King B. Jones, III v. Haylee Brown

• Court: Court of Appeals of Kentucky
• Decided: November 1, 2024
• Docket: 2024-CA-0546
• Status: Unpublished

Opinion

RENDERED: NOVEMBER 1, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0546-ME

KING B. JONES, III APPELLANT

APPEAL FROM RUSSELL CIRCUIT COURT v. HONORABLE JENNIFER UPCHURCH EDWARDS, JUDGE ACTION NO. 24-D-00019-001

HAYLEE BROWN; J.J.; AND K.J. APPELLEES

OPINION AFFIRMING

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BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND CALDWELL, JUDGES.

THOMPSON, CHIEF JUDGE: King B. Jones, III (“Appellant”) appeals from a

Domestic Violence Order (“DVO”) of the Russell Circuit Court barring him from

contact with Haylee Brown (“Appellee”) and their two minor children. Appellant

argues that the circuit court erred in the following ways: by failing to conduct a

DVO hearing within 14 days of the emergency protective order (“EPO”) as

required by statute; by failing to provide him a meaningful opportunity to be heard;

and, in concluding that acts of domestic violence occurred and were likely to occur again. He seeks an opinion vacating the order on appeal. After careful review, we

find no error and affirm the order on appeal.

FACTS AND PROCEDURAL HISTORY

On March 28, 2024, Appellee obtained an EPO based on her claim

that Appellant engaged in acts of domestic violence against her and the parties’

two minor children.1 Kentucky Revised Statutes (“KRS”) 403.730 requires that a

domestic violence hearing shall be conducted within 14 days of the EPO. A DVO

hearing was scheduled for April 11, 2024, in compliance with the statutory

requirement.

Both parties appeared at the DVO hearing. Appellant was represented

by counsel, whereas Appellee was not. The Russell Circuit Court inquired if

Appellee wished to be represented by counsel. When she responded in the

affirmative, the court continued the DVO hearing so Appellee could retain counsel.

The court did not reissue the EPO, but stated that its conditions would remain in

effect until the next hearing.

The DVO hearing was rescheduled for April 25, 2024. Appellant

moved to dismiss the proceeding based on the court’s failure to conduct the DVO

hearing within 2 weeks of the EPO as required by KRS 403.730. The motion was

denied, and the hearing was conducted with Appellant represented by counsel and

1 The parties were not married and both children were under the age of 4.

-2- Appellee still proceeding pro se. Both parties testified, with Appellee alleging acts

of domestic violence against her and the children which caused her to seek the

EPO and DVO. Specifically, she alleged that Appellant jerked one of the children

by the arm and struck the other in the mouth hard enough to cause bleeding. She

produced photographs of what she claimed was blood on the floor and an abrasion

on one child’s arm. Appellant testified that what Appellee claimed was blood on

the floor was actually red paint. In addition, Appellant stated that the child’s

abrasion occurred in an automobile accident and was not the result of domestic

violence.

After taking proof, the circuit court entered a DVO barring Appellant

from contact with Appellee and the children for a period of one year. In support of

the DVO, the court found that acts of domestic violence had occurred and were

likely to occur again. This appeal followed.

STANDARD OF REVIEW

On review of a domestic violence order, the question is not whether

we would have decided the matter differently. Gibson v. Campbell-Marletta, 503

S.W.3d 186, 190 (Ky. App. 2016). Rather, we must determine if the circuit court’s

findings were clearly erroneous and if the decision constituted an abuse of

discretion. Id. An abuse of discretion occurs if the trial court’s ruling is “arbitrary,

-3- unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.

English, 993 S.W.2d 941, 945 (Ky. 1999).

ARGUMENTS AND ANALYSIS

Appellant first argues that the Russell Circuit Court committed

reversible error in failing to conduct the DVO hearing within 14 days of the

issuance of the EPO as required by KRS 403.730. He notes that KRS

403.730(1)(a) requires a court to review a petition for an order of protection

immediately upon its filing and, if this review indicates domestic violence and

abuse exists, a summons to all parties shall be served so an evidentiary hearing can

be held not more than 14 days in the future. He argues that Appellee’s failure to be

represented by counsel on the scheduled hearing date does not constitute proper

grounds for continuing the hearing date past the 14 day window. He goes on to

argue that the requirements for extending the EPO for an additional 14 days per

KRS 403.735 are not present here, as Appellant was properly served and there was

no basis for extending the EPO. The focus of his argument is that KRS 403.730

contains mandatory language (“shall”) requiring the court to conduct a DVO

hearing within 14 days, and the court’s failure to comply with this requirement

mandates that the DVO be vacated. Appellee did not file a responsive pleading.

KRS 403.730(1)(a) provides that, “[t]he court shall review a petition

for an order of protection immediately upon its filing. If the review indicates that

-4- domestic violence and abuse exists, the court shall summons the parties to an

evidentiary hearing not more than fourteen (14) days in the future.” The question

for our consideration is whether the Russell Circuit Court’s failure to conduct a

DVO hearing within 14 days of the petition requires that the DVO be dismissed.

