Opinion
NO. 2018-CA-001585-ME NO. 2018-CA-001586-ME
03-06-2020
JASON BUCKNER APPELLANT v. LAURIE JOSEPH APPELLEE
BRIEF FOR APPELLANT: Bethanni E. Forbush-Moss Louisville, Kentucky BRIEF FOR APPELLEE: William D. Tingley Louisville, Kentucky
NOT TO BE PUBLISHED APPEALS FROM HARDIN FAMILY COURT
HONORABLE M. BRENT HALL, JUDGE
ACTION NOS. 18-D-00452-001 & 18-D-00452-002 OPINION
REVERSING AS TO APPEAL NO. 2018-CA-001585-ME AND AFFIRMING AS TO APPEAL NO. 2018-CA-001586-ME
** ** ** ** **
BEFORE: ACREE AND DIXON, JUDGES; BUCKINGHAM, SPECIAL JUDGE. ACREE, JUDGE: Appellant, Jason Buckner, appeals the Hardin Family Court's October 1, 2018, domestic violence order (DVO) entered in favor of Appellee, Laurie Joseph. Buckner also appeals the Hardin Family Court's October 1, 2018, order denying his petition for interpersonal protective order (IPO) against Joseph. After careful review, we reverse the family court's entry of the DVO, and affirm the court's order denying the IPO.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
FACTS AND PROCEDURE
These appeals arise from a single confrontation that took place on the morning of August 8, 2018. The following day, Joseph filed a petition for an order of protection from domestic violence against her boyfriend, Buckner. She attached to her petition a sworn statement that Buckner:
pulled the covers off the bed. Took my cellphone. [B]roke the home phone and took my wallet. He placed the cellphone and wallet in pocket [sic] shoved me into the wall and baracaded [sic] the bedroom door with his suitcase . . . .
He accused me of hiding his phone and place [sic] me in a headlock. I tried to get out and he dragged me to the bathroom and punch [sic] a hole in my closet door. He locked the bathroom door and pushed me in the closet. I tried to get away and he blocked the door. I found a way to get out and ran to unlock [the] bathroom door[.] I moved the items placed by the door while he ran sacked [sic] my closet looking for his phone. I opened the door triggering the security alarm and he dragged me to the [security alarm control panel] held me door [sic] and disabled it. . . . He dragged me back to the bedroom and once he secured the front door the [sic] closed the bedroom door and locked it. At the [sic] point I feared for my life and accepted that I might die. [Buckner] kicked the door pushing the hollow pieces in while bruise [sic] and hurting himself. He continue [sic] to choke me
and to [illegible] several times if I move he'll snap my neck.
On August 17, 2018, Buckner filed a petition for an IPO against Joseph. His petition told a different story:
While I slept, Ms. Joseph gained access to my cellphone. She then woke me out of my sleep yelling accusations of cheating. When I got out of bed to put on clothes, she then began physically attacking me with slaps and punches to the face. I attempted to restrain her from continuing while I got dressed. . . . [S]he hid my phone which prevented me from leaving. After this repeats [sic], I walk to the neighbors house to call the authorities.
A hearing was held on October 1, 2018, before the Hardin Family Court to address both petitions. Joseph testified that she was in a relationship with Buckner at the time of the incident. She said on August 7, 2018, Buckner became upset that her ex-husband was stopping by to see his children. She noted that Buckner was verbally abusive that night; they had sex and went to sleep. At some point in the morning hours of August 8, she gained access to his cellphone and found inappropriate material. She asked Buckner to leave and got back in bed. But, according to Joseph, Buckner ripped the covers off her, pushed her, verbally abused her, and threatened to kill her. She noted that she tried to escape, but he blocked the door and continued to hit her.
To corroborate her story, Joseph introduced multiple photographs depicting damage to her home. One photograph showed her bedroom door, which was broken from the outside in. Joseph stated that when the police arrived, she did not report the violence in hopes of protecting Buckner. The following day, Joseph stated she visited the hospital to assess her injuries.
When questioned about Buckner's residence, she stated Buckner did not have a residence of his own. Instead, he bounced around from location to location, including her house, his mother's house, his baby's mother's house, and a house in Georgia. She said that Buckner stayed with her on weekends and that he kept clothes and toiletries at her house. Additionally, she said at some point prior to the incident, Buckner stayed with her for approximately 10 consecutive days.
