touching that did not rise to the level of domestic violence as defined in KRS 403.720(1). Neither Caudill nor any of the other cases cited by Daylon have a corroborated circumstance where the respondent at one time held a loaded gun to the petitioner's head while she was holding their infant, broke the petitioner's phone so she could not call for help, and would not allow her to leave the premises. Nor did any of the cases involve an instance where the respondent threatened to kill the petitioner and commit suicide. We agree that none of the cases are analogous to the facts of this case, and thus we are not persuaded by Daylon's use of them as authority.
A more applicable case to the present situation is Gomez v. Gomez, 254 S.W.3d 838 (Ky. App. 2008), wherein this Court did not overturn the family court's finding of domestic violence after the Appellee testified that Appellant had threatened her in the past and she was fearful of him. Id. at 842. There, this Court quoted the Supreme Court of Kentucky's reasoning in Commonwealth v. Anderson, 934 S.W.2d 276 (Ky. 1996), saying: "[t]he trier of fact has the right to believe the evidence presented by one litigant in preference to another. The trier of fact may believe any witness in whole or in part. The trier of fact may take into consideration all the circumstances of the case, including credibility of the witness." Gomez, at 842.
We agree that in a domestic violence hearing, the trial court has the ability to weigh any testimony the way it sees fit, because it is in the best position to judge the credibility and truthfulness of competing witnesses. Furthermore, this Court in Gomez thought it was relevant that past instances of threats were enough to make the Appellee fearful of future acts of domestic violence. The case at bar presents past instances that extend far beyond threats and tread into the realm of anger and terror.
Daylon argues that the instance where he held a loaded gun to Heather's head and the later instance where he threatened to kill her and himself are too remote in time to constitute a reason for entry of the current DVO. We find this argument to be somewhat appalling. Instead, we agree with the trial court that Daylon's continued threats and inappropriate statements on Facebook, followed by conduct that verified such statements, are indicative that Daylon continues to pose a threat to Heather. Heather clearly fears for her life and for the life of her child, A.R.R. The prior instances and threats, combined with the recent statements on Facebook and the menacing behavior outside the movie theater and Heather's place of employment all constitute substantial evidence that domestic violence had occurred or was about to occur, and that Heather had a justifiable fear that domestic violence might again occur in the future. Accordingly, the trial court's entry of the DVO was not clearly erroneous.
Finding no error, we affirm the Warren Circuit Court's domestic violence order entered on October 13, 2014, and we find no error with the trial court's findings of fact in support of the domestic violence order entered on October 23, 2014.
ALL CONCUR. BRIEF FOR APPELLANT: Jason C. Hays
Bowling Green, Kentucky
BRIEF FOR APPELLEE: John N. Nicholas
Bowling Green, Kentucky