Anthony Fountaine v. Pamela Jean Fountaine ( 2022 )

RENDERED: SEPTEMBER 30, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0213-ME
ANTHONY FOUNTAINE APPELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT
v. HONORABLE JASON S. FLEMING, JUDGE
ACTION NO. 21-D-00630-001
PAMELA JEAN FOUNTAINE APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND MAZE, JUDGES.
MAZE, JUDGE: Anthony Fountaine (Anthony) appeals from a Domestic
Violence Order (DVO) entered by the Christian Family Court in favor of Pamela
Jean Fountaine (Pamela). Anthony argues that the family court failed to make
sufficient written findings and that the DVO was not supported by substantial
evidence meeting the statutory requirements. We conclude that the family court’s
findings were sufficient and supported by substantial evidence. Hence, we affirm.
On December 23, 2021, Pamela filed a petition for an order of
protection. The petition alleged:
On December 21, 2021[,] we were driving to
Nashville when a road rage event happened. My
husband was driving, I thought he was going to crash. A
weapon was involved in this incident.
He has not been taking his medication and he has a
violent temper.
The Oak Grove Police was called to our residence
in August by our daughter as well.
I am fearful of our safety when he is checked out
of the VA mental hospital psych ward.
The family court granted an emergency protective order (EPO) and
scheduled the matter for a hearing on January 4, 2022. At the hearing, Pamela
described the incident which occurred on December 21, 2021, while they were
driving to Nashville for a doctor’s appointment. Pamela testified that Anthony
became aggressive with another driver. He drove recklessly and at a high rate of
speed, and he fired a gun through the window at the other car.
Pamela testified about another incident in August 2021. Pamela
testified that they had both been drinking and he became violent and threatening
with her. He did not strike her because their daughter got between them. After the
-2-
road-rage incident, Anthony went to the Veterans Administration (VA) Hospital
for observation but was discharged after five days. Pamela stated that he stopped
taking his medication and she remains fearful of him because he has struck her
before. She also stated that Anthony has been verbally abusive and threatening.
Regarding the road-rage incident, Anthony testified that the driver of
the other vehicle became aggressive with him. He stated that Pamela never
seemed afraid of him after the incident. However, he checked himself into the VA
Hospital after that incident and he is actively seeking treatment and taking his
medications. Regarding the August 2021 incident, Anthony admitted that they
argued while they had been drinking, but he denied ever threatening her. Anthony
further stated that he has never threatened or struck Pamela.
The family court found that the “road rage” incident did not qualify as
an act of domestic violence because, “while scary,” it was not directed at Pamela
but at the other driver. However, the court found that Pamela’s testimony about
the other incidents was sufficient to meet the definition of domestic violence.
Consequently, the family court granted the DVO for a two-year period, restraining
Anthony from further acts of domestic violence. The court did not issue a no-
contact order but required Anthony to vacate the residence. The court also set up
Anthony’s visitation with their daughter. Anthony now appeals from the entry of
the DVO.
-3-
KRS1 403.740(1) authorizes a court to issue a DVO if it “finds by a
preponderance of the evidence that domestic violence and abuse has occurred and
may again occur[.]” Our standard of review is set out in Caudill v. Caudill, 318
S.W.3d 112 (Ky. App. 2010), as follows:
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[(2)], includes
“physical injury, serious physical injury, [stalking],
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[2] 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).
1
Kentucky Revised Statutes.
2
Kentucky Rules of Civil Procedure.
-4-
While “domestic violence statutes should be
construed liberally in favor of protecting victims from
domestic violence and preventing future acts of domestic
violence[,]” Barnett v. Wiley, 103 S.W.3d 17, 19 (Ky.
2003), “the construction cannot be unreasonable.” Id.(citing Beckham v. Board of Education of Jefferson
County, 873 S.W.2d 575, 577 (Ky. 1994)). Furthermore,
we give much deference to a decision by the family
court, but we cannot countenance actions that are
arbitrary, capricious or unreasonable. See Kuprion, 888
S.W.2d at 684.
Id. at 114-15.