Officers Matthew Berry and Gary Mark testified at the hearing. Officer Berry stated that when he arrived at the scene, Buckner was standing in the neighbor's driveway and Joseph was standing in her driveway. Both officers noted Buckner had injuries to his face and arms and Joseph was not injured. Officer Berry filled out a citation noting Joseph hit Buckner in the face and scratched his arm. Joseph was arrested as the initial aggressor.
After Officer Berry conducted further investigation, Buckner was charged with assault, intimidating a witness, and unlawful imprisonment.
At the hearing on the cross-petitions for protective orders, Officer Berry largely corroborated Joseph's version of the facts. He said he entered Joseph's home on the night of the incident and observed the property damage depicted in the photographs admitted into evidence. He also corroborated Joseph's statements that she did not want Buckner arrested. Officer Berry further indicated that Buckner's driver's license listed his address in Louisville.
Buckner was last to testify at the hearing. He noted that at the time of the incident he was living in Louisville but had stopped by Joseph's house on his way from Toronto, Canada, to Atlanta, Georgia, to begin a job he had accepted. He acknowledged the incident occurred after Joseph saw inappropriate material on his phone. But he refuted Joseph's version of the physical altercation. He claimed Joseph struck him in the face, knocking him through the bedroom door. He said he left, went to the neighbor's house, and called the police.
On cross-examination, Buckner testified he did not live with Joseph, but did visit her on weekends and whenever he could. He testified that he spent a total of eight days at Joseph's house during the month preceding the incident. He said that other than a tuxedo, he did not keep any clothes or toiletries at Joseph's house. He also stated he did not know the code to her security system.
After the hearing, the family court entered a DVO for a three-year period ending October 1, 2021. On the DVO form, the judge checked the box "unmarried, currently or formerly living together." In the additional findings, the family court checked one box, constituting a finding "[f]or [Joseph] against [Buckner] in that it was established, by a preponderance of the evidence, than an act(s) of domestic violence and abuse has occurred and may again occur . . . ."
The family court then denied Buckner's petition for an IPO. In the additional findings, the family court checked one box, again finding "[f]or [Joseph] in that it was not established, by a preponderance of the evidence, that an act(s) of domestic violence has occurred or may again occur." Furthermore, the family court incorporated one additional finding of fact on the docket sheet, which read "no DV by a preponderance." Neither party filed a motion for additional factual findings. This appeal followed.
STANDARD OF REVIEW
When we review a decision of the family court, "[t]he test is not whether the appellate court would have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion." Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008) (quoting B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky. App. 2005)).
The preponderance of the evidence standard is met when sufficient evidence establishes that the petitioner is "more likely than not" to have been a victim of dating violence and abuse, sexual assault, or stalking. Baird v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007) (applying the preponderance of the evidence standard in the context of the issuance of a domestic violence order).
Additionally, CR 52.01 provides that a trial court's "findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." See also 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). Substantial evidence is evidence of sufficient probative value that it permits a reasonable mind to accept as adequate the factual determinations of the trial court. Id. A reviewing court must give due regard to the trial court's judgment as to the credibility of the witnesses. Id.
Kentucky Rule of Civil Procedure.
ANALYSIS
A court may issue a DVO, "[f]ollowing a hearing ordered under KRS 403.730, if a court finds by a preponderance of the evidence that domestic violence and abuse has occurred and may again occur . . . ." KRS 403.740(1). "'Domestic violence and abuse' means physical injury, serious physical injury, stalking, sexual abuse, strangulation, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, strangulation, or assault between family members or members of an unmarried couple[.]" KRS 403.720(1); see Pettingill v. Pettingill, 480 S.W.3d 920, 924-25 (Ky. 2015). Likewise, a court may issue an IPO, "[f]ollowing a hearing ordered under KRS 456.040, if a court finds by a preponderance of the evidence that dating violence and abuse, sexual assault, or stalking has occurred and may again occur . . . ." KRS 456.060(1).
Kentucky Revised Statute. --------
Buckner raises multiple issues on appeal. He asserts the family court abused its discretion by entering a DVO against him where: (1) the parties are not an unmarried couple; (2) no domestic violence and abuse existed; (3) it was not proven that domestic violence may occur again; and (4) it was not proven that there is a fear of imminent physical injury, serious physical injury, sexual abuse or assault. He further alleges the family court's denial of his petition for an IPO was clearly erroneous.
