RENDERED: JULY 18, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0121-ME
DAMON RAY BAILEY APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT v. HONORABLE S. MARIE HELLARD, JUDGE ACTION NO. 24-D-00067-001
SOMMER ANN VARIE APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, L. JONES, AND TAYLOR, JUDGES.
COMBS, JUDGE: Appellant, Damon Ray Bailey (Damon), appeals from a
domestic violence order (DVO) entered against him by the Shelby Family Court.
After our review, we affirm.
On June 10, 2024, the Appellee, Sommer Ann Varie (Sommer), filed
a petition/motion for order of protection against Damon on behalf of herself and
their two minor children. Sommer alleged that on June 8th, an officer came to her door and said that a police report had been made by Damon’s father on June 6th
that Damon was going to kill Sommer and her mother. Sommer further alleged
that she had had a previous DVO in Kenton County, but it had expired on May
25th due to miscommunication about how she was supposed to get the case
transferred to Shelby County.
Sommer stated that Damon had followed her home after a supervised
visit with the children at Butterfly House on March 22nd; that he had taken a
picture of her car outside of her house; and he had sent it to her phone as well as
harassing her over the phone. Sommer stated that she sought the previous DVO
due to Damon’s putting his hands on her, harassing her, and destroying her
vehicles. According to the petition, a lady at the Butterfly House related that
Damon had been agitated at the last visit and that Sommer did not feel it was safe
for him to have contact with the children.
The matter was set for hearing on June 26, 2024. Damon’s counsel,
C. Ed Massey, Esq., confirmed that he could attend by Zoom, but he was unable to
connect to the hearing. The hearing proceeded without counsel, and the court
entered a DVO against Damon. On July 3, 2024, Mr. Massey filed a Motion to
Alter, Amend, or Vacate; requested that the DVO be vacated; and asked that the
matter be set for hearing so that Damon could “exercise his Constitutional Right to
an attorney and be permitted to call witnesses on his behalf.”
-2- On July 17, 2024, the family court entered an Order granting a new
hearing, having found that Mr. Massey’s inability to participate by Zoom due to no
fault of his own affected his ability to represent his client properly and to cross-
examine witnesses. The court ordered that the DVO remain in effect pending the
new hearing.
On September 18, 2024, the family court conducted a new hearing at
which Sommer, Damon, his counsel, and the children’s Guardian Ad Litem were
present. Both parties testified. The court entered a DVO on a Form AOC-275.3,
to be effective until September 18, 2027. The court found that Sommer established
by a preponderance of the evidence that an act of domestic violence “has occurred
and may again occur.” The court made additional findings on its corresponding
docket sheet as follows:
Petitioner had a prior DVO against Respondent through Kenton Circuit Court, but same has expired and Petitioner did not mean to allow same to expire.
...
On March 22, 2024, Respondent sent a photo of Petitioner’s home to her phone while the original DVO was still in place. Respondent has threatened to kill her in the past, and has been violent with her in the past. He has sent her a message that said, “haha I found you,” with a picture of her address, and while he denies that the Court does not find his testimony to be credible. Petitioner said that she had not had contact in years from the Respondent, but because of the past violence and instances where Respondent has drive [sic] past her
-3- home, or texted a picture of where she lives, she continues to be fearful of Respondent and what he will do to her. Respondent has threatened to kidnap the children in the past and take them to another state. Children have witnessed the domestic violence in the past in the home prior to the issuance of the original DVO. Petitioner is fearful of the Respondent because of the past domestic violence and because he now knows where she lives.
On September 30, 2024, Damon, by counsel, filed a Motion for
Reconsideration. Damon argued that Sommer’s petition was based upon hearsay
statements of Damon’s father, who had been committed to Eastern State Hospital;
that the officer who took the report was not called as a witness; that the text was
sent from the phone of Damon’s significant other; and that reference to the prior
DVO is irrelevant. By Order entered on December 20, 2024, the court denied
Damon’s motion as follows in relevant part:
Under KRS[1] 403.740(1), a Court may issue a domestic violence order after hearing the matter and finding “by a preponderance of the evidence that domestic violence and abuse has occurred and may again occur.” KRS 403.720(2)(a) defines domestic violence and abuse as “physical 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.” In determining whether domestic violence has occurred, the Court must rely upon the evidence presented and its’ [sic] assessment of the credibility of the witnesses, which is exactly what this Court did at the
1 Kentucky Revised Statutes.
-4- hearing. The Court found Petitioner’s testimony to be credible in that Respondent had committed domestic violence against her and that it may occur again if the domestic violence order was not entered. Consequently, the Court entered the Domestic Violence Order and upholds that decision today.
