Aaron Maupin v. Amy Garrard

• Court: Court of Appeals of Kentucky
• Decided: April 25, 2025
• Docket: 2024-CA-0967
• Status: Unpublished

Opinion

RENDERED: APRIL 25, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2024-CA-0967-ME

AARON MAUPIN APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE LAUREN ADAMS OGDEN, JUDGE ACTION NO. 24-D-501362-001

AMY GARRARD AND D.R.M., A CHILD APPELLEES

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.

LAMBERT, JUDGE: Appellant, Aaron Maupin (Maupin), appeals from the

Jefferson Family Court’s July 9, 2024, order denying his petition for a Domestic

Violence Order (DVO). After careful review, we reverse and remand.

On April 23, 2024, Maupin filed a domestic violence petition

(Petition) against Appellee, Amy Garrard (Garrard), on behalf of himself and the parties’ four-year-old, minor child-in-common (Child). Therein, Maupin alleged

the following occurred on April 22, 2024:

I am wrighting [sic] in regard[s] to my live in girlfriend. Yesterday she was drinking heavily, I asked her if she would just go to her dad[’]s. She told me no, hit me in my shoulder, I had two operations on she was also screaming and hollering at me. There have [sic] been a long history of her hitting me. She is a severe alcholic [sic] that drinks over a 5th a day. My son is scared of her as well. About a month ago, she attacked me in the kitchen. She was on pills and alchol [sic] at the time of that incident. She has also been verbilally [sic] abusive towards my father as well. She starts drinking @ 6:00 am passes out @ 1:00 pm, sleeps till 8pm most days. I am scared of her. She has threatned [sic] to have me killed on multiple [occasions.] She is a danger to our son. She has been in multiple fights with neighbors and my son was also mixed up in her fights. Im [sic] scared for [Child] & myself. She has also hit me in the face. She was arrested yesterday for domestic violence for hitting me in [the] shoulder.

(Record (R.) 1-2.) On April 23, 2024, the family court issued an emergency

protective order (EPO) for Maupin, but not for the Child. (R. 17-19.) The Clerk

issued a summons thereafter (R. 20), and Garrard was served in jail by the

Jefferson County Sheriff’s Office with notice that a hearing was scheduled on the

EPO on May 7, 2024. (R. 21.)

On May 7, 2024, Maupin, with counsel, appeared before the family

court. (R. 42.) Garrard was not present. The family court appointed a guardian ad

-2- litem (GAL) to represent the Child, passed the matter a few weeks, and ordered

that the EPO remain in place. (Video Record (V.R.) 5/7/24 at 9:13:04 – 9:14:58.)

On May 21, 2024, Maupin, with counsel, and the GAL, appeared

before the family court. Garrard, pro se, appeared virtually. The family court

rescheduled the hearing and ordered the EPO to remain in effect until the pending

criminal matter against Garrard, stemming from the incident cited in the Petition,

was resolved. (V.R. 5/21/24 at 8:30:30 – 8:33:40.)

On July 9, 2024, Maupin, with counsel; Garrard, pro se; and the GAL,

appeared before the family court. The family court swore in both parties and read

the Petition into the record, which Maupin adopted as his testimony. (V.R. 7/9/24

at 8:50:30 – 8:52:40.) Maupin further described a history of physical abuse,

numerous threats to kill him, and Garrard’s fights with and threats to kill a

neighbor. (V.R. 7/9/24 at 8:53:00 – 8:53:48.) Maupin testified that the Child had

been present for “nearly every single [incident]” (V.R. 7/9/24 at 8:53:50) and that

he is fearful for his and the Child’s safety, even if living apart and co-parenting,

because Garrard is a violent person. (V.R. 7/9/24 at 8:55:20 – 8:57:30.)

Maupin stated he has never known Garrard to be sober. (V.R. 7/9/24

at 8:57:31.) Garrard acknowledged her history of drug and alcohol abuse, and

testified she is now in recovery treatment, and introduced documents

demonstrating her progress. (V.R. 7/9/24 at 9:00:30 – 9:01:09.) Garrard began to

-3- allege past incidents of domestic violence perpetrated against her by Maupin.

(V.R. 7/9/24 at 9:02:39.) Over Maupin’s objection to Garrard’s allegations, the

family court allowed her testimony, stating there was domestic violence on both

sides in the past. (V.R. 7/9/24 at 9:02:57 – 9:03:30.)

Garrard confirmed that she pled guilty to domestic violence against

Maupin in the criminal matter but denied calling Maupin from jail. (V.R. 7/9/24 at

9:04:40.) Maupin played a voicemail recording wherein Garrard can be heard,

stating in part, “thank you so much for making my life hell. Now watch what’s

gonna happen to you.” (V.R. 7/9/24 at 9:04:49 – 9:05:20). Garrard stated she

“was intoxicated” when she made that phone call from jail. (V.R. 7/9/24 at

9:05:30.)

