Antwon French v. Celia Mae Rubio

• Court: Court of Appeals of Kentucky
• Decided: January 11, 2024
• Docket: 2023 CA 000746
• Status: Unknown

Opinion

RENDERED: JANUARY 12, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0746-ME

ANTWON FRENCH APPELLANT

APPEAL FROM FAYETTE FAMILY COURT v. HONORABLE ROSS EWING, JUDGE ACTION NO. 19-D-00628-005

CELIA MAE RUBIO APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, KAREM, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Antwon French, proceeding pro se, has appealed from the

entry of a Domestic Violence Order (DVO) by the Fayette Family Court. We

affirm.

Celia Mae Rubio filed a petition with the family court on May 9,

2023, seeking an order of protection against French. She and French had been in a

relationship in the past, and they had a child together, who was born in May 2019. In the petition, Rubio stated that a weapon was involved, and she provided the

following factual background:

I just found out today that my protection order has expired on 5/5/23. I thought I had 30 day Grace period to renew. I am asking for another one for myself and my Daughter [the child]. Antwon has shown zero effort in changing or getting help. Antwon continues to harass me by calling the police doing well care check. He has called the police saying my back yard was nasty. When they came they found nothing. Antwon has ended a few Green house 17 visits, causing my daughter to be very upset. Antwon has called CPS on me twice recently saying I hit my daughter in her face and again saying she had blood in her panties. I had to take my baby to UK hospital to get a Rape Kit done on her.

I receive prank phone calls several times a day everyday except for Tuesdays. Our Visit Day. I have showed this to the police at my job. The number is a fake app number. I am afraid that this Harassment will turn into Violence once Antwon [realizes] the protection order is over. I am afraid to leave my home. I’m afraid to sleep. I’m afraid to be out of my daughter’s [sight]. Antwon continues to bring in gifts or videos of the woman who helped him kidnap my daughter. Antwon bought my daughter a toy she can sing with. The next week I got a Phone Call from Green House 17 asking me Antwon wants to know why I haven’t set up her toy yet. I asked how would he even know if I did nor didn’t. They said I don’t know he wants you to bring it back so he could set it up. I said no.

Rubio sought an emergency protective order (EPO) to restrain French from

committing further acts of domestic violence and abuse, from any unauthorized

-2- contact or communication with her, from going within 500 feet of her home or

work, and from damaging or disposing of any of her property.

In an information sheet, Rubio indicated that French possessed one

gun. She denied that he had ever tried to choke or strangle her, or force her to have

sex or participate in sexual activities when she did not want to. Rubio did state that

French had “repeatedly followed, called, watched, contacted or harassed you in

ways that made you afraid or concerned for your safety or the safety of others (e.g.,

stalk you)[.]”

The family court entered an EPO/Summons the same day, and it

scheduled a hearing for May 22, 2023. At that hearing, the court ordered that the

summons be reissued for French for a hearing date on June 5, 2023. The second

summons was served on French on May 23, 2023.

On June 1, 2023, French filed an “affidavit of truth” setting forth his

version of the facts. In response to the allegations in Rubio’s petition, French

denied that he had ever harassed Rubio or the child or ever contacted Rubio from

any telephone number, and he described issues with the child he encountered

during their visits at GreenHouse17. He believed Rubio was paranoid, that she had

engaged in parental alienation, and that her behavior was having an adverse effect

on the child. He further believed that she made up the allegation that she felt

threatened so that she could obtain another protective order.

-3- The court held a hearing on June 5, 2023, at which it heard testimony

from Rubio. Rubio testified that she met French through a dating app. They dated

for a while, and she became pregnant with their child. French changed after she

got pregnant. He became controlling about what she wore, what she ate, and what

she watched on television, to the point that she did not want to be with him

anymore. She let him know everything about her pregnancy but he would change

her doctor’s appointments. Rubio testified that French had threatened her multiple

times. The first time she could recall, he threatened her at his house after she had

taken a shower. She had put on her night clothes and had run out to the car to get

her purse. He told her he would kill her if she ever ran outside like that again. He

threatened her again after the birth of their child. She said he kidnapped the child

when she was four days old and took the baby to California. In response, Rubio

posted his photo on social media. He contacted her by telephone and told her that

if she did not take the social media posts down, he would kill her and her children

as he knew where she lived and where her older children went to school. She said

he had not done anything in the last couple of days, but he constantly called social

services and the sheriff to do welfare checks. He accused her of sexually abusing

their daughter, who had to have a rape kit performed. The allegations were all

false. French had visits with the child every Tuesday at GreenHouse17. She said

something happened at every visit, and she described some of these visits and how

-4- French would check the child’s body. Rubio testified that she was afraid French

was going to hurt her and possibly her children, and she was afraid he was going to

take their child.

The court made oral findings at the conclusion of Rubio’s testimony.

It stated that based on the extensive history between these parties, the sworn

testimony that day, and the record, the court was finding that domestic violence

had occurred and may again occur. The court recognized that the prior DVO made

Rubio and the child safer. The court also expressed some concerns about the visits

French had with the child but declined to make any ruling on that issue. In the

docket order, the court noted that French failed to appear despite having been

served, and it specifically found that French had inflicted the fear of imminent

injury to Rubio and/or the child. Immediately following the hearing, the family

court entered a three-year DVO on behalf of Rubio and the child, restraining

French from committing further acts or threats of abuse, from any unauthorized

contact, from damaging any property, and from possessing a firearm.

