RENDERED: JANUARY 24, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2024-CA-1089-ME
DAMARCUS CHILDS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. FAMILY DIVISION THREE (3) HONORABLE LORI N. GOODWIN, JUDGE ACTION NO. 16-D-500389-007
BRITTANY HAMMONDS APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, ECKERLE, AND KAREM, JUDGES.
EASTON, JUDGE: Appellant Damarcus Childs (“Damarcus”) appeals from the
Jefferson Family Court’s issuance of a Domestic Violence Order (“DVO”) against
him on behalf of Appellee Brittany Hammonds (“Brittany”). Damarcus argues the
family court erred because there was no basis for its finding that domestic violence
occurred and is likely to occur again. He further argues the family court erred by allowing a Friend of the Court (“FOC”), who had been appointed in the parties’
separate custody case, to testify during the DVO hearing. We conclude the family
court did not abuse its discretion, and its findings of fact were not clearly
erroneous. We affirm.
FACTUAL AND PROCEDURAL HISTORY
The parties have never been married, but they share two minor
children. They have been in a so-called “on-again-off-again” relationship for
approximately ten years, but they are currently not together. They each have their
own residence, with Brittany residing in Jeffersonville, Indiana, while Damarcus
lives in Louisville.
This is the seventh domestic violence petition Brittany has filed
against Damarcus. Brittany filed this current petition in July 2024, requesting
protection for herself and the parties’ children. An Emergency Protective Order
(“EPO”) was initially granted. After a hearing on August 5, 2024, in which the
children’s guardian ad litem (“GAL”) testified, the family court dismissed the
Petition as to the children. That decision was not appealed. The DVO hearing
regarding Brittany took place on August 12, 2024.
At the hearing, Brittany testified that domestic violence began soon
after the parties began dating in 2014. She stated Damarcus pushed, shoved, and
hit her. She told the family court about a sexual assault that had occurred in
-2- November of 2023. She testified she went to the University of Louisville Hospital
to have a rape kit performed. Brittany also stated she filed a police report with the
Jeffersonville police. No documentation of the rape kit or police report were
formally introduced into evidence, but Brittany’s counsel indicated she was in
possession of that documentation. Brittany claimed Damarcus has threatened her
many times over the years of their relationship, that he was emotionally abusive,
and he used the children against her. She testified she usually did what he wanted
to keep the peace.
In addition to her testimony, Brittany called James Murphy
(“Murphy”) to testify. Murphy is the FOC who was appointed in the parties’
custody action. Murphy testified that Brittany confided to him that Damarcus had
sexually assaulted her the previous fall. Brittany “begged” him not to disclose this
information to anyone, and he reluctantly agreed. Murphy told the family court he
believed Brittany was genuinely afraid of Damarcus. Damarcus objected to
Murphy’s testimony, as he believed none of this information related to the children
or the custody action for which he was appointed as an FOC.
Damarcus testified on his own behalf. He categorically denied all of
Brittany’s allegations. He stated “not one bit” of her testimony was true. He
claimed her only purpose in filing for a DVO is to prevent him from having
timesharing with their children. He asserted that Brittany was simply not credible.
-3- The family court issued a DVO in favor of Brittany against Damarcus,
finding Brittany’s testimony to be credible. This appeal follows.
STANDARD OF REVIEW
A review of a trial court’s decision regarding an entry of an order of
protection is limited to “whether the findings of the trial judge were clearly
erroneous or that he abused his discretion.” Caudill v. Caudill, 318 S.W.3d 112,
115 (Ky. App. 2010). Likewise, admissibility of evidence is reviewed for abuse of
discretion. Kentucky Guardianship Administrators, LLC v. Baptist Healthcare
Sys., Inc., 635 S.W.3d 14, 20 (Ky. 2021). “Abuse of discretion occurs when a
court’s decision is unreasonable, unfair, arbitrary or capricious.” Dunn v. Thacker,
546 S.W.3d 576, 578 (Ky. App. 2018). A trial court’s findings of fact are not
clearly erroneous if supported by substantial evidence. Moore v. Asente, 110
S.W.3d 336, 354 (Ky. 2003).