Before addressing the issues raised by Buckner, we note that Joseph asserts the family court did not comply with the fact-finding requirements under CR 52.01. Therefore, she asserts, this case should be remanded to the family court for additional fact-finding and that Buckner's assignments of error are moot. We disagree. Sufficiency of family court's findings
We acknowledge past confusion whether fact-finding required by CR 52.01 is satisfied by use of forms provided by the Administrative Office of the Courts to address DVOs and IPOs. If confusion remains after the Supreme Court's opinion in Pettingill, 480 S.W.3d 920, it must be addressed by that Court. For now, under procedurally identical facts, this Court shall follow that case and Williford v. Williford, 583 S.W.3d 424 (Ky. App. 2019).
In Williford, this Court quoted Pettingill at length when we decided the question of fact-finding using AOC Form 275.3, as follows:
Although some family courts do make separate additional findings of fact for which no space is provided on the form, many more courts lack sufficient judicial resources of the most essential nature - time - that might allow them to do so. Some courts incorporate the fact-finding notations they make on their docket sheets during the hearing, as the judge did in Pettingill. 480 S.W.3d at 922. But in Pettingill, the Supreme Court said:
Following the hearing, the family court found that Sara had met the burden above and entered a DVO against Jeffrey. To document this order, the court completely and accurately filled out AOC Form 275.3 and, under the "Additional Findings" header, checked the box corresponding to "for [Sara] against [Jeffrey] in that it was established, by a preponderance of the evidence, that an act(s) of domestic violence or abuse occurred and may again occur." To supplement this finding, the family court made further factual findings on its docket sheet[.]
. . . .
The family court's written findings of fact were more than sufficient to satisfy CR 52.01. In addition to clearly finding that an act or acts of domestic violence had occurred and may occur again on the form, the court also listed on its docket sheet nine
specific findings to support its order. . . . This effort more than satisfies the court's good faith duty to record fact-finding.
Williford, 583 S.W.3d at 430.
Id. at 925 (emphasis added). If the family court's reference to fact-finding notations on the docket sheet "more than satisfies the court's good faith duty to record fact-finding[,]" then, logically, completely and accurately filling out AOC Form 275.3 and checking the appropriate box under "Additional Findings" on the form, in and of itself, must "satisf[y] the court's good faith duty to record fact-finding."
A party always has the authority under CR 52.02 to request additional findings if she believes the court's fact-finding on AOC 275.3 alone is insufficient. Penny did not avail herself of that opportunity and, as noted, she has not objected to the sufficiency of the fact-finding, only the substance of the fact-finding made on the form.
Here, the family court completely and accurately filled out AOC 275.3 and checked the appropriate box under "additional findings." Joseph sought no more additional findings than those. On the question of the sufficiency of findings, this case is indistinguishable from Williford. This Court is not the proper forum to seek additional findings for the first time. We decline to remand the case to allow Joseph a second opportunity to ask for more findings when the first opportunity was missed. DVO
Buckner first asserts he is not a "member of an unmarried couple" and, therefore, Joseph doesn't have standing to seek a DVO against him. "Member of an unmarried couple" is defined as "each member of an unmarried couple which allegedly has a child in common, any children of that couple, or a member of an unmarried couple who are living together or have formerly lived together." KRS 403.720(5). Because Buckner and Joseph were never married and have no children together, Joseph only has standing to seek a DVO if she and Buckner were living together prior to or at the time of the incident.
"Living together" is not defined in the DVO statutes. However, the Kentucky Supreme Court addressed the meaning of "living together" in the context of the DVO statutes in Barnett v. Wiley, 103 S.W.3d 17, 18 (Ky. 2003). There, the Court said:
In their definitive treatise on Kentucky domestic relations law, Justice Keller and Professor Graham have this to say about the phrase:
Legislatures have generally expanded the definition of protected parties in response to wider diversity in family structure. The Kentucky statute does not define "living together." Courts give substance to this language, and in doing so they should focus on the purpose of the statute rather than technicalities. The point of domestic violence legislation is to protect victims from harm caused by the persons whose
Id. at 18-19 (quoting LOUISE E. GRAHAM AND JAMES E. KELLER, 15 KENTUCKY PRACTICE: DOMESTIC RELATIONS LAW, § 5.1 at 107 (2d ed. West 1997)).intimate physical relationship to the victim increases the danger of harm, either because the parties live in physical proximity or because the relationship is one whose intimacy may disable the victim from seeking protection.
