Danette Kim Divine v. Cami Gibson

• Court: Court of Appeals of Kentucky
• Decided: October 28, 2021
• Docket: 2020 CA 000905
• Status: Unknown

Opinion

RENDERED: OCTOBER 29, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-0905-ME

DANETTE KIM DIVINE APPELLANT

APPEAL FROM BOYLE CIRCUIT COURT v. FAMILY COURT DIVISION HONORABLE DOUGLAS BRUCE PETRIE, JUDGE ACTION NO. 20-D-00065-001

CAMI GIBSON APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: JONES, MAZE, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Danette Kim Divine brings this appeal from an Interpersonal

Protective Order entered June 18, 2020, by the Boyle Circuit Court, Family Court

Division. We affirm.

On May 26, 2020, Cami Gibson filed an Interpersonal Protective

Order (IPO) against Divine, who is Gibson’s mother. In the petition, Gibson

claimed that Divine was stalking her and that she feared Divine. The family court conducted an evidentiary hearing and rendered an IPO against Divine on June 18,

2020. This appeal follows.

We begin our review by noting that Gibson failed to file an appellee

brief in this case. Kentucky Rules of Civil Procedure (CR) 76.12(8)(c) “provides

the range of penalties that may be levied against an appellee for failing to file a

timely brief.” St. Joseph Catholic Orphan Soc’y v. Edwards, 449 S.W.3d 727, 732

(Ky. 2014). This Court may “(i) accept the appellant’s statement of the facts and

issues as correct; (ii) reverse the judgment if appellant’s brief reasonably appears

to sustain such action; or (iii) regard the appellee’s failure as a confession of error

and reverse the judgment without considering the merits of the case.” CR

76.12(8)(c). For purposes of this appeal, we accept Divine’s statement of facts as

set forth in her brief, subject to our independent review of the entire record on

appeal.

Upon review of a petition for an IPO for stalking, if the family court

concludes a basis for the petition does exist, the court shall conduct an evidentiary

hearing. Kentucky Revised Statutes (KRS) 456.040(1)(a). In this case, the court

conducted the hearing and made necessary findings of fact. We review the family

court’s findings of fact under the clearly erroneous standard. Jones v. Jones, 617

S.W.3d 418, 423 (Ky. App. 2021); CR 52.01. A finding of fact is clearly

erroneous if not supported by substantial evidence of a probative value. Id. And,

-2- we review any issues of law de novo. Halloway v. Simmons, 532 S.W.3d 158, 161

(Ky. App. 2017).

Divine’s initial argument is that the family court committed reversible

error by denying her motion for continuance at the time of the evidentiary hearing.

Divine points out that she was involved in a motor vehicle accident on May 28,

2020, and was unable to testify at the hearing due to certain medications she was

taking. Divine argues that she lacked the capacity to meaningfully participate at

the hearing and that the family court erred by denying her motion for continuance.

The family court’s decision as to whether to grant a continuance

“depends upon the unique facts and circumstances” presented in each case.

Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991) overruled on other

grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001). The following

factors should be considered by the family court:

1) length of delay;

2) previous continuances;

3) inconveniences to litigants, witnesses, counsel, and the court;

4) whether the delay is purposeful or is caused by the accused;

5) availability of other competent counsel;

6) complexity of the case; and

-3- 7) whether denying the continuance will lead to identifiable prejudice[.]

Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010) (quoting Snodgrass, 814

S.W.2d at 581). Our standard of review on this issue focuses upon whether the

family court abused its discretion. Guffey, 323 S.W.3d at 371.

At the hearing, as noted, Divine sought a continuance based upon her

alleged incapacity to testify due to medications she was taking as a result of the

motor vehicle accident.1 The family court denied the motion for continuance but

indicated it would consider Divine’s competency to testify when she was called to

testify. However, Divine was not called to testify as a witness at the hearing.

Moreover, the record reveals that while Divine’s motor vehicle accident took place

on May 28, 2020, the hearing was held three weeks later on June 18, 2020. Divine

also failed to specify what prescribed medications she was taking that resulted in

her incapacity. Upon review of the record, we cannot conclude that the family

court abused its discretion by denying Divine’s motion for continuance.

