Opinion
NO. 2016-CA-000825-ME
02-10-2017
JOSEY L. WENGER APPELLANT v. KELLY A. WENGER; AND KELLY A. WENGER ON BEHALF OF MINOR CHILDREN, N.W., J.W., AND L.W. APPELLEES
BRIEF FOR APPELLANT: Estill D. Banks, II Lexington, Kentucky BRIEF FOR APPELLEE: Eric L. Ray Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT, FAMILY BRANCH SIXTH DIVISION
HONORABLE KATHY W. STEIN, JUDGE
ACTION NO. 16-D-00342-001 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; COMBS AND JONES, JUDGES. KRAMER, CHIEF JUDGE: Josey Wenger appeals from a Domestic Violence Order ("DVO") the Fayette Family Court entered against him. Josey argues that insufficient evidence existed in the record to support a finding that domestic violence occurred and may occur again. He also appeals from the family court's decision to overrule his motion to alter, amend, or vacate the DVO. Because we hold that sufficient evidence existed in the record to support a finding of domestic violence and because Josey was not entitled to post-judgment relief, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Kelly and Josey Wenger are married and have three minor children of the marriage. Their marital residence was located in Fayette County, Kentucky. Their dissolution action (including issues regarding the custody of the three minor children) is ongoing before the Fayette Family Court. After the parties separated, Kelly temporarily relocated to her parents' house, which is located less than a mile from the Wengers' marital residence.
Fayette Circuit Court Action No. 15-CI-07977.
On April 7, 2016, Josey drove to Kelly's parents' house to drop off one of the couple's dogs despite the fact he was explicitly told not to come to that location for any reason. When Kelly and her mother came outside to retrieve the dog, the situation became hostile. According to Kelly's domestic violence petition, after Josey handed her mother the leash, Josey "turned around and stood over [her] mother and put his face right in front of hers and was saying 'oh you going to hit me? You want to hit me?'" After a few moments of this behavior, fearing for the safety of her mother, Kelly hit Josey in the arm with her crutch. After being struck with the crutch, Josey left.
The following day Kelly filed the domestic violence petition in Fayette County. A hearing was scheduled for April 21, 2016. At the hearing, through the testimony of Kelly, Josey, and Kelly's mother, evidence of the couple's tumultuous relationship was established. Consistent with her petition, Kelly testified at length about Josey's intimidating behavior towards her mother and herself on April 7, 2016. Additionally, she also testified that during an argument approximately two years prior, Josey put his hands around her neck, pushed her against a wall in her parent's basement and said, "I told you to leave me the f*** alone." Kelly further testified that Josey had other angry outbursts in the past. She testified one such instance was when she confronted him about his use of marijuana, whereupon Josey "emotionally abused" her by telling her, among other disparaging remarks, that she deserved what happened in her parents' basement when he grabbed her by the throat. On another occasion, this time in front of their children, he broke a shelf in the refrigerator, threw an object that put a hole in the wall, and threw a rocking horse at a baby gate. Josey denies doing anything directly in front of the children, although he admits the children were present in the marital home when some of these incidents occurred.
In response, Josey argued that it was Kelly's mother who initiated the confrontation on the evening of April 7, 2016, and he brought up past instances where Kelly had become violent towards him. First, he emphasized that he did not use, or threaten to use, any violence on April 7, and it was Kelly who struck him with her crutch. Second, he testified that during one of the couple's past arguments, Kelly threatened to cut herself and call the cops to blame Josey for it. Also, according to Josey, on the same day as the previous threat, another argument culminated in Kelly hitting Josey to the point her father had to verbally intervene. Kelly responded that, on this particular occasion, she hit Josey because she feared he was going to become physical with her, as he had in the past.
The record does not inform us of whether Josey ever filed a DVO in the Fayette Family Court against Kelly for any of her prior acts of domestic violence. From our review it appears he has not.
Another fact brought up at the hearing, initiated by a line of questioning from the family court judge, established that Josey was a combat veteran of the United States Marine Corps. He served two tours in Iraq and testified that he was diagnosed with post-traumatic stress disorder ("PTSD") and treated with counseling at the Veterans Affairs ("VA") hospital. He stated that he had been prescribed medication but was not currently taking it. However, the court did not ask Josey if he had suffered any violent episodes relating to the PTSD, nor was there any testimony to that effect in the record.
Following the hearing, the Fayette Family Court entered a DVO against Josey. The DVO restrains Josey from: (1) committing further acts of abuse or threats of abuse against Kelly; (2) having any contact or communication with Kelly or their three minor children; (3) disposing of, or damaging, any property of the parties; and (4) owning or possessing firearms. Josey subsequently filed a motion under CR 59.05 to alter, amend, or vacate the DVO, arguing that there was not sufficient evidence for the court to determine that domestic violence had occurred and is likely to occur again. Additionally, pursuant to CR 52.02, he moved the court to make and issue findings of fact regarding the DVO entry, especially as it pertains to portion of the DVO that restricted his contact with the three minor children. The family court denied both motions on May 25, 2016.
Kentucky Rules of Civil Procedure.
Josey appeals the entry of the DVO and the family court's subsequent denial of his post-judgment motions. As he did below, he argues that there was not sufficient evidence to determine that domestic violence occurred. In the alternative, he argues that even if the DVO was proper as to Kelly, there was no evidence or testimony to support such a finding in relation to the three minor children.
