Danette Kim Divine v. Cami Gibson ( 2021 )


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  •                 RENDERED: OCTOBER 29, 2021; 10:00 A.M.
    NOT TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2020-CA-0905-ME
    DANETTE KIM DIVINE                                                  APPELLANT
    APPEAL FROM BOYLE CIRCUIT COURT
    v.                    FAMILY COURT DIVISION
    HONORABLE DOUGLAS BRUCE PETRIE, JUDGE
    ACTION NO. 20-D-00065-001
    CAMI GIBSON                                                           APPELLEE
    OPINION
    AFFIRMING
    ** ** ** ** **
    BEFORE: JONES, MAZE, AND TAYLOR, JUDGES.
    TAYLOR, JUDGE: Danette Kim Divine brings this appeal from an Interpersonal
    Protective Order entered June 18, 2020, by the Boyle Circuit Court, Family Court
    Division. We affirm.
    On May 26, 2020, Cami Gibson filed an Interpersonal Protective
    Order (IPO) against Divine, who is Gibson’s mother. In the petition, Gibson
    claimed that Divine was stalking her and that she feared Divine. The family court
    conducted an evidentiary hearing and rendered an IPO against Divine on June 18,
    2020. This appeal follows.
    We begin our review by noting that Gibson failed to file an appellee
    brief in this case. Kentucky Rules of Civil Procedure (CR) 76.12(8)(c) “provides
    the range of penalties that may be levied against an appellee for failing to file a
    timely brief.” St. Joseph Catholic Orphan Soc’y v. Edwards, 
    449 S.W.3d 727
    , 732
    (Ky. 2014). This Court may “(i) accept the appellant’s statement of the facts and
    issues as correct; (ii) reverse the judgment if appellant’s brief reasonably appears
    to sustain such action; or (iii) regard the appellee’s failure as a confession of error
    and reverse the judgment without considering the merits of the case.” CR
    76.12(8)(c). For purposes of this appeal, we accept Divine’s statement of facts as
    set forth in her brief, subject to our independent review of the entire record on
    appeal.
    Upon review of a petition for an IPO for stalking, if the family court
    concludes a basis for the petition does exist, the court shall conduct an evidentiary
    hearing. Kentucky Revised Statutes (KRS) 456.040(1)(a). In this case, the court
    conducted the hearing and made necessary findings of fact. We review the family
    court’s findings of fact under the clearly erroneous standard. Jones v. Jones, 
    617 S.W.3d 418
    , 423 (Ky. App. 2021); CR 52.01. A finding of fact is clearly
    erroneous if not supported by substantial evidence of a probative value. 
    Id.
     And,
    -2-
    we review any issues of law de novo. Halloway v. Simmons, 
    532 S.W.3d 158
    , 161
    (Ky. App. 2017).
    Divine’s initial argument is that the family court committed reversible
    error by denying her motion for continuance at the time of the evidentiary hearing.
    Divine points out that she was involved in a motor vehicle accident on May 28,
    2020, and was unable to testify at the hearing due to certain medications she was
    taking. Divine argues that she lacked the capacity to meaningfully participate at
    the hearing and that the family court erred by denying her motion for continuance.
    The family court’s decision as to whether to grant a continuance
    “depends upon the unique facts and circumstances” presented in each case.
    Snodgrass v. Commonwealth, 
    814 S.W.2d 579
    , 581 (Ky. 1991) overruled on other
    grounds by Lawson v. Commonwealth, 
    53 S.W.3d 534
     (Ky. 2001). The following
    factors should be considered by the family court:
    1) length of delay;
    2) previous continuances;
    3) inconveniences to litigants, witnesses, counsel, and the
    court;
    4) whether the delay is purposeful or is caused by the
    accused;
    5) availability of other competent counsel;
    6) complexity of the case; and
    -3-
    7) whether denying the continuance will lead to
    identifiable prejudice[.]
    Guffey v. Guffey, 
    323 S.W.3d 369
    , 371 (Ky. App. 2010) (quoting Snodgrass, 814
    S.W.2d at 581). Our standard of review on this issue focuses upon whether the
    family court abused its discretion. Guffey, 
    323 S.W.3d at 371
    .
    At the hearing, as noted, Divine sought a continuance based upon her
    alleged incapacity to testify due to medications she was taking as a result of the
    motor vehicle accident.1 The family court denied the motion for continuance but
    indicated it would consider Divine’s competency to testify when she was called to
    testify. However, Divine was not called to testify as a witness at the hearing.
    Moreover, the record reveals that while Divine’s motor vehicle accident took place
    on May 28, 2020, the hearing was held three weeks later on June 18, 2020. Divine
    also failed to specify what prescribed medications she was taking that resulted in
    her incapacity. Upon review of the record, we cannot conclude that the family
    court abused its discretion by denying Divine’s motion for continuance.
    Divine next maintains the family court erroneously determined that
    she stalked Gibson and that Gibson was entitled to an IPO. Divine argues that the
    family court incorrectly applied the law as found in KRS 456.060. In particular,
    Divine asserts that the family court failed to find that she intentionally committed
