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Court of Appeals of Kentucky.


NO. 2009-CA-001968-ME

Decided: July 23, 2010

BEFORE:  ACREE, VANMETER, AND WINE, JUDGES. BRIEF FOR APPELLANT:  Marcus S. Carey Erlanger, Kentucky BRIEF FOR APPELLEE:  Eric C. Deters Independence, Kentucky

Debi Jones appeals from a domestic violence order (DVO) of the Campbell Circuit Court, Family Division.   For the following reasons, we vacate the order.

Tracy Jones filed a Domestic Violence Petition alleging that his ex-wife, Debi, made a threatening comment towards him during a telephone conversation.   After a hearing on the matter, the trial court issued a DVO against Debi. This appeal followed.

CR  Double 52.01 provides that “[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”   A finding of fact is clearly erroneous if unsupported by substantial evidence.   Moore v. Asente, 110 S.W.3d 336, 354 (Ky.2003).   Substantial evidence is evidence of sufficient probative value that permits a reasonable mind to accept as adequate the factual determinations of trial court.  Id.

Debi argues the trial court erred by issuing a DVO against her.   We agree.

Under KRS  Double 403.750(1), “the court, 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, may:  (a) Restrain the adverse party from any contact or communication with the petitioner except as directed by the court[.]”  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 [.]”  “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.”  KRS 503.010(3).

Though domestic violence proceedings are not criminal in nature, the consequences are significant.   In Rankin v. Criswell, 277 S.W.3d 621, 624-25 (Ky.App.2008), this court stated:

[T]he impact of having an EPO or DVO entered improperly, hastily, or without a valid basis can have a devastating effect on the alleged perpetrator․  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. (quoting Wright v. Wright, 181 S.W.3d 49, 52 (Ky.App.2005)).

In this case, the court issued a DVO based upon the conflicting testimony of both Tracy and Debi. Tracy testified that while he was in Arizona and Debi was in Ohio, Debi said she would like to put a bullet in his head during a telephone conversation and, upon knowing Debi owned a gun, he feared she would shoot him.   Debi denied making such a threat, but did admit a phone conversation took place.   No evidence was presented of a past pattern of repeated serious abuse, or of any past incidents from which the trial court could reasonably infer that Debi's statement inflicted a fear of imminent serious physical injury.   Further, the evidence does not support a finding that domestic violence is likely to occur in the future.   Accordingly, we do not believe that evidence is enough to support a finding that Debi inflicted a fear of imminent serious physical injury, and thus the court's issuance of the DVO was clearly erroneous.

The order of the Campbell Circuit Court, Family Division is vacated.