Opinion
NO. 2013-CA-000319-ME
08-29-2014
JOSHUA R. HUGHES APPELLANT v. KERI BASHAM APPELLEE
BRIEF FOR APPELLANT: Michael Davidson Nam H. Nguyen Lexington, Kentucky BRIEF FOR APPELLEE: Brandi L. Simon Georgetown, Kentucky Mary E. Savage Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE TAMRA GORMLEY, JUDGE
ACTION NO. 12-D-00156
OPINION
AFFIRMING
BEFORE: MOORE, TAYLOR AND VANMETER, JUDGES. MOORE, JUDGE: Joshua R. Hughes appeals a Domestic Violence Order ("DVO") that was entered against him by the Scott Family Court. Upon review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Joshua filed a petition for dissolution of his marriage to Keri Basham Hughes on May 7, 2012, in Harrison Family Court. During the parties' marriage, they resided in Harrison County with their minor child. Presently, there is pending a separate appeal from the Harrison Family Court regarding timesharing. Because the issues in these separate appeals are intertwined, they were assigned to the same panel of this Court for resolution.
Case No. 2013-CA-001349-ME.
Relevant to the present appeal is the fact that Keri moved to Scott County, Kentucky, during the course of the dissolution proceedings and that she filed petitions for protective orders against Joshua in Scott Family Court. In the first petition, Keri alleged as follows:
I am afraid Josh is going to assault or kill me. He is always carrying a gun and knives and is on pain pills. He uses my son to force me to come to him by taking my son from school or from my mom's house and I personally must retrieve him. He also has been stalking me by parking outside my house [sic] an hour away from his house. His family has a history of making up illnesses and they are starting to make up illnesses for my son. I am afraid this will get worse once he can't get at me directly.
The Trial Commissioner in Scott County entered an Emergency Order of Protection ("EPO") on December 1, 2012, on behalf of Keri and awarded Keri sole custody of the parties' minor son. Thereafter, an agreed order was entered in the Harrison Family Court dissolution action on December 4, 2012, ordering that all issues involving the minor child should not be the subject of the domestic violence petition pending in Scott Family Court and that all matters involving the child "would be better suited for the Harrison Family Court."
While not relevant to the issues to be resolved in this appeal, we note that Keri disputed that she gave authorization to her attorney to execute the Agreed Order.
Joshua filed an emergency motion in Scott Family Court to amend the prior EPO to remove the restrictions placed on him with regard to the minor child. After a continuance, the Scott Family Court transferred the Domestic Violence Petition to the Harrison Family Court for a hearing on December 19, 2012, given that the parties' dissolution action was pending there.
The Harrison Family Court held a hearing on the domestic violence petition on December 19, 2012, and thereafter dismissed the December 1, 2012 EPO issued by the Trial Commissioner in Scott Family Court. The Harrison Family Court found that Keri had not established by a preponderance of the evidence that acts of domestic violence had occurred. Nonetheless, on January 10, 2013, the Harrison Family Court entered a "No Contact" order, ordering that: (1) the only communication between the parties should occur via email; (2) a third party should be utilized for exchanges of the parties' minor child; (3) Joshua was not to travel on Keri's street; and (4) Joshua was not to have any weapons, guns, or firearms in his possession, control, or residence.
Keri filed a second petition for an EPO on January 3, 2013, in Scott Family Court. In this petition, Keri alleged that the parties' four-year-old son told her "that Josh is going to kill me on Thursday, and that he [the child] told him not to. [The child] has told me multiple times that he has told Josh not to kill me." The Scott Family Court issued an EPO on the same date the petition was filed and scheduled a hearing for January 9, 2013. Joshua sought the transfer of this petition to the Harrison Family Court, which the Scott Family Court denied.
During the hearing, the Scott Family Court heard testimony from both of the parties and also heard two audio recordings that Keri had made of the parties' minor child regarding threats Joshua had made about killing Keri, the judge and Keri's "work family." Joshua objected to allowing the audio recordings being introduced into evidence. The family court overruled his objections.