Barnett then lists six indicia of cohabitation, a term not entirely synonymous with "living together." Of those indicia, the one deserving our attention is "sexual relations between the parties while sharing the same living quarters[.]" Id. at 20 (quoting State v. Kellogg, 542 N.W.2d 514, 518 (Iowa 1996)). There is no minimum time the parties must have shared the living quarters if other facts make future physical proximity or intimacy a possibility. Benson v. Lively, 544 S.W.3d 159, 165 (Ky. App. 2018).
"The purpose of statutory construction is to give effect to the intent of the legislature." Cosby v. Commonwealth, 147 S.W.3d 56, 60 (Ky. 2004) (internal quotation marks and citation omitted). "[T]he domestic violence statutes should be construed liberally in favor of protecting victims from domestic violence and preventing future acts of domestic violence." Barnett, 103 S.W.3d at 19 (citation omitted).
The testimony is unrefuted that the parties have been sexually intimate, and that Buckner has spent many weekends and at least one continuous period of ten days with Joseph. The fact he also stayed at other places and called Louisville his residence does not detract from these facts. These facts are sufficient to withstand appellate scrutiny; the finding that the parties were living together for purposes of the DVO statutes is not clearly erroneous and therefore constitute substantial evidence to support the DVO.
Buckner next claims there is insufficient evidence of domestic violence or abuse and that such violence may occur again. We need not address whether domestic violence or abuse was present in this situation, because substantial evidence does not support a finding that an act of domestic violence may occur in the future.
The parties are not in a relationship and do not appear to have any ties that bind them. Buckner no longer lives in Kentucky. He testified at trial that he lives in Atlanta, Georgia, presumably where he continues to work. Evidence of domestic violence preceding this one evening's altercation might support an inference of future domestic violence. However, there is no such evidence, and the inference would be unsupported. Joseph's fear of future abuse, alone, is insufficient to base a finding that domestic violence may occur again. See Guenther v. Guenther, 379 S.W.3d 796, 802 (Ky. App. 2012). In fact, the evidence shows they are unlikely to see each other again.
We are cognizant of the significance of a DVO and its importance in our criminal system. However, "the impact of having an EPO or DVO entered improperly, hastily, or without a valid basis can have a devastating effect on the alleged perpetrator." Wright v. Wright, 181 S.W.3d 49, 52 (Ky. App. 2005). "[T]here are severe consequences, such as the immediate loss of one's children, home, financial resources, employment, and dignity." Id.
In this case, the finding that domestic violence may occur again is not supported by substantial evidence. Accordingly, we reverse the Hardin Family Court's DVO as lacking support of substantial evidence. IPO
Buckner asserts the denial of his petition for an IPO was clearly erroneous. We disagree. Buckner asserted he was a victim of dating violence and abuse. Dating violence and abuse is defined as "physical injury, serious physical injury, stalking, sexual assault, strangulation, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, strangulation, or assault occurring between persons who are or have been in a dating relationship." KRS 456.010(2).
Evidence supports the finding that the parties were in a dating relationship at the time of the injuries. Therefore, the family court was required to determine, by a preponderance of the evidence, whether Joseph inflicted physical injury, serious physical injury, stalking, sexual assault, strangulation, fear of imminent physical injury, serious physical injury, sexual abuse, strangulation, or assault.
We note that Joseph and Buckner gave different accounts of what transpired on the night of the incident. Each claimed the other was the aggressor. Here, the family court, as the fact-finder, relied on the testimony of Joseph and found her recitation of the facts more credible. Specifically, the family judge pointed to one major discrepancy in Buckner's testimony. Buckner testified that Joseph punched him in the face while he was in her bedroom, causing him to fall backwards through the bedroom door. However, the family court considered the photographic evidence of the door and noted it was broken from the outside, into the bedroom, which is more consistent with Joseph's testimony.
Although the police arrested Joseph the morning of the incident as the initial aggressor, Officer Berry testified that after further investigation, Buckner was arrested for assault, intimidating a witness, and unlawful imprisonment. Officer Berry's testimony further corroborated Joseph's story. It was well within the family court's discretion to find Joseph's and Officer Berry's testimony about the incident constituted "[e]vidence that a reasonable mind would accept as adequate to support a conclusion[.]" Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (quoting BLACK'S LAW DICTIONARY 580 (7th ed. 1999)).
