Opinion
2023-CA-1228-ME
10-18-2024
STEPHEN T. SOUDERS APPELLANT v. LOREN M. SCHEFFLER APPELLEE
BRIEF FOR APPELLANT: STEPHEN T. SOUDERS, PRO SE CINCINNATI, OHIO BRIEF FOR APPELLEE: FRANK A. WICHMANN ERLANGER, KENTUCKY
NOT TO BE PUBLISHED
APPEAL FROM BOONE CIRCUIT COURT FAMILY COURT DIVISION HONORABLE KENDRA L. MCCARDLE, JUDGE ACTION NO. 23-D-00183-001
BRIEF FOR APPELLANT: STEPHEN T. SOUDERS, PRO SE CINCINNATI, OHIO
BRIEF FOR APPELLEE: FRANK A. WICHMANN ERLANGER, KENTUCKY
BEFORE: ACREE, CETRULO, AND TAYLOR, JUDGES.
OPINION
TAYLOR, JUDGE
Stephen T. Souders, pro se, brings this appeal from an Interpersonal Protective Order entered July 3, 2023, and from Supplemental Findings of Fact entered September 25, 2023, by the Boone Circuit Court, Family Court Division. We affirm.
On June 9, 2023, Loren Marie Scheffler filed a Petition/Motion for Order of Protection against Stephen Tyler Souders. In the petition, Scheffler alleged that she and Souders had previously dated for over a year, and he had briefly lived in her home. Scheffler alleged that Souders recently began sending multiple texts and making multiple calls to her because Souders was angry about comments she made about him on social media. Scheffler also alleged that Souders kept threatening that he would reach out to other people and share intimate details about her if she did not delete the comments. The tone of Souders' numerous messages, coupled with his erratic behavior made Scheffler feel unsafe. Souders also repeatedly texted her saying that he wanted an apology. When Scheffler did not respond, Souders said "If you're never going to say sorry[,] then I will just not ask anymore for an apology. I'll just move on to the next phase." Trial Record at 6.
Souders mentioned in one text that he had just been released from the hospital. Based upon that statement, Scheffler assumed that Souders had either attempted suicide or had been placed on a psychiatric hold at a local hospital. In one phone conversation, he told her he was going to commit suicide. Scheffler believed that Souders' persistent calling and text messaging was an attempt to intimidate and scare her. Scheffler also reported seeing a man approach her house, walk up to her front door, peer in through the front glass, and then quickly turn and walk away. She inferred in her pleading that this person was Souders.
Following a hearing upon Scheffler's petition, the family court entered an Interpersonal Protective Order (IPO) against Souders on July 3, 2023. The family court found that it had been established by a preponderance of the evidence that Souders engaged in acts of stalking against Scheffler. On July 5, 2023, Souders filed a motion to alter, amend, or vacate the IPO. By order entered September 25, 2023, the family court "overrule[d]" Souders motion to alter, amend, or vacate but did enter Supplemental Findings of Fact on September 25, 2003. This appeal follows.
Upon review of a petition for an IPO, the family court must determine whether a basis for the petition exists; if so, the court shall conduct an evidentiary hearing. Kentucky Revised Statutes (KRS) 456.040(1)(a). Following the evidentiary hearing, the family court must make the necessary findings of fact. We review the family court's findings of fact under the clearly erroneous standard. Jones v. Jones, 617 S.W.3d 418, 423 (Ky. App. 2012); Kentucky Rules of Civil Procedure (CR) 52.01. A finding of fact is clearly erroneous if not supported by substantial evidence of a probative value. Jones, 617 S.W.3d at 423 (citing Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003)). However, due regard must be given to the family court to judge the credibility of the witnesses at the hearing. CR 52.01. We, of course, review issues of law de novo. Halloway v. Simmons, 532 S.W.3d 158, 161 (Ky. App. 2017).
On appeal, Souders asserts that he did not engage in stalking as defined by KRS Chapter 456. KRS Chapter 456 sets forth the IPO statutes which permit a victim of stalking to petition the court for an order of protection against the perpetrator. KRS 456.030; Halloway, 532 S.W.3d at 161. The family court is required to conduct an evidentiary hearing which occurred in this case. If the court finds by a preponderance of the evidence that stalking has occurred and may occur again, the court may issue an IPO. KRS 456.060(1). KRS 456.010(8) defines stalking as conduct that is prohibited under KRS 508.140 or KRS 508.150.
The relevant statute herein, KRS 508.150(1) provides:
(1) A person is guilty of stalking in the second degree when he intentionally:
(a) Stalks another person; and
(b) Makes an explicit or implicit threat with the intent to place that person in reasonable fear of:
1. Sexual contact as defined in KRS 510.010;
2. Physical injury; or
3. Death.KRS 508.150(1). And, the term "stalk" is defined in KRS 508.130, in relevant part, as follows:
(1) (a) To "stalk" means to engage in an intentional course of conduct:
1. Directed at a specific person or persons;
2. Which seriously alarms, annoys, intimidates, or harasses the person or persons; and
3. Which serves no legitimate purpose.
(b) The course of conduct shall be that which would cause a reasonable person to suffer substantial mental distress.
(2) "Course of conduct" means a pattern of conduct composed of two (2) or more acts, evidencing a continuity of purpose....
Under the above statutory scheme, Scheffler was required to prove by a preponderance of the evidence that Souders: (1) intentionally threatened Scheffler, implicitly or explicitly, that placed her in fear of serious injury, and (2) intentionally stalked her by engaging in a course of two or more harassing, annoying, alarming, or intimidating acts that were directed toward her with no legitimate purpose and which would have caused a reasonable person in Scheffler's position substantial mental distress. See Strong v. Gary, 673 S.W.3d 77, 80 (Ky. App. 2023).
In the case sub judice, as noted, the family court conducted an evidentiary hearing on July 3, 2023, where both parties appeared and testified. Thereafter, the court entered Supplemental Findings of Fact on September 25, 2023. Therein, the family court found by a preponderance of the evidence that Souders engaged in stalking by making an "[i]ntentional threat (either explicit or implicit) to place fear of . . . serious injury [by making] threats to take it to the next phase; threatened suicide." Trial Record at 57. The family court further found that Souders engaged in harassing, annoying, alarming, and intimidating acts toward Scheffler by "multiple contacts, continued escalation, calls and messages, snapchat, calls with him crying, threatening suicide and escalation by 'taking it to the next phase.'" Trial Record at 57. The family court also found that these acts served no legitimate purpose and would cause a reasonable person in Scheffler's position to suffer mental distress and did cause Scheffler mental distress. See Strong, 673 S.W.3d at 80.
Based on our thorough review of the record on appeal, the family court's Findings of Fact were supported by substantial evidence of a probative value. Souders failed to refute Scheffler's direct testimony. And, the family court did not err by determining that Souders conduct met the statutory definition of stalking. Therefore, we are unable to conclude that the family court erroneously entered the IPO.
Finally, we would be remiss if we did not address the major deficiencies in Souders' brief, with the most glaring being the failure to provide citations to the record below to support his arguments. Kentucky Rules of Appellate Procedure (RAP) 32(A)(3) and (4). In particular, Souders makes no citation to the video transcript of the hearing conducted on July 3, 2023, by the family court. The failure to identify the specific errors by the court below greatly hampers this Court's review.
Under RAP 10(B), this Court could strike Souders' brief and dismiss the appeal. Notwithstanding, we have elected to review the entire record below, including the hearing transcript, to address the merits of this appeal.
For the foregoing reasons, the Interpersonal Protective Order of the Boone Circuit Court, Family Court Division, entered against Souders, is affirmed.
ALL CONCUR.