After Garrard denied having ever threatened to kill or have Maupin

killed (V.R. 7/9/24 at 9:05:48 – 9:06:09), Maupin played another audio recording,

wherein Garrard repeatedly states, “if you take my baby away, you’re f[***]ing

re[****]ed. Are you f[***]ing re[****]ed? You’re gonna get killed. Do you

wanna get killed?!” (V.R. 7/9/24 at 9:06:10.) Garrard stated she was “under the

influence” when she made those remarks. (V.R. 7/9/24 at 9:06:20.) Garrard

admitted to hitting Maupin and that it is she who can be heard speaking on the

audio recordings. (V.R. 7/9/24 at 9:08:40 – 9:09:55.)

-4- The family court announced it would dismiss the Petition. (V.R.

7/9/24 at 9:12:20 – 9:13:45.) On July 9, 2024, the family court issued a written

AOC Form 275.3 dismissing the Petition. (R. 37-39.) A Calendar Order was

contemporaneously entered, containing the family court’s findings, which in part

states:

[Maupin], his counsel, [Garrard], & [Child’s] GAL appeared. [Maupin] adopted his petition & suppl[emented] w/ further testimony. Parties share an almost 5 [year old child]. Criminal charges were pending [against Garrard] & are now resolved. [Maupin] has significant criminal history & DVO history. [Garrard’s] been abused by [Maupin] for years, & [Maupin] has [withheld] the [Child] from her. While [domestic violence] has occurred on both sides, [Garrard] is now sober & in [mental health treatment]. She is thriving [at] this time, & future [domestic violence] is not anticipated. Case is dismissed.

(R. 36.)

Neither party filed a motion for additional factual findings pursuant to

Kentucky Rules of Civil Procedure (CR) 52.02. This appeal followed.

As an initial matter, we note that Garrard failed to file a brief in

compliance with our Kentucky Rules of Appellate Procedure (RAP). This Court

may impose penalties under RAP 31(H); however, the decision whether to impose

any penalties is within our discretion. Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky.

App. 2007). Considering the serious nature of domestic violence actions, we -5- decline to exercise any penalties. See Wright v. Wright, 181 S.W.3d 49, 52 (Ky.

App. 2005).

After conducting a hearing, the trial court is authorized to issue a

DVO if it “finds by a preponderance of the evidence that domestic violence and

abuse has occurred and may again occur[.]” Kentucky Revised Statutes (KRS)

403.740(1). Domestic violence and abuse is defined as “[p]hysical injury, serious

physical injury, stalking, sexual abuse, strangulation, assault, or the infliction of

fear of imminent physical injury, serious physical injury, sexual abuse,

strangulation, or assault between family members or members of an unmarried

couple[.]” KRS 403.720(2)(a). “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. . . . The standard of review

for factual determinations is whether the family court’s finding of domestic

violence was clearly erroneous. Findings are not clearly erroneous if they are

supported by substantial evidence.” Caudill v. Caudill, 318 S.W.3d 112, 114-15

(Ky. App. 2010) (citations omitted).

Maupin contends that the family court erred and abused its discretion

in denying entry of the DVO because there was sufficient evidence to support a

finding that domestic violence occurred and that such an act may occur again.

Having carefully reviewed the record and hearings, we agree.

-6- First, as previously noted, the family court’s Calendar Order

acknowledged the existence of domestic violence on both sides. (R. 36.) Thus, the

first prong of KRS 403.740 is satisfied, and we need not address it further.

Next, we must address the second prong of KRS 403.740, which

requires a finding from a preponderance of the evidence that an act of domestic

violence “may again occur” in the future. In determining whether domestic

violence may recur, the Kentucky Supreme Court has stated that “[t]he predictive

nature of the standard requires the family court to consider the totality of the

circumstances and weigh the risk of future violence against issuing a protective

order.” Pettingill v. Pettingill, 480 S.W.3d 920, 925 (Ky. 2015). The “totality of

the circumstances” may include other, unrelated conduct indicating a propensity

toward the recurrence of domestic violence. Id. at 924. See also Roberts v.

Commonwealth, 599 S.W.3d 841, 858 (Ky. 2020). Here, the family court

dismissed the case, finding that future domestic violence is not anticipated.

However, we cannot say this finding was supported by substantial evidence given

the totality of the circumstances.

The Kentucky Supreme Court’s analysis in Pettingill, 480 S.W.3d

920, demonstrates consideration of the totality of circumstances. Therein, the

Supreme Court concluded the substance of the family court’s reasoning was not

erroneous and affirmed its finding that domestic violence occurred and may again

-7- occur as the family court thoroughly examined lethality factors, which include, but

are not limited to, threats of homicide; history of domestic violence and violent

criminal conduct; mental illness; separation of parties; and drug or alcohol

involvement. Id. at 925. Despite employing non-dispositive social science

terminology, the family court adhered to the proper standard of KRS 403.740 and

considered the totality of the circumstances. Id.

