Elvis Ugo Njere v. Jelique C. Jerry

• Court: Court of Appeals of Kentucky
• Decided: August 17, 2023
• Docket: 2022 CA 001005
• Status: Unknown

Opinion

RENDERED: AUGUST 18, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-1005-ME

ELVIS UGO NJERE APPELLANT

APPEAL FROM DAVIESS CIRCUIT COURT, FAMILY DIVISION v. HONORABLE DAVID C. PAYNE, SPECIAL JUDGE ACTION NO. 22-D-00199-01

JELIQUE C. JERRY APPELLEE

OPINION AFFIRMING

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BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.

ACREE, JUDGE: Appellant, Elvis Ugo Njere, appeals the Daviess Family Court’s

July 14, 2022 Order granting Appellee, Jelique Jerry, a Domestic Violence Order

(DVO) against him pursuant to KRS1 403.750. Having reviewed the record and

finding no error, we affirm.

1 Kentucky Revised Statutes. The parties are not married but share one child and lived together.

Prior to the DVO, the parties were engaged to be married. On June 30, 2022,

Appellee filed her petition for a DVO against Appellant. In her petition, she

alleged several threats, displays of passionate anger, and acts of violence Appellant

committed against her. The family court held a hearing on her petition and heard

several hours of testimony from both parties. Appellee realleged the acts of

violence in her testimony and Appellant denied her allegations. At the conclusion

of the hearing, the family court granted Appellee a DVO. In its written order,

which consisted only of AOC Form 275.3, the family court checked the box

indicating that by a preponderance of the evidence, Appellant engaged in violence

against Appellee and would likely do so in the future. The family court did not

further elaborate. This appeal follows.

On appeal, Appellant’s sole argument is that the family court’s use of

AOC Form 275.3, alone did not constitute the required findings of fact to support

an order granting a DVO.

Pursuant to CR2 52.01, it is true that “[i]n all actions tried upon the

facts without a jury or with an advisory jury, the court shall find the facts

specifically and state separately its conclusions of law thereon and render an

appropriate judgment . . . .” CR 52.01. The Kentucky Rules of Civil Procedure

2 Kentucky Rules of Civil Procedure.

-2- apply to hearings on DVO petitions. See Ghali v. Ghali, 596 S.W.2d 31 (Ky. App.

1980).

When, as here, an appellant challenges the sufficiency of the

evidence, our review is limited as appellate courts are only able to reverse a family

court’s order where the findings of fact therein are clearly erroneous. Mays v.

Porter, 398 S.W.3d 454, 458 (Ky. App. 2013) (citing CR 52.01). “Findings of fact

are clearly erroneous only if they are not supported by substantial evidence.” Id.

(citing Black Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky. 1964)). “The test

for substantiality of evidence is whether the evidence, when taken alone, or in the

light of all the evidence, has sufficient probative value to induce conviction in the

minds of reasonable persons.” Id. (citing Kentucky State Racing Comm’n v.

Fuller, 481 S.W.2d 298, 308 (Ky. 1972); Janakakis-Kostun v. Janakakis, 6 S.W.3d

843, 852 (Ky. App. 1999)).

In Smith v. McCoy, the Kentucky Supreme Court indicated that only

“essential” facts are required for purposes of creating a sufficient finding of facts to

support issuing a DVO. 635 S.W.3d 811, 817 (Ky. 2021). The Court said: “we

note that in issuing a protective order, the only ‘essential facts,’ the trial court is

required to find are (1) whether an act of domestic violence and abuse, dating

violence and abuse, stalking, or sexual assault has occurred, and (2) whether it may

occur again.” Id. (citation omitted). In Smith, the family court indicated on AOC

-3- Form 275.3 that violence had occurred and would likely occur again. Id. The

Kentucky Supreme Court concluded this constituted sufficient findings of fact to

support issuing a DVO. Id. at 818.

Here, the family court indicated that violence had occurred and would

likely occur again on AOC Form 275.3. All this information was correctly and

accurately completed within the AOC Form 275.3. Under our current precedent,

an AOC Form 275.3 completely and accurately completed is sufficient. Williford

v. Williford, 583 S.W.3d 424, 430 (Ky. App. 2019) (quoting Pettingill v. Pettingill,

480 S.W.3d 920, 922, 925 (Ky. 2015)).

When it comes to discerning which testimony to believe, it is well

within the discretion of the family court to appropriately assign value to the

testimony heard. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (“[J]udging

the credibility of witnesses and weighing evidence are tasks within the exclusive

province of the [circuit] court.”). And, the court must only find by a

preponderance of the evidence that violence has occurred and will likely occur

again. KRS 403.740(1). In weighing Appellant’s and Appellee’s testimony, the

court believed by a preponderance of evidence Appellant engaged in violence and

would likely do so again.

-4- Nothing in the record indicates the family court’s findings of fact are

clearly erroneous. We will not substitute our own judgment for the family court’s

and without more, there is nothing indicating the family court abused its discretion.

ALL CONCUR.

BRIEF FOR APPELLANT: NO BRIEF FILED FOR APPELLEE.

Evan Taylor Owensboro, Kentucky

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