Jordan C. Tredway v. Emily Meaghan Mickelson ( 2021 )

RENDERED: SEPTEMBER 3, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1522-ME
JORDAN C. TREDWAY APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE M. BRENT HALL, JUDGE
ACTION NO. 20-D-00547-001
EMILY MEAGHAN MICKELSON;
R.D., A MINOR; AND
J.T., A MINOR APPELLEES
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; MAZE, AND K. THOMPSON,
JUDGES.
MAZE, JUDGE: Jordan C. Tredway appeals the entry of a domestic violence
order (DVO) restraining him: 1) from committing further acts of abuse or threats
of abuse against appellee Emily Meaghan Mickelson and her children; 2) from any
unauthorized contact with Mickelson and her children; 3) from going to or within
500 feet of her mother’s residence and the children’s schools; and 4) from
disposing of or damaging any of the parties’ property. In addition, the family court
ordered Tredway to complete a mental health evaluation and to surrender all
weapons to the Hardin County Sheriff’s Office. We affirm.
On October 27, 2020, Mickelson sought an order of protection
supported by the following notarized voluntary statement in which she alleged:
Jordan Tredway began using meth July of 2019 and
became abusive towards me and my children. He said he
would stop and get help but over the past 2 months it got
worse. He would spank my children, confine them to
their rooms when he was home. Once, he hit my son
[J.T] with his hand in the face causing a nose bleed, that
was a month or two ago. He would scream at [J.T.] and
[R.D.] and spank them even though I told him I was not
okay with it. I left October 15 and since then he has been
harassing me and threatened my life saying “If I wanted
you dead there would be nothing you could do to stop
me.” He is watching my current house because he only
contacts me when my mother leaves. He has ptsd and
severe anger issues. He drew his fist back to hit me a
few days before I left. I’ve seen him become very
violent when he’s intoxicated such as pistol whipping his
best friend during a fight.
The family court subsequently conducted a hearing on Mickelson’s petition.
At that hearing, the family court heard evidence from Mickelson, her
mother, her brother-in-law, and Tredway. Mickelson testified that she and
Tredway had lived together for about a year and a half; that she and Tredway have
no children together; and that she is sole custodian of two boys aged ten and five.
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Concerning the behavior that precipitated the filing of her petition for an order of
protection, Mickelson stated that Tredway had threatened her life; had pointed both
loaded and unloaded guns at her; had alienated her from family and friends; and
had frightened her so badly when he drew back his fist to strike her that she
urinated on herself. Mickelson also stated that Tredway kept many firearms at the
residence and liked to point them at random people. She testified that Tredway
threatened her when she tried to leave, continues to harass her at her mother’s
home, and will not allow her to retrieve her belongings from his residence.
A significant part of Mickelson’s testimony focused upon Tredway’s
excessive punishment of her children despite the fact that she had informed him
that she did not approve of his manner of disciplining the children. In particular,
she recounted an incident where Tredway hit the five-year-old across the face,
bloodying his nose, and stated that on multiple occasions he had left bruises on the
children from spanking. She stated that Tredway confined the boys to their room
when he was home. Mickelson stated that since she and the boys left Tredway’s
residence and moved in with her mother, Tredway has been harassing her and is
apparently watching the residence because he only contacts her after her mother
leaves the house.
Mickelson’s mother, Kimberly Patterson, testified that Tredway
continues to call Mickelson and stated that her grandchildren are afraid of him.
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She noted that the younger child sometimes wets the bed because Tredway had
caused him to believe he could not use the bathroom without permission.
Mickelson’s brother-in-law, Matthew Jones, testified that he and his wife had
driven from South Carolina to Elizabethtown to help get Mickelson and the boys
away from Tredway. He stated after taking the boys back to South Carolina for a
couple of weeks, they noticed a big change in the children’s behavior as a result of
being away from Tredway. Jones also testified that Tredway had threatened him
and the children and corroborated Mickelson’s testimony that Tredway had
isolated her from family and friends.
Tredway’s testimony consisted of a general denial of the allegations
against him, stating that they were either patently false or wildly exaggerated. He
testified that he had no desire to reconcile with Mickelson and that she had
invented her allegations because he had asked her to move out of his home.
Tredway stated that he had visited Mickelson at her mother’s home only by
invitation or to deliver Mickelson’s prescription refills and other items that she
needed from his home. At the conclusion of the testimony, the family court made
findings on the record supporting his conclusion that the testimony portrayed a
classic case of domestic abuse, warranting entry of the order at issue in this appeal.
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As an initial matter, we note that Mickelson failed to file a brief in this
appeal. CR1 76.12(8)(c) sets out available sanctions for the failure to file an
appellee’s brief: 1) accept the appellant’s statement of the facts and issues as
correct; 2) reverse the judgment if appellant’s brief reasonably appears to sustain
such action; or 3) regard the appellee’s failure as a confession of error and reverse
the judgment without considering the merits of the case. The decision as to the
imposition of these sanctions is a matter committed to our discretion. Roberts v.
Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007). In Ellis v. Ellis, we held that the
sanction of confession of error is inappropriate in appeals involving custody and
support:
As a preliminary matter, we note that Theresa has not filed
a brief in this appeal. While a party’s failure to file a brief
may be taken as a confession of error, CR 76.12(8)(c),
such a sanction is inappropriate in appeals involving child
custody or support. Galloway v. Pruitt, 469 S.W.2d 556,
557 (Ky. 1971). Furthermore, the issues presented in this
appeal may be decided based upon the law and the
undisputed evidence of record.
420 S.W.3d 528, 529 (Ky. App. 2014). We view the principles at work in Ellis as
applying with even greater force where an order of protection is in issue. We
therefore decline to impose any penalty for Mickelson’s failure to file a brief and
1
Kentucky Rule of Civil Procedure.
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will consider Tredway’s arguments for reversal based upon the evidence of record
and applicable statutory and caselaw.
Prior to addressing Tredway’s arguments for reversal, we reiterate this
Court’s explanation of the DVO process and the standard of appellate review set
out in Caudill v. Caudill, 318 S.W.3d 112 (Ky. App. 2010):
Prior to entry of a DVO, the court must find “from a
preponderance of the evidence that an act or acts of
domestic violence and abuse have occurred and may
again occur. . . .” KRS 403.750(1). 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.
Baird v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007).
The definition of domestic violence and abuse, as
expressed in KRS 403.720(1), includes “physical injury,
serious physical injury, sexual abuse, assault, or the
infliction of fear of imminent physical injury, serious
physical injury, sexual abuse, or assault between family
members. . . .” The standard of review for factual
determinations is whether the family court’s finding of
domestic violence was clearly erroneous. CR 52.01;
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). “[I]n reviewing the decision of a
trial court the test is not whether we would have decided
it differently, but whether the findings of the trial judge
were clearly erroneous or that he abused his discretion.”
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982)
(citation omitted). Abuse of discretion occurs when a
court’s decision is unreasonable, unfair, arbitrary or
capricious. Kuprion v. Fitzgerald, 888 S.W.2d 679, 684
(Ky. 1994) (citations omitted).
With these principles in mind, we turn to Tredway’s arguments for reversal.
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Tredway presses three arguments in this appeal: 1) that the family
court failed to consider the statutory prerequisites for inclusion of location
restrictions in the DVO; 2) that the family court erred in allowing testimony as to
events other than those raised in Mickelson’s voluntary statement; and 3) that the
family court failed to properly weigh Mickelson’s self-incriminating testimony.
We perceive no reversible error in any of these contentions.
Tredway first maintains argues that the family court erred in failing to
consider and address the requirements of KRS2 403.740 concerning the imposition
of location restrictions as part of the DVO. Subsection (1) of the statute provides:
(1) Following a hearing ordered under KRS 403.730, if a
court finds by a preponderance of the evidence that
domestic violence and abuse has occurred and may again
occur, the court may issue a domestic violence order:
(a) Restraining the adverse party from:
1. Committing further acts of domestic violence and
abuse;
2. Any unauthorized contact or
communication with the petitioner or other
person specified by the court;
3. Approaching the petitioner or other
person specified by the court within a
distance specified in the order, not to exceed
five hundred (500) feet;
2
Kentucky Revised Statute.
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4. Going to or within a specified distance of
a specifically described residence, school, or
place of employment or area where such a
place is located; and
5. Disposing of or damaging any of the
property of the parties;
Tredway relies upon subsection (2) of the statute to support his contention that the
location restrictions in this case were erroneously imposed:
(2) In imposing a location restriction described in
subsection (1)(a)4. of this section, the court shall:
(a) Afford the petitioner and respondent, if present,
an opportunity to testify on the issue of the
locations and areas from which the respondent
should or should not be excluded;
(b) Only impose a location restriction where there
is a specific, demonstrable danger to the petitioner
or other person protected by the order;
(c) Specifically describe in the order the locations
or areas prohibited to the respondent; and
(d) Consider structuring a restriction so as to allow
the respondent transit through an area if the
respondent does not interrupt his or her travel to
harass, harm, or attempt to harass or harm the
petitioner.
Despite Tredway’s insistence to the contrary, nothing in his argument or the
evidence of record permits us to conclude that the family court failed to properly
consider the statutory factors prior to imposing the location restrictions.
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Review of the statutory factors reinforces our conclusion. First, the
family court afforded Tredway ample opportunity to present whatever evidence he
chose prior to the entry of the DVO containing the location restrictions. Neither
Tredway nor his counsel offered any evidence or argument regarding the
restriction from “[g]oing to or within a specified distance of a specifically
described residence, school. . .” as provided for in KRS 403.740(1)(a)4.
Furthermore, Mickelson’s mother’s home, where she and the children currently
reside, as well as the children’s schools, fit naturally within the contemplation of
KRS 403.740(2)(b) as “location restriction[s] where there is a specific,
demonstrable danger to the petitioner or other person protected by the order.”
