Everett Joseph McDonald, Jr. v. Rebecca McDonald ( 2023 )

RENDERED: JUNE 16, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1336-ME
EVERETT JOSEPH MCDONALD, JR. APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
v. HONORABLE DAVID C. PAYNE, JUDGE
ACTION NO. 22-D-00205-001
REBECCA MCDONALD APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND JONES, JUDGES.
JONES, JUDGE: Everett Joseph McDonald, Jr., appeals from a domestic violence
order (“DVO”) issued by the Daviess Family Court in favor of his wife, Rebecca
McDonald. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Rebecca vacated the parties’ marital home on or about June 29, 2022.
On July 5, 2022, Rebecca returned to the home to collect some belongings.
Receiving no answer after knocking, Rebecca entered the home. Shortly
thereafter, a confrontation occurred in the parties’ bedroom, apparently arising
from Everett’s anger that Rebecca had taken his guns when she moved out of the
parties’ home.1
According to Rebecca, Everett threw a bottle of water at her; grabbed
her arm, which caused a bruise; and pushed her up against the wall.2 Rebecca left
the home and called 911; the dispatcher instructed Rebecca to wait at the end of the
parties’ long driveway. While Rebecca was waiting, Everett pulled up in his truck
behind her. Everett testified that he was simply leaving the home to go shopping
and that he had no intent to confront or otherwise engage with Rebecca. On seeing
Everett approach, Rebecca became fearful and “took off” because she was afraid
that Everett was after her. A few minutes later, law enforcement arrived at the
home. Everett was arrested and charged with assault in the fourth degree.
The next day, Rebecca filed a petition for an emergency protective
order (“EPO”), which was granted. The parties appeared before the family court
on July 14, 2022, and for reasons that are unclear from the record before us, agreed
1
Rebecca later testified that, prior to moving out of the home, she became fearful of Everett’s
behavior, which included repeatedly screaming what the family court characterized as “veiled
threats.” Rebecca testified that, in response, she took the clips out of Everett’s guns and slept
with pepper spray under her pillow. Rebecca did not deny removing Everett’s guns from the
home.
2
Everett denied pushing Rebecca against the wall, but admitted to grabbing her wrist like he
“had done a hundred times.”
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to continue the DVO hearing until November 2022, while keeping the EPO in
place.
Shortly after entry of the EPO, Rebecca presented it to the parties’
joint employer, a local distillery, and Everett was terminated as a result. Everett
subsequently filed a motion to amend the EPO to permit him to continue his
regular work activities at the distillery. The parties appeared before the family
court on August 18, 2022. Although Rebecca was reluctant, the parties agreed to
amend the EPO to include the following language: “Both parties may conduct
their regular work duties at Sazerac Glenmore Distillery to maintain their current
employment.”
However, even with the amended language, the distillery refused to
restore Everett to his former employment. Everett then filed a motion to dismiss
the EPO. After Rebecca objected, the family court scheduled an evidentiary
hearing for October 13, 2022.3 Rebecca and Everett each testified at the hearing.
Following the presentation of the testimony, the family court issued a
DVO and made findings that “[Everett] grabbed [Rebecca’s] arm in [a] threatening
[manner] and caused bruising. [Everett] previously made veiled threats of harm to
3
A union steward from Sazerac Glenmore Distillery also testified at the hearing. According to
the union steward, the EPO was the reason Everett was terminated from his employment and the
only chance he had to be reinstated was dismissal of the EPO. The union steward also explained
the process in place for Everett to appeal his termination. At the time of the DVO hearing,
Everett had exhausted all avenues of relief available to him except arbitration, which had not yet
been scheduled as of October 13, 2022.
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[Rebecca]. [Everett] attempted to chase [Rebecca] in [a motor vehicle].” The
DVO also stated Everett was to remain 500 feet away from Rebecca except “[t]he
parties are authorized to remain in the following common area(s) closer than 500
feet under the limited circumstances and specific parameters indicated: Sazerac
Glenmore Distillery[,] parties may work there.” This appeal followed.
II. STANDARD OF REVