Sarah Elizabeth Farley v. Weslee Donavan Farley ( 2021 )

RENDERED: APRIL 30, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1043-ME
SARAH ELIZABETH FARLEY APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE LUCINDA MASTERTON, JUDGE
ACTION NO. 20-D-00334-002
WESLEE DONOVAN FARLEY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Sarah Elizabeth Farley appeals from an order of the Fayette
Circuit Court, Family Court Division, denying her petition for a domestic violence
order (DVO) against her husband, Weslee Donovan Farley. Because the family
court had the discretion to choose which testimony to believe and which to
disbelieve, we affirm.
Sarah and Weslee had already considered divorcing when Weslee
brought home a puppy after working his shift as a police officer. Sarah, who
apparently dislikes and/or is scared of and/or is allergic to dogs, met Weslee and
the dog in the garage. An intense argument ensued.1 At one point, an irate Sarah
went inside and retrieved a firearm, which she threatened to use against the dog.
Weslee was seemingly either holding the dog or was in close proximity to it during
much of the argument because Sarah remarked that the dog would not stop a bullet.
Weslee left the marital residence and went to seek an emergency
protective order, which was granted. When Weslee re-entered his police cruiser,
he noticed Sarah approaching. Weslee remained in his vehicle and called for
assistance. At the DVO hearing, Officer Brian McAllister testified that he was the
first responding officer and that Sarah, who had a loaded firearm in her purse,
showed him scratches on her arm she said were made by a dog. But Officer
McAllister testified he thought the marks were self-inflicted as the puppy was
young, small, and not behaving viciously. Sarah was charged with wanton
endangerment for having brandished a firearm in the garage of the marital
residence.
1
Weslee taped audio of the argument with his cell phone and portions of that recording were
played at the DVO hearing.
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In June 2020, Sarah was granted an emergency protective order
against Weslee based upon her allegations that he had been abusive to her. A
hearing on Weslee’s request for a DVO against Sarah and Sarah’s request for a
DVO against Weslee was held later that month.
At that hearing, Weslee denied that he had ever physically harmed
Sarah or threatened to do so. In addition to presenting Officer McAllister’s
testimony about Sarah’s scratches, Weslee presented testimony from other
witnesses who recalled Sarah: having driven recklessly near a school; having
engaged in a verbal altercation near a traffic accident, which included threatening
to use a firearm on another person because she—unreasonably in the police officer
witness’s opinion—stated she feared for her safety; and having threatened a utility
worker with a firearm if the worker did not leave Sarah’s property. Sarah testified
as to Weslee’s alleged lengthy history of being physically and psychologically
abusive toward her. Sarah presented photographs as exhibits, some of which
depicted marks or bruises purportedly caused by Weslee.
At the conclusion of the hearing, the trial court granted Weslee’s
request for a DVO against Sarah, noting that it was undisputed that Sarah had
threatened to use a firearm during the argument in the garage. However, the trial
court denied Sarah’s request for a DVO against Weslee, essentially finding that
Sarah was not a credible witness. The vast majority of the trial court’s oral
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findings focused on its belief that Sarah’s demeanor was unemotional and atypical
for a domestic violence victim. In addition, the court briefly remarked upon
matters such as Sarah’s waiting about three months to seek a DVO after the March
2020 argument in the garage and not trying to forbid Weslee from entering the
residence from the garage, instead only telling him to shower and change clothes
before entering since he had contacted the dog. The court did not comment on the
photographs introduced by Sarah. Sarah then filed this appeal.
Kentucky Revised Statute (KRS) 403.740(1) provides in relevant part
that a DVO may be issued “if a court finds by a preponderance of the evidence that
domestic violence and abuse has occurred and may again occur . . . .” To satisfy
the preponderance of the evidence standard, the alleged victim must show he or
she “was more likely than not to have been a victim of domestic violence.” Hall v.
Smith, 599 S.W.3d 451, 454 (Ky. App. 2020) (citation omitted). Domestic
violence and abuse is defined in KRS 403.720(1) 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 . . . .”
We deferentially review a trial court’s decision regarding issuance of
a DVO, assessing whether the trial court abused its discretion or its decision was
clearly erroneous. Hall, 599 S.W.3d at 454. Thus, the question is “not whether we
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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) (citations omitted).