Mickelson’s testimony, supported by that of her mother and brother-in-law,
focused upon Tredway’s physical and mental abuse of the children and the fact that
he continues to harass her at her mother’s home. Thus, we view the family court’s
restrictions concerning the residence and the children’s schools as falling well
within the family court’s discretion considering the plain intent of the statute and
the evidence adduced at the hearing.
However, the true nature of Tredway’s complaint about the location
restrictions implicates the dictates of KRS 403.740(2)(d) – that the family court
should consider “structuring a restriction so as to allow the respondent transit
through an area if the respondent does not interrupt his or her travel to harass,
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harm, or attempt to harass or harm the petitioner.” Tredway alleges that the
restriction concerning the children’s schools forces him to deviate from his normal
route to work where he often encounters heavier traffic and delays. Again,
Tredway failed to inform the family court of this concern despite having been
afforded an opportunity to do so during questioning by his counsel. In addition to
his failure to preserve the location restriction issue for review, Tredway’s failure to
adhere to the requirements of CR 52.04 precludes the relief he seeks from this
Court:
A final judgment shall not be reversed or remanded
because of the failure of the trial court to make a finding
of fact on an issue essential to the judgment unless such
failure is brought to the attention of the trial court by a
written request for a finding on that issue or by a motion
pursuant to Rule 52.02.
Not only will this Court refuse to predicate error on issues about
which the family court had no opportunity to rule, we do not consider this minor
inconvenience as even approaching a basis for disturbing the location restriction
regarding the children’s schools. We note in this regard that we have previously
upheld a restriction from possession of firearms despite the fact that the appellant’s
employment as a law enforcement officer required the regular possession of a
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firearm while on duty.3 In any event, nothing precludes Tredway from moving the
family court to amend the DVO to accommodate his normal work travel route.
Next, without citation to authority or preservation, Tredway argues
that the family court erred in allowing testimony concerning incidents other than
those specifically delineated in Mickelson’s voluntary statement appended to her
petition for an order of protection. We perceive Tredway’s argument as a
complaint that the hearing before the family court deprived him of due process of
law. Review of the record dispels that contention.
In the context of domestic violence hearings, due process requires that
each party have a meaningful opportunity to be heard. Wright v. Wright, 181
S.W.3d 49, 53 (Ky. App. 2005). A “meaningful opportunity to be heard” implies
that the family court will allow “each party to present evidence and give sworn
testimony before making a decision.” Holt v. Holt, 458 S.W.3d 806, 813 (Ky.
App. 2015). In Rankin v. Criswell, this Court explained that while a petition alone
may support the issuance of an EPO, “a DVO has significant long-term
consequences for both parties and cannot be granted solely on the basis of the
contents of the petition.” 277 S.W.3d 621, 625 (Ky. App. 2008). Review of the
hearing conducted in this case confirms that the family court afforded both
3
Boyle v. Boyle, No. 2013-CA-000416-ME, 2014 WL 7205670 (Ky. App. Dec. 19, 2014).
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Mickelson and Tredway a meaningful opportunity to be heard. The very purpose
of the DVO hearing is to give each party an opportunity to flesh out or dispute the
allegations of the petition. And again, Tredway failed to in any way apprise the
family court that Mickelson’s “barrage of allegations” constituted an unwarranted
surprise or deprived him of an opportunity to dispute her allegations. Rather,
review of the hearing convinces us that Mickelson’s testimony, and that of her
supporting witnesses, merely constituted the requisite evidence of the allegations in
her complaint. We thus find no basis for disturbing the decision of the family
court on the basis that Tredway was deprived of a fair hearing.
Finally, Tredway argues that the family court failed to properly weigh
the credibility of the witnesses, alleging that Mickelson’s testimony constituted
first-degree perjury; a violation of KRS 620.030(1), the child abuse reporting
statute; or both. We find no error.
Tredway’s counsel specifically questioned Mickelson regarding the
delay in reporting the abuse of the children alleged in her petition. As noted in
Tredway’s brief, Mickelson testified that it was her fear of Tredway that caused
her failure to timely report the abuse. The family court also heard testimony from
Mickelson’s mother and brother-in-law that Tredway had isolated her from family
and friends. In Moore v. Asente, the Supreme Court of Kentucky reiterated and
emphasized the well-established concept that:
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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.
110 S.W.3d 336, 354 (Ky. 2003) (citations omitted) (emphasis added). Because
the family court was in the best position to weigh Mickelson’s failure to report
Tredway’s abuse in the context of the evidence adduced at the hearing, and in light
of the family court’s specific finding on the record that the testimony presented a
classic case of domestic abuse, we find no basis upon which we can disturb the
family court’s assessment as to credibility of the witnesses.
Accordingly, the judgment of the Hardin Family Court is in all
respects affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
Jordan C. Tredway, pro se
Elizabethtown, Kentucky
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