Anthony first argues that the family court failed to make sufficient
written findings to support entry of a DVO. A court is obligated to make specific
written findings to support entry of a DVO. Castle v. Castle, 567 S.W.3d 908, 916
(Ky. App. 2019) (citing Thurman v. Thurman, 560 S.W.3d 884, 887 (Ky. App.
2018)). Under the circumstances, we conclude that the family court’s findings are
sufficient.
First, we note that in issuing a protective order, only the “essential
facts” are required. Smith v. McCoy, 635 S.W.3d 811, 817 (Ky. 2021) (quoting
Keifer v. Keifer, 354 S.W.3d 123, 126 (Ky. 2011)). Specifically, the family court
is required to find “(1) whether an act of domestic violence and abuse, dating
violence and abuse, stalking, or sexual assault has occurred, and (2) whether it may
occur again.” Id. “Any additional factual findings the trial court makes in issuing
a protective order are merely supporting those ultimate factual findings and are not
-5-
‘essential.’” Id. Here, the family court made both of these findings in writing on
AOC Form 275.3.
And unlike in Castle and Thurman, the family court made written
findings on its docket page, which were incorporated by reference into the DVO.
See also Robbins v. Meeker, No. 2016-CA-000302-ME, 2017 WL 242671, at *2
(Ky. App. Jan. 20, 2017). Nevertheless, Anthony argues that the written findings
do not identify any specific acts of domestic violence which were sufficient to
support entry of the DVO. We conclude that this argument goes more to the
sufficiency of the evidence than the adequacy of the family court’s written
findings.
As discussed above, the family court found that Pamela’s testimony
about the road-rage incident did not establish domestic violence within the
meaning of KRS 403.720(2). We note that the definition of “domestic violence” in
KRS 403.720(2)(b) includes, “the infliction of fear of such imminent conduct,
taken against a domestic animal when used as a method of coercion, control,
punishment, intimidation, or revenge directed against a family member or member
of an unmarried couple who has a close bond of affection to the domestic
animal[.]” Consequently, acts directed at third-party family members or pets may
meet the definition of domestic violence. Pamela’s testimony regarding the road-
-6-
rage incident does not involve any such intimidation against one of these third
parties.
Rather, the family court found domestic violence based upon
Pamela’s testimony about other incidents. Pamela testified that Anthony
threatened her during the August 2021 incident. However, the incident did not
escalate to physical violence because their daughter stepped between them.
In Hohman v. Dery, 371 S.W.3d 780 (Ky. App. 2012), this Court held
that such physically aggressive confrontations may be sufficient to show that the
victim was placed in reasonable fear of imminent domestic violence. Id. at 782-83.
We conclude that the family court could properly rely on this incident to find that
an act of domestic violence had occurred. And while the evidence regarding this
incident was conflicting, the family court was entitled to give greater weight to
Pamela’s testimony. See also Bissell v. Baumgardner, 236 S.W.3d 24, 29-30 (Ky.
App. 2007).
Pamela also testified that Anthony had struck her in the past, but she
did not state when this occurred. Anthony argues that the family court could not
enter a DVO based on this incident without more specific evidence. But since the
family court properly relied on the August 2021 incident, we conclude that the
more specific findings regarding other incidents were not necessary.
-7-
Furthermore, KRS 403.740(1) also requires a court to find that acts of
“domestic violence . . . may again occur.” In making this assessment, a court must
“consider the totality of the circumstances and weigh the risk of future violence
against issuing a protective order.” Pettingill v. Pettingill, 480 S.W.3d 920, 925
(Ky. 2015). The “totality of the circumstances” may include other, unrelated
conduct indicating a propensity toward the recurrence of domestic violence.
Here, Pamela’s undated allegation that Anthony had struck her and
her testimony about the December 2021 road-rage incident were relevant to
establish that Pamela had a reasonable fear of additional domestic violence. When
considered with Anthony’s threatening behavior during the August 2021 incident,
there was substantial evidence to support the family court’s conclusion that
domestic violence may again occur. Therefore, we find no basis to set aside the
DVO.
Accordingly, we affirm the DVO entered by the Christian Family
Court.
ALL CONCUR.
-8-
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Ryan Robey Mark A. Gilbert
Lexington, Kentucky Hopkinsville, Kentucky
-9-