ANALYSIS
Damarcus argues the family court erred in its issuance of a DVO on
Brittany’s behalf. He argues first that Brittany failed to present sufficient evidence
for the court to find that domestic violence had occurred and may again occur. He
further argues that the family court abused its discretion in permitting FOC
Murphy to testify on Brittany’s behalf.
-4- Domestic violence orders are governed by KRS1 Chapter 403. In
order to enter a Domestic Violence Order, a trial court is required to find by a
preponderance of the evidence that domestic violence has occurred and is likely to
occur again. KRS 403.740. “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.” Dunn v. Thacker, supra, at
580. “The definition of domestic violence and abuse, found in KRS 403.720(1)
[now KRS 403.720(2)], 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.’” Abdur-Rahman v.
Peterson, 338 S.W.3d 823, 825 (Ky. App. 2011).
Damarcus argues that there is no evidence of a physical injury, an
imminent threat of harm, past or present threat of violence or abuse, or that
domestic violence may occur in the future. He also claims Brittany never testified
to an injury. We disagree.
While Brittany’s testimony was not as clear as it might have been, it is
clear that Brittany alleged Damarcus raped her. Sexual abuse is an explicit
example of domestic violence listed in KRS 403.720(2). While Damarcus denied
that accusation, the family court believed Brittany. Damarcus made much of the
1 Kentucky Revised Statutes.
-5- fact that Brittany never expressly used the term “rape” in her testimony, and he
claims any sexual contact between them was consensual. But Brittany stated
multiple times in her testimony that, on this occasion, she said “no.” It is within
the circuit court’s purview to weigh the credibility of the witnesses and choose
which ones to believe. Baird v.
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RENDERED: JANUARY 24, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2024-CA-1089-ME
DAMARCUS CHILDS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. FAMILY DIVISION THREE (3) HONORABLE LORI N. GOODWIN, JUDGE ACTION NO. 16-D-500389-007
BRITTANY HAMMONDS APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, ECKERLE, AND KAREM, JUDGES.
EASTON, JUDGE: Appellant Damarcus Childs (“Damarcus”) appeals from the
Jefferson Family Court’s issuance of a Domestic Violence Order (“DVO”) against
him on behalf of Appellee Brittany Hammonds (“Brittany”). Damarcus argues the
family court erred because there was no basis for its finding that domestic violence
occurred and is likely to occur again. He further argues the family court erred by allowing a Friend of the Court (“FOC”), who had been appointed in the parties’
separate custody case, to testify during the DVO hearing. We conclude the family
court did not abuse its discretion, and its findings of fact were not clearly
erroneous. We affirm.
FACTUAL AND PROCEDURAL HISTORY
The parties have never been married, but they share two minor
children. They have been in a so-called “on-again-off-again” relationship for
approximately ten years, but they are currently not together. They each have their
own residence, with Brittany residing in Jeffersonville, Indiana, while Damarcus
lives in Louisville.
This is the seventh domestic violence petition Brittany has filed
against Damarcus. Brittany filed this current petition in July 2024, requesting
protection for herself and the parties’ children. An Emergency Protective Order
(“EPO”) was initially granted. After a hearing on August 5, 2024, in which the
children’s guardian ad litem (“GAL”) testified, the family court dismissed the
Petition as to the children. That decision was not appealed. The DVO hearing
regarding Brittany took place on August 12, 2024.
At the hearing, Brittany testified that domestic violence began soon
after the parties began dating in 2014. She stated Damarcus pushed, shoved, and
hit her. She told the family court about a sexual assault that had occurred in
-2- November of 2023. She testified she went to the University of Louisville Hospital
to have a rape kit performed. Brittany also stated she filed a police report with the
Jeffersonville police. No documentation of the rape kit or police report were
formally introduced into evidence, but Brittany’s counsel indicated she was in
possession of that documentation. Brittany claimed Damarcus has threatened her
many times over the years of their relationship, that he was emotionally abusive,
and he used the children against her. She testified she usually did what he wanted
to keep the peace.
