Christina Holt Taylor v. Leigh-Ann Fitzpatrick

• Court: Court of Appeals of Kentucky
• Decided: January 12, 2023
• Docket: 2022 CA 000946
• Status: Unknown

Opinion

RENDERED: JANUARY 13, 2023; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-0946-ME

CHRISTINA HOLT TAYLOR APPELLANT

APPEAL FROM ALLEN FAMILY COURT v. HONORABLE CATHERINE R. HOLDERFIELD, SPECIAL JUDGE ACTION NO. 19-D-00066-001

LEIGH-ANN FITZPATRICK APPELLEE

OPINION VACATING

** ** ** ** **

BEFORE: CETRULO, DIXON, AND TAYLOR, JUDGES.

CETRULO, JUDGE: Christina Holt Taylor, pro se appellant, (“Taylor”) appeals

from an amended interpersonal protective order (“IPO”) rendered by the Allen

Family Court on July 15, 2022. In her brief, Taylor states that she is appealing

from a Warren County Family Court ruling. In fact, this case remains with the

Allen County Family Court where it has been since at least 2019. The matter is

simply pending before a “special judge” as all of the judges of Allen County were disqualified or unable to serve due to Taylor’s employment as a pretrial services

officer. Taylor first asserts that such IPOs must be heard in the district court, and,

secondly, generally asserts there was insufficient evidence to extend the protection

order. This matter has a long history, including a prior appeal to this Court from

the initial order of protection in 2019. For reasons addressed below, we vacate the

latest order.

FACTS AND PROCEDURAL HISTORY

In 2019, Leigh-Ann Fitzpatrick (“Fitzpatrick”) filed a petition with the

Allen Family Court, alleging that Taylor had stalked, harassed, and threatened her.

The family court1 conducted a hearing and heard proof from both parties, neither of

whom were represented by counsel. The family court entered an IPO in August of

that year, which barred Taylor from coming within 400 feet of Fitzpatrick and

found Taylor guilty of stalking. That ruling resulted in the first appeal to this

Court, wherein Taylor argued that the IPO violated the double jeopardy clause

because Fitzpatrick had lodged a criminal complaint in district court on similar

allegations. She also generally asserted that Fitzpatrick’s allegations were false

and that there was insufficient evidence to support the finding of stalking in the

original IPO. This Court affirmed the family court.

1 Judge Broderson recused himself based on the fact that he had a professional working relationship with Taylor, resulting in the reassignment to Judge Michael McKown.

-2- The matter then proceeded with various filings by both parties,

although it was ultimately transferred to a second “special judge.”2 All of the

filings by the parties throughout this matter have been without assistance of

counsel. Some hearings on temporary motions have been conducted, although the

lack of counsel for either party has made them less than effective.

Regardless, Fitzpatrick most recently filed a motion to extend the IPO

for three years, shortly before it was set to expire. The family court set the matter

for hearing on July 11, 2022, and extended the IPO for three more years until July

2025. Taylor filed this second pro se appeal, and Fitzpatrick did not file an

appellee brief.

Our review is certainly constrained when an appellee does not respond

to the appeal by filing a brief. Kentucky Rule of Appellate Procedure (“RAP”)

31(H)(3) provides this Court with options to impose penalties on the appellee and

further requires us to primarily rely upon the appellant’s statement of the facts. See

Hawkins v. Jones, 555 S.W.3d 459 (Ky. App. 2018). However, the appellant’s pro

se brief does not fully comply with the Rules of Appellate Procedure either, which

could similarly result in our imposition of sanctions. See Ford v. Commonwealth,

628 S.W.3d 147 (Ky. 2021). Nonetheless, we have elected to carefully review the

2 The second special judge was Judge Catherine Holderfield; Judge McKown recused himself after Taylor filed a petition for a writ of mandamus.

-3- entire record on appeal and the applicable law in the hope that both of these parties

will cease their longstanding and frequent filings before the courts.