Sub judice, Maupin introduced evidence demonstrating numerous

threats made by Garrard to kill him; testified as to his fear of Garrard; described

recurring physical altercations perpetrated by Garrard, including incidents

involving others, such as fights and threats with neighbors; and testified that the

Child had been present for nearly every incident. Additionally, testimony by both

parties indicated a history of domestic violence and Garrard’s lengthy history of

drug and alcohol abuse. Contrary to the history of domestic violence connected

with substance abuse lasting several years, the family court seemingly found

domestic violence was unlikely to occur again because Garrard had been sober for

at least three months at the time of the hearing. This finding is clearly erroneous,

and following our precedent, the cumulation of facts such as these prove to be

qualifying events of domestic violence and abuse and that it may again occur.

The facts of this matter parallel those of Williford v. Williford,

wherein we affirmed the family court’s conclusion that Wife’s threats to kill

-8- Husband reasonably caused him to fear imminent physical injury, and found that

domestic violence occurred and may again occur. 583 S.W.3d 424 (Ky. App.

2019). In Williford, Husband filed a petition after he overheard Wife make threats

to kill him while speaking on the phone to a third party. Id. At the hearing, a

witness to the threats (the parties’ adult daughter) corroborated Husband’s

testimony, testifying that she felt scared and that she heard Wife admit to the

responding sheriff’s deputy that she made such threats to kill Husband. Id. at 427.

Additionally, Wife was permitted to testify about previous assaults against her

perpetrated by Husband throughout their relationship, but admitted that she never

reported the assaults nor had any evidence of such assaults beyond her

recollections. Id. at 427. Wife also admitted that the threats were referring to

Husband, and corroborated the witness’s testimony concerning her admission to

the sheriff’s deputy. Id. at 429. This Court affirmed the family court’s finding that

the evidence presented was sufficient to “reasonably infer that [Wife’s] conduct

caused [Husband] to fear imminent physical injury[,]” and held the finding of

domestic violence and that it may again occur was not clearly erroneous. Id. at

429-30.

Likewise, Maupin introduced evidence to corroborate his testimony

that Garrard made lethal threats; Garrard was permitted latitude to testify about

past domestic violence perpetrated by Maupin, despite having never been reported

-9- or providing evidence to support her allegations; and Garrard admitted to the

accusations against her, specifically that she hit Maupin and that it is she who can

be heard on the audio recordings threatening to kill Maupin.

Notably, in Williford, Wife’s threats to Husband were made to a third

party, id. at 429, whereas here, Garrard’s threats were made directly to the intended

target. The threats support the notion that an act of violence “may again occur.”

The Williford Court articulated that the threats made by Wife displayed a future

plan to act, (“I’m going to go in there and get him in an argument and blow his

head off[.]”). Id. at 426. Garrard’s threats also indicated a future plan to act if a

specific event were to occur (“[i]f you take my baby away . . . you’re gonna get

killed. Do you wanna get killed?!”) (V.R. 7/9/24 at 9:06:10.)

As to a history of prior domestic violence, Maupin testified that

Garrard has hit him numerous times throughout the course of their relationship,

often in front of the Child, and that he is fearful of Garrard. Likewise, in Williford,

Husband testified that Wife had threatened him multiple times over their

relationship. Id. at 426. Police were also involved in both cases stemming from

the incidents detailed in the respective petitions. In Williford, the responding

sheriff’s deputy instructed Wife to leave the premises, id., while Garrard was

arrested and criminally charged for her actions.

-10- Furthermore, the evidence showed Garrard’s drug and alcohol abuse

history, as well as violence involving others, as Maupin testified that Garrard has

fought with and threatened to kill neighbors, often with the Child present. Maupin

and Garrard are additionally involved in an ongoing custody case and will have to

co-parent with one another. See Gibson v. Campbell-Marletta, 503 S.W.3d 186

(Ky. App. 2016) (DVO affirmed because Petitioner was reasonably fearful for her

life when Respondent threatened to use “all force allowed” if she came to his

property for purposes of exchanging minor child-in-common’s clothing. Family

court considered history of reciprocal domestic violence between parties and

ongoing custody case, concluding in the context of two parents co-parenting,

serious threats of physical violence constitute imminent threat of physical

violence.).

In consideration of the totality of circumstances and applicable legal

precedent, we conclude the family court abused its discretion and the dismissal of

the Petition and DVO action was clearly erroneous.

CONCLUSION

Based on the foregoing, the Jefferson Family Court’s July 9, 2024,

Order is reversed, and remanded with direction to grant the Petition for a DVO.

ALL CONCUR.

-11- BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.

Jason A. Bowman Louisville, Kentucky

-12-