Sarah Elizabeth Farley v. Weslee Donavan Farley ( 2021 )


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  •                    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    NOT TO BE PUBLISHED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.
    -2-
    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
    -3-
    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
    -4-
    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
    -5-
    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
    -6-
    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
    -7-
    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
    -8-
    

Document Info

Docket Number: 2020 CA 001043

Filed Date: 4/29/2021

Precedential Status: Precedential

Modified Date: 5/7/2021