    1
    Due to COVID-19 precautions, the hearing was held remotely and Danette Kim Divine
    participated by telephone.
    -4-
    two or more acts toward Gibson that would seriously alarm, annoy, or intimidate
    and cause a reasonable person to suffer mental distress. Additionally, Divine
    argues that her conduct served a legitimate purpose as she wished to visit her
    mother, who was Gibson’s grandmother and over whom Gibson was appointed
    guardian.2 Divine believes that “a desire to see one’s own ailing mother and adult
    child is clearly a legitimate purpose.” Divine’s Brief at 10. Divine further
    maintains that the family court’s findings of fact are not supported by substantial
    evidence. Divine maintains there was a lack of sufficient evidence to demonstrate
    that Gibson was in reasonable fear of injury due to Divine’s alleged implicit
    threats.
    Under KRS 456.030(1), a victim of stalking may file a petition for an
    IPO. After conducting an evidentiary hearing, the family court may render an IPO
    if it finds by a preponderance of the evidence that stalking has occurred and may
    occur again. KRS 456.060(1). To be entitled to an IPO based upon stalking, the
    victim must demonstrate:
    [H]e or she must at a minimum prove by a preponderance
    of the evidence that, an individual intentionally engaged
    in two or more acts directed at the victim that seriously
    alarmed, annoyed, intimidated, or harassed the victim,
    that served no legitimate purpose, and would have caused
    a reasonable person to suffer substantial mental distress,
    and that these acts may occur again. KRS 508.130 and
    KRS 456.060. Additionally, the individual must prove
    2
    It appears that Divine’s mother suffers from dementia.
    -5-
    that there was an implicit or explicit threat by the
    perpetrator that put the victim in reasonable fear of
    sexual contact, physical injury, or death. KRS 508.150.
    Halloway, 532 S.W.3d at 162.
    At the hearing, Gibson testified that Divine was angry because Gibson
    was appointed guardian for Divine’s mother, who is also Gibson’s maternal
    grandmother. Gibson stated that Divine was addicted to illegal drugs and had been
    wrongfully utilizing her mother’s funds to purchase same. Gibson also maintained
    that Divine was only recently released from jail and came to Gibson’s residence
    agitated. According to Gibson, Divine also texted Gibson wanting to see her
    mother and had driven by Gibson’s house several times. Gibson further testified
    that Divine had been physically abusive to her in the past and that Gibson was
    presently fearful of Divine. Gibson also recounted that Divine had shot her
    husband, Gibson’s father, when Gibson was young and living at home. Gibson
    related a violent pattern of conduct over Divine’s adult life and a pattern of
    threatening behavior by Divine toward Gibson. The family court also took judicial
    notice of Divine’s guilty plea to possession of a firearm by a convicted felon.
    Based upon our review of the evidence considered by the family court, there
    existed substantial evidence that Divine intentionally committed at least two acts
    directed at Gibson that seriously annoyed, alarmed, and harassed Gibson and that
    would have caused a reasonable person to suffer substantial mental distress. See
    -6-
    Halloway, 532 S.W.3d at 162. And, substantial evidence was presented that
    Divine’s acts constituted an implicit threat that put Gibson in reasonable fear of
    physical injury. See id. We, thus, conclude that the family court did not commit
    an error of law and the family court’s findings of fact as to Divine’s stalking were
    supported by substantial evidence and thus, not clearly erroneous.
    Divine further asserts that the family court improperly considered
    hearsay testimony. Divine maintains that Gibson made “statements . . . about what
    other people told her about [Divine’s] behavior and statements made by nonparty
    and non-testifying individuals.” Divine’s Brief at 10. However, Divine fails to
    cite this Court to the particular “statements” that allegedly constituted hearsay and
    fails to cite this Court to the videotape record of the hearing identifying those
    hearsay statements made by Gibson during her testimony. Moreover, Divine does
    not indicate in her brief whether or how this issue was preserved for appellate
    review. CR 76.12(4)(c)(v). We will not search the hearing record in an effort to
    discover these alleged hearsay statements; it is simply not the function of the Court
    of Appeals. See Feltner v. PJ Operations, LLC, 
    568 S.W.3d 1
    , 7 (Ky. App. 2018).
    Thus, we will not consider this argument on appeal. Am. Founders Bank, Inc. v.
    Moden Invs., LLC, 
    432 S.W.3d 715
    , 721 (Ky. App. 2014).
    In sum, we are of the opinion that the family court did not commit
    reversible error by issuing the IPO against Divine.
    -7-
    For the foregoing reasons, this appeal is affirmed.
    ALL CONCUR.
    BRIEF FOR APPELLANT:                   NO BRIEF FOR APPELLEE.
    Dawn L. McCauley
    Lebanon, Kentucky
    -8-
    

Document Info

Docket Number: 2020 CA 000905

Filed Date: 10/28/2021

Precedential Status: Precedential

Modified Date: 11/5/2021