LARRY NOBLE APPELLANT v. FLORENCE NOBLE APPELLEE

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Court of Appeals of Kentucky.

LARRY NOBLE APPELLANT v. FLORENCE NOBLE APPELLEE

NO. 2011–CA–001867–ME

-- April 13, 2012

BEFORE:  LAMBERT, THOMPSON AND VANMETER, JUDGES. BRIEF FOR APPELLANT:  Melissa C. Howard Jackson, Kentucky BRIEF FOR APPELLEE:  No brief filed.

NOT TO BE PUBLISHED

OPINIONVACATING AND REMANDING

Larry Noble appeals from a domestic violence order (DVO) issued by the Breathitt Family Court.   Florence Noble, Larry's wife, obtained the DVO on behalf of their minor child.   Larry contends that there was no evidence that domestic violence had occurred and would again occur towards the child and that the family court erroneously prohibited him from having any contact with Florence.   After review of the record, we reverse.

The evidence at the DVO hearing consisted of testimony from Larry, Florence, Florence's mother, and Larry's girlfriend.   Larry filed a petition for dissolution of marriage on September 30, 2011.   On that same day and after informing his mother-in-law, Larry picked up the child from school.   Later that day, Florence was contacted by social workers from the Department of Protection and Permanency who were investigating an allegation that Florence had been evicted from her home.   Larry was the source of this allegation.

Although Florence admitted that Larry had equal custodial rights to the child, Florence began calling Larry leaving voice messages demanding that the child be returned.   Larry testified that Florence was angry when she called.

Florence testified that when she was able to contact Larry, he threatened to kill the child if she attempted to have him returned to her custody.   However, she did not file a petition for an emergency protective order until October 3, 2001, three days after the alleged threat.   Further, she admitted that she told Larry's mother that if the child was returned to her custody, she would dismiss the emergency protective order.   The child was returned without incident.

Larry denied that he threatened to kill the child.   Additional testimony was heard from Florence's mother who could not hear the telephone conversation between Florence and Larry and, therefore, could not confirm the alleged threat.

Larry's girlfriend, who was with Larry when he spoke to Florence, testified that Larry did not threaten the child.   There was no testimony that Larry had harmed or threatened to harm the child in the past.

Over objection, the DVO was entered and included terms that prohibited Larry from contact with Florence and the child.   Further, Florence was granted temporary custody and Larry was denied visitation.

Our standard of review of a decision to grant a DVO is well established.   Factual findings will not be disturbed unless the findings were clearly erroneous.  Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky.1986).   Findings of fact are clearly erroneous if they are not supported by substantial evidence.   Moore v. Asente, 110 S.W.3d 336, 353–354 (Ky.2003).   In 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 court were clearly erroneous or an abuse of discretion.  Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky.1982).   Although 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.  Barnett v. Wiley, 103 S.W.3d 17, 19 (Ky.2003) (citing KRS 500.030).

The family court is required to follow our domestic violence statutes, including the appropriate evidentiary standard and find that the required elements exist.   Prior to entry of 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 Statute (KRS) 403.750(1).  “The 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.”  Baird v. Baird, 234 S.W.3d 385, 387 (Ky.App.2007) (internal quotations omitted).

The definition of domestic violence and abuse, found in KRS 403.720(1), includes “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․”  Pursuant to KRS 503.010(3), imminent is defined as impending danger and, in the context of domestic violence and abuse, belief that danger is imminent can be inferred from a past pattern of repeated serious abuse.

Because a DVO can be entered only after the court finds that there is an immediate and present danger of domestic violence, at a minimum, the statute requires the following:  (a) specific evidence of the nature of the abuse;  (b) evidence of the approximate date of the respondent's conduct;  and (c) evidence of the circumstances under which the alleged abuse occurred.   After conducting the evidentiary hearing, the court must then decide whether, under the preponderance of the evidence standard, domestic violence has occurred and may occur again.

Rankin v. Criswell, 277 S.W.3d 621, 626 (Ky.App.2008).

As pointed out in Rankin, domestic violence proceedings are not criminal matters, but the consequences for both parties are significant.

If granted, it may afford the victim protection from physical, emotional, and psychological injury, as well as from sexual abuse or even death.   It may further provide the victim an opportunity to move forward in establishing a new life away from an abusive relationship.   In many cases, it provides a victim with a court order determining custody, visitation and child support, which he or she might not otherwise be able to obtain.   The full impact of EPOs and DVOs are not always immediately seen, but the protection and hope they provide can have lasting effects on the victim and his or her family.

On the other hand, 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.   To have the legal system manipulated in order to “win” the first battle of a divorce, custody, or criminal proceeding, or in order to get “one-up” on the other party is just as offensive as domestic violence itself.   From the prospect of an individual improperly accused of such behavior, the fairness, justice, impartiality, and equality promised by our judicial system is destroyed.   In addition, there are severe consequences, such as the immediate loss of one's children, home, financial resources, employment, and dignity.   Further, one becomes subject to immediate arrest, imprisonment, and incarceration for up to one year for the violation of a court order, no matter what the situation or circumstances might be.

Id. at 624–25 (quoting Wright v. Wright, 181 S.W.3d 49, 52 (Ky.App.2005)).

In this case, the court issued a DVO based upon Florence's testimony that Larry threatened to kill their child if she sought his return to her residence.   Her testimony was refuted by Larry and his girlfriend.   The alleged statement was made just hours after Larry filed a divorce petition and during a conversation when Florence was angry.   Florence's contention that she believed the threat to the child presented an imminent danger is contradicted by her actions after the alleged threat.   She did not seek the assistance of police to remove the child from Larry's custody and failed to obtain an emergency protective order until three days after the alleged threat.

Further, there was no evidence of a past pattern of repeated serious abuse, or of any past incidents from which the family court could reasonably infer that Larry's alleged statement inflicted a fear of imminent serious physical injury.   Accordingly, the evidence is insufficient to support a finding that Larry inflicted a fear of imminent serious physical injury and, therefore, we conclude that the family court's issuance of the DVO was clearly erroneous.

A final point warrants discussion.   In addition to prohibiting Larry from having contact with the child, the court also prohibited him from having contact with Florence.   However, there were no allegations in the petition or asserted at the hearing that Larry had physically injured, sexually abused, or inflicted fear of any imminent physical injury, sexual abuse or assault upon Florence.  Pasley v. Pasley, 333 S.W.3d 446 (Ky.App.2010).   Therefore, the family court erred when it ordered that Larry have no contact with Florence as a condition of the DVO.

For the foregoing reasons, we vacate the DVO entered against Larry and remand this case to the Breathitt Family Court for entry of an order dismissing the DVO.

ALL CONCUR.

THOMPSON, JUDGE:

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