In addition to her testimony, Brittany called James Murphy
(“Murphy”) to testify. Murphy is the FOC who was appointed in the parties’
custody action. Murphy testified that Brittany confided to him that Damarcus had
sexually assaulted her the previous fall. Brittany “begged” him not to disclose this
information to anyone, and he reluctantly agreed. Murphy told the family court he
believed Brittany was genuinely afraid of Damarcus. Damarcus objected to
Murphy’s testimony, as he believed none of this information related to the children
or the custody action for which he was appointed as an FOC.
Damarcus testified on his own behalf. He categorically denied all of
Brittany’s allegations. He stated “not one bit” of her testimony was true. He
claimed her only purpose in filing for a DVO is to prevent him from having
timesharing with their children. He asserted that Brittany was simply not credible.
-3- The family court issued a DVO in favor of Brittany against Damarcus,
finding Brittany’s testimony to be credible. This appeal follows.
STANDARD OF REVIEW
A review of a trial court’s decision regarding an entry of an order of
protection is limited to “whether the findings of the trial judge were clearly
erroneous or that he abused his discretion.” Caudill v. Caudill, 318 S.W.3d 112,
115 (Ky. App. 2010). Likewise, admissibility of evidence is reviewed for abuse of
discretion. Kentucky Guardianship Administrators, LLC v. Baptist Healthcare
Sys., Inc., 635 S.W.3d 14, 20 (Ky. 2021). “Abuse of discretion occurs when a
court’s decision is unreasonable, unfair, arbitrary or capricious.” Dunn v. Thacker,
546 S.W.3d 576, 578 (Ky. App. 2018). A trial court’s findings of fact are not
clearly erroneous if supported by substantial evidence. Moore v. Asente, 110
S.W.3d 336, 354 (Ky. 2003).
ANALYSIS
Damarcus argues the family court erred in its issuance of a DVO on
Brittany’s behalf. He argues first that Brittany failed to present sufficient evidence
for the court to find that domestic violence had occurred and may again occur. He
further argues that the family court abused its discretion in permitting FOC
Murphy to testify on Brittany’s behalf.
-4- Domestic violence orders are governed by KRS1 Chapter 403. In
order to enter a Domestic Violence Order, a trial court is required to find by a
preponderance of the evidence that domestic violence has occurred and is likely to
occur again. KRS 403.740. “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.” Dunn v. Thacker, supra, at
580. “The definition of domestic violence and abuse, found in KRS 403.720(1)
[now KRS 403.720(2)], 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.’” Abdur-Rahman v.
Peterson, 338 S.W.3d 823, 825 (Ky. App. 2011).
Damarcus argues that there is no evidence of a physical injury, an
imminent threat of harm, past or present threat of violence or abuse, or that
domestic violence may occur in the future. He also claims Brittany never testified
to an injury. We disagree.
While Brittany’s testimony was not as clear as it might have been, it is
clear that Brittany alleged Damarcus raped her. Sexual abuse is an explicit
example of domestic violence listed in KRS 403.720(2). While Damarcus denied
that accusation, the family court believed Brittany. Damarcus made much of the
1 Kentucky Revised Statutes.
-5- fact that Brittany never expressly used the term “rape” in her testimony, and he
claims any sexual contact between them was consensual. But Brittany stated
multiple times in her testimony that, on this occasion, she said “no.” It is within
the circuit court’s purview to weigh the credibility of the witnesses and choose
which ones to believe. Baird v. Baird, 234 S.W.3d 385, 388 (Ky. App. 2007).
Damarcus further takes issue with the family court’s finding that
domestic violence may occur again. While he argues that Brittany’s only
allegation of domestic violence was the sexual assault in November of 2023,
Brittany actually testified that domestic violence had been occurring for almost ten
years. She spoke of incidents where Damarcus shoved or pushed her, where he
threatened her with a gun, and threatened to take the children away from her. It is
not unreasonable for the family court to find that future domestic violence may
occur when Brittany testified to a pattern that has occurred for several years.
Furthermore, Brittany testified that she was afraid of Damarcus.
Again, this was the seventh DVO petition Brittany has filed against Damarcus.
