RENDERED: APRIL 2, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2020-CA-1143-ME
ASHLEY HOLT APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT v. HONORABLE SUSAN WESLEY MCCLURE, JUDGE ACTION NO. 17-D-00207-004
BROCK DUNBAR APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.
GOODWINE, JUDGE: Ashley Holt (“Holt”) appeals from the domestic violence
order (“DVO”) entered by the Hopkins Circuit Court, Family Division on behalf of
her former husband, Brock Dunbar (“Dunbar”) and the parties’ two minor children.
Finding no error, we affirm.
BACKGROUND
On July 22, 2020, Dunbar petitioned the family court for a DVO
against Holt. Based on his petition, the family court issued an emergency protective order (“EPO”) on behalf of Dunbar and the children and scheduled a
hearing on the petition.
At the hearing, Dunbar testified to an incident which occurred on July
20, 2020, at Holt’s residence. On that day, Dunbar was leaving on a trip to
Nashville, Tennessee, and wished to drop off a pair of shoes for the parties’
daughter and medication for the parties’ son at Holt’s home on his way out of
town. He sent Holt a text message requesting to do so.1 When he received no
response, he called her several times. Holt eventually responded by telling him to
stay away and stating he was “going down.” Video Record (“VR”) at 8/18/2020,
11:28:50-11:28:57. Despite this response, Dunbar went to her house that evening.
Holt did not answer when Dunbar knocked and rang the doorbell.
However, Dunbar could hear her screaming at the children to get in the basement.
Dunbar approached a window to speak with her. When Holt opened the window,
she aimed a shotgun at Dunbar and said, “Get out of here. I’m going to blow your
head off. I’m going to kill you.” VR at 8/18/2020, 11:30:09-11:30:14. Dunbar
ducked out of her line of sight but then went back to try to speak with her again.
At this time, Holt exited her home and walked onto her screened
porch. She was now holding a pistol not the shotgun. From the steps of the porch,
1 According to Dunbar’s testimony, in the divorce action, the parties were ordered to communicate only through text messages.
-2- she told Dunbar to leave. Dunbar walked back to his vehicle with the intention of
leaving the premises. However, when he reached his vehicle and opened the
driver’s side door, Holt fired three shots, all of which struck Dunbar’s vehicle.
Assuming Holt had no more ammunition in the firearm and fearing for the safety
of his children, Dunbar approached the porch to disarm Holt. She then shot him
“at point blank range” in the kneecap. VR at 8/18/2020, 11:32:13. Dunbar
disarmed Holt and she began to strike his face with her fists.
Holt then went back inside her home. Fearful that she was going to
return with the shotgun, Dunbar left. After leaving Holt’s home, Dunbar called his
sister to inform her he had been shot and then called 911 while driving himself to
the emergency room. He required surgery for his injury and was hospitalized for
three days after the incident.
Dunbar also testified to prior violent acts by Holt, including an
instance in which she used a taser on his neck and another where she began to
drive away when he was exiting a vehicle, forcing him to jump from the moving
vehicle. According to Dunbar, Holt previously threatened to commit suicide.
The family court then heard testimony from Jack Hinton, Holt’s
former paramour. The two dated between October 2019 and April 2020. During
their relationship, Hinton observed several loaded firearms in Holt’s home within
reach of the children. Holt expressed suicidal thoughts to Hinton on multiple
-3- occasions, including telling him she thought she and her children would be “better
off dead” if they contracted COVID-19. VR at 8/18/2020, 1:28:30-1:29:04. Holt
told Hinton she hated Dunbar and wanted him “out of the picture.” Id. at 1:24:43-
1:25:14. Holt repeatedly said she wanted to shoot Dunbar and made such
statements in front of the parties’ minor children. Id. at 1:27:34-1:27:46. Jacob
Wilkinson also testified to having been present on an occasion when Holt said she
was going to shoot Dunbar.
Holt did not testify, nor did she present any witnesses on her behalf.
At the close of evidence, the family court found the following:
[T]he evidence was uncontroverted. The [c]ourt finds, by a preponderance of the evidence, that [Holt] committed an act or threat of DV against [Dunbar] in that she purposefully caused bodily harm to [Dunbar] by intentionally shooting him. The children were present during this assault and were positioned near enough to the parties that they could hear and observe the events (at least partially). [Holt’s] actions placed the children at risk of harm. The [c]court finds, by a preponderance of the evidence, that [Holt] committed an act or threat of DV against the children in that she engaged in actions that would appear threatening to a reasonable person and would cause imminent fear given the circumstances. Given the family’s history, [Holt’s] conduct, and the events to which [Dunbar] testified, the [c]ourt also finds that it is reasonable that [Dunbar] believes that future domestic violence may occur again.
