Opinion
NO. 2015-CA-001176-ME
03-11-2016
RAY DAVIS STIVERS APPELLANT v. SUE CAROL STIVERS APPELLEE
BRIEFS FOR APPELLANT: Mark D. Dean Shelbyville, Kentucky BRIEF FOR APPELLEE: Mary C. Apenbrinck Richard J. Head Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM SHELBY FAMILY COURT
HONORABLE S. MARIE HELLARD, JUDGE
ACTION NO. 13-D-00064-002 OPINION
AFFIRMING BEFORE: DIXON, J. LAMBERT, AND MAZE, JUDGES. LAMBERT, J., JUDGE: Ray Davis Stivers has appealed from the Shelby Family Court's July 7, 2015, entry of a domestic violence order (DVO) as well as an order finding him in contempt of an emergency protection order (EPO). After careful review of the record and the parties' briefs, we affirm.
The underlying action began with the filing of a domestic violence petition by Ray's wife, Sue Carol Stivers, on January 20, 2015, in the Shelby Family Court. Sue described the incident leading to her filing of the motion as follows:
As both parties stated in their briefs, a stamp from the clerk's office shows that the petition was filed on January 16, 2015, while the deputy clerk's signature section shows that it was subscribed and sworn four days later, on January 20, 2015.
We have not corrected any grammatical or spelling errors in this affidavit or in the other two affidavits included in this opinion.
On 1/16/15 I stopped by his cousins to talk about him having physh issues. He came by seen my car. Was invited in. He accused me of sexual relations. Then threatened to burn me alive in my car. Said he had no issue going to the penetentary. Cousin asked us to leave. I got away leaving in my car. He contacted my daughter Stephanie about he was looking for me. That he would file missing persons on me to find me & kill me. Said he has nothing to lose, mother & brother are in the pen & he wasn't afraid to go to jail. Sat on 17th informed my daughter he had searched every hotel in Frankfort, Louisville. (He is Bipolar/shizo). Still in search of me. Stayed in Lburg hotel. Contacted police on 1-20 about situation. He is very unstable. Told daughter he will not stop searching. He has kept me in fear. Keeps the gate locked so no one can come to our home. Isolated away from family & grandkids. I have been gone since 1-16 in fear because of the threats made against my life & threats he has made thru my daughter. Daughter has 12 mo old & premature baby 18 days old. So I have stayed in hotel in Lburg for fear of going to my daughters. Stated if he can't have me no one will. He is very unstable, does have firearm 22 shot gun in the home. Machette swords. Has told me in the past I would not leave this relationship alive. Has been physically violent 2 months ago because I took my pregnant daughter to the hospital. This happend when I returned home. Slammed me into a wall, & choked me said he's tired of me putting her 1st.Sue requested an EPO to keep Ray away from her for her protection, an order restraining him from disposing of any of their property, and for an order directing him to vacate the marital residence. The family court issued an EPO and summons on January 20, 2015, and scheduled a domestic violence hearing for February 4, 2015. The EPO issued the same day restrained Ray from committing further acts of abuse or threats of abuse, from any contact or communication with Sue, from being within 500 feet of her with the exception of court appearances, and from going within 500 feet of the marital residence. The EPO also ordered Ray to vacate the marital residence. The terms of the EPO were to be effective until the hearing date or until withdrawn by the court, but it would otherwise expire on July 20, 2015.
Less than one week later, on January 26, 2015, Sue filed a domestic violence show cause order. In an attachment dated the previous day, Sue stated as follows:
Starting at 5pm I looked out my front window and seen Ray Stivers drive by my house in his daughter's late 90's chevy malabu, light gold with a dark blue front fender. Within 1 hour I seen him drive by 3 more times. On the fourth time at 6pm I seen him pull into the drive way beside my house which is approximately 300 feet from my house. He sat there for 15 minutes with the engine cut off. I was sitting on my front porch and heard the car door shut. I feel as if he is stalking me, he is making me fear for my life to where I'm scared to be in my home and away from my home. I feel like a caged animal and can't leave fearing he will catch me walking to my car or unlocking my gate. He seems to be getting braver each time he goes by. The drive next door is only used for hunting. So there's no reason he would be going up there for anything other than watching me or seeing if I am home. I feel as if he is plotting something against me. I
haven't been able to sleep fearing that since he's pulling in a drive 300 ft from me he will get brave enough to break into my home where only I live. I can't have my adult children and grandchildren coming over with fear of their lives being put in danger along with my own.Ray was served with the order on January 27, 2015.
In court on February 4, 2015, Ray's attorney moved to continue the hearing because a subpoenaed witness had not appeared. The matter was rescheduled for February 11, 2015. At the second court date, the hearing was rescheduled until April, and the EPO was extended for 90 days. On Ray's motion and without objection from Sue, the court amended the EPO on March 4, 2015, to permit Ray to have possession of the residence in Bagdad, Kentucky.