If believed, the evidence presented by Sarah may have been sufficient
to support the issuance of a DVO against Weslee. But the trial court did not
believe Sarah, nor did it have to—even though she seems to argue on appeal that
the court had to believe her version of events.
Sarah contends that it was unreasonable for the trial court to not give
credence to her extended testimony of abuse, which generally was supported by the
photos she submitted. Her argument, however, runs directly contrary to the
bedrock legal principle that the finder of fact has the discretion to choose which
testimony to believe. Muir v. Muir, 406 S.W.3d 31, 34 (Ky. App. 2013).
In fact, even if Sarah’s testimony had been uncontradicted—which it
certainly was not given Weslee’s denial of having abused her—a finder of fact in
Kentucky is not even required to give full credence to uncontested testimony
presented by an interested party, as Sarah surely was. See, e.g., Bullock v. Gay,
296 Ky. 489, 177 S.W.2d 883, 885 (1944) (“The general rule in respect to the
weight to be accorded uncontradicted testimony is: If the witness is [disinterested],
and in no way discredited by other evidence, and the testimony is as to a fact not
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improbable or in conflict with other evidence, and is within his own knowledge,
such fact may be taken as conclusive. But such rule does not necessarily apply, if
the uncontradicted evidence is given by interested witnesses. In this connection it
may be said that the evidence, although uncontradicted, must be positive, clear,
and unequivocal . . . .”). Instead, “[o]rdinarily, uncontradicted testimony remains
subject to the scrutiny of the trier of fact as to its credibility and may be rejected by
them where it is not believed.” 32A C.J.S. Evidence § 1580 (2021).
Sarah’s testimony also contained what could be perceived as
questionable inconsistencies. For example, she expressed no fear of Weslee during
the March 2020 argument and, in fact, voluntarily found and approached him near
the courthouse soon after the argument. And Sarah can be heard derisively
remarking that, in essence, she was not afraid of Weslee on the audio of the
argument in the garage.
In short, we reject Sarah’s argument that the trial court had to believe
her testimony. The family court, as the finder of fact, had the discretion to choose
which testimony to believe. Muir, 406 S.W.3d at 34.
Finally, despite Sarah’s disagreement, it was not improper for the trial
court to factor Sarah’s relatively flat or dispassionate affect during her testimony as
weighing against her credibility. The trial court explained that it was aware that
some people were not demonstrably emotive but, in its experience, domestic
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violence victims tended to cry or otherwise appear emotional when first relating
the abuse inflicted upon them. While there was no expert testimony regarding any
behavior of domestic violence victims, the demeanor of a witness is nevertheless
among the factors which may be used in determining credibility:
A family court has broad discretion with respect to
testimony presented, and may choose to believe or
disbelieve any part of it. It is also entitled to make its
own decisions regarding the demeanor and truthfulness
of witnesses, and a reviewing court is not permitted to
substitute its judgment for that of the family court unless
its findings are clearly erroneous.
Muir, 406 S.W.3d at 34 (emphasis added).
We do not take lightly allegations of domestic violence. And we
share some of Sarah’s puzzlement at the trial court’s decision to not address at all
the photos in its extended oral findings. Instead, the vast majority of the court’s
findings focused on how it did not believe Sarah because the court believed her
behavior and demeanor were atypical for domestic violence victims. While
Sarah’s arguments are not without merit, there is simply not enough here to rule
the trial court abused its discretion. At its core, this case presented the court with a
binary choice. It had to believe either Sarah’s allegations of abuse or Weslee’s
denial thereof. Both could not be simultaneously, completely true. The family
court chose to believe Weslee based upon a combination of factors such as the
judge’s extensive experience with victim behavior in domestic violence cases, the
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court’s view of what it perceived to be some inconsistencies in Sarah’s evidence,
and Sarah’s demeanor. Another finder of fact may have reached a different
conclusion. However, because Sarah has not shown the trial court’s findings are
an abuse of discretion or clearly erroneous, we must affirm.
For the foregoing reasons, the order of the Fayette Circuit Court,
Family Court Division is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Dan Carman Della C. Cummings
Lexington, Kentucky Lexington, Kentucky
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