II. STANDARD OF REVIEW
"Appellate review of a family court's decision to grant or deny a DVO 'is not whether we would have decided it differently, but whether the court's findings were clearly erroneous or that it abused its discretion.'" Holt v. Holt, 458 S.W.3d 806, 812 (Ky. App. 2015) (quoting Gomez v. Gomez, 254 S.W.3d 838, 842 (Ky. App. 2008)). Because the trial court is in the best position to judge the credibility of the evidence, we will not substitute our opinion for that of the trial court with regard to the weight given to certain evidence, including the testimony of witnesses. CR 52.01; B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005).
III. ANALYSIS
Domestic violence is defined as a "physical injury, serious physical injury, stalking, 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." KRS 403.720(1). "In the context of domestic violence and abuse . . . belief that danger is imminent can be inferred from a past pattern of repeated serious abuse." KRS 503.010(3). 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. Board. of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994)).
Kentucky Revised Statutes.
KRS 403.740(1) states that "if a court finds by a preponderance of the evidence that domestic violence and abuse has occurred and may again occur, the court may issue a domestic violence order . . . ." Furthermore, "[t]he 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.'" Valentine v. Horan, 275 S.W.3d 737, 739 (Ky. App. 2008) (quoting Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996)).
We first turn to the portion of the DVO that restricts Josey's contact with Kelly. The family court found by preponderance of the evidence that domestic violence had occurred and was likely to occur again. Josey admits that two years ago he put his hands around Kelly's neck, pushed her up against a wall and said, "I told you to leave me the f*** alone." He admits to breaking the refrigerator door and throwing an object at a baby gate in anger. He further admits to the confrontation on April 7, 2016, where he stood over Kelly's mother and asked repeatedly if she wanted to hit him. Although he did not threaten to hit Kelly or her mother that day, Josey's past pattern of repeated violent outbursts coupled with his intimidating behavior at a location he was explicitly told not to come to, rendered Kelly's fear of imminent physical injury reasonable.
The trial court is in the best position to judge the credibility of the witnesses and weigh the evidence presented. See Rupp v. Rupp, 357 S.W.3d 207, 210 (Ky. App. 2011). At the hearing, Josey and Kelly gave somewhat conflicting accounts of Josey's conduct. As the fact finder, the family court gave Kelly's testimony more credibility.
Based on the record, we conclude the evidence presented was sufficient for the family court to reasonably infer that Josey had previously engaged in acts of domestic violence against Kelly and that his conduct caused Kelly to be in imminent fear that he would engage in future acts of domestic violence against her if he was not restrained.
Next we must analyze the portion of the DVO that restricts Josey's contact with his three minor children. KRS 403.725 and KRS 403.740 permit the family court to extend the protection of a DVO to the minor children of the petitioner 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. Further, "[w]here parties are restrained from contact with one another due to domestic violence, it is necessary that one party have custody and receive support for the children during the effective period of the domestic violence order." Thompson v. Thompson, 172 S.W.3d 379, 382 (Ky. 2005). However, when the minor children are also the children of the respondent, the court must look to KRS 403.320, which states in relevant part: "(2) If domestic violence and abuse, as defined in KRS 403.720, has been alleged, the court shall, after a hearing, determine the visitation arrangement, if any, which would not endanger seriously the child's or the custodial parent's physical, mental, or emotional health." KRS 403.320(2). Thus, KRS 403.320(2) sets forth a different visitation standard in cases where domestic violence is present in that it does not require a finding that visitation would seriously endanger the children's physical, mental, or emotional health, but conversely directs the court to make an arrangement in its discretion which would avoid such endangerment to the children or the custodial parent. See Abdur-Rahman v. Peterson, 338 S.W.3d 823, 826 (Ky. App. 2011).
At the time Josey's appellant brief was filed, Josey received one hour of visitation each week supervised by Sunflower Kids employees. Sunflower Kids is a business that regularly provides supervised visitation for families in Lexington, Kentucky. --------
In this case, after a lengthy DVO hearing, the family court believed the no-contact order should be extended to the children, given that it was undisputed that they were in the home during prior acts of domestic violence. Specifically, it stated that there was too much violence going on in front of the children and this violent behavior was detrimentally affecting them. The family court did indicate, at least orally, that it would be amenable to a change in the no-contact order upon a motion by one of the parties in the ongoing dissolution proceeding. It is well within the authority of the court to include the children in the no-contact order under the circumstances of this case. Indeed, emergency action to protect a child's best interest is not novel, whether arising from a dissolution action or a DVO. Needless to say, our standard of review looms large over our analysis. On the one hand, the DVO in regards to Kelly is a closer call, as to the April 7, 2016 event. On the other hand, the fact the children were admittedly present in the home during prior acts of domestic violence, weighs heavily on us, as it did with the family court. In light of the historical violence and our standard of review, we cannot say that the family court committed clear error when it found it more likely than not that Kelly was the victim of domestic violence and might be a victim of domestic violence again, and we agree with the family court that a no-contact order would avoid endangerment to the children and the custodial parent. We are not empowered to question the credibility of the evidence or testimony the family court observed for itself.
In light of the foregoing, we find no error regarding the Fayette Family Court's April 21, 2016 DVO. We therefore affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Estill D. Banks, II
Lexington, Kentucky BRIEF FOR APPELLEE: Eric L. Ray
Lexington, Kentucky