On March 26, 2015, Sue filed a second domestic violence show cause order. In the attached affidavit, Sue stated as follows:
On 1/20 2015 EPO was taken against Ray Stivers. 6 days after on 1/26 a show cause was entered for violation of the EPO. EPO has been extended til court on 4-8-15.
On 3/23/15 I had my car parked out front by the highway of Keystop Store in bagdad. Was sitting having diner. Ray came in the store walked 2 feet past me to get a soft drink. He proceded to front of store. He knew my car was there and had a clear shot of me setting at a table. The EPO states he is not to come in a public store if he sees I'm there or to be less than 500 ft from me at all times. He was 2 ft away. I got out my phone & video taped him as I sat at my chair. This is the second time he has been in violation of the EPO. I spoke to my attorney Richard Head and he suggested that I take out an order for violation of being 2 ft away. He does have mental issues Bipolar/Schizophrenia. He has firearm (shot gun) in his possession. I am in fear because he keeps stalking & violating the EPO. We have court on 4/8/15 where
this was extended. I plea with the court for my safety to please help me. He is mentally unstable.The EPO hearing was again rescheduled to July 7, 2015. The court ordered the sheriff to retrieve Ray's gun. Ray later advised the court that his gun was being kept at his girlfriend's house. The court directed the sheriff to contact Ray to obtain the girlfriend's name and address.
The court held the EPO hearing on July 7, 2015. Sue was the first witness to testify. She stated that she had written the affidavit dated January 16, 2015. She then described what happened that day. On the 15th, she and Ray discussed that their relationship was over, and she left the next day. She stopped by his cousin, Jeff Cozine's, house to discuss Ray's mental issues and because Ray was keeping her behind a locked gate. Ray came into the home at Mr. Cozine's invitation, slammed her phone on the floor, accused her of having sexual relations with Mr. Cozine, and threatened to burn her alive in her car unless she followed him home. They both left at Mr. Cozine's request, and Sue drove away. She did not follow Ray home because she feared that he might kill her. She instead went to her daughter's house. When she learned that Ray knew she was there, she went on the run.
Sue testified that Ray contacted her daughter, Stephanie. Ray told her that he would not have a problem going to the penitentiary because other family members were already incarcerated. Ray had been hospitalized in the past for bipolar disorder and had been on medication for this diagnosis. In the past, he told her she would not leave the relationship alive and that he could not live without her. He threw her down a flight of steps the first time she tried to leave him. A couple of months previously, Ray threw Sue against a wall when she returned from taking her daughter to the hospital and said that he was tired of her putting her daughter first.
Sue testified that she took out an EPO against Ray based on the incidents that happened on January 16th, and it was entered on January 20th. She went back to court and filed a new affidavit on the 26th because Ray had violated the EPO the previous day by driving back and forth in front of her house and pulling into the driveway next door. She had been sitting on her front porch and saw him. He sat about 300 feet away in the driveway next door for approximately fifteen minutes with the engine turned off. She did not know what he was going to do. Sue called the state police, who came out and told her to leave the gate open in case they ever needed to get to her property and advised her to purchase a firearm because she lived so far out in the country. The police also told her to file the affidavit. Ray violated the EPO a second time when he followed her into a store on March 23, 2015. She explained that she was eating at a table when Ray reached behind her to get a soda from a cooler and then ordered a burger. She recorded this on her cell phone. She also related that there had been a hearing in district court the previous Friday. He sat right behind her in the courtroom despite there being other spaces for him to use. He was very close to her. Sue and her daughter moved to the other side of the courtroom. There had not been any other violations. Sue stated that she had been in fear for the past few months that Ray would act to cause her serious bodily harm, and she requested that the court enter a DVO.
On cross-examination, Sue discussed the date she filed the petition. She said it was the day after Martin Luther King, Jr., Day, which was the 19th. The incident at Mr. Cozine's house happened on a Friday evening around 9:00 or 10:00. Mr. Cozine asked them to leave because his daughter would be home soon. Sue fled from his house and went to a hotel. She did not call the police until she got to the hotel at noon on Saturday. She did not call the police on Friday night because by the time she got away, it was 3:00 or 4:00 in the morning. Sue also testified that Ray broke her phone that night and that he told her daughter that he had been searching area hotels so that he could find her and kill her.
