Opinion
NO. 2012-CA-000871-ME
02-22-2013
RICHARD L. YATES, AKA RICHARD R. YATES APPELLANT v. VICKIE YATES BROWN, EMERGENCY GUARDIAN FOR LAVON YATES APPELLEE
BRIEFS FOR APPELLANT: Robert M. Coots Taylorsville, Kentucky BRIEF FOR APPELLEE: Allen K. Gailor Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM SPENCER CIRCUIT COURT
HONORABLE MARTIN F. MCDONALD, SENIOR JUDGE
ACTION NO. 12-D-00006
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND VANMETER, JUDGES. DIXON, JUDGE: Richard L. Yates appeals from a domestic violence order entered against him by the Spencer Circuit Court finding that Richard committed acts of domestic violence against his mother, Lavon Yates. We affirm.
On March 20, 2012, Vickie Yates Brown, as emergency guardian for her mother, Lavon Yates, filed a domestic violence petition against Richard Yates, who is Lavon's son and Vickie's brother. In her petition, Vickie alleged she feared for Lavon's safety because Richard intimidated and systematically abused Lavon, who suffers from Alzheimer's dementia. Based on the petition, the court issued an emergency protective order restraining Richard from having any contact with Lavon, and the court set a date for an evidentiary hearing.
At the hearing, the court heard testimony from five witnesses: Vickie, Richard, Robert Yates (Lavon's husband and father of Vickie and Richard), Joy Payne (family friend), and Frances Austin (Lavon's caregiver). Lavon, although suffering from dementia, was also present at the hearing, and she answered a few questions asked by her attorney and by the court.
At the conclusion of the hearing, the court issued a three-year domestic violence order (DVO) against Richard. The order restrained Richard from having any contact with Lavon and required him to remain at least 500 feet away from her. This appeal followed.
A court may grant a DVO, following a full hearing, "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[.]" Kentucky Revised Statutes (KRS) 403.750(1). Pursuant to KRS 403.720(1), "'Domestic violence and abuse' means 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 . . . [.]" To satisfy the preponderance standard, the evidence believed by the fact-finder must show that the victim "was more likely than not to have been a victim of domestic violence." Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996). "On appeal, we are mindful of the trial court's opportunity to assess the credibility of the witnesses, and we will only disturb the lower court's finding of domestic violence if it was clearly erroneous." Buddenberg v. Buddenberg, 304 S.W.3d 717, 720 (Ky. App. 2010).
Richard contends the DVO was not supported by substantial evidence. He specifically asserts that the court improperly admitted hearsay testimony, that the court erroneously admitted Lavon's testimony, that the court ignored testimony favorable to Richard, and that the DVO exceeded the scope of the relief requested in Vickie's petition.
We note that, in his appellate brief, Richard failed to set forth whether his claims were properly preserved for review. Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v). He also failed to cite any meaningful legal authority to support his arguments. Id. It is well settled that "[i]t is not our function as an appellate court to research and construct a party's legal arguments[.]" Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005).
After reviewing the hearing, we conclude any alleged errors regarding the admission of evidence were harmless because we are not persuaded the inclusion of the evidence prejudiced Richard's substantial rights. CR 61.01; Combs v. Stortz, 276 S.W.3d 282, 293 (Ky. App. 2009).
The court heard eyewitness testimony from Austin, who explained that Richard grabbed Lavon's breasts on two occasions, which upset Lavon. The first time the incident occurred over Lavon's blouse; however, the second time Richard reached underneath Lavon's shirt. Austin stated that Lavon yelled at Richard to stop, and Austin believed Lavon was afraid of Richard. Vickie testified regarding an incident she witnessed when her father was in the hospital. Vickie asserted that Richard held a medical device with a dangling tube in front of his private area (over his clothing) and ran toward Lavon. Vickie stated that Lavon screamed and covered her face as Richard approached her. Richard testified that he did not recall the hospital incident. Richard admitted touching Lavon's breasts on multiple occasions; however, he claimed that it was in a joking manner and that Lavon thought it was funny when he told her to put on a bra.
We are mindful that the trial court was in the best position to assess the demeanor and credibility of the witnesses. Although Richard characterized it as kidding around, he nevertheless admitted that he had touched Lavon's breasts several times. The evidence also indicated that Lavon was afraid of Richard.
We conclude the evidence as a whole supported the trial court's finding that Richard's behavior toward Lavon inflicted fear of imminent sexual abuse or assault and constituted "domestic violence and abuse" under KRS 403.720(1). Based upon this finding, the court properly entered a DVO against Richard pursuant to KRS 403.750.
For the reasons stated herein, the order of the Spencer Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Robert M. Coots
Taylorsville, Kentucky
BRIEF FOR APPELLEE: Allen K. Gailor
Louisville, Kentucky