Keri also testified that her fear in part was based on past behavior of Joshua, including his getting fired from a job for bringing a weapon to work; his chasing a eighteen-year-old male who was staying with the parties; his parking outside of her house; his reading a book about the psychology of shooting people; his allowing farm animals to die; and his getting a job as a butcher's assistant, which required the killing of animals.
Joshua's testimony sought to rebuke these allegations, including that his prior employer had changed its policy with regard to employee's carrying weapons on its premises; his work at the butcher shop was to learn the trade to assist with working on the family farm; he denied ever hurting or neglecting animals; he denied receiving "an adrenaline rush" from reading books about firearms; he explained that he watched Keri's residence to ensure, pursuant to the parties' agreement, that if Keri was not available to watch the child due to work, that he would get the right of first refusal.
Joshua's credibility was not buttressed at all by his ambiguous answers to the court's questions regarding his weapons and where they were kept. Joshua was highly evasive about the location of the weapons, requiring the family court to further probe into the exact location of them. Once Joshua finally gave the court the name of the person who was holding the weapons, the court telephonically questioned the person about the security of the weapons. Nearing the end of the telephonic conversation, the person holding the weapons expressed that he did not wish to be responsible for the weapons long term and that he did not have a safe big enough to store all of them.
Upon hearing from the parties and counsel's arguments, the family court entered a DVO and ordered the Harrison County Sheriff's Office to retrieve Joshua's weapons until the Scott County Sheriff's Office could retrieve and hold them pending further orders of the court. The terms of the DVO required that Joshua stay 500 feet away from Keri; that Joshua be evaluated by Michael B. Finucane, LCSW, with the Family Violence Project and be assessed for need, if any, for batter's intervention counseling; that Joshua have no ammunition in his home or possession; and that the parties may email only for medical issues regarding the child that would require attention by either parent outside of the home. The court further ordered that Joshua stay 500 feet from the Scott Justice Building unless he has a scheduled proceeding or meeting.
Joshua timely appealed the DVO. On appeal, he argues error by the Scott Family Court regarding allowing the audio recordings of the child into evidence; that there was not sufficient evidence to support the entry of a DVO; and that the Scott Family Court abused its discretion by not transferring the second domestic violence petition to Harrison Family Court. Upon review, we affirm.
STANDARD OF REVIEW
This Court has on numerous occasions addressed the DVO process as well as our standard of review, and it is well set forth in Caudill v. Caudill, 318 S.W.3d 112 (Ky. App. 2010).
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 . . . ." KRS 403.750(1). The 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. Baird v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007). The definition of domestic violence and abuse, as expressed 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 . . . ." The standard of review for factual determinations is whether the family court's finding of domestic violence was clearly erroneous. 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.
. . . .
While "domestic violence statutes should be construed liberally in favor of protecting victims from domestic violence and preventing future acts of domestic violence[,]" Barnett v. Wiley, 103 S.W.3d 17, 19 (Ky. 2003), "the construction cannot be unreasonable." Id. (citing Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994)). Furthermore, we give much deference to a decision by the family court, but we cannot countenance actions that are arbitrary, capricious or unreasonable. See Kuprion, 888 S.W.2d at 684.
ANAYLSIS
For his first basis for his appeal, Joshua argues that the family court erred in allowing into evidence the audio taped statements made by the parties' four-year old child under KRE 803(2), known as the excited utterance exception to the hearsay rule. An excited utterance is:
Kentucky Rules of Evidence.
A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or the condition.
Eight factors are frequently referenced to determine the admissibility of an out-of-court statement regarding an excited utterance. These factors are:
(i) lapse of time between the main act and the declaration, (ii) the opportunity or likelihood of fabrication, (iii) the inducement to fabrication, (iv) the actual excitement of the declarant, (v) the place of the declaration, (vi) the presence there of visible results of the act or occurrence to which the utterance relates, (vii) whether the utterance was made in response to aNoel v. Commonwealth, 76 S.W.3d 923, 926 (Ky. 2002).
question, and (viii) whether the declaration was against interest or self-serving.