STANDARD OF REVIEW

The standard of review for factual determinations is whether the

finding of the family court was clearly erroneous. Reichle v. Reichle, 719 S.W.2d

442, 444 (Ky. 1986). Findings are not clearly erroneous if supported by substantial

evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citation omitted).

When a party appeals from the entry of an IPO, or in this case, an extension of the

same, we cannot disturb the findings of the family court unless they are clearly

erroneous, i.e., not supported by substantial evidence. However, we review

questions of law under the non-deferential de novo standard. Jones v. Jones, 617

S.W.3d 418, 423 (Ky. App. 2021) (citation omitted). This appeal raises both an

issue of statutory interpretation or a question of law as to jurisdiction as well as a

review of the sufficiency of evidence. We turn first to the question of law.

LEGAL ANALYSIS

As referenced above, Taylor’s pro se brief asserts that the family court

had no jurisdiction and that an IPO can only be brought before a district court. She

also generally alleges that she had been denied her right to a jury trial and that the

allegations by Fitzpatrick were made in a previously-dismissed criminal complaint,

resulting in a violation of the double jeopardy clause. As to the latter, it is clear

-4- that this was the same argument presented to this Court in the prior appeal, so we

will not address that further. As to the jurisdictional argument, it is clear that

pursuant to KRS3 456.030(6)(a), “[j]urisdiction over petitions filed under this

chapter [IPOs] shall be concurrent between the District Court and Circuit Court.”

Thus, concurrent jurisdiction over this matter does exist with the family court as

well as with the district or any circuit court. Smith v. Doe, 627 S.W.3d 903, 910

(Ky. 2021) (citation omitted).

As stated in Halloway v. Simmons, 532 S.W.3d 158, 161 (Ky. App.

2017), IPO statutes are relatively new, having only been enacted by the legislature

in January 2016. However, KRS Chapter 456 generally parrots the provisions of

KRS Chapter 403 pertaining to family law matters. Indeed, the same form is

utilized by the Courts for both IPOs and DVOs.4 “An IPO allows a victim of

dating violence and abuse, as well as ‘victims of stalking’ or sexual assault

(regardless of the presence of a past or current dating relationship), or an adult on

behalf of a minor victim, to petition for protection against their perpetrator.”

Halloway, 532 S.W.3d at 161 (citing KRS 456.030(1)). Family courts frequently

consider IPOs, and the appellate courts have upheld the issuance of the same even

where there is no other dating, familial or other special relationship with the

3 Kentucky Revised Statute. 4 Domestic violence orders.

-5- victim. There is no basis for Taylor’s assertion that the family court had no

jurisdiction to extend the IPO. We turn next to the sufficiency of evidence to

support the family court’s ruling.

Fitzpatrick filed for an amended IPO on the basis of stalking by

Taylor. The petition itself alleges that Taylor took pictures or videos of Fitzpatrick

at a tennis match for Taylor’s son “in order to intimidate me” in April of 2022.

The “testimony” at the hearing was that Taylor had also walked within “arm’s

distance” of her in violation of the prior IPO at a separate school event one year

earlier in May 2021. Under KRS 456.030(1), an alleged victim of stalking may

file a petition for an IPO. However, after conducting an evidentiary hearing, the

court may render an IPO only if it finds by a “preponderance of the evidence

that . . . stalking has occurred and may occur again . . . .” KRS 456.060(1).

KRS 456.010(8) defines stalking as referring to conduct prohibited by

KRS 508.140 and KRS 508.150 which refer, respectively, to the criminal offenses

of first- and second-degree stalking. To be entitled to an IPO based upon stalking,

the victim must demonstrate and prove by a preponderance of the evidence that:

. . . an individual intentionally engaged in two or more acts directed at the victim that seriously alarmed, annoyed, intimidated, or harassed the victim, that served no legitimate purpose, and would have caused a reasonable person to suffer substantial mental distress, and that these acts may occur again.

Halloway, 532 S.W.3d at 162 (citing KRS 508.130 and KRS 456.060).

