Ronald Scott Arnold v. Blanche Arnold

• Court: Court of Appeals of Kentucky
• Decided: February 24, 2022
• Docket: 2021 CA 001100
• Status: Unknown

Opinion

RENDERED: FEBRUARY 25, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-1100-ME

RONALD SCOTT ARNOLD APPELLANT

APPEAL FROM LEE CIRCUIT COURT v. HONORABLE MICHAEL DEAN, JUDGE ACTION NO. 21-D-00024-001

BLANCHE ARNOLD APPELLEE

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES.

CLAYTON, CHIEF JUDGE: Ronald Scott Arnold appeals from the Lee Circuit

Court’s entry of a domestic violence order (“DVO”) against him. Mr. Arnold

argues that the trial court denied him a meaningful hearing as required by

Kentucky statutes. Mr. Arnold further contends that the court’s finding by a preponderance of the evidence that Mr. Arnold had committed domestic violence

was clearly erroneous.

We agree with Mr. Arnold that the trial court erred in finding that he

had committed acts of domestic violence against his wife because such finding was

unsupported by a preponderance of the evidence. Thus, we reverse and remand

this matter to the Lee Circuit Court, with instructions to vacate the DVO entered on

August 4, 2021, and dismiss the petition filed against Mr. Arnold without prejudice

pursuant to Kentucky Revised Statutes (“KRS”) 403.730(1)(a).

FACTUAL AND PROCEDURAL BACKGROUND

On July 30, 2021, Blanche Arnold, who had initiated a dissolution

action against Mr. Arnold the preceding June after approximately forty years of

marriage, filed a petition/motion for order of protection (the “Petition”). The

Petition alleged that Mr. Arnold had engaged in acts of domestic violence and

abuse on or about July 29, 2021. Ms. Arnold’s factual statement reads as follows:

[Mr. Arnold] became very agitated accusing [Ms. Arnold] and son of removing items from the home and all the while [Ms. Arnold] and son were at work and serving on grand jury. He is mis[-]using his prescription medication and buying off the street. He threatened to “cut his son’s guts out” and was very aggressive the entire day to both of them.

[Mr. Arnold] returned home today – 7-30-2021 and started same behavior. He is walking around the house carrying a slap stick and made family members leave. I fear for my safety and the safety of our adult son’s life.

-2- Our 2 yr old granddaughter has to return Sunday and this is not an environment for this child to be in. He need[s] help.

The Petition further alleged that a weapon was involved and that Mr. Arnold could

be armed and dangerous.

The Lee Circuit Court thereafter issued an emergency protective order

(“EPO”) and summons, which was served on Mr. Arnold that same day. The

Summons indicated that the court had scheduled a hearing for August 4, 2021, at

9:30.

On August 4, 2021, the trial court held a hearing on both Ms. Arnold’s

previous motion for a status quo order in the parties’ divorce case and regarding

the Petition. Mr. Arnold’s counsel was not present at the hearing, although he had

previously entered an appearance on behalf of Mr. Arnold. After ruling on the

status quo motion, the court indicated that it would hear evidence regarding the

Petition.

After being sworn in, Ms. Arnold testified that she reaffirmed the

statements in her DVO petition. Ms. Arnold further testified that Mr. Arnold was

abusing his prescription medicine but that Mr. Arnold would not admit to such

abuse and would not accept help. Ms. Arnold further testified that Mr. Arnold was

verbally abusive, belligerent, that the parties “needed to be apart,” and “that this

needed to be over.” Ms. Arnold also indicated that Mr. Arnold’s behavior had

-3- been “escalating” recently, that he had told her he would “like to mash [her]

mouth,” that he had stood in front of the door when she was trying to leave to go to

work and had grabbed her arm. While Ms. Arnold said she “did not necessarily

fear” for herself or her family, she did “worry.” Ms. Arnold also testified that, on

one occasion, Mr. Arnold had a “slap jack” in his possession and that she was

“sure” that he had a knife with him on that same occasion.

The trial court next inquired whether Mr. Arnold had any questions

for Ms. Arnold. Mr. Arnold replied in the affirmative, but instead of asking any

questions, made a series of mostly unintelligible unsworn statements attempting to

rebut Ms. Arnold’s testimony.

Thereafter, the parties’ adult son was called as a witness and sworn in.

