Opinion
NO. 2012-CA-000481-ME
11-02-2012
EDDIE BELLO APPELLANT v. YENEI SARDUY APPELLEE
BRIEF FOR APPELLANT: Stephen Buchenberger Louisville, Kentucky BRIEF FOR APPELLEE: No brief filed.
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JOSEPH W. O'REILLY, JUDGE
ACTION NO. 12-D-500316
OPINION
REVERSING AND REMANDING
BEFORE: CLAYTON, COMBS AND THOMPSON, JUDGES. THOMPSON, JUDGE: Eddie Bello appeals from the Jefferson Family Court's Domestic Violence Order (DVO) prohibiting Bello from having contact with his former wife, Yenei Sarduy, and their two minor children, and awarding temporary custody of the children to Sarduy. Because the admissible evidence does not support the finding of domestic violence or change in custody, we reverse and remand.
Bello and Sarduy divorced in 2009. Pursuant to the divorce decree, they have joint custody of their seventeen-year-old daughter and eleven-year-old son. Sarduy is the primary residential parent and Bello has liberal visitation without a set schedule.
Sarduy filed a domestic violence petition based upon a single incident of threatened violence. Sarduy alleged that Bello, who had just picked up their son to take him to a birthday party, called her from the party and sounded drunk. He was upset about a door being slammed in his face at her house. Sarduy asked him to bring her son home; Bello stated he would bring him home in five minutes but took much longer than that. When they arrived, the daughter went outside to get the son.
According to Sarduy, the daughter informed her that Bello was upset and tried to get in the house twice. He allegedly told the daughter that he was coming back to the house with a gun and was going to kill them. The daughter called the police and they filed a report. The daughter told Sarduy that Bello later called the daughter, apologized, and said he was drunk.
Sarduy asked for temporary custody, stating that she did not trust Bello and was afraid for their safety. She also feared that he would transport the children while intoxicated. Sarduy was granted an emergency protective order and a DVO hearing was scheduled.
At the DVO hearing, the family court heard testimony from Sarduy, Bello, and Anthony Richardson, a child protective services (CPS) worker, who interviewed the son four days after the incident. The daughter did not testify.
Sarduy confirmed the statements in her petition. She stated that she did not personally see what happened outside or hear the threats made by Bello. She testified as to statements made by her daughter about what Bello said to the daughter. Sarduy stated that although she believed Bello was drinking that night based on how he sounded on the phone, she could not be sure he was drinking. He took two or more hours to return the son after stating that he would return him in five minutes. Her daughter was upset after getting the son from Bello and called the police, who filed a report. Sarduy and her children stayed at a relative's house that night because she was in fear for their safety.
Sarduy testified that this was the only incident with Bello. She did not think that he would repeat it or that he would drink again. She did not want this to affect his relationship with his children but wanted him to stay away from her.
Bello testified that he was offended by Sarduy's husband's asking for the door to be shut while he was talking with his daughter. He believed this to be a sign of disrespect and later called Sarduy because he was bothered by it. He stated that he did not return the son immediately because he was waiting for the food and the cake to be served. He denied drinking and claimed that he told his daughter that he did not want any problems but did want an apology from Sarduy's husband. His daughter asked him to leave and he did. He denied making any threats and stated that he did not have a gun.
Richardson testified that the son told him that his father drank sixteen to eighteen Heinekens at the party, and his father threatened to kill people after drinking and being angry. Later, Bello apologized to the son. Richardson testified that the son stated that there were no other incidences, he was not afraid of his dad, he felt safe with his dad and wanted his dad in his life. Richardson had not completed his investigation and only talked to the son.
During the hearing, contemporaneous objections were made regarding the hearsay statements made by Sarduy and Richardson. The family court sustained the objections regarding the hearsay statements made by Sarduy concerning what her daughter told her about Bello's alleged threats. The court overruled the hearsay objection to Richardson's testimony, finding that his conversation was admissible because it was made in the course and scope of his employment as a CPS social worker.
The family court found that Sarduy established by a preponderance of the evidence that an act of domestic violence or abuse had occurred and may again occur. The court prohibited Bello from any contact or communication with Sarduy and the children on the basis of a reasonable fear of imminent physical harm, and awarded temporary custody of the children to Sarduy for two years. Bello declined supervised visitation.
We note as an initial matter that Sarduy failed to submit a brief to this court. Under Kentucky Rules of Civil Procedure (CR) 76.12(8)(c), we may (i) accept Bello's statement of the facts and issues as correct; (ii) reverse the judgment if Bello's brief reasonably appears to sustain such action; or (iii) regard Sarduy's failure as a confession of error and reverse the judgment without considering the merits of the issue. Because the record supports Bello's arguments as set forth below, we reverse.
"When reviewing the entry of a DVO, our standard of review is whether the trial court abused its discretion." Pasley v. Pasley, 333 S.W.3d 446, 448 (Ky.App. 2010). We may not substitute our findings of fact for the trial court's findings unless they are clearly erroneous; findings are not clearly erroneous if supported by substantial evidence. Id.
Issuance of a DVO requires that the family court conduct a hearing and find by a preponderance of the evidence that an act of domestic violence and abuse has occurred and may occur again. Kentucky Revised Statutes (KRS) 403.750(1). A threat which causes fear of imminent or serious physical injury can constitute domestic violence and abuse. KRS 403.720. "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.'" Pasley, 333 S.W.3d at 448 (quoting Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996)).
The family court abused its discretion by entering the DVO because the allegation of threats was not supported by any admissible testimony. Hearsay evidence cannot be used to support an entry of a DVO unless a hearsay exception applies. Rankin v. Criswell, 277 S.W.3d 621, 625 (Ky.App. 2008). No hearsay exception was established for admitting the statements made by the daughter to Sarduy.
The family court clearly erred in admitting statements made by the son to the social worker, Richardson. "It is well-settled that '[t]here is no recognized exception to the hearsay rule for social workers or the results of their investigations.'" Colvard v. Commonwealth, 309 S.W.3d 239, 249 (Ky. 2010) (quoting B.B. v. Commonwealth, 226 S.W.3d 47, 51 (Ky. 2007)). Because the family court specifically relied upon the hearsay statements by Richardson, we cannot deem the admission of these statements harmless or nonprejudicial. G.E.Y. v. Cabinet for Human Resources, 701 S.W.2d 713, 715 (Ky.App. 1985).
When the hearsay statements are not considered, there is simply no evidence of a threat by Bello. Sarduy's testimony that Bello may have been drinking, was upset by a perceived slight, took longer to return her son than promised, and that her daughter was upset after her interaction with Bello and contacted the police, is not sufficient to show an act of domestic violence and abuse. Accordingly, we must reverse.
The invalid DVO cannot sere as a proper basis for modifying custody and visitation under KRS 403.750(1)(f). Additionally, the complete absence of evidence and findings regarding the best interests of the children requires reversal. See KRS 403.270.
Based on the foregoing, this case is reversed and remanded to the Jefferson Family Court to vacate its domestic violence order and restore the joint custody and shared parenting arrangement of the divorce decree.
ALL CONCUR. BRIEF FOR APPELLANT: Stephen Buchenberger
Louisville, Kentucky
BRIEF FOR APPELLEE: No brief filed.