-6- Additionally, the individual must prove that there was an implicit or

explicit threat by the perpetrator that put the victim in reasonable fear of sexual

contact, physical injury, or death. Id. (citing KRS 508.150). A court may issue

an IPO if it finds “by a preponderance of the evidence that . . . stalking has

occurred and may again occur.” Sewell v. Sweet, 637 S.W.3d 330, 335 (Ky. App.

2021) (citing KRS 456.010(2)).

Having reviewed the entire record on appeal and our prior case law,

this IPO is not supported by sufficient evidence of stalking. Similarly, in Sewell,

we held that the family court’s finding that stalking had occurred and was likely to

occur again was not supported by substantial evidence. Id. at 336. In that instance,

there had been no threats, implicit or explicit, to support the victim being in fear of

physical injury. Id.

Likewise, in Caudill v. Caudill, 318 S.W.3d 112, 115 (Ky. App.

2010), this Court ruled that a visit by respondent to petitioner’s workplace did not

constitute domestic violence sufficient to satisfy the definitions of such contained

within the statutes. Here, the family court simply checked a box finding that

stalking had occurred. However, it did not provide written findings of fact and did

not indicate that there were any threats made to Fitzpatrick, as defined by the

statutes.

-7- A trial court “speaks only through written orders entered upon the

official record.” Kindred Nursing Ctrs. Ltd. P’ship v. Sloan, 329 S.W.3d 347, 349

(Ky. App. 2010). “[A]ny findings of fact and conclusions of law made orally by

the circuit court at an evidentiary hearing cannot be considered by this Court on

appeal unless specifically incorporated into a written and properly entered

order.” Id. There are no written findings in this case. Statements made by the trial

judge from the bench were not incorporated into the standard form used to enter

the IPO.5

Based upon the hearing video, it is clear the family court was familiar

with the parties and had made prior rulings concerning both parties and Taylor’s

ex-husband, who is now involved with Fitzpatrick. However, some of those

rulings are not a part of this record. There were also references by both parties and

the judge to a scheduled criminal trial concerning alleged violations of the IPO,

which apparently did not occur.6 We are cognizant of the difficulties upon family

courts when the parties are unrepresented and the “proof” at the hearing is not

properly presented nor compliant with evidentiary rules. We also recognize that

5 In fact, there were statements made by the trial court in the oral record that are not reflected on the form signed by the court, which, for example, could result in future allegations of violation by either party that could not be verified by law enforcement. 6 Appellant’s brief asserts that there was a deferred prosecution proposal on those charges, but we do not have any documentation in the record, other than the statement that charges had been filed by Fitzpatrick, which were not yet resolved. The family court stated that the then-pending “charges” were “evidence” of IPO violations by Taylor, but we cannot agree.

-8- the family court is in a better position to evaluate credibility. However, this does

not negate the obligation upon the court to set forth findings and to determine if the

elements of stalking were met by a preponderance of evidence.

In this instance, there was no testimony other than from the parties,

and most of it was vague and simply reiterated alleged statements that had formed

the basis for the original issuance of the IPO in 2019. For instance, Fitzpatrick

stated that Taylor had threatened to kill her, but then acknowledged, upon

questioning by the judge, that the threat was made before the first IPO was granted.

This Court has already found there was sufficient evidence to support the initial

issuance of the IPO in 2019. However, the former judge issued findings of fact

and specifically noted there was testimony that Taylor had parked in front of

Fitzpatrick’s house, had flipped Fitzpatrick off on several occasions, had blown the

car horn repeatedly, and had threatened to kill Fitzpatrick. While Taylor denied

many of those allegations, the family court was free to judge the credibility of the

parties and make those findings, which it did.

However, in this new three-year protective order, we have no written

findings by the trial judge to support another extension and no evidence of any new

threat. There was some mention of Taylor being behind Fitzpatrick and Taylor’s

ex-husband in a vehicle on a busy roadway. However, there was no testimony

confirming that this violated the prior IPO or threatened Fitzpatrick. In fact, no

-9- video evidence was presented to support this statement by Fitzpatrick, although she

indicated it was available on her phone in the courtroom.

