Opinion
NO. 2015-CA-000507-ME
01-15-2016
AYOBOLA ADEKUNLE OLOWORARAN APPELLANT v. TERRA BOOKER OLOWORARAN APPELLEE
BRIEF FOR APPELLANT: Robin R. Slater Lexington, Kentucky BRIEF FOR APPELLEE: Otis Doan, Jr. Harlan, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE H. KENT HENDRICKSON, JUDGE
ACTION NO. 14-D-00094-001 OPINION
AFFIRMING BEFORE: J. LAMBERT, MAZE, AND TAYLOR, JUDGES. MAZE, JUDGE: Appellant, Ayobola Oloworaran, appeals from the Harlan Circuit Court's entry of a Domestic Violence Order (DVO) against him which, in part, limited his contact with his children. Specifically, he contends that the record lacked substantial evidence to support the trial court's entry of the order. We hold that the evidence presented at trial combined to constitute substantial evidence supporting the trial court's finding of domestic violence. Hence, we affirm.
Ayobola and Terra Oloworaran have two children of their marriage, B.O. and T.O. On July 31, 2014, Terra filed a Domestic Violence Petition (hereinafter "Petition") alleging that while at a Louisville restaurant, Ayobola "grabbed [T.O.] by the wrist and squeezed tightly and pinched and twisted. A crushing manner. Causing her to scream and cry uncontrollably as in pain. He became aggressive in speech "SHUT UP" to make her stop crying...." Additionally, Terra alleged that her children had informed her that, while she was out of town between July 19 and 24, 2014, "Ayobola placed his teeth on the both of them. But also slapped and kicked [T.O.'s] arms, legs, and head." Finally, Terra stated that she was afraid for her safety and that of her children. The trial court entered an Emergency Protection Order (EPO) on the same day Terra filed her Petition. The EPO forbade Ayobola's contact with Terra or their children, and it awarded temporary custody of the children to Terra.
Based on Terra's allegations, Ewell Daniels, a caseworker with the Kentucky Department of Community Based Services (DCBS), investigated and filed a report on August 21, 2014. This investigation included interviews with both children at which neither disclosed any abuse or domestic violence. In addition, Terra stated to Mr. Daniels that though Ayobola was "controlling and verbally abusive[,]" he never threatened or harmed her or the children in the past. As a result, Mr. Daniels's report concluded that "there is no indication that Ayobola physically abused either of the children."
The trial court conducted an evidentiary hearing on Terra's allegations on March 2, 2015. Terra testified at this hearing concerning the events both preceding and subsequent to her Petition. She stated that the event at the restaurant occurred the day before she sought the Petition and led to a mark on the child's finger which she first observed after filing the Petition and a photograph of which was entered as an exhibit. She stated on cross-examination that police were called as a result of the restaurant incident, and they issued a JC-3 domestic violence report. However, she did not have a copy of that report at the hearing. She also stated that an ambulance arrived and EMTs attempted to treat T.O., but that the child was too upset and the paramedics left.
Additionally, Terra described an incident involving alleged physical violence by Ayobola which resulted in bruising to Terra's arm. This incident occurred in April 2014, however Terra did not include it in the Petition. Terra's counsel entered photos of this bruising into the record, arguing that they spoke to the "fear" of Ayobola Terra asserted in her July 2014 Petition. Finally, Terra stated that Ayobola had been "manipulative" and "physically violent" toward her and the children in the past, but that she had denied this fact to Mr. Daniels out of fear of Ayobola.
In addition to Terra's testimony and the photographic evidence, Terra's counsel entered into the record, and Terra testified regarding, a November 2014 prevention plan apparently drafted by Fayette County DCBS pursuant to an ongoing investigation of which Ayobola was the subject. This prevention plan required Terra to keep the children safe and away from contact with Ayobola until Fayette County DCBS could complete its investigation. While Terra's counsel introduced the prevention plan as evidence, the record does not speak to the conclusion of the Fayette County investigation.
In his testimony, Ayobola denied the allegations in Terra's Petition and he denied ever being physically violent toward his children. Ayobola stated that the incident in the restaurant Terra alleged was inaccurate and merely involved his preventing T.O. from putting her hands in potentially hot food. Ayobola also denied causing the bruising to Terra's arm. He opined that Terra may have made the accusations to gain "leverage" in the ongoing divorce proceedings.
Finally, Ayobola's counsel called Mr. Daniels who testified briefly concerning the results of his investigation. Mr. Daniels stated that he found Terra's allegations of domestic violence and abuse to be "unsubstantiated" based upon the JC-3 issued by the police, his conversation with the children's doctor, and his review of the pictures of the children's injuries later entered into the record.
At the conclusion of the hearing, the trial court entered the DVO for a period of one year and adopting the same conditions and restrictions listed in the EPO, including that Terra retain temporary custody of the children. In support of its decision, the trial court cited the ages of the children (five and two years old at the time of the Petition), the other ongoing proceedings, and "an abundance of caution." Ayobola now appeals.
Ayobola's sole argument on appeal is that the evidence presented at the hearing was insufficient to sustain the requisite findings for entry of the DVO against him. We review the trial court's factual findings for clear error, reversing only if the record lacks substantial evidence to support those findings. Caudill v. Caudill, 318 S.W.3d 112 (Ky. App. 2010), citing CR 52.01. To be clear, "substantial evidence" is "[e]vidence that a reasonable mind would accept as adequate to support a conclusion and evidence that, when taken alone or in the light of all the evidence, ... has sufficient probative value to induce conviction in the minds of reasonable men." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (internal citations and quotation marks omitted). Notwithstanding the existence of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Id. (internal citations and quotation marks omitted); see also Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). Such a task lies within the exclusive province of the trial court. Id.
Kentucky Rules of Civil Procedure.
A court may only enter a DVO if it finds that the petitioner has demonstrated by "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); see also Baird v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007). "'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...." KRS 403.720(1). In construing these statutes, we must read them liberally and in favor of protecting domestic violence victims while taking care not to adopt an unreasonable construction. See Barnett v. Wiley, 103 S.W.3d 17, 19 (Ky. 2003), citing Beckham v. Bd. of Educ. of Jefferson Cnty., 873 S.W.2d 575, 577 (Ky. 1994).
Kentucky Revised Statutes. --------
We agree that the evidence of record in this case, as well as the trial court's stated reasoning for entry of the DVO, are less than ample. Indeed, when taken by themselves, the individual items of proof likely would not support a conclusion that domestic violence more than likely occurred. Furthermore, even an appropriately expressed "abundance of caution" due to the nature of the allegations cannot overcome the burden of proof required in KRS 403.750. See Buddenberg v. Buddenberg, 304 S.W.3d 717, 721 (Ky. App. 2010) (holding that "a trial court should not lightly enter a DVO against the weight of the evidence."). More than caution is required.
With this in mind, we nevertheless conclude that the allegations in the Petition, Terra's testimony, the photographs, and the existence of a Fayette County prevention plan combined to constitute substantial evidence supporting the trial court's finding pursuant to KRS 403.720 that an assault, or the fear of an assault, occurred or existed. Needless to say, our standard of review looms large over our analysis. In light of this evidence, we cannot definitively say that the trial court committed clear error when it found it more likely than not that Terra was the victim of domestic violence and might be again. Nor are we empowered to question the credibility of the evidence or testimony the trial court observed for itself. Therefore, we must affirm the Harlan Circuit Court's March 2, 2015 DVO.
ALL CONCUR. BRIEF FOR APPELLANT: Robin R. Slater
Lexington, Kentucky BRIEF FOR APPELLEE: Otis Doan, Jr.
Harlan, Kentucky