However, these factors "do not pose a true-false test for admissibility but, rather only act as a guideline for consideration of admissibility." Jarvis v. Commonwealth, 960 S.W.2d 466, 470 (Ky. 1998) (citing Smith v. Commonwealth, 788 S.W.2d 266, 268 (Ky. 1990)). In a close case, "the trial court's decision to admit or exclude the evidence is entitled to deference." Souder v. Commonwealth, 719 S.W.2d 730, 733 (Ky. 1986), rev'd on other grounds, B.B. v. Commonwealth, 226 S.W.3d 47 (Ky. 2007).
The audio recording at issue between Keri and the child made on the morning of January 3, 2013, is as follows:
Keri: You just said all kinds of crazy crap. What did you say? Say it again.
Child: [Inaudible]
Keri: What did you tell your daddy?
Child: Umm... I told my dad that I don't need him to kill you. And I told him that I love my mommy. And I told him to don't kill you. And I told him and he said he's gonna kill ya on Thursday.
Keri: He's gonna kill me on Thursday?
Child: Yeah. He's going to kill your Judge.
Keri: Oh. He's gonna kill my Judge?
Child: Yeah!
Keri: Oh, ok.
Child: The whole Judge family!
Keri: The whole Judge family?
Child: Yah. And I told him not to but he did!
Keri: Well, he didn't. Nobody's gotten anything.
Child: But tomorrow he is going to and he's gonna sneak up in your Judge room, and he's gonna try to kill your work family.
Keri: My work family? What are you talking about man?
Child: [Inaudible] your family at Louisville where you work.
Keri: The people where I work in Louisville?
Child: Yah! Yah! Well, he just killed 'em today 'cuz he was being a snitch to me because he heard me [inaudible] him. And he killed your Judge.
Keri: He didn't kill my Judge.
Child: Yes. He is being a liar.
Keri: Well, that's neither here nor there.
Child: But he kills everybody and your Judge.
Keri: Ok, now what was the thing you were saying about coming to see me again?
Child: Well, he said, I'm not gonna come to you ever again. Never! Ever!
Keri: When did he say this?
Child: He said it on Thursday the twelfth.
Keri: [Laughing]. No he didn't because you were with me on Thursday the twelfth. I don't even think Thursday was a twelfth.
Child: Well, he was going to sneak me into [inaudible], so ... so I was sneaking up into his bedroom and then [high-pitched shriek]!
Keri: Ok. Well . . . yeah. Ok then.
The family court allowed in a second audio recording between Keri and the child, which went as follows:
Keri: Rules? What were you saying about rules?
Child: I told him that ... um ... the first rule was ... um ... uh ... I told him that he has to not kill you. The other rule was ... um ... I told him don't come to your house, don't come to your work ... um ... road.
Keri: Why'd you tell him that stuff?
Child: Because he didn't listen. Like when the accident happened he was on the road.
Keri: Right. That's true.
Child: So that's what I was tellin' him.
Keri: Okay. But I told you not to tell him, not to talk to daddy about these things. You leave it, you stay out of it and leave it for mommy and daddy. So why were you talking to him about this stuff?
Child: I'm done.
Keri testified regarding the circumstances around which the child made these statements. The child had returned from timesharing with Joshua on Tuesday, January 1, 2013 at 6:00 p.m. and was to return to Joshua on Thursday, January 3, 2013 at 6:00 p.m. She testified that the child made statements during the night of the 2nd and on the morning of the 3rd that included that Joshua was going to sneak and kill her while her mother was taking the child to Joshua's mother for the timesharing exchange. According to Keri's testimony, the child had been scared all during the night of the 2nd. He wanted to get into bed with Keri and have her tell him that she would not leave him. She testified that as soon as he woke up he came downstairs to find her because she was not in the room with him. While eating breakfast, she said that the child came to her side of the table and began telling her what she recorded.
At the conclusion of the testimony, the family court stated as follows:
[The child's] statements do qualify as excited utterances, more than the tape was played, the statements that he relayed to his mom that caused her to record the statements were the excited utterances. Where he expressed fear during the night, he expressed fear when he rose in the morning, his conduct, his raised voice, all of those things expressed a fear....