Damon appealed. As a preliminary matter, we note that Sommer has
not filed a brief. Although we may impose penalties under Kentucky Rule of
Appellate Procedure (RAP) 31(H)(3) where the appellee does not file a brief
within the time allowed, we retain discretion in electing such an option. Hamilton
v. Milbry, 676 S.W.3d 42, 44 (Ky. App. 2023). We decline to impose any penalty
here.
On appeal, Damon argues that the family court abused its discretion in
entering the DVO because there was no proof that he had committed domestic
violence as defined in KRS 403.720(2)(a). He contends that although a previous
DVO did exist, it had expired.
“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).
Domestic violence orders are a statutory creation, their issuance governed by Kentucky Revised Statute (KRS) 403.740. That provision, in relevant part, reads:
-5- “Following a hearing ordered under KRS 403.730
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: JULY 18, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0121-ME
DAMON RAY BAILEY APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT v. HONORABLE S. MARIE HELLARD, JUDGE ACTION NO. 24-D-00067-001
SOMMER ANN VARIE APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, L. JONES, AND TAYLOR, JUDGES.
COMBS, JUDGE: Appellant, Damon Ray Bailey (Damon), appeals from a
domestic violence order (DVO) entered against him by the Shelby Family Court.
After our review, we affirm.
On June 10, 2024, the Appellee, Sommer Ann Varie (Sommer), filed
a petition/motion for order of protection against Damon on behalf of herself and
their two minor children. Sommer alleged that on June 8th, an officer came to her door and said that a police report had been made by Damon’s father on June 6th
that Damon was going to kill Sommer and her mother. Sommer further alleged
that she had had a previous DVO in Kenton County, but it had expired on May
25th due to miscommunication about how she was supposed to get the case
transferred to Shelby County.
Sommer stated that Damon had followed her home after a supervised
visit with the children at Butterfly House on March 22nd; that he had taken a
picture of her car outside of her house; and he had sent it to her phone as well as
harassing her over the phone. Sommer stated that she sought the previous DVO
due to Damon’s putting his hands on her, harassing her, and destroying her
vehicles. According to the petition, a lady at the Butterfly House related that
Damon had been agitated at the last visit and that Sommer did not feel it was safe
for him to have contact with the children.
The matter was set for hearing on June 26, 2024. Damon’s counsel,
C. Ed Massey, Esq., confirmed that he could attend by Zoom, but he was unable to
connect to the hearing. The hearing proceeded without counsel, and the court
entered a DVO against Damon. On July 3, 2024, Mr. Massey filed a Motion to
Alter, Amend, or Vacate; requested that the DVO be vacated; and asked that the
matter be set for hearing so that Damon could “exercise his Constitutional Right to
an attorney and be permitted to call witnesses on his behalf.”
-2- On July 17, 2024, the family court entered an Order granting a new
hearing, having found that Mr. Massey’s inability to participate by Zoom due to no
fault of his own affected his ability to represent his client properly and to cross-
examine witnesses. The court ordered that the DVO remain in effect pending the
new hearing.
On September 18, 2024, the family court conducted a new hearing at
which Sommer, Damon, his counsel, and the children’s Guardian Ad Litem were
present. Both parties testified. The court entered a DVO on a Form AOC-275.3,
to be effective until September 18, 2027. The court found that Sommer established
by a preponderance of the evidence that an act of domestic violence “has occurred
and may again occur.” The court made additional findings on its corresponding
docket sheet as follows:
Petitioner had a prior DVO against Respondent through Kenton Circuit Court, but same has expired and Petitioner did not mean to allow same to expire.