Although his testimony is also unclear, his testimony appears to center around an

altercation between him and Mr. Arnold. Although both parties exchanged verbal

threats, and there were allegations that Mr. Arnold had a knife and his son had a

gun, neither party testified that anything physical occurred, and the police

eventually arrived at the scene. After his son’s testimony, the court swore in Mr.

Arnold, who provided a rebuttal, which again is very hard to decipher from the

videotaped record of the proceedings.

At the conclusion of the hearing, the court granted Ms. Arnold’s

Petition, stating, “clearly, you two need to separate . . . the question is, where is

-4- [Mr. Arnold] gonna go?” After Mr. Arnold answered that he had been staying at a

friend’s house, the court stated, “that solves it.” The court subsequently entered an

order finding that Mr. Arnold had committed domestic violence against Ms.

Arnold and that domestic violence may occur again. The DVO was effective until

January 1, 2023, and restrained Mr. Arnold from contact with Ms. Arnold and the

parties’ adult son except “as agreed.” This appeal followed.

ANALYSIS

a. Meaningful Hearing

Mr. Arnold first argues that the trial court denied him a “meaningful”

hearing as required by KRS 403.730(1)(a). KRS 403.730(1)(a) states that, upon

receiving a petition for an order of protection, “the court shall summons the parties

to an evidentiary hearing not more than fourteen (14) days in the future.”

Moreover, “the Kentucky Court of Appeals [has] made it clear that due process

requires, at the minimum, that each party be given a meaningful opportunity to be

heard.” Wright v. Wright, 181 S.W.3d 49, 53 (Ky. App. 2005) (internal quotation

marks and citation omitted) (emphasis added). In Holt v. Holt, the Court explained

the phrase “meaningful opportunity to be heard” as the court’s permitting “each

party to present evidence and give sworn testimony before making a decision.”

458 S.W.3d 806, 813 (Ky. App. 2015) (citation omitted).

-5- In Wright, a panel of this Court examined two cases on appeal and

determined that neither trial court had held a “full hearing” as required by the

applicable statutes. 188 S.W.3d at 53. In the first matter, the trial court had

entered a DVO without any testimony being taken from either party and had

impermissibly relied upon extrajudicial evidence in entering the DVO. Id. In the

second matter, the trial court did not permit the petitioner to complete her

testimony, interrupted her attorney, and dismissed the case after only three

questions had been asked on direct examination. Id. As a result, the Court of

Appeals concluded that the evidence taken in each of the limited proceedings was

insufficient and remanded both matters for a “‘full hearing’ as contemplated by the

statute, comprised of the full testimony of any appropriate witnesses sought to be

presented.” Id.

Similarly, in Abdur-Rahman v. Peterson, 338 S.W.3d 823, 828 (Ky.

App. 2011), the trial court issued a DVO after refusing to permit the respondent to

call a witness he had specifically requested to contact. On appeal, this Court held

that the trial court had denied the respondent a full hearing by excluding one of the

witnesses and remanded the matter for a full hearing including all relevant

testimony. Id.

Finally, in Rankin v. Criswell, 277 S.W.3d 621, 623-24 (Ky. App.

2008), the trial court’s issuance of an EPO was based upon statements in the

-6- written petition as well as the content of two dependency files that were not

admitted into evidence. A panel of this Court determined that the seven-minute

hearing, which was devoid of testimony by the petitioner, was inadequate. Id. at

625-26.

In this case, unlike the litigants in Wright, Abdur-Rahman, and

Rankin, the trial court set no limitations on the presentation of Mr. Arnold’s

testimony or other evidence. The court provided Mr. Arnold with the opportunity

to cross-examine both Ms. Arnold and his son while they were under oath.

Moreover, while the court did not swear Mr. Arnold in until after his son’s

testimony, and although Mr. Arnold’s response was difficult to hear on the

videotaped recording of the hearing, the trial court appeared to hear and understand

everything in Mr. Arnold’s sworn response. The court even went so far as to

overrule an objection by Ms. Arnold’s attorney and questioned Mr. Arnold

concerning his response to his son’s testimony. The court did not foreclose Mr.

Arnold’s presentation of any additional evidence or testimony. Thus, we cannot

say that Mr. Arnold was hindered from “present[ing] evidence and giv[ing] sworn

testimony” before the court made its decision. Holt, 458 S.W.3d at 813.