On the docket sheet, the family court wrote that the
child's statements to his mother were excited utterances when he was scared expressed during the night, when he rose in the morning by his conduct and voice and statements during his breakfast.
Joshua contends that the family court erred in failing to consider the above listed factors in determining whether to admit the child's out-of-court statements. He argues that at a minimum twenty-four hours had passed since the child had been with Keri before he made any of the statements at issue, presuming that he made any "excited utterances" during the night of January 2nd.
With regard to the passage of time, the Supreme Court of Kentucky has stated that
[I]n Noel, we held the statement at issue inadmissible, as it was made "more than twenty-four hours after the first opportunity to report." Noel, 76 S.W.3d at 927. However, we noted in Noel many cases with time lapses greater than the two hour interval here. Id. at 927; see also United States v. Nick, 604 F.2d 1199, 1202 (9th Cir. 1979) (the same day); People v. Sandoval, 709 P.2d 90 (Colo. Ct. App. 1985) (fourteen hours); Brantley v. State, 177 Ga.App. 13, 338 S.E.2d 694 (1985) (several hours); People v. Nevitt, 135 Ill.2d 423, 142 Ill.Dec. 854, 553 N.E.2d 368 (1990) (five hours); State v. Rodriquez, 8 Kan.App. 2d 353, 657 P.2d 79 (1983) (four hours); People v. Pottruff, 116 Mich.App. 367, 323 N.W.2d 402 (1982) (less than twenty-four hours); Love v. State, 64 Wis.2d 432, 219 N.W.2d 294 (1974) (the following day).Meece v. Commonwealth, 348 S.W.3d 627, 682-83 (Ky. 2011).
The amount of time that passed before the child made the statements to Keri does concern the Court. However, the family court had the benefit of listening to the audio recorded statements of the child, not just having Keri's versions of the statements. The family court commented on the child's expressions of fear and excitement and that he relayed this information to his mother once he felt safe. Moreover, it does not go without notice that the child made these statements on the day he expressed his belief that his father would kill his mother while the child was being exchanged by third parties for Joshua's timesharing. The family court also heard testimony from Keri regarding the circumstances surrounding the child's making of these statements and while Keri did question him a few times, the child volunteered several statements regarding his belief that Joshua was going to kill her.
It appears the third parties utilized for exchanging the child were the parties' respective mothers.
The family court was in the best position to judge the credibility of the witnesses and weigh the evidence presented. Hohman v. Dery, 371 S.W.3d 780, 783 (Ky. App. 2012). Given the facts and circumstances surrounding the child's statements as viewed by the family court, we cannot say the court abused its wide discretion in considering the statements made by the child.
With our determination that the family court did not abuse its discretion in allowing in the child's statements, there was clearly sufficient evidence to support the family court's entry of a DVO in this case. And although Joshua testified as to explanations to rebut Keri's other basis for seeking a DVO, it was well within the family court's discretion whether to believe his explanations. Id. We can discern no error regarding this.
Finally, Joshua contends the family court erred in refusing to transfer this case to the Harrison Family Court, where the dissolution action was pending. We disagree. This argument was fleshed out and fully resolved in Cottrell v. Cottrell, 114 S.W.3d 257 (Ky. App. 2002), wherein the court in one county where a dissolution action was pending issued a restraining order against the court in another county where a domestic violence petition was filed from hearing the petition. In reviewing the issue, this Court held:
We are in complete agreement with the decision of the Warren Circuit Court [where the domestic violence petition was filed]. The plain language of KRS 403.725(1), which provides for the filing of a petition for a DVO in the county of the petitioner's residence, also supports the trial court's decision in that it requires a petitioner to make known to the court "any custody or divorce actions, involving both the petitioner and the respondent, that are pending in any Circuit Court in the Commonwealth." (Emphasis added). It thus appears that the legislature did not consider domestic violence protection to be the same relief provided by custody or divorce proceedings. The action appellant labels "forum shopping" was nothing more than an attempt by a mother to obtain protection for her children in a forum provided by the legislature. In our opinion, the relief appellant seeks in this appeal would render ineffectual the very protections our domestic violence statutes were enacted to provide.Cottrell, 114 S.W.3d at 259.