Regarding the second violation of the EPO at the marital residence, Sue stated in her petition that this happened between 5:00 and 6:00 in the afternoon on a Sunday. She felt like she needed to call the sheriff's department after he had driven by a few times. The sheriff's department responded that evening and started patrols. She had been on her porch, but she went inside of the house when she heard the engine cut off. She admitted that she did not have a clear view of the driveway where Ray had pulled in. She could hear the vehicle, although she could not see it in the driveway due to the drop-off and trees between the properties. Sue said that the affidavit should have said that she heard the vehicle pull into the driveway, not that she had seen it. State police and the sheriff's department responded, and Ray was gone by the time they arrived.
Regarding the incident at the diner, Sue testified that she and Mr. Cozine had entered the front of the store. She did not know what door Ray entered, but she saw him reach behind her head to get a drink from the cooler. Her car was visible from any entrance to the store. Ray did not say anything to her, but he was less than two feet away from her when he reached into the cooler. He did not leave pursuant to the terms of the EPO. He stayed for ten minutes waiting for his food to be ready.
Finally, Sue admitted that she had filed EPO petitions previously against other men. She had both of these EPOs dismissed.
The next witness to testify was Stephanie Cariss, Sue's daughter. She had known Ray since her birth. She knew Sue had filed an EPO petition after a confrontation at Mr. Cozine's home, which she thought happened on a Saturday night/Sunday morning. Sue showed up at her house at 2:00 in the morning with a broken phone. Sue left the next day. Ray called Stephanie to tell her that he had looked for Sue in every hotel from Louisville to Frankfort. He wanted to get his ring and his car back from Sue. Ray also told Stephanie that he was going to file a missing person's report so that he could find Sue and kill her. Stephanie told Ray that Sue had not been gone long enough to file a missing person's report. Stephanie thought he would follow through on his threats to kill Sue because he had been violent before. When she was a child, he would hold her down, although she never saw him attack Sue. In addition, Stephanie stated that she was with Sue in district court when Ray sat within arm's reach of Sue, despite there being other places where he could sit.
Jeff Cozine was the next witness to testify. He recalled when Ray came to his home while he was there with Sue. Ray "threw a fit" because Sue was there and told her he would burn her in her car. She had come by to talk about how Ray was treating her like a prisoner. He was also with Sue at the diner when Ray came in. Ray was aware that Sue was in the store. He was also with Sue and Stephanie in the courtroom when Ray sat right behind them. They had to move to the other side of the courtroom. Mr. Cozine stated that while he and Sue were not involved in a relationship at the time of the incident at his house, they were in one at the time of the hearing. Mr. Cozine went on to testify that he had not known that Sue and Ray were having marital problems. Ray never made any threats against him, and he never called the police. In fact, he bailed Ray out of jail in January when he was arrested.
The next witness to testify was Ray. He first testified about the incident at Mr. Cozine's house, which he maintained happened on Saturday night. Ray had sent Sue a few text messages that day, but she did not respond. He went looking for Sue and saw her car at Mr. Cozine's house. He looked through the blinds and saw them on the couch pulling up their pants. He admitted that he got mad and said that Sue had cheated on him in the past. Ray denied driving by Sue's house a few days later and stated that he had been at his aunt's house. At the diner in March, Ray said that he saw Sue after he had ordered the cheeseburger. He left as soon as he got his order. In court the previous week, Ray said he was already in the courtroom when Sue, Stephanie, and Mr. Cozine came in and sat in front of him. He was there for terroristic threatening charges.
Upon questioning by the court, Ray said he at first thought Mr. Cozine was with his daughter at the diner, not Sue. He did not leave immediately when he saw Sue, but he instead waited until he got his food to leave. He knew that this was a violation of the EPO, but he figured that he had violated it when he walked in and he "was screwed at that point." He later testified that he realized it was Sue in the diner when he reached into the cooler. The court stated that he should have left as soon as he realized Sue was in the store rather than staying to get his food.
On cross-examination, Ray said that he did not recall telling Stephanie that he was not afraid to go to the penitentiary or that he would burn Sue in the car. He admitted that he had looked at a few hotels out of concern because she had attempted suicide in the past. He did not threaten Sue, but he told her it was over and that he wanted all of his belongings back and her out of his life. He denied being physically violent to Sue or Stephanie.
The next witness to testify was Martha Smith, Ray's aunt. She testified that Ray came to her house between 4:30 and 5:00 on the afternoon of January 25, and he stayed until between 9:30 and 10:00 that evening. He never left her house.
