Opinion
NO. 2016-CA-000302-ME
01-20-2017
WILLIAM MONROE ROBBINS APPELLANT v. MONIQUE DENEE MEEKER APPELLEE
BRIEF FOR APPELLANT: Derrick L. Harris Lexington, Kentucky NO BRIEF FILED FOR APPELLEE
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE TRACI BRISLIN, JUDGE
ACTION NO. 15-D-01044-001 OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: JONES, D. LAMBERT, AND MAZE, JUDGES. MAZE, JUDGE: William Monroe Robbins (Robbins) brings this appeal of a Domestic Violence Order (DVO) filed against him by Monique Denee Meeker (Meeker) and issued in the Fayette Circuit Court. He alleges that the trial court abused its discretion when it found that domestic violence had occurred and that it might recur, and that the trial court erred when it failed to issue written findings of fact. Because we find that insufficient evidence existed in the record to find that domestic violence between the parties had occurred and might recur, we reverse the entry of the DVO.
Relevant Facts
Robbins and Meeker were paramours for fifteen years. Meeker filed a petition for a DVO in Fayette County Family Court, seeking an Emergency Protective Order (EPO) against Robbins. A hearing was held over the matter on January 19, 2016.
Robbins' petition read as follows:
On Saturday, December 26, 2015, my neighbors witnessed [Robbins] park down the street from my house, got out of his vehicle and walked down the street and appeared to go to my sidedoor & look at something with a flashlight. They followed him & witnessed this. They took a picture of the license tag and called the police. I was not aware of this until Sunday afternoon. They said that they have noticed the vehicle before. I filed a police report back in July about receiving harassing letters and people I work with getting the same harassing letters. I have been working with Detective Helm.
At this point, Meeker and Robbins had been separated for approximately 16 months. Robbins testified that he had gone to Meeker's house to leave her a Christmas present on December 23, 2015, and that he had returned in order to shine his flashlight into her trashcan to see if she threw it away. During cross-examination, Meeker said that she was not aware that Robbins had gone to her residence on December 26, and that she did not discover that he had been to her house until the next day. She stated that when she discovered Robbins had visited her residence she had been "scared to be at [her] house" and "fearful to be there by [herself]." Meeker also testified that Robbins had previously dropped off a birthday gift at 11:30 P.M. at her house, and that she had told him not to come to her house.
Meeker stated that she had been receiving harassing letters since approximately the time that she and Robbins broke up. Meeker admitted that she had no way of knowing who the letters were from, and that those letters did not appear to be in Robbins' handwriting. There was no reference to the content of the letters during the hearing, other than a brief statement by Meeker that they were "horrible," and they have not been made a part of the record on appeal. Robbins testified that he did not send any of the harassing letters to Meeker. Meeker testified that Robbins had never threatened her or harmed her physically in any way in the past.
The court did ask to see the letters, but did not reference their contents. Meeker also told the court "you can ignore the letters." Robbins' counsel objected to the admission of the letters at trial. The letters were never formally admitted into the record, and the trial court indicated that it did not consider them in making its determination.
The trial court made a finding that domestic violence had occurred and may occur again, and granted the DVO. This appeal followed.
Analysis
We note that Meeker failed to file an appellee brief in this case. Kentucky Rule of Civil Procedure (CR) 76.12(8)(c) "provides the range of penalties that may be levied against an appellee for failing to file a timely brief." St. Joseph Catholic Orphan Soc'y v. Edwards, 449 S.W.3d 727, 732 (Ky. 2014). At our discretion, we may "(i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case." CR 76.12(8)(c). In this instance, we choose to reverse, as the appellant's brief reasonably appears to sustain reversal.
Robbins makes the following arguments on appeal: 1) the trial court erred when it failed to enter written findings of fact; and 2) the trial court erred when it found that domestic violence had occurred and might occur again. We agree with Robbins that the trial court's written findings are insufficient. Moreover, we also conclude that there was insufficient evidence to determine that domestic violence had occurred and may recur.