Again, Fitzpatrick lodged separate criminal charges against Taylor,

but it appears that those charges were not pursued. Fitzpatrick referenced Tad

Taylor, the appellant’s former husband, being in the courtroom and having

knowledge of this event, but he did not testify. She similarly complained of social

media posts by a friend of Taylor, but that person was not a party to this

proceeding. She stated that Taylor had taken pictures of her at a school event, but

there was no evidence that this was in violation of the distance protection in

effect.7 Taylor denied that she took pictures of Fitzpatrick and maintained she was

only taking photographs of her son.

No evidence in the form of videos or photographs was ever produced;

no witnesses were called to support Fitzpatrick’s statement; nor were any dates

provided for most of the acts to which she alluded. She was emotional, but she did

not prove any specific two or more instances of behavior that would constitute

stalking, as defined by KRS 508.130. There was no testimony of any new threat

that put the victim in reasonable fear of physical injury, an additional requirement

of the statute. See KRS 508.150; Halloway, 532 S.W.3d at 162.

7 In fact, the prior IPO had been amended on several occasions throughout the past three years to allow for a 50-foot “stay away” distance at school events that both parties attended, and the court stated in the most recent hearing that it was being adjusted to 25 feet.

-10- This Court addressed the need for written findings in Thurman v.

Thurman, 560 S.W.3d 884, 887 (Ky. App. 2018), which specified that a “court

must make written findings to support the issuance of the DVO.” A family court

must show its rationale for the issuance of a protective order. Id.

In Thurman, we struck down a DVO consisting “entirely of the

court’s checking a single box on AOC Form 275.3 indicating it found” domestic

violence. Id. “The court made no additional written findings, either on the form

itself or the accompanying docket sheet.” Id. This Court emphasized that “[a]

family court is obligated to make written findings of fact showing the rationale for

its actions taken under KRS Chapter 403, including DVO cases, even if the

rationale may be gleaned from the record.” Id. (citing Keifer v. Keifer, 354 S.W.3d

123, 125-26 (Ky. 2011); Anderson v. Johnson, 350 S.W.3d 453, 458-59 (Ky.

2011)). We believe that Thurman applies to orders under KRS Chapter 456 as

well. A finding of fact is clearly erroneous if it is not supported by substantial

evidence. Halloway, 532 S.W.3d at 161.

Unfortunately, in this second appeal, there were no written findings

and the check of a single box on the AOC Form indicates only that Taylor was

found to have been stalking. The form signed by the family court actually conflicts

with some of her statements on the record. While we do not substitute our opinion

for the trial judge, there must be a finding of a minimum of “two or more acts” to

-11- constitute stalking. See id. at 162; KRS 508.130(2). There was no such finding

made in this case.

In addition to the lack of written findings, the allegations by

Fitzpatrick of stalking in 2022 simply do not constitute stalking as defined by

KRS 508.130. The evidence does not rise to the level of a “course of conduct”

directed at her which seriously alarms, annoys, intimidates, or harasses the person

and serves no legitimate purpose and would cause a reasonable person to suffer

substantial mental distress. She denied any new “threats” by Taylor and the taking

of photographs at a school event, if it did occur, would not likely cause any

reasonable fear of injury.

Moreover, those acts cannot simply be the same acts that were relied

upon by the previous judge more than three years ago to support the initial order.

Such protective orders hold serious ramifications for those who are restricted, as

well as for the alleged victim, innocent children and, in this case, for schools and

law enforcement. The IPO entered in this case is no better than the DVO struck

down in Thurman. See also Castle v. Castle, 567 S.W.3d 908, 916 (Ky.

App. 2019). For all the foregoing reasons, we reverse the Allen Family Court and

vacate the IPO entered.

ALL CONCUR.

-12- BRIEF FOR APPELLANT: NO BRIEF FILED FOR APPELLEE.

Christina Holt Taylor, pro se Scottsville, Kentucky

-13-