On June 6, French filed a motion seeking findings of fact pursuant to

Kentucky Rules of Civil Procedure (CR) 52.01, for a new trial pursuant to CR

62.01 or to alter, amend or vacate pursuant to CR 59, and to alter, amend, or vacate

pursuant to CR 52.02. Rubio stated that he was under duress and had been told

that the court date had been changed to June 15 “per sheriff’s office statement.”

-5- The court scheduled another hearing for June 19, 2023, to address

French’s motions. Both parties were present at this court date, and the court

indicated that it had reviewed all of the documents French filed. It also permitted

French to provide any additional information at the hearing. French stated that he

had been misled by the sheriff’s department regarding the court date. The court

questioned him about this, noting that French’s June 1 document listed the correct

court date of June 5. French stated that he called the day before the first court date

and was told it had been changed to June 15. The court responded that French had

been served and had filed a document containing the correct court date. The court

stated that it struggled to believe that French had been misled as to the correct date

and did not find his testimony to be credible. Even if it were the case that he had

been told an incorrect date, that would not provide a basis to rehear the case under

CR 59 or CR 60. Regarding the court’s findings of fact, French was provided that

day with a copy of the docket order that contained the written findings.

The family court denied French’s motions in a docket order entered

the same day, stating that French had not provided sufficient reasoning to rehear,

amend, or vacate the DVO. The court memorialized its oral findings that it did not

find French to be credible regarding his argument about the incorrect court date

and that it had provided specific findings of fact on the record. This expedited

appeal now follows.

-6- On appeal, French contends that there is no factual basis for the DVO,

that the family court abused its discretion in finding that domestic violence had

occurred and might again occur, that the family court failed to issue written

findings of fact, and that the family court was racially biased against him.1

Rubio has not filed a brief in this matter. Kentucky Rules of

Appellate Procedure (RAP) 31(H)(3) provides:

If the appellee’s brief has not been filed within the time allowed, the court may: (a) accept the appellant’s statement of the facts and issues as correct; (b) reverse the judgment if appellant’s brief reasonably appears to sustain such action; or (c) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case.

As this matter concerns the entry of a DVO, we decline to impose any penalty on

Rubio for not filing a brief.

In Johnston v. Johnston, 639 S.W.3d 428, 431 (Ky. App. 2021), this

Court set forth the applicable standard of review in DVO appeals:

We review the entry of a DVO for whether the trial court’s finding of domestic violence was an abuse of discretion. McKinney v. McKinney, 257 S.W.3d 130, 133 (Ky. App. 2008). Our review of the trial court’s factual findings is limited to whether they were clearly erroneous. Kentucky Rules of Civil Procedure (“CR”) 52.01; Hall v. Smith, 599 S.W.3d 451, 454 (Ky. App. 2020). A trial court’s factual determination is not clearly

1 French did not include the June 19, 2023, order in his notice of appeal, and none of his arguments on appeal address his claim in his motions to vacate that the sheriff’s office had told him the wrong hearing date.

-7- erroneous if it is supported by substantial evidence, which is evidence of sufficient probative value to induce conviction in the minds of reasonable people. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).

The Johnson Court went on to explain the associated statutes and case law:

“A 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[.]’” Castle v. Castle, 567 S.W.3d 908, 915 (Ky. App. 2019) (quoting Kentucky Revised Statutes (“KRS”) 403.740(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.” Caudill v. Caudill, 318 S.W.3d 112, 114 (Ky. App. 2010) (citing Baird v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007)). In Caudill, this Court addressed the DVO process and discussed the construction of DVO statutes:

While domestic violence statutes should be construed liberally in favor of protecting victims from domestic violence and preventing future acts of domestic violence[,] the construction cannot be unreasonable. Furthermore, we give much deference to a decision by the family court, but we cannot countenance actions that are arbitrary, capricious or unreasonable.

Id. at 115 (internal quotation marks and citations omitted).

Johnston, 639 S.W.3d at 431. And domestic violence and abuse is defined as:

“Physical injury, serious physical injury, stalking, sexual abuse, strangulation,

assault, or the infliction of fear of imminent physical injury, serious physical

-8- injury, sexual abuse, strangulation, or assault between family members or members

of an unmarried couple[.]” KRS 403.720(2)(a).

We hold that the family court did not abuse its discretion in finding

that French had inflicted the fear of imminent injury to Rubio and/or the child.

The court based this decision on the extensive history between these parties, which

included the birth of a child and a prior DVO, Rubio’s sworn testimony that day,

and the record. Rubio testified to the past violence with French and her current

fears for herself and her children as the prior DVO had recently expired. We note

that, although French did not appear at the hearing, the record also included

French’s “affidavit of truth,” in which he disputed Rubio’s claims. The family

court reviewed this filing before reaching its decision, and it was well within its

discretion to believe Rubio’s testimony over French’s version of the events.

Therefore, we find no abuse of discretion in the entry of the DVO.

French’s remaining arguments have no merit. The circuit court made

sufficient, albeit brief, findings of fact in entering the DVO. And there is

absolutely no evidence of racial bias in the family court’s decision. French

contends that the family court indicated that his race was Black on the DVO when

he is an American Indian, which caused the court to rule in Rubio’s favor. We

note that Rubio listed his race as Black on the Protection Order Information Sheet;

-9- we presume that the court merely completed the form with the information

provided.

For the foregoing reasons, we affirm the entry of the DVO by the

Fayette Family Court.

ALL CONCUR.

BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.

Antwon French, pro se Lexington, Kentucky

-10-