Opinion
NO. 2016-CA-000640-ME
05-19-2017
RENE VAZQUEZ APPELLANT v. ANNA NAJERA APPELLEE
BRIEF FOR APPELLANT: Dace Alexandria Lubans-Otto Florence, Kentucky BRIEF FOR APPELLEE: Karen Hoskins Ginn Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HONORABLE LINDA R. BRAMLAGE, JUDGE
ACTION NO. 16-D-00053-001 OPINION
AFFIRMING
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BEFORE: ACREE, COMBS AND D. LAMBERT, JUDGES. LAMBERT, D., JUDGE: The Boone Family Court entered a domestic violence order (DVO) against Rene Gabriel Vasquez on April 11, 2016. Anna Najera, with whom Vasquez was once romantically involved, filed for the protective order. After review, we affirm the family court's judgment.
I. BACKGROUND
On February 18, 2016, Najera petitioned the family court for a protective order against Vasquez, her former boyfriend. Najera alleged that Vasquez had physically and emotionally abused her, and explained that her son might be in danger. The family court held a hearing on the matter on April 1, 2016.
During the hearing, Najera testified regarding several instances of alleged abuse. She verified the statement contained in her protective order petition; namely, that Vasquez had choked her on multiple occasions and threatened to kill her. Najera also testified that just days before the hearing, Vasquez and another person broke into her house and attacked her. The family court found that Najera was treated at St. Elizabeth Hospital in Florence, Kentucky, and "later transferred to a hospital in Cincinnati for further investigation of her neck due to strangulation by [Vasquez]." Based on these facts, the family court determined by a preponderance of the evidence that Vasquez had committed an act of domestic violence against Najera. The family court entered the DVO, and Vasquez appealed.
II. STANDARD OF REVIEW
Regarding appellate review of a family court's entry of a DVO, the following explication provided in Caudill v. Caudill, 318 S.W.3d 112, 114-15 (Ky. App. 2010), is instructive:
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. [Kentucky Rule of Civil Procedure (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).
III. DISCUSSION
On appeal, Vasquez argues the family court entered the DVO based on insufficient findings of fact. According to Vasquez, Najera's testimony is uncorroborated by any other evidence. Vasquez contends such bare assertions are insufficient to support a finding of domestic violence under Commonwealth v. Anderson, 934 S.W.2d 276 (Ky. 1996). Vasquez also claims that even though he was arrested just days before the hearing following the alleged attack, the findings are insufficient because there were no other witnesses who saw him strangle Najera. For the following reasons, we disagree with Vasquez.
In DVO actions, Kentucky law allows the trial court to believe one party's evidence over another's evidence. Bissell v. Baumgardner, 236 S.W.3d 24, 29-30 (Ky. App. 2007). "The trier of fact may believe any witness in whole or in part [and] may take into consideration all the circumstances of the case, including the credibility of the witness." Commonwealth v. Anderson, 934 S.W.2d at 278.
Here, the family court accepted Najera's testimony that she was the victim of domestic violence. In addition to allegations that Vasquez had choked her in the past, the family court specifically found that two different medical facilities had treated her for physical injuries consistent with strangulation following the break-in that resulted in Vasquez's arrest. This finding was sufficient to conclude that Najera was more likely than not to have been a victim of domestic violence perpetrated by Vasquez. Accordingly, we affirm the Boone Family Court's decision to enter the DVO.
ALL CONCUR. BRIEF FOR APPELLANT: Dace Alexandria Lubans-Otto
Florence, Kentucky BRIEF FOR APPELLEE: Karen Hoskins Ginn
Covington, Kentucky