I. Sufficiency of Written Factual Findings
Robbins first argues that the trial court erred when it failed to make written findings of fact. In Boone v. Boone, 463 S.W.3d 767 (Ky. App. 2015), this court recently held that the trial court is required to make written findings of fact for all DVOs, and that the failure to make written findings is reversible error. Id. at 768-69. This court suggested that oral findings of fact and handwritten notes are insufficient to meet the requirements of CR 52.01. Id. at 768.
Kentucky Rules of Civil Procedure.
However, we question whether Boone may be read so broadly as to require reversal of all DVOs entered without written findings of fact. The form provided for DVOs, AOC-275.3, includes a boxes for "Additional Findings" by the trial court, including,
... that it was established, by a preponderance of the evidence, that an act(s) of domestic violence and abuse, dating violence and abuse, stalking, sexual assault has occurred and may again occur;...
The language used on the form mirrors the necessary findings for a DVO under KRS 403.740(1). In this case, the trial court checked the first box. Furthermore, there is no space provided on the form to set out additional written factual findings. We recognize that trial court's will often use calendar entries to set out additional factual findings, and such entries are of great value to this Court on appeal. However, we are unwilling to impose additional burdens on trial courts by holding that oral findings are categorically insufficient.
Kentucky Revised Statutes.
But in this case Robbins filed a motion pursuant to CR 52.04 requesting that the trial court make specific factual findings to support its ruling. The trial court denied the motion without stating that its original findings were sufficient and without expressly incorporating its oral findings into the DVO. The trial court's failure to make those findings impedes our review of the sufficiency of the evidence supporting the DVO, and would permit this Court to remand the matter for additional findings. Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011).
II. Sufficiency of Evidence of Domestic Violence
Nevertheless, we decline to reverse and remand on this ground. The trial court made oral findings of fact on the record. Those findings are sufficient for this Court to determine the bases for the trial court's rulings and to conduct a meaningful appellate review of the sufficiency of the evidence.
The central issue in this appeal is whether Meeker met her burden of proof for entry of a DVO. KRS 403.740(1) provides 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 . . . ." 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." Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996). KRS 403.720(1) defines "domestic violence and abuse" as "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[.]" As an appellate court, we review the trial court's issuance of a DVO to determine "whether the court's findings were clearly erroneous or ... it abused its discretion." Holt v. Holt, 458 S.W.3d 806, 812 (Ky. App. 2015).
A. Stalking
We first note that the trial court found that Robbins stalked Meeker. Our General Assembly has recently amended KRS 403.720(1) to include stalking. This amendment, however, became effective on January 1, 2016, and all of the events in the present case took place immediately prior to that time. Therefore, stalking could only appropriately be the basis for a DVO in this case if the amended version of KRS 403.720(1) applied retroactively. See Benson's Inc. v. Fields, 941 S.W.2d 473, 476 (Ky. 1997) (a law cannot "properly be applied to a claim which arose before its effective date.").
Robbins has not argued that this amendment had been applied retrospectively. He did, however, challenge whether domestic violence had occurred and may occur again under KRS 403.720(1). We see the question of retroactivity of the amendment to be directly implicated by Robbins' argument, as the trial judge made a finding that Robbins stalked Meeker. Our Supreme Court has held that "an appellate court may decide an issue not briefed on appeal when that issue 'flows naturally under our appellate review of the issue raised.'" Commonwealth v. Pollini, 437 S.W.3d 144, 148 (Ky. 2014) (quoting Barker v. Commonwealth, 341 S.W.3d 112, 114 (Ky. 2011)). We believe that the situation in the present case was contemplated in Barker. Although this Court did not "go looking for" this error, "we bump into it squarely out of the gate because of the general objection to the justification of [the finding of domestic violence under this statute] in the first place." 341 S.W.3d at 114. "So long as an appellate court confines itself to the record, no rule of court or constitutional provision prevents it from deciding an issue not presented by the parties." Priestley v. Priestley, 949 S.W.2d 594, 596 (Ky. 1997) (citations omitted). See Mitchell v. Hadl, 816 S.W.2d 183, 185 (Ky. 1991) ("When the facts reveal a fundamental basis for decision not presented by the parties, it is our duty to address the issue to avoid a misleading application of the law."). See also Elk Horn Coal Corp. v. Cheyenne Res., Inc., 163 S.W.3d 408, 424 (Ky. 2005) (addressing on the merits an issue raised by our Supreme Court during oral arguments). Because this issue was not raised by the parties, we review for palpable error under CR 61.02. See Barker, 341 S.W.3d at 114.
