Zachary W. Miotke v. Chase Michael Chaney

• Court: Court of Appeals of Kentucky
• Decided: August 27, 2020
• Docket: 2020 CA 000273
• Status: Unknown

Opinion

RENDERED: AUGUST 28, 2020; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2020-CA-000273-ME

ZACHARY W. MIOTKE APPELLANT

APPEAL FROM PIKE CIRCUIT COURT v. HONORABLE W. KENT VARNEY, JUDGE ACTION NO. 19-D-00229-001

CHASE MICHAEL CHANEY APPELLEE

OPINION AFFIRMING

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

DIXON, JUDGE: Zachary W. Miotke (“Zach”) appeals from the January 27,

2020, domestic violence order (DVO) entered by the Pike Circuit Court in favor of

his minor stepchildren, G.C. and I.C.1 After careful review of the record, briefs,

and law, and finding no error, we affirm.

1 Pursuant to the policy of this Court, to protect the privacy of minors, we refer to them only by their initials. The petition was filed by the children’s father, Chase Michael Chaney. FACTS AND PROCEDURAL BACKGROUND

On December 23, 2019, a petition/motion for order of protection was

filed against Zach, alleging that he threatened to physically hit G.C. and I.C.2

during visits with their mother, Elizabeth Ann Miotke, including visits in August

and November 2019. It further alleged that on November 29, 2019, Zach attacked

the family dog, causing the children to hide and cry. According to the petition, one

of the children stated that anyone who abuses animals should die, and as she went

into a bedroom, Zach followed and screamed that if he needed to die, f*** her.3

The petitioner stated he was “afraid to send the girls in fear they will be harmed by

[Zach] as he has already put his hands on their older sister before resulting in [an]

EPO.”4 The trial court entered an EPO on the same day the petition was filed.

A hearing on the petition was held on January 27, 2020. Zach and

Elizabeth testified in open court, G.C. and I.C. testified in chambers, and the girls’

older sister testified via telephone.5 Both G.C. and I.C. testified that Zach had

threatened to hit them and that they had seen him hit their older sister and pull her

hair. G.C. testified that Zach had hit her in the shoulder and arms when she was

2 Eleven-year-old twin girls. 3 The petition contained the actual profanity. 4 Emergency protective order. 5 The older sister was 17 at the time of the hearing.

-2- about six or seven, as well as in August 2019. She also testified he had recently

drug her by her hair, yelling at her to get “on the wall”—the phrase used by the

family for time-out. I.C. testified that Zach had never actually hit her, nor had she

seen him hit or pull G.C.’s hair. Zach and Elizabeth denied the children’s

allegations, as did the older sister. In fact, the older sister admitted she had

fabricated her own past allegations of abuse in order to live with her father instead

of her mother and Zach. When asked about the fabrications, she said she could not

recall. Her mother’s testimony was substantially the same.

On January 27, 2020, the trial court entered its DVO against Zach,

and this appeal followed.

STANDARD OF REVIEW

To enter a DVO, the court must determine that a petitioner has shown

by a preponderance of the evidence an act of domestic violence has occurred and

may occur again. KRS6 403.750; see also Bissell v. Baumgardner, 236 S.W.3d 24,

29 (Ky. App. 2007). Additionally, the court must decide a petitioner is more likely

than not to have been a victim of domestic violence. Baird v. Baird, 234 S.W.3d

385, 387 (Ky. App. 2007); Wright v. Wright, 181 S.W.3d 49, 52 (Ky. App. 2005).

Our review is not to determine whether we would have decided the case differently

but, rather, whether the trial court’s findings were clearly erroneous or constituted

6 Kentucky Revised Statutes.

-3- an abuse of discretion. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982); see

also Carpenter v. Schlomann, 336 S.W.3d 129, 130 (Ky. App. 2011).

CR7 52.01 provides that a trial court’s “[f]indings of fact, shall not be

set aside unless clearly erroneous, and due regard shall be given to the opportunity

of the trial court to judge the credibility of the witnesses.” See also Reichle v.

Reichle, 719 S.W.2d 442, 444 (Ky. 1986). Findings are not clearly erroneous if

they are supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354

(Ky. 2003). Substantial evidence is evidence of sufficient probative value which

would permit a reasonable mind to accept as adequate the factual determinations of

the trial court. Id. A reviewing Court must give due regard to the trial court’s

judgment on the credibility of the witnesses. Id.

SUFFICIENCY OF ALLEGATIONS

On appeal, Zach contends the trial court erred in issuing a DVO

because the petition failed to allege physical abuse or physical injury, or threats of

the same, as required by KRS 403.730(1)(c), a subsection which does not exist.

However, KRS 403.725(3)(c) requires a petition contain the “facts and

circumstances which constitute the basis for the petition[.]” KRS 403.720(1)

defines domestic violence and abuse as “physical injury, serious physical injury,

7 Kentucky Rules of Civil Procedure.

-4- . . . or the infliction of fear of imminent physical injury, serious physical injury,

. . . between family members[.]” Here, the petition clearly included allegations of

threats of physical injury. Thus, the petition was properly considered by the court.

FEAR OF IMMINENT INJURY

In the case herein, evidence of violence and harm was presented, as

was testimony regarding infliction of fear of imminent injury, abuse, or assault.

Contrary to Zach’s argument, the children testified that their fear of imminent

physical injury was caused by Zach’s continued threats to them, as opposed to the

coaching of their father or grandmother. Zach’s argument that the fear was

instilled by third parties is unsupported by the record. The court’s findings on this

point were supported by substantial evidence and will not be overturned.

SUFFICIENCY OF EVIDENCE

Zach’s final argument is that the court’s findings are not supported by

a preponderance of the evidence. However, evidence of past physical threats and

abuse, as well as the children’s fear of imminent harm, support the trial court’s

conclusion. Although these acts are disputed by the parties, the evidence presented

was sufficient to rise to the level of domestic violence, as the term is statutorily

defined. As such, the court’s findings were not entered against the weight of the

evidence and did not amount to an abuse of discretion.

-5- CONCLUSION

Therefore, and for the foregoing reasons, the domestic violence order

entered by the Pike Circuit Court is AFFIRMED.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Lawrence R. Webster Amber Hunt Sisco Pikeville, Kentucky Pikeville, Kentucky

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