-4- Record (“R.”) at 18. The family court entered a DVO prohibiting Holt from
having contact with Dunbar or the children for a period of two years. This appeal
followed.
STANDARD OF REVIEW
To enter a DVO, the family court must find “by a preponderance of
the evidence that domestic violence and abuse has occurred and may again
occur[.]” KRS2 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) (citation omitted). “The standard of review for
factual determinations is whether the family court’s finding of domestic violence
was clearly erroneous.” Id. (citations omitted). “Findings are not clearly
erroneous if they are supported by substantial evidence.” Id. at 114-15 (citation
omitted).
ANALYSIS
On appeal, Holt argues: (1) Dunbar’s testimony lacked credibility and
should not have been relied upon by the family court; (2) there was insufficient
evidence to support entry of the DVO on behalf of the children; (3) she is immune
from civil action under KRS 503.085; (4) there was insufficient evidence to
2 Kentucky Revised Statutes.
-5- support entry of the DVO on behalf of Dunbar; (5) the family court erred by
considering evidence outside of the record; and (6) there was insufficient evidence
to support the court’s finding that domestic violence may again occur.
Before reaching the merits of Holt’s appeal, we must address a
significant deficiency in her brief. An appellant’s brief must “contain at the
beginning of the argument a statement with reference to the record showing
whether the issue was properly preserved for review and, if so, in what manner.”
CR3 76.12(4)(c)(v). “It is not the function or responsibility of this court to scour
the record on appeal to ensure that an issue has been preserved.” Koester v.
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RENDERED: APRIL 2, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2020-CA-1143-ME
ASHLEY HOLT APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT v. HONORABLE SUSAN WESLEY MCCLURE, JUDGE ACTION NO. 17-D-00207-004
BROCK DUNBAR APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.
GOODWINE, JUDGE: Ashley Holt (“Holt”) appeals from the domestic violence
order (“DVO”) entered by the Hopkins Circuit Court, Family Division on behalf of
her former husband, Brock Dunbar (“Dunbar”) and the parties’ two minor children.
Finding no error, we affirm.
BACKGROUND
On July 22, 2020, Dunbar petitioned the family court for a DVO
against Holt. Based on his petition, the family court issued an emergency protective order (“EPO”) on behalf of Dunbar and the children and scheduled a
hearing on the petition.
At the hearing, Dunbar testified to an incident which occurred on July
20, 2020, at Holt’s residence. On that day, Dunbar was leaving on a trip to
Nashville, Tennessee, and wished to drop off a pair of shoes for the parties’
daughter and medication for the parties’ son at Holt’s home on his way out of
town. He sent Holt a text message requesting to do so.1 When he received no
response, he called her several times. Holt eventually responded by telling him to
stay away and stating he was “going down.” Video Record (“VR”) at 8/18/2020,
11:28:50-11:28:57. Despite this response, Dunbar went to her house that evening.
Holt did not answer when Dunbar knocked and rang the doorbell.
However, Dunbar could hear her screaming at the children to get in the basement.
Dunbar approached a window to speak with her. When Holt opened the window,
she aimed a shotgun at Dunbar and said, “Get out of here. I’m going to blow your
head off. I’m going to kill you.” VR at 8/18/2020, 11:30:09-11:30:14. Dunbar
ducked out of her line of sight but then went back to try to speak with her again.
At this time, Holt exited her home and walked onto her screened
porch. She was now holding a pistol not the shotgun. From the steps of the porch,
1 According to Dunbar’s testimony, in the divorce action, the parties were ordered to communicate only through text messages.
-2- she told Dunbar to leave. Dunbar walked back to his vehicle with the intention of
leaving the premises. However, when he reached his vehicle and opened the
driver’s side door, Holt fired three shots, all of which struck Dunbar’s vehicle.
Assuming Holt had no more ammunition in the firearm and fearing for the safety
of his children, Dunbar approached the porch to disarm Holt. She then shot him
“at point blank range” in the kneecap. VR at 8/18/2020, 11:32:13. Dunbar
disarmed Holt and she began to strike his face with her fists.
Holt then went back inside her home. Fearful that she was going to
return with the shotgun, Dunbar left. After leaving Holt’s home, Dunbar called his
sister to inform her he had been shot and then called 911 while driving himself to
the emergency room. He required surgery for his injury and was hospitalized for
three days after the incident.