At the conclusion of the hearing, the court stated that only the bare minimum was necessary to meet the preponderance of the evidence standard and that Sue had met that burden. The court believed that domestic violence had occurred and issued a 3-year DVO. The court also found Ray in contempt of the EPO by his own admission. The court found that he had violated the EPO at least one time, and possibly three times. The court entered a written order holding Ray in contempt for violating the terms of the EPO and ordering him to serve ten days in jail, which was to be served on weekends. The DVO was to be effective until July 7, 2018. The court found that Sue had established by a preponderance of the evidence that an act of domestic violence had occurred and may again occur, and it restrained Ray from any contact or communication with Sue and ordered that he remain at least 500 feet away from her with the exception of court appearances. In addition, the court ordered Ray to participate in counseling services at Creative Spirits and Sue to attend counseling at Choices. Both parties were to show proof of counseling within 30 days. This expedited appeal now follows.
In his brief, Ray contends that the family court erred in entering the DVO because there was not substantial evidence for it to find that Sue was in fear of imminent physical harm or that a future act of domestic violence may occur. Sue contends that substantial evidence existed to support the family court's entry of the DVO. We note that Ray has not presented an argument related to the portion of the order holding him in contempt for violating the EPO.
In order to grant a DVO, the court must find "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). KRS 403.720(1) defines "domestic violence and abuse" as "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 or members of an unmarried couple[.]"
We shall rely upon the versions of the statutes in effect at the time of the events of this case. --------
In Caudill v. Caudill, 318 S.W.3d 112 (Ky. App. 2010), this Court addressed the DVO process, explaining that, "[t]he preponderance of the evidence standard is satisfied when sufficient evidence establishes the alleged victim was more likely than not to have been a victim of domestic violence." Id. at 114, citing Baird v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007). See Telek v. Daugherty, 376 S.W.3d 623, 628 (Ky. App. 2012), review denied (Feb. 13, 2013); Wright v. Wright, 181 S.W.3d 49, 52 (Ky. App. 2005) ("the Supreme Court of Kentucky [has] defined the preponderance standard as requiring that the evidence be sufficient to establish that the alleged victim 'was more likely than not to have been a victim of domestic violence.'"). The Caudill Court went on to explain the standard of review in such cases as follows:
The standard of review for factual determinations is whether the family court's finding of domestic violence was clearly erroneous. [Kentucky Rules of Civil Procedure (CR)] 52.01; 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). "[I]n reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion." Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted). Abuse of discretion occurs when a court's
decision is unreasonable, unfair, arbitrary or capricious. Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994) (citations omitted).Caudill, 318 S.W.3d at 114-15. The Court recognized that, "[w]hile domestic violence statutes should be construed liberally in favor of protecting victims from domestic violence and preventing future acts of domestic violence, the construction cannot be unreasonable. Furthermore, we give much deference to a decision by the family court, but we cannot countenance actions that are arbitrary, capricious or unreasonable." Id. at 115 (internal citations and quotations omitted).
For his first argument, Ray contends that there was not substantial evidence to establish that Sue was in fear of imminent physical harm, noting that she had not alleged an overt act of physical violence. KRS 503.010(3) defines "imminent" as "impending danger, and, in the context of domestic violence and abuse as defined by KRS 403.720, belief that danger is imminent can be inferred from a past pattern of repeated serious abuse." Ray argues that the family court relied upon Sue's subjective belief that she was in imminent fear of physical injury rather than any objective evidence that he claims established that no imminent threat existed. He bases this assertion on Sue's failure to call the police immediately after she left Mr. Cozine's home, her inability to see any vehicle that pulled into the driveway next door, and Sue's articulation of a generalized fear as opposed to an imminent fear. We disagree with Ray's argument.
As Sue argues in her brief, we agree that the family court based its findings on substantial evidence in the record from multiple witnesses reflecting the basis for Sue's fear; namely, Ray's threats to her life, including that he was going to burn her alive in her car and that he was going to file a missing person's report and kill her. The family court's finding that Sue was in fear of imminent physical injury was certainly well with its discretion and is supported by a preponderance of the evidence in the record. Therefore, we hold that the family court's finding that domestic violence had occurred is not an abuse of its discretion.
For his second argument, Ray contends that the family court erred in finding that an act of domestic violence may occur in the future. Ray posits that because the DVO hearing took place close to six months after the EPO was entered, the family court had the opportunity to observe Ray's behavior during that time period. And because there had not been any threats or acts of physical violence during that time period, there was no substantial evidence to support a finding that a future act of domestic violence may again occur. We find no merit in this argument in light of the family court's finding that Ray had violated the EPO by entering and staying in the diner while Sue was eating. The court further recognized that Ray had possibly violated the EPO on two other occasions during that period. Therefore, we find no abuse of discretion in the family court's finding that domestic violence may occur in the future based on Ray's admitted violation of the EPO.
For the foregoing reasons, the order of the Shelby Family Court granting a domestic violence order and holding Ray in contempt is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Mark D. Dean
Shelbyville, Kentucky BRIEF FOR APPELLEE: Mary C. Apenbrinck
Richard J. Head
Louisville, Kentucky