The last event in the record took place on December 26, 2015.
KRS 446.080(3) provides that "[n]o statute shall be construed to be retroactive, unless expressly so declared." Kentucky courts have interpreted this statutory provision to mean that "substantive civil statutes are not to be applied retroactively unless the General Assembly expressly declares otherwise, while procedural and remedial statutes are to be so applied." Rodgers v. Commonwealth, 285 S.W.3d 740, 751 (Ky. 2009). Substantive amendments "change and redefine the out-of-court rights, obligations and duties of persons in their transactions with others . . . ." Commonwealth Dep't of Agric. v. Vinson, 30 S.W.3d 162, 168 (Ky. 2000). Procedural amendments "apply to the in-court procedures and remedies which are used in handling pending litigation, even if the litigation results from events which occurred prior to the effective date of the amendment[.]" Id. at 169. Remedial statutes are ones that provide for "the expansion of an existing remedy without affecting the substantive basis, prerequisites, or circumstances giving rise to the remedy." Kentucky Ins. Guar. Ass'n v. Jeffers ex rel. Jeffers, 13 S.W.3d 606, 609 (Ky. 2000). Furthermore, our Supreme Court has noted that
Among the "remedial" enactments are statutory amendments that clarify existing law or that codify judicial precedent. Because such amendments do not impair rights a party possessed when he or she acted or give past conduct or transactions new substantive legal consequences, they do not operate retroactively and thus do not come within the rule against retroactive legislation.Moore v. Stills, 307 S.W.3d 71, 81 (Ky. 2010).
We conclude that this amendment is substantive. While it is true that the statute expands the number of people who are able to obtain a DVO, a remedial measure, the amendment also affects the circumstances surrounding which a person can obtain that remedy. The amendment also clearly changes the "obligations and duties" of a person who might be the subject of a DVO, and does not apply to any in-court procedure. Finally, we note that this amendment to KRS 403.720(1) changed the existing state of law surrounding DVOs, as it provides an additional basis through which victims can seek relief. See, e.g., Caudill v. Caudill, 318 S.W.3d 112 (Ky. App. 2010) (finding insufficient evidence for a DVO where the respondent "had ignored [the petitioner's] repeated directives to stay away from her workplace and whose verbal abuse caused her to feel very threatened."). Because this amendment to KRS 403.720(1) only applies prospectively, the trial court palpably erred by finding that Robbins' behavior before the effective date of the amendment could constitute the basis for a DVO.
B. Threat of Imminent Physical Violence
Since the alleged stalking behavior was not a proper basis for entry of a DVO in this case, we must consider whether there was sufficient evidence to find that Robbins engaged in domestic violence or abuse, or caused the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault under the applicable definition. In Hohman v. Dery, 371 S.W.3d 780 (Ky. App. 2012), we considered a challenge to the sufficiency of the evidence in a domestic violence order under the following facts:
We frame our review by noting there is no evidence Jennifer suffered physical injury or assault perpetrated by Joseph. Our inquiry turns on whether substantial evidence supports a finding that Joseph inflicted upon Jennifer a fear of imminent physical injury or assault.
Joseph relies on his own testimony, where he either denied or minimized the allegations, to support his argument that there was no evidence he caused Jennifer
to fear imminent physical injury. Despite Joseph's assertions to the contrary, Jennifer specifically testified she felt threatened when he clenched his fists and yelled at her through gritted teeth. Jennifer explained that she believed Joseph was unable to control his emotions and that she feared his aggressive confrontations would escalate "to the next level." Jennifer further expressed her concern with Joseph's frequent "drive-bys," coupled with text messages that indicated Joseph knew Andrew's work schedule and messages that expressed Joseph's anger at Jennifer for ruining his life.Id. at 782-83. We concluded that "[b]ased on the record ... the evidence presented was sufficient for the court to reasonably infer that Joseph's conduct caused Jennifer to fear imminent physical injury; accordingly, the court's finding of domestic violence was not clearly erroneous." Id. at 783.