Dunbar also testified to prior violent acts by Holt, including an
instance in which she used a taser on his neck and another where she began to
drive away when he was exiting a vehicle, forcing him to jump from the moving
vehicle. According to Dunbar, Holt previously threatened to commit suicide.
The family court then heard testimony from Jack Hinton, Holt’s
former paramour. The two dated between October 2019 and April 2020. During
their relationship, Hinton observed several loaded firearms in Holt’s home within
reach of the children. Holt expressed suicidal thoughts to Hinton on multiple
-3- occasions, including telling him she thought she and her children would be “better
off dead” if they contracted COVID-19. VR at 8/18/2020, 1:28:30-1:29:04. Holt
told Hinton she hated Dunbar and wanted him “out of the picture.” Id. at 1:24:43-
1:25:14. Holt repeatedly said she wanted to shoot Dunbar and made such
statements in front of the parties’ minor children. Id. at 1:27:34-1:27:46. Jacob
Wilkinson also testified to having been present on an occasion when Holt said she
was going to shoot Dunbar.
Holt did not testify, nor did she present any witnesses on her behalf.
At the close of evidence, the family court found the following:
[T]he evidence was uncontroverted. The [c]ourt finds, by a preponderance of the evidence, that [Holt] committed an act or threat of DV against [Dunbar] in that she purposefully caused bodily harm to [Dunbar] by intentionally shooting him. The children were present during this assault and were positioned near enough to the parties that they could hear and observe the events (at least partially). [Holt’s] actions placed the children at risk of harm. The [c]court finds, by a preponderance of the evidence, that [Holt] committed an act or threat of DV against the children in that she engaged in actions that would appear threatening to a reasonable person and would cause imminent fear given the circumstances. Given the family’s history, [Holt’s] conduct, and the events to which [Dunbar] testified, the [c]ourt also finds that it is reasonable that [Dunbar] believes that future domestic violence may occur again.
-4- Record (“R.”) at 18. The family court entered a DVO prohibiting Holt from
having contact with Dunbar or the children for a period of two years. This appeal
followed.
STANDARD OF REVIEW
To enter a DVO, the family court must find “by a preponderance of
the evidence that domestic violence and abuse has occurred and may again
occur[.]” KRS2 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) (citation omitted). “The standard of review for
factual determinations is whether the family court’s finding of domestic violence
was clearly erroneous.” Id. (citations omitted). “Findings are not clearly
erroneous if they are supported by substantial evidence.” Id. at 114-15 (citation
omitted).
ANALYSIS
On appeal, Holt argues: (1) Dunbar’s testimony lacked credibility and
should not have been relied upon by the family court; (2) there was insufficient
evidence to support entry of the DVO on behalf of the children; (3) she is immune
from civil action under KRS 503.085; (4) there was insufficient evidence to
2 Kentucky Revised Statutes.
-5- support entry of the DVO on behalf of Dunbar; (5) the family court erred by
considering evidence outside of the record; and (6) there was insufficient evidence
to support the court’s finding that domestic violence may again occur.
Before reaching the merits of Holt’s appeal, we must address a
significant deficiency in her brief. An appellant’s brief must “contain at the
beginning of the argument a statement with reference to the record showing
whether the issue was properly preserved for review and, if so, in what manner.”
CR3 76.12(4)(c)(v). “It is not the function or responsibility of this court to scour
the record on appeal to ensure that an issue has been preserved.” Koester v.
Koester, 569 S.W.3d 412, 415 (Ky. App. 2019) (citation omitted). Holt’s brief is
devoid of preservation statements for her arguments.
“Failing to comply with the civil rules is an unnecessary risk the
appellate advocate should not chance. Compliance with CR 76.12 is mandatory.”
Petrie v. Brackett, 590 S.W.3d 830, 834-85 (Ky. App. 2019) (citation omitted).
“Our options when an appellate advocate fails to abide by the rules are: (1) to
ignore the deficiency and proceed with the review; (2) to strike the brief or its
offending portions . . .; or (3) to review the issues raised in the brief for manifest
injustice only[.]” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010) (citation
omitted). Because Holt’s brief fails on the merits, we will ignore the deficiency
3 Kentucky Rules of Civil Procedure.
-6- and proceed with review of her claims. However, counsel cannot be assured of the
same result if non-compliant in the future.
First, Holt argues Dunbar’s testimony lacked credibility. Specifically,
she alleges Dunbar lied during his testimony about a substantiation of abuse
against him by the Cabinet for Health and Family Services. During his direct
testimony, Dunbar stated he had never committed acts of domestic violence against
Holt or the children. VR at 8/18/2020, 11:30:41-11:31:12. During cross-
examination, he contradicted this testimony by admitting to a 2010 substantiation
of abuse for spanking his stepchild. Id. at 11:51:30-11:53:05.