While Damarcus claims all the previous petitions were meritless and ultimately
dismissed, that is not entirely accurate. Brittany’s fifth petition, filed in June 2018,
led to the issuance of a DVO for a period of one year. A family court is allowed to
consider such history of the parties when considering the case now presented. Id.
-6- When reviewing the issuance of a Domestic Violence Order, “the test
is not whether we would have decided it differently, but whether the court’s
findings were clearly erroneous or that it abused its discretion.” Gomez v. Gomez,
254 S.W.3d 838, 842 (Ky. App. 2008). We give great deference to the trial courts
as the finders of fact. “It has long been held that the trier of fact has the right to
believe the evidence presented by one litigant in preference to another.”
Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996). “The trier of fact
may take into consideration all the circumstances of the case, including the
credibility of the witness[es].” Id. We do not believe the family court abused its
discretion in its issuance of a DVO in this instance.
Damarcus’s second contention of error is that the family court should
not have permitted FOC Murphy to testify. Damarcus claims Murphy’s testimony
was impermissible “vouching” testimony, as Murphy testified he believed
Brittany’s fear of Damarcus to be genuine.
Brittany contends Murphy’s testimony was not inadmissible hearsay
for two reasons. First, she cites Greene v. Boyd, 603 S.W.3d 231, 240 (Ky. 2020),
which illustrates that Kentucky law allows FOCs to testify about their opinions of
the parties and about what the parties have told them, so long as the parties are
allowed to challenge the FOC’s sources. Next, Brittany states Murphy’s testimony
-7- is allowed under KRE2 801A(a)(2). We determine Brittany to be correct for the
latter reason, but not the former.
The statute governing FOCs is KRS 403.300, under the subcategory
of “Custody.” While “Domestic Violence and Abuse” and “Custody” both fall
under the umbrella of Chapter 403: Dissolution of Marriage; Child Custody, they
are separate subcategories. The statute begins “In contested custody proceedings
. . . .” FOC Murphy was appointed in the parties’ custody action. While the
parties are the same in both the custody action and this DVO action, the purpose of
the actions is different. Brittany is correct that any hearsay statements in FOC
Murphy’s report would be admissible under Greene in the parties’ custody action,
but it does not necessarily follow that those statements are also similarly
admissible in the DVO action.
Even so, an FOC may still have relevant evidence to offer in a DVO
hearing. KRE 801A(a)(2) states:
Prior statements of witnesses. A statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the declarant testifies at the trial or hearing and is examined concerning the statement, with a foundation laid as required by KRE 613, and the statement is:
...
2 Kentucky Rules of Evidence.
-8- (2) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive[.]
Damarcus’s entire defense in this matter was to challenge Brittany’s
credibility and claim her allegations were fabricated. This attack on Brittany’s
credibility began during Damarcus’s cross-examination of her. This was prior to
Brittany calling FOC Murphy to testify.
[A] witness’s prior consistent statements that would otherwise be hearsay are not excluded by the hearsay rule, and do not constitute improper bolstering, when offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. This hearsay exception applies generally to statements the declarant made pre-dating their supposed motive to fabricate their sworn testimony. Likewise, a witness’s prior consistent statements made “post-motive” are naturally not barred by the hearsay rule when they do not constitute hearsay – namely when offered primarily for rehabilitative, not substantive purposes.
Riggle v. Commonwealth, 686 S.W.3d 105, 114 (Ky. 2023) (emphasis in original)
(internal quotation marks and citations omitted).
Brittany made her disclosure to FOC Murphy in the fall of 2023, more
than six months prior to filing the current DVO petition. Thus, this statement was
arguably made “pre-motive” to fabricate Brittany’s most recent allegation, and it is
allowable under KRE 801A(a)(2). FOC Murphy possessed relevant evidence. He
-9- could comment on his observations of Brittany’s fear. It was not an abuse of
discretion to allow FOC Murphy to testify in these circumstances.
CONCLUSION
The Jefferson Family Court’s findings of fact are supported by the
evidence and are not clearly erroneous. The Jefferson Family Court acted within
its discretion. We affirm the ruling of the Jefferson Family Court.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Callie Walton Ethan Chase Louisville, Kentucky Juliana H. Reczek Louisville, Kentucky
-10-