Additionally, although Mr. Arnold’s counsel did not appear at the

hearing, Mr. Arnold was provided with proper service of the Petition and

Summons, which clearly stated that the court would hold a hearing on the matter

-7- on August 4, 2021. Moreover, the record reflects that the trial court attempted to

contact Mr. Arnold’s counsel via telephone prior to beginning the DVO hearing.

Accordingly, we conclude that Mr. Arnold was provided with a meaningful

hearing as required by statute and in accordance with due process prior to entry of

the DVO against him.

b. Domestic Violence or Abuse

Mr. Arnold next asserts that the evidence presented at the hearing was

not sufficient proof beyond a preponderance that Mr. Arnold had committed

domestic violence and abuse against Ms. Arnold. This Court has previously noted

that, pursuant to Kentucky Rule of Civil Procedure (“CR”) 52.01:

a trial court’s findings of fact may be set aside if clearly erroneous. However, we are mindful that in reviewing the decision of a trial court 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. Abuse of discretion occurs when a court’s decision is unreasonable or unfair.

Gomez v. Gomez, 254 S.W.3d 838, 842 (Ky. App. 2008) (citation omitted). “The

test for abuse of discretion is whether the trial judge’s decision was arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire

and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citation omitted).

The General Assembly enacted KRS 403.715 to 403.785 to allow

victims of domestic violence and abuse to, among other reasons, “obtain effective,

-8- short-term protection against further wrongful conduct in order that their lives may

be as secure and as uninterrupted as possible[.]” KRS 403.715(1). KRS

403.740(1) permits a court to issue a DVO if, following an evidentiary hearing, the

court “finds by a preponderance of the evidence that domestic violence and abuse

has occurred and may again occur[.]” KRS 403.720(1) 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[.]” “Physical injury” is defined in Kentucky’s

Penal Code as “substantial physical pain or any impairment of physical

condition[.]” KRS 500.080(13).

Nevertheless, as discussed by a panel of this Court in Wright, “the

impact of having an EPO or DVO entered improperly, hastily, or without a valid

basis can have a devastating effect on the alleged perpetrator.” 181 S.W.3d at 52.

Indeed, “there are severe consequences, such as the immediate loss of one’s

children, home, financial resources, employment, and dignity.” Id. Additionally,

“one becomes subject to immediate arrest, imprisonment, and incarceration for up

to one year for the violation of a court order, no matter what the situation or

circumstances might be.” Id.

-9- In the present case, while Ms. Arnold stated that Mr. Arnold had

engaged in inappropriate verbal language and that the parties frequently argued,

she also said that she was not necessarily “fearful” but more “worried” about Mr.

Arnold’s behavior. Ms. Arnold’s only allegation of unwanted physical contact

with her was that Mr. Arnold had grabbed her arm during an argument and told her

that she could not go to work until she helped him find a specific item. We do not

believe that this incident rises to the level of “physical injury” described in KRS

500.080(13).

Moreover, while Ms. Arnold alleges one incident in which Mr. Arnold

had a “slap jack” and possibly a knife and that he did not want anyone coming into

the house, she did not allege or testify that he had threatened her with the weapons

or that she was imminently fearful that he would use them against her. We see no

evidence in the record that Ms. Arnold proved by a preponderance of the evidence

that Mr. Arnold had made any specific threats of imminent violence against Ms.

Arnold.

Additionally, the parties’ twenty-six-year-old son testified about an

altercation between him and Mr. Arnold. However, Ms. Arnold provided no

testimony regarding this incident. There was no dispute that Ms. Arnold – and Ms.

Arnold alone – was the petitioner in this action and that at the times of the

incidents in question, Mr. Arnold had every right to be at his home. The parties’

-10- adult son could have sought his own EPO against Mr. Arnold, but he did not do so.

Consequently, the trial court erred in finding that Mr. Arnold committed domestic

violence or abuse against Ms. Arnold.

CONCLUSION

For the foregoing reasons, we reverse and remand this matter to Lee

Circuit Court, with instructions to vacate the DVO entered on August 4, 2021, and

dismiss the Petition without prejudice pursuant to KRS 403.730(1)(a).

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Thomas P. Jones Jean Kelley Cunningham Beattyville, Kentucky Shelbyville, Kentucky

-11-