“[D]ue regard shall be given to the opportunity of the [family] court to
judge the credibility of the witnesses because judging the credibility of witnesses
and weighing evidence are tasks within the exclusive province of the [family]
court.” Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citations omitted).
Despite the contradiction, the family court found Dunbar’s testimony credible. As
noted by the court, his testimony was uncontroverted as to the events of July 20,
2020. We have no basis for disturbing the family court’s findings.
Second, Holt claims there was insufficient evidence to support the
family court’s entry of the DVO on behalf of the children. A court may enter a
DVO on behalf of children under KRS 403.720(2). “Domestic violence and
abuse” is defined to include “physical injury, serious physical injury, stalking,
-7- sexual abuse, strangulation, assault, or the infliction of fear of imminent physical
injury, serious physical injury, sexual abuse, strangulation, or assault between
family members[.]” KRS 403.720(1).
The family court found the children were aware of the incident and,
on that basis, found they were reasonably placed in imminent fear of domestic
violence. R. at 18. Dunbar testified he heard Holt scream at the children,
instructing them to go to the basement before she approached him with the
shotgun. The children were present in the home and able to at least hear the
incident as it occurred. With no evidence contradicting this testimony, the family
court did not err in finding Holt placed the children in fear of imminent domestic
violence.
Third, Holt claims she is immune from civil action for her use of force
against Dunbar under KRS 503.085. A review of the record reveals Holt did not
raise this argument before the family court. “It is the accepted rule that a question
of law which is not presented to or passed upon by the trial court cannot be raised
here for the first time.” Jones v. Livesay, 551 S.W.3d 47, 52 (Ky. App. 2018)
(citation and internal quotation marks omitted). Holt’s failure to make this
argument before the family court is fatal to her appeal on the issue.
Furthermore, substantial evidence supports the family court’s entry of
the DVO on Dunbar’s behalf. Holt attempts to blame Dunbar for the incident by
-8- characterizing him as a “jealous ex-husband” who posed a danger to her.
However, these allegations are unsupported by the record. Instead, the record
shows, upon Dunbar’s arrival at her home, Holt met him with a shotgun and
threatened to kill him. She then fired shots at him as he was attempting to leave
the property before shooting him in the knee, physically injuring him. This clearly
meets the definition of domestic violence and abuse under KRS 403.720(1).
Next, Holt alleges the family court impermissibly relied on evidence
not in the record by referring to the “family’s history” in its findings of fact. It is
true that “[c]ourts have no authority to consider evidence outside the record or to
incorporate new proof into the record.” Sunrise Children’s Services, Inc. v.
Kentucky Unemployment Insurance Commission, 515 S.W.3d 186, 190 (Ky. App.
2016) (citation omitted). However, a vague reference to a family’s history does
not amount to consideration of evidence outside the record. Holt identifies no
specific evidence not in the record on which the family court relied. Furthermore,
Dunbar testified to instances from the family’s past including ongoing custody
issues, Holt’s history of violence and threats of suicide, as well as past
communications and interactions between the parties. On this basis, the family
court did not err.
Finally, Holt alleges there is not sufficient evidence in the record to
support the family court’s finding that domestic violence may again occur. It is
-9- Holt’s contention that Dunbar trespassed on her property and, so long as he does
not do so again, no such events will occur in the future. A family court is required
to find that, without entry of the DVO, domestic violence and abuse may again
occur. KRS 403.740(1). In making such a determination, the court must consider
the “totality of the circumstances.” Pettingill v. Pettingill, 480 S.W.3d 920, 925
(Ky. 2015).
Once again, the record does not support Holt’s allegations. Instead,
the totality of the circumstances shows she expressed her desire to shoot Dunbar on
multiple occasions. She then fired shots at him as he was attempting to comply
with her request to leave the property. She shot him while her children were
present in the home and aware of the situation. Considering these events, as well
as Holt’s ownership of multiple firearms and her history of violent and suicidal
threats, there is sufficient and uncontradicted evidence in the record to support the
family court’s finding that domestic violence may again occur. We find no error.
CONCLUSION
For the foregoing reasons, we affirm the DVO entered by the Hopkins
Circuit Court, Family Division.
ALL CONCUR.
-10- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Daniel Sherman Thresa Taylor Hinton Greenville, Kentucky Madisonville, Kentucky
-11-