GARY WAYNE CANADA APPELLANT v. SAREAKA MONSHALE CANADA APPELLEE

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Court of Appeals of Kentucky.

GARY WAYNE CANADA APPELLANT v. SAREAKA MONSHALE CANADA APPELLEE

NO. 2011–CA–001451–ME

Decided: March 30, 2012

BEFORE:  COMBS AND MOORE, JUDGES;  LAMBERT, Double Double SENIOR JUDGE. BRIEF FOR APPELLANT:  Gary Wayne Canada, pro se Lexington, Kentucky NO BRIEF FOR APPELLEE.

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Gary Canada, pro se, appeals from a Domestic Violence Order (DVO) entered by the Fayette Family Court.   After our review, we affirm.

According to the petition in the record, on June 26, 2011, Gary severely beat his wife, Sereaka Canada.   Her injuries resulted in fifteen staples in her head and six stitches in her cheek to repair a hole that perforated her cheek.   Sereaka petitioned the court for a domestic violence order, which the court granted following a hearing on July 14, 2011.   The order requires Gary to remain at least 500 feet from Sereaka's residence, from her workplace, and from her mother's house.   This appeal follows.

Our standard of review is governed by Kentucky Rule of Civil Procedure (CR) 52.01.  Ghali v. Ghali, 596 S.W.2d 31, 32 (Ky.1980).  (CR 52.01 applies to domestic cases).   It provides that when reviewing court actions without juries, we may not reverse the findings of fact of the trial court unless they were clearly erroneous.   Clear error occurs only when the record is devoid of substantial evidence to support the findings of the trial court.  M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky.App.1998).   Substantial evidence is defined as “proof sufficient to induce conviction in the mind of a reasonable person.”  Rearden v. Rearden, 296 S.W.3d 438 (Ky.App.2009) (citation omitted).

Kentucky Revised Statute[s] (KRS) 403.750 authorizes a family court to issue a DVO “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[.]”  The definition of domestic violence and abuse 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[.]”  KRS 403.720(1).

Gary first argues that the court erred because it did not believe his claim that the beating of Sereaka was an act of self-defense.   We disagree.   At the hearing, Sereaka testified and verified the allegations in her petition.   The petition was lengthy and detailed, describing – moment by moment – the brutal attack that Gary had perpetrated.   The petition also described the injuries that Sereaka received.   When the court asked Gary his version of the events, he did not deny the acts of violence but instead characterized his behavior thus:  “It was self-defense.”   Gary did not provide any details of the alleged attack by Sereaka;  nor did he inform the court of any injury whatsoever to himself.

It is the prerogative of the court to determine the credibility of the parties.  CR 52.01.   In this case, there was substantial evidence presented by Sereaka of an unprovoked attack by Gary. In contrast, Gary presented no evidence to the family court that he had acted in self-defense—other than his own self-serving statement.   Therefore, we conclude that the trial court's order was not an abuse of discretion, and we affirm.

Gary next challenges the scope of the DVO:  that it was improper for the court to make the DVO effective for three years and that it was improperly applied to his residence.   He alleges that there is no evidence showing that Sereaka was in imminent danger from him.   We disagree.

According to KRS 403.750(2), the family court may enter a DVO effective for a time period of three years if it finds that an act of domestic violence has occurred and may occur again.   The court is authorized to consider a defendant's criminal record in its determination.  KRS 403.741.

The General Assembly has defined domestic violence as “physical injury ․ between family members.”  KRS 403.720(1).   A spouse is a family member.   KRS 403.720(2).   Gary does not dispute that Sereaka received physical injuries so severe that she was treated with numerous staples and stitches in her head and face.   Furthermore, Gary's criminal record revealed allegations of domestic violence in the past.   Because the court had substantial evidence that domestic violence had occurred and could occur again, we do not believe that it erred in entering a DVO effective for three years.   Additionally, Sereaka was still transitioning from the marital residence;  it was not error for the court to restrict Gary from the marital residence.   See Kaiser v. Kaiser, 2008 WL 4182380 (Ky.App. Sept. 12, 2008).

Gary next argues that the court erred by issuing an order relating to his personal property.   We have searched the record, but we were unable to locate such an order.   At the hearing, the family court specifically stated that disposition of property would be a component of the Canadas' pending divorce action.   Therefore, this argument is moot.

Gary's final argument appears to be a repetition of his allegation that he acted in self-defense during his attack of Sereaka.   We reiterate that Gary had ample opportunity to present this defense to the family court.   He failed to present compelling evidence.   The court did not err when it chose to find Sereaka's detailed version of events more credible and persuasive.

We affirm the DVO entered by the Fayette Family Court.

ALL CONCUR.

COMBS, JUDGE: