Ryan Drais v. Michelle A. Drais

• Court: Court of Appeals of Kentucky
• Decided: May 12, 2022
• Docket: 2021 CA 000712
• Status: Unknown

Opinion

RENDERED: MAY 13, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0712-ME

RYAN DRAIS APPELLANT

APPEAL FROM BOONE CIRCUIT COURT v. HONORABLE LINDA R. BRAMLAGE, JUDGE ACTION NOS. 21-D-00018-002 AND 21-D-00018-003

MICHELLE A. DRAIS APPELLEE

OPINION AFFIRMING

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BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.

ACREE, JUDGE: Ryan Drais appeals the Boone Circuit Court order dismissing

his petition for a domestic violence order (DVO) against Michelle A. Drais.

Additionally, he appeals a DVO issued by the same court upon Michelle’s petition.

After reviewing the record, we affirm.

Ryan and Michelle are married but are currently divorcing. At issue

in this appeal are two separate Boone Circuit Court DVO actions: Nos. 21-D- 00018-002 and 21-D-00018-003. In the first, Michelle sought a DVO based on

two events. She claimed Ryan pointed a firearm at the couple’s youngest child

and, on another occasion, Ryan tackled her to the ground to get her cellphone. In

the second DVO action, Ryan alleged Michelle threatened to burn his social

security card and birth certificate. He said he remained fearful of his safety and his

children’s safety. He also produced a thirteen second video, in which Michelle

states: “I’m going to fucking kill you.” The circuit court found Michelle’s

allegation in the first action constituted acts of domestic violence but concluded the

acts Ryan alleged did not constitute acts of domestic violence. Consequently, the

circuit court granted Michelle’s DVO against Ryan and denied Ryan’s DVO

against Michelle.

On appeal, Ryan argues the circuit court erred when it granted

Michelle’s DVO and dismissed his. He requests this court to either reverse the

DVO granted to Michelle or reverse the order denying his petition against

Michelle. We decline to reverse either order.

Appellate courts may overturn a circuit court’s order regarding a DVO

petition only when the order is based on clearly erroneous factfinding, or when the

circuit court has abused its substantial discretion. Reichle v. Reichle, 719 S.W.2d

442, 444 (Ky. 1986) (citing Bennett v. Horton, 592 S.W.2d 460, 464 (Ky. 1979)).

-2- A circuit court has the discretion to grant a DVO “if [it] finds by a

preponderance of the evidence that domestic violence and abuse has occurred and

may again occur[.]” KRS1 403.740. “The preponderance of the evidence standard

is satisfied when sufficient evidence establishes the alleged victim was more likely

than not to have been a victim of domestic violence.” Caudill v. Caudill, 318

S.W.3d 112, 114 (Ky. App. 2010). Under KRS 403.720(1), domestic violence and

abuse is: “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[.]”

KRS 403.720(1). Under KRS 500.080(15), a physical injury “means substantial

physical pain or any impairment of physical condition.” KRS 500.080(15).

Having reviewed the record, there exists neither clearly erroneous

findings, nor any abuse of discretion.

In No. 21-D-00018-002, Michelle described two incidents which fall

under behavior enumerated in KRS 403.720(1) that would justify a DVO under

KRS 403.740. Michelle clearly alleged Ryan committed an assault against their

daughter and against her. Under our statutory scheme, KRS 403.740 gives a

circuit court the discretion to engage in factfinding and weigh the evidence it hears.

See KRS 403.740. The circuit court found, by the preponderance of the evidence,

1 Kentucky Revised Statutes.

-3- that Ryan assaulted their child and physically abused Michelle and that this

behavior would likely occur again. Michelle presented multiple instances of

Ryan’s violent behavior, and the circuit court appropriately weighed the credibility

of this testimony. Consequently, it granted the DVO Michelle requested. In doing

so, the circuit court did not abuse its discretion.

Further, after review of the record, it does not appear Ryan alleged

behavior appropriate for a DVO under KRS 403.720(1). Ryan merely alleges

Michelle threatened to destroy his property, which does not fall under the conduct

enumerated in KRS 403.720. See KRS 403.720. He never alleged Michelle

injured him or acted violently toward him. Although he did produce a video in

which Michelle threatens to kill him, the record does not show this threat created a

“fear of imminent” physical injury.

In Fraley v. Rice-Fraley, this Court reversed a DVO when a wife the

DVO was intended to protect contradicted herself regarding whether she feared for

her safety from her husband and testified he never acted violently toward her or

injured her. 313 S.W.3d 635, 636-38 (Ky. App. 2010). Ryan has not contradicted

himself because he presented no affirmative evidence of fear or harm that he could

contradict. He alleged no acts of violence and no episodes when Michelle acted

violently toward him as did the wife in Fraley. Further, even if this video did

constitute the requisite behavior, an important prong of the DVO requirements, set

-4- forth in KRS 403.740, is that the circuit court must find the abuse may occur again.

KRS 403.740. “Stale actions alone are insufficient to prove domestic violence

may again occur.” Overstreet v. Overstreet, No. 2021-CA-0756-ME, 2022 WL

67770, at *1-2 (Ky. App. Jan. 7, 2022) (citing Kouns v. Kemper, No. 2020-CA-

1335-ME, 2021 WL 3435538, at *9 (Ky. App. Aug. 6, 2021)). The circuit court

did not find, and we are directed to no proof, that Michelle’s action toward him

was more than a one-off incident – a stale action. There is no basis for concluding

the threat would occur again.

Thus, the circuit court did not err in finding, by a preponderance of

the evidence, Ryan did not allege facts sufficient to justify a DVO under KRS

403.740.

Accordingly, we affirm the decisions in both cases.

ALL CONCUR.

BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.

James G. Noll Newport, Kentucky

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