Divine next maintains the family court erroneously determined that

she stalked Gibson and that Gibson was entitled to an IPO. Divine argues that the

family court incorrectly applied the law as found in KRS 456.060. In particular,

Divine asserts that the family court failed to find that she intentionally committed

1 Due to COVID-19 precautions, the hearing was held remotely and Danette Kim Divine participated by telephone.

-4- two or more acts toward Gibson that would seriously alarm, annoy, or intimidate

and cause a reasonable person to suffer mental distress. Additionally, Divine

argues that her conduct served a legitimate purpose as she wished to visit her

mother, who was Gibson’s grandmother and over whom Gibson was appointed

guardian.2 Divine believes that “a desire to see one’s own ailing mother and adult

child is clearly a legitimate purpose.” Divine’s Brief at 10. Divine further

maintains that the family court’s findings of fact are not supported by substantial

evidence. Divine maintains there was a lack of sufficient evidence to demonstrate

that Gibson was in reasonable fear of injury due to Divine’s alleged implicit

threats.

Under KRS 456.030(1), a victim of stalking may file a petition for an

IPO. After conducting an evidentiary hearing, the family court may render an IPO

if it finds by a preponderance of the evidence that stalking has occurred and may

occur again. KRS 456.060(1). To be entitled to an IPO based upon stalking, the

victim must demonstrate:

[H]e or she must at a minimum 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. KRS 508.130 and KRS 456.060. Additionally, the individual must prove

2 It appears that Divine’s mother suffers from dementia.

-5- 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. KRS 508.150.

Halloway, 532 S.W.3d at 162.

At the hearing, Gibson testified that Divine was angry because Gibson

was appointed guardian for Divine’s mother, who is also Gibson’s maternal

grandmother. Gibson stated that Divine was addicted to illegal drugs and had been

wrongfully utilizing her mother’s funds to purchase same. Gibson also maintained

that Divine was only recently released from jail and came to Gibson’s residence

agitated. According to Gibson, Divine also texted Gibson wanting to see her

mother and had driven by Gibson’s house several times. Gibson further testified

that Divine had been physically abusive to her in the past and that Gibson was

presently fearful of Divine. Gibson also recounted that Divine had shot her

husband, Gibson’s father, when Gibson was young and living at home. Gibson

related a violent pattern of conduct over Divine’s adult life and a pattern of

threatening behavior by Divine toward Gibson. The family court also took judicial

notice of Divine’s guilty plea to possession of a firearm by a convicted felon.

Based upon our review of the evidence considered by the family court, there

existed substantial evidence that Divine intentionally committed at least two acts

directed at Gibson that seriously annoyed, alarmed, and harassed Gibson and that

would have caused a reasonable person to suffer substantial mental distress. See

-6- Halloway, 532 S.W.3d at 162. And, substantial evidence was presented that

Divine’s acts constituted an implicit threat that put Gibson in reasonable fear of

physical injury. See id. We, thus, conclude that the family court did not commit

an error of law and the family court’s findings of fact as to Divine’s stalking were

supported by substantial evidence and thus, not clearly erroneous.

Divine further asserts that the family court improperly considered

hearsay testimony. Divine maintains that Gibson made “statements . . . about what

other people told her about [Divine’s] behavior and statements made by nonparty

and non-testifying individuals.” Divine’s Brief at 10. However, Divine fails to

cite this Court to the particular “statements” that allegedly constituted hearsay and

fails to cite this Court to the videotape record of the hearing identifying those

hearsay statements made by Gibson during her testimony. Moreover, Divine does

not indicate in her brief whether or how this issue was preserved for appellate

review. CR 76.12(4)(c)(v). We will not search the hearing record in an effort to

discover these alleged hearsay statements; it is simply not the function of the Court

of Appeals. See Feltner v. PJ Operations, LLC, 568 S.W.3d 1, 7 (Ky. App. 2018).

Thus, we will not consider this argument on appeal. Am. Founders Bank, Inc. v.

Moden Invs., LLC, 432 S.W.3d 715, 721 (Ky. App. 2014).

In sum, we are of the opinion that the family court did not commit

reversible error by issuing the IPO against Divine.

-7- For the foregoing reasons, this appeal is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.

Dawn L. McCauley Lebanon, Kentucky

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