...
On March 22, 2024, Respondent sent a photo of Petitioner’s home to her phone while the original DVO was still in place. Respondent has threatened to kill her in the past, and has been violent with her in the past. He has sent her a message that said, “haha I found you,” with a picture of her address, and while he denies that the Court does not find his testimony to be credible. Petitioner said that she had not had contact in years from the Respondent, but because of the past violence and instances where Respondent has drive [sic] past her
-3- home, or texted a picture of where she lives, she continues to be fearful of Respondent and what he will do to her. Respondent has threatened to kidnap the children in the past and take them to another state. Children have witnessed the domestic violence in the past in the home prior to the issuance of the original DVO. Petitioner is fearful of the Respondent because of the past domestic violence and because he now knows where she lives.
On September 30, 2024, Damon, by counsel, filed a Motion for
Reconsideration. Damon argued that Sommer’s petition was based upon hearsay
statements of Damon’s father, who had been committed to Eastern State Hospital;
that the officer who took the report was not called as a witness; that the text was
sent from the phone of Damon’s significant other; and that reference to the prior
DVO is irrelevant. By Order entered on December 20, 2024, the court denied
Damon’s motion as follows in relevant part:
Under KRS[1] 403.740(1), a Court may issue a domestic violence order after hearing the matter and finding “by a preponderance of the evidence that domestic violence and abuse has occurred and may again occur.” KRS 403.720(2)(a) defines domestic violence and abuse as “physical 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.” In determining whether domestic violence has occurred, the Court must rely upon the evidence presented and its’ [sic] assessment of the credibility of the witnesses, which is exactly what this Court did at the
1 Kentucky Revised Statutes.
-4- hearing. The Court found Petitioner’s testimony to be credible in that Respondent had committed domestic violence against her and that it may occur again if the domestic violence order was not entered. Consequently, the Court entered the Domestic Violence Order and upholds that decision today.
Damon appealed. As a preliminary matter, we note that Sommer has
not filed a brief. Although we may impose penalties under Kentucky Rule of
Appellate Procedure (RAP) 31(H)(3) where the appellee does not file a brief
within the time allowed, we retain discretion in electing such an option. Hamilton
v. Milbry, 676 S.W.3d 42, 44 (Ky. App. 2023). We decline to impose any penalty
here.
On appeal, Damon argues that the family court abused its discretion in
entering the DVO because there was no proof that he had committed domestic
violence as defined in KRS 403.720(2)(a). He contends that although a previous
DVO did exist, it had expired.
“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).
Domestic violence orders are a statutory creation, their issuance governed by Kentucky Revised Statute (KRS) 403.740. That provision, in relevant part, reads:
-5- “Following a hearing ordered under KRS 403.730, if a court finds by a preponderance of the evidence that domestic violence and abuse has occurred and may again occur, the court may issue a domestic violence order[.]” KRS 403.740(1). On appeal, we review the trial court’s factual findings for clear error, and legal conclusions for abuse of discretion.
Walker v. Walker, 520 S.W.3d 390, 392 (Ky. App. 2017). In Walker, this Court
concluded that the proof “sufficient for the issuance of one DVO can be considered
as proof for a subsequent DVO.” Id.
In the case before us, the family court found that although Sommer
had not had contact with Damon for years, he sent a photo of her home to her
phone in March 2024 while the prior DVO was still in place; that he had been
violent and threatened to kill her in the past; and that Sommer was fearful of
Damon “because of the past domestic violence and because he now knows where
she lives.” Moreover, as was its prerogative, the family court found that Sommer’s
testimony was credible -- but that Damon’s testimony was not. Bailey v. Bailey,
231 S.W.3d 793, 796 (Ky. App. 2007) (As fact-finder, family court may believe or
disbelieve any part of the testimony presented and is entitled to make its own
decisions regarding demeanor and truthfulness of witnesses.).
We are satisfied from our review of the record that the family court’s
findings of fact are supported by substantial evidence, and we conclude that the
-6- court correctly applied the law to the facts as found. We find no abuse of
discretion.
Accordingly, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
C. Ed Massey Erlanger, Kentucky
-7-