The evidence presented was sufficient for the court to reasonably infer that Buckner was not a victim of dating violence. Accordingly, the family court's denial of Buckner's petition for an IPO was not clearly erroneous.
CONCLUSION
We reverse the Hardin Family Court as to its October 1, 2018 DVO entered against Buckner, and affirm that court's order of the same date denying Buckner's petition for an IPO.
BUCKINGHAM, SPECIAL JUDGE, CONCURS AND WRITES SEPARATELY.
DIXON, JUDGE, CONCURS IN PART, DISSENTS IN PART, AND WRITES SEPARATELY.
BUCKINGHAM, SPECIAL JUDGE, CONCURRING: I concur with Judge Acree's opinion regarding the trial court's finding that domestic violence may reoccur is not supported by substantial evidence and the DVO should be reversed. I also note that Joseph did not rebut or address in any way Buckner's argument in this regard.
I write separately, however, to address Joseph's argument that the case should be remanded to the trial court for the entry of findings of fact pursuant to CR 52.01. I agree in principal with Judge Acree that if Joseph believed the trial court should have made additional findings of fact beyond checking the box on AOC-275.3 and wanted to preserve that issue for our review, then she should have requested additional findings. See CR 52.04. Nevertheless, I believe there is some confusion and uncertainty in the law as it relates to the sufficiency of findings of fact to support a DVO where the court makes no additional findings of fact beyond checking the box on the form.
In Pettingill v. Pettingill, 480 S.W.3d 920 (Ky. 2015), our Supreme Court held that a family court's findings of fact "were more than sufficient" where the court listed nine specific findings on its docket sheet in addition to checking the box on the form. Id. at 925. Thereafter, this Court in Thurman v. Thurman, 560 S.W.3d 884 (Ky. App. 2018), held that the findings of fact were not sufficient where the trial court checked the single box on AOC-275.3 finding the appellant had committed domestic violence before entering the DVO. Id. at 887. That is the exact fact situation here.
Then, in Castle v. Castle, 567 S.W.3d 908 (Ky. App. 2019), this Court held "[t]here are no written findings in this case[,]" where the trial court had simply checked a box before entering a DVO. Id. at 916. In that case, the trial court had checked the box finding the appellant had committed a sexual assault before entering a DVO despite the fact that "[w]e have located no authority permitting a victim of sexual assault to apply for and receive a DVO." Id. at 918.
Finally, in Williford v. Williford, 583 S.W.3d 424 (Ky. App. 2019), a 2-1 decision citing Pettingill, this Court held as follows:
If the family court's reference to fact-finding notations on the docket sheet "more than satisfies the court's good faith duty to record fact-finding[,]" then, logically, completely and accurately filling out AOC Form 275.3 and checking the appropriate box under "Additional Findings" on the form, in and of itself, must "satisf[y] the court's good faith duty to record fact-finding."Id. at 430 (emphasis added). In short, it appears to me that Williford is at odds with Thurman and Castle, which is understandable because Pettingill did not definitively resolve two key questions: (1) whether checking the box on AOC-275.3 constituted a sufficient finding to support the entry of a DVO, and (2) whether AOC-275.3 itself was deficient for that purpose. Pettingill, 480 S.W.3d at 925-26.
Regardless, the finding of fact issue is not properly before this Court, as Joseph did not request additional findings before arguing on appeal that the case should be remanded. As this Court held in Williford, "[a] party always has the authority under CR 52.02 to request additional findings if she believes the court's fact-finding on AOC 275.3 alone is insufficient." 583 S.W.3d at 430.
I concur with Judge Acree's opinion reversing the DVO entered by the trial court as not supported by substantial evidence.
DIXON, JUDGE, CONCURRING IN PART AND DISSENTING IN PART: The majority has acknowledged there was sufficient evidence in Appeal No. 2019-CA-001586-ME that the parties are in a dating relationship. I believe that is sufficient evidence to support the family court's determination in Appeal No. 2019-CA-001585-ME that domestic violence may again occur. It certainly matters not where the parties reside on a permanent basis in order to have a dating relationship, as the majority suggests. BRIEF FOR APPELLANT: Bethanni E. Forbush-Moss
Louisville, Kentucky BRIEF FOR APPELLEE: William D. Tingley
Louisville, Kentucky