The circuit court issued a summons for a DVO hearing within 14 days

of the petition as required by KRS 403.730(1)(a). In addition, it attempted to

conduct a hearing on or about the fourteenth day. Having done so, we do not

conclude that the continuance of the hearing required dismissal of the underlying

petition as argued by Appellant. “Certainly any continuance of the [DVO] hearing

should be in the sound discretion of the court, mindful of the purposes of the

statute, and for good cause.” Guenther v. Guenther, 379 S.W.3d 796, 801 (Ky.

App. 2012).2 Further, a circuit court’s failure to issue a DVO within 14 days of the

EPO does not deprive the court of jurisdiction in the matter. See Daugherty v.

Telek, 366 S.W.3d 463 (Ky. 2012).3

Every presumption is in favor of the correctness of the decision of the trial court, and in order to warrant a reversal, error must affirmatively appear from the record. This presumption is one with which this court begins its examinations of every case brought before it, and one which every appellant must overcome in order to secure a reversal of a judgment.

2 Guenther applied a prior version of the EPO/DVO statutes. We believe the underlying discretion of the circuit court recognized in Guenther is applicable herein. 3 Like Guenther, Daugherty applied the prior version of the statutory scheme.

-5- Oakes v. Oakes, 204 Ky. 298, 264 S.W. 752, 753 (1924).

Appellant has not cited any case law wherein a DVO has been

dismissed for failure to conduct the hearing within 14 days of the issuance of the

EPO. Further, the General Assembly could have included language in KRS

Chapter 403 barring the continuance of the EPO or dismissing the petition for

failure to conduct the DVO hearing within 14 days of the EPO. It did not, and as

such, KRS Chapter 403 does not provide a basis for granting Appellant the relief

sought. We find no error on this issue.

Appellant goes on to argue that the circuit court committed reversiable

error in failing to give him a meaningful opportunity to be heard. He asserts that

the court improperly limited his examination of Appellee at the DVO hearing, and

did not allow him to call additional witnesses to fully develop the record and

demonstrate the insufficiency of Appellee’s evidence. He argues that but for this

error, the evidence would have been insufficient to support the DVO.

Appellant does not reveal what testimony he was prevented from

eliciting from Appellant to refute her claims or to bolster his defense. Similarly, he

does not divulge which additional witnesses he would have called, the nature of

their expected testimony, nor how such testimony would have refuted Appellee’s

allegations. We will not speculate as to what might have occurred had Appellant

-6- engaged in the additional examination of witnesses, and have no basis for finding

error on this issue.

Lastly, Appellant argues that the circuit court erred in finding

evidence sufficient to conclude that acts of domestic violence had occurred and

were likely to occur again. He maintains that Appellee failed to provide specific

examples of the alleged abuse perpetuated by Appellant and failed to provide

evidence other than her testimony in support of her assertions. He points out that

Appellee acknowledged that one child may have suffered a broken arm at the

chiropractor rather than as a result of domestic violence, and admitted that every

serious injury to the child may have occurred in an automobile accident prior to the

filing of the petition. Appellant also argues that Appellee’s photographic evidence

was inconclusive or misleading.

As noted above, we must determine if the circuit court’s findings were

clearly erroneous and if the decision constituted an abuse of discretion. Gibson,

supra. An abuse of discretion occurs if the trial court’s ruling is “arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.” English, 993

S.W.2d at 945. Appellee testified that Appellant would be rough with the parties’

son; that Appellant would sling him around by the arm; and, that Appellant would

smack their daughter in the mouth causing her to bleed. She also produced

-7- photographs of what she stated was blood on the floor resulting from domestic

violence, and an abrasion on a child’s arm caused by Appellant.

Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses” because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, “[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal,” and appellate courts should not disturb trial court findings that are supported by substantial evidence.

Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnotes and citations

omitted).

In exercising its exclusive province to judge the weight and credibility

of the evidence, id., the Russell Circuit Court found Appellee’s testimony and

evidence more credible than that of Appellant. Further, Appellee had the relatively

low burden of proving by a preponderance of the evidence, i.e., “more likely than

not,” that domestic violence had occurred and was likely to occur again. Baird v.

Baird, 234 S.W.3d 385, 387 (Ky. App. 2007). Appellee’s testimony, taken alone,

was sufficient to meet this burden. We find no error.

CONCLUSION

Appellant failed to demonstrate that the continuance of the initial

DVO hearing required the DVO to be vacated. His claim that additional

examination of Appellee, or the calling of additional witnesses, would have

-8- changed the outcome of the proceeding is purely speculative. As such, it does not

form a basis for vacating the order on appeal. Finally, Appellee’s testimony, taken

alone, was sufficient to meet her burden of proving that domestic violence had

occurred and was likely to occur again. The circuit court’s ruling was not

arbitrary, unreasonable, unfair, nor unsupported by sound legal principles.

English, supra. For these reasons, we find no error and affirm the domestic

violence order of the Russell Circuit Court.

ALL CONCUR.

BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEES.

Logan Forsythe Lexington, Kentucky

-9-