Opinion
NO. 2012-CA-000947-ME
04-05-2013
JAMES CHRISTOPHER JONES APPELLANT v. KRYSTAL COLEEN SPIVEY APPELLEE
BRIEF FOR APPELLANT: John Corey Morgan Franklin, Kentucky BRIEF FOR APPELLEE: J. Richard Downey Bowling Green, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM SIMPSON CIRCUIT COURT
HONORABLE G. SIDNOR BRODERSON, JUDGE
ACTION NO. 11-D-00070
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS, AND DIXON, JUDGES. DIXON, JUDGE: James Christopher Jones appeals a domestic violence order entered against him by the Simpson Circuit Court, finding that he committed acts of domestic violence against Krystal Coleen Spivey. We affirm.
In early 2012, James and Krystal were in the midst of divorce proceedings. James has two older children, Krystal has one older child, and the couple has one child together. On January 9, 2012, Krystal filed a domestic violence petition against James. In her petition, Krystal alleged she feared for her safety because James had threatened to kill her, he repeatedly hit himself in the head, and he told her he would make her "pay." The court granted Krystal an EPO and set a date for an evidentiary hearing.
According to the appellate briefs, James also filed a petition for an EPO against Krystal, and the court held a hearing on both petitions. On January 18, 2012, the court dismissed James's petition, and the court entered a DVO on behalf of Krystal. James moved to vacate the DVO entered against him, and he requested a new trial. The written record reflects that the court granted James's motion, noting that James had retained counsel and sought to present additional evidence on the issues raised by Krystal's petition. The court's order specifically stated that James had not contested the prior dismissal of his EPO petition; consequently, any issues relating to that proceeding are not before this Court.
At the hearing, the court heard testimony from six witnesses: Krystal, James, Gordana Popovich (Krystal's domestic violence counselor), Brittany Jones (James's eleven-year-old daughter), Katie Jones (James's ten-year-old daughter), and Billy Ramsey (James's pastor).
Krystal and James presented conflicting accounts of the events that prompted Krystal to seek the EPO. Krystal testified that, on the morning of January 8, 2012, she entered the marital residence to pick up the parties' two-year-old daughter. Krystal observed all of her clothing piled in the floor, and James told her she could not take anything he had purchased. James became angry when Krystal ignored him, and he told her she was going to "pay." According to Krystal, as she held their young daughter, James picked up a boot from the floor and struck himself in the forehead three times, causing a laceration. Krystal's brother, who was waiting outside, entered the apartment and stepped between Krystal and James so Krystal could exit the apartment. Krystal stated that a week before, James told her he was researching gun silencers. When she asked why, he responded that it did not matter, because he could "take care" of her with a pillow. Krystal testified that she was afraid James would shoot her if he had the opportunity, and she stated he had purchased two handguns and a rifle in June 2011. Krystal also contended that James pushed her down in February 2010, when she was seven months pregnant, and she went to the emergency room as a result.
James testified that the January 8 incident was instigated by Krystal and that she hit him across the forehead with the zipper of a suede boot. James claimed that Krystal's motive for filing the petition for EPO was to gain leverage in the parties' custody dispute because James was seeking sole custody of their daughter. James disputed Krystal's claim about the gun silencer, contending that he was looking at websites with his daughter because she wanted a target rifle. James also denied pushing Krystal when she was pregnant.
James introduced photographs of the boot, the interior of the apartment, and the laceration on his forehead. The trial court asked James several questions about the photographs, which prompted inconsistent answers from James.
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The court concluded that domestic violence had occurred and may again occur, and the court issued a three-year DVO against James. The order restrained James from having any contact with Krystal and required him to attend domestic violence counseling. James requested additional findings of fact pursuant to CR 52.02. The court denied the motion to the extent that James requested findings inconsistent with the rulings made by the court at the conclusion of the hearing; thereafter, the court rendered a written order memorializing its prior oral findings of fact. 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[.]" 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).
James contends the DVO was not supported by substantial evidence. He also asserts that the court improperly admitted hearsay testimony from Gordana Popovich; that the court abused its discretion by ordering domestic violence counseling and issuing the DVO for the maximum three-year term; that the court erroneously considered James's prior conduct; and that the court erroneously dismissed James's EPO petition.
We note that, in his appellate brief, James failed to set forth whether his claims were properly preserved for review. CR 76.12(4)(c)(v). After reviewing the hearing, it is evident that James's arguments regarding his prior conduct and the dismissal of his EPO petition were not preserved for appellate review; accordingly, we decline to address those issues. Regional Jail Auth. v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989). Furthermore, our review of the record indicates that the alleged errors, if any, regarding Popovich's testimony were harmless because the inclusion of the evidence did not prejudice James's substantial rights. CR 61.01; Combs v. Stortz, 276 S.W.3d 282, 293 (Ky. App. 2009).
We reiterate that the trial court was in the best position to judge the credibility of the witnesses and weigh the evidence presented. Buddenberg, 304 S.W.3d at 720. Here, Krystal and James gave conflicting accounts of James's conduct. As the fact-finder, it was within the trial court's discretion to conclude that Krystal was more credible than James. The evidence established that James owned firearms, there was a history of threatening comments, James previously pushed Krystal down during her pregnancy, and the parties were involved in a contentious dispute over custody. Based on the record, we conclude the evidence presented was sufficient for the court to reasonably infer that James's conduct caused Krystal to fear imminent physical injury; accordingly, the court's finding that domestic violence occurred and may again occur was not clearly erroneous.
Finally, James contends the court abused its discretion by ordering him to attend counseling and by issuing the DVO for three years. James asserts that the court made these decisions on a routine basis, without considering the facts of this case.
The record reflects that the court heard arguments from both parties regarding the proposed duration of the DVO and whether counseling should be ordered. Pursuant to KRS 403.750(1)(h), the trial court had the discretion to order one or both of the parties to receive counseling. The trial judge heard the evidence, observed the demeanor of the parties and concluded that James committed domestic violence. We conclude the court properly exercised its discretion by ordering James to attend domestic violence counseling. Further, pursuant to KRS 403.750(2), the court "had the authority to fix a period for the DVO to be effective 'not to exceed three (3) years.'" Buddenberg, 304 S.W.3d at 721-22. It was within the sound discretion of the trial court to determine the length of the DVO. Id. Although James may believe the court's decision was unfair, we are not persuaded the court abused its discretion.
For the reasons stated herein, the order of the Simpson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: John Corey Morgan
Franklin, Kentucky
BRIEF FOR APPELLEE: J. Richard Downey
Bowling Green, Kentucky