Cottrell is binding law on this Court. There having been no other relevant changes in the law since it was rendered, we discern no reason to depart from it.
For the reasons as stated, we affirm.
TAYLOR, JUDGE, CONCURS.
VANMETER, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
VANMETER, JUDGE, DISSENTING: I respectfully dissent. Domestic violence matters are subject to the same evidentiary rules as other proceedings. Rankin v. Criswell, 277 S.W.3d 621, 625 (Ky. App. 2008); see KRE 1101 (stating "[t]hese rules apply generally to civil actions and proceedings"). The taped recording of the parties' child is inadmissible hearsay unless an exception to the hearsay rule applies. KRE 801(c); 802. The majority opinion, as well as the trial court, relied upon the excited utterance exception set forth in KRE 803(2). This ruling is untenable, and constituted an abuse of discretion by the trial court requiring reversal.
Kentucky Rules of Evidence.
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KRE 803 provides hearsay exceptions that are "not excluded by the hearsay rules, even though the declarant is available as a witness[.]" KRE 803(2) creates the excited utterance exception: "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." In Noel v. Commonwealth, 76 S.W.3d 923, 926 (Ky. 2002), the Kentucky Supreme Court set forth eight factors as relevant to a determination of whether an out-of-court statement is admissible under KRE 803(2):
(i) lapse of time between the main act and the declaration, (ii) the opportunity or likelihood of fabrication, (iii) the inducement to fabrication, (iv) the actual excitement of the declarant, (v) the place of the declaration, (vi) the presence there of visible results of the act or occurrence to which the utterance relates, (vii) whether the utterance was made in response to a question, and (viii) whether the declaration was against interest or self-serving.
In applying these factors to the child's statements, the record contains no indication of when Hughes allegedly made these statements. At the earliest, the original statements would have been made 48 hours prior to the taping. A clear opportunity and motive existed for Basham to fabricate the tape by coaching the child. The taping occurred at Basham's residence, not in the place of the original statement, and the taped statement was made in response to Basham's questioning. No visible result of the original statement exists. Finally, the taped statement was not against interest.
While no doubt exists that the child appears to have been in a state of excitement, excitement alone is insufficient to admit the taped statement into evidence. The majority opinion fails to analyze adequately the foregoing factors and essentially relies only on the child's level of excitement. Small children say a lot of things when they are excited, but that does not mean the statements' contents are true or sufficiently reliable to support a court order. See B.B. v. Commonwealth, 226 S.W.3d 47, 51 (Ky. 2007) (holding that a declarant's "incompentence [to testify] would extend to the hearsay[]"). In other words, the fact that some exception to the hearsay rule may technically permit its admission into evidence, the trial court must nevertheless consider whether the declarant's statement is reliable. See id. (holding that "testimonial incompetence of a declarant should be an obstacle to the admission of the declarant's out-of-court statements if the reason for the incompetence is one which would affect the reliability of the hearsay[]") (citing Robert G. Lawson, The Kentucky Evidence Law Handbook 675 n. 53 (4th ed. 2003)). Without the child's statement, insufficient evidence exists to support the court's order.
Furthermore, though the trial court had discretion to retain or transfer the domestic violence matter to Harrison Family Court, the better course would have been to transfer the domestic violence matter to that court as the court in which the parties' dissolution action was situated. Since the adoption of family courts in Kentucky, the clear policy has been "one court, one family." The retention of this matter by the Scott Family Court creates an undesirable multi-court approach for this family.
In conclusion, the trial court abused its discretion by admitting the tape recording into evidence as an excited utterance. Since no other evidence supported the issuance of a domestic violence order, the trial court's order should be vacated and this matter remanded to that court with instructions to dismiss. BRIEF FOR APPELLANT: Michael Davidson
Nam H. Nguyen
Lexington, Kentucky
BRIEF FOR APPELLEE: Brandi L. Simon
Georgetown, Kentucky
Mary E. Savage
Frankfort, Kentucky