Similarly, in Caudill, supra, this Court considered a situation in which the respondent "had ignored [the petitioner's] repeated directives to stay away from her workplace and whose verbal abuse caused her to feel very threatened." Id. at 114. This Court ultimately concluded that it did not meet the evidentiary standard for a DVO. Id. at 115.
This Court adopted the same reasoning in Pasley v. Pasley, 333 S.W.3d 446, 448 (Ky. App. 2010), noting that
In the instant case, the record reflects that the trial court abused its discretion by entering the DVO. Specifically, we note that there were no allegations of physical abuse or physical injury, nor were there any allegations of threats of physical abuse in Ms. Pasley's petition for an emergency protective order. The only allegation in the petition of any perceived threat was Ms. Pasley's unsupported statement that she was unsure what Mr.
Pasley would do and was afraid of him. A review of the videotaped hearing further indicates that Ms. Pasley did not orally make any allegations of any physical injuries or abuse, nor did she allege that she had fear of imminent physical injury. In fact, the record is devoid of any indications that there was ever any domestic violence between Mr. Pasley and Ms. Pasley.Id. at 448.
This case is plainly more analogous to Caudill and Pasley than to Hohman. Even though Meeker testified that she was afraid of Robbins, Robbins did not exhibit any physical aggression at all. Hohman, unlike Caudill and Pasley, involved a situation in which the respondent "clenched his fists and yelled at [the petitioner] through gritted teeth[,]" and the petitioner "feared his aggressive confrontations would escalate 'to the next level.'" Hohman, 371 S.W.3d at 782-83. These facts are simply not present here. Moreover, Meeker became aware that Robbins had visited her residence the day after he did so. Therefore, Meeker certainly could not have had any fear of imminent domestic violence under KRS 403.720(1), as Meeker directly testified that she was not afraid of Robbins until after he had left her residence.
The trial court made a finding that Meeker "took [it] as a threat" when Robbins was outside of her home, even though Robbins never made a threat of any kind. As in Hohman, there is no requirement that a respondent must make an explicit threat in order to meet the requirements of KRS 403.740(1). On the other hand, the petitioner's subjective fear alone is likewise insufficient to meet the domestic violence requirement in KRS 403.740(1). As in Caudill and Pasley, there must be sufficient evidence showing that the petitioner has a reasonable fear of imminent domestic violence or abuse. While Meeker may have subjectively taken Robbins' actions as a threat, there was no other evidence to establish that his actions were intended as a threat of imminent domestic violence or abuse. Therefore, we must conclude that there was insufficient evidence in the record to meet the statutory standard in KRS 403.740(1).
Conclusion
In sum, we hold that the trial court failed to enter sufficient factual findings to support the entry of a DVO in this case. Furthermore, we hold that the evidence in this case was insufficient for the trial court to find that domestic violence had occurred, as there was no evidence in the record that Robbins committed or threatened to commit an act of domestic violence upon Meeker. Accordingly, the Domestic Violence Order entered by the Fayette Circuit Court is reversed, and the matter is remanded for the trial court with direction that the DVO be set aside.
D. LAMBERT, JUDGE, CONCURS.
JONES, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
JONES, JUDGE. Respectfully, I dissent. Domestic violence is a disease affecting all levels of our society. Like a disease, its victims often suffer in silence. Why? Often it is because the symptoms are subtle and can, to an outsider, seem benign. This does not mean they do not exist. I believe they existed in this case, and I believe the trial court properly granted Meeker the DVO she requested.
I believe Meeker adduced sufficient facts to justify the trial court's entry of a DVO. Meeker testified that Robbins showed up at her home late at night, was seen prowling around her home with a flash light late at night, and disregarded her request for him to stay away from her. The trial court equated such behavior to stalking. The majority concludes that the inclusion of stalking in the revised DVO statutes is a substantive change that cannot be applied to Robbins retroactively. I disagree.
I believe the elements of stalking were sufficient to meet the prior definition of domestic violence even though the term may not have been explicitly set forth in the statute. In Kentucky, stalking is also a crime. One is guilty of stalking in the second degree when: "He intentionally: (a) Stalks another person; and (b) Makes an explicit or implicit threat with the intent to place that person in reasonable fear of: 1. Sexual contact as defined in KRS 510.010; 2. Physical injury; or 3. Death. (2) Stalking in the second degree is a Class A misdemeanor." KRS § 508.150. It seems to me that our criminal statutes, which existed prior to the amendment of the DVO statutes, are evidence that under certain circumstances, engaging in stalking-like behavior can be implicitly threatening enough to place a person in fear of bodily harm or sexual assault. Inflicting the fear of imminent physical injury, serious physical injury, or sexual abuse meets the definition of domestic violence under the prior statute. Therefore, I believe that the revisions to the statute merely served to clarify that stalking behavior constitutes domestic violence. Moore v. Stills, 307 S.W.3d 71, 81 (Ky. 2010) ("Among the 'remedial' enactments are statutory amendments that clarify existing law or that codify judicial precedent. Because such amendments do not impair rights a party possessed when he or she acted or gave past conduct or transactions new substantive legal consequences, they do not operate retroactively and thus do not come within the rule against retroactive legislation.").
To stalk "means to engage in an intentional course of conduct: 1. Directed at a specific person or persons; 2. Which seriously alarms, annoys, intimidates, or harasses the person or persons; and 3. Which serves no legitimate purpose. (b) The course of conduct shall be that which would cause a reasonable person to suffer substantial mental distress." KRS 508.130.
Moreover, I believe this interpretation of the clarifying nature of the statute is in line with how the courts considered stalking even before amendment of the statute. See, e.g., Statts v. Statts, No. 2009-CA-002025-ME, 2010 WL 4860669, at *4 (Ky. App. Nov. 12, 2010) (affirming trial court's entry of a DVO where it found that "Statts's behavior, in particular his pacing, amounted to a 'stalking antecedent' which was threatening to Livesay."; Taylor v. Taylor, No. 2008-CA-001937-ME, 2009 WL 1491410, at *2 (Ky. App. May 29, 2009) ("Mike had a history of . . . stalking . . . Brenda."); Johnson v. Helton, No. 2004-CA-000438-MR, 2004 WL 2827756, at *1 (Ky. App. Dec. 10, 2004) (affirming entry of DVO against former paramour where sole allegation was that he came to her home late at night, unannounced, and banged on the window and petitioner alleged that "rsp may be stalking the pet, because the rsp should not know where the pet is. The pet is scared of the rsp behavior."); Holt v. Holt, 458 S.W.3d 806, 812 (Ky. App. 2015) (affirming DVO and noting that respondent's acts of harassing and stalking formed a portion of the trial court's determination that domestic violence had occurred in the past).
I hazard to guess that any person would justifiably be in fear of future physical or sexual abuse if told that an uninvited person had been observed outside her home late at night with a flashlight. To me, such behavior is inherently more suggestive and threatening of possible future violence than a raised voice and clenched fists. I believe it is entirely probable that Meeker viewed such behavior as a prelude to future acts of violence against her by Robbins. I believe her concerns in this regard were entirely reasonable. I also believe it is important to respect the trial court's assessment of the facts and credibility of witnesses in close cases such as this one. For these reasons, I dissent. BRIEF FOR APPELLANT: Derrick L. Harris
Lexington, Kentucky NO BRIEF FILED FOR APPELLEE
"Courts should use caution in applying an objective standard to determine whether a petitioner's concern about domestic violence is valid. The complex behavior involved in domestic violence may not be familiar to the court so that the behavior will not seem sufficiently intimidating to the judge, but may be very significant to the victim." § 5:13.Domestic violence—Defining and proving, 15 Ky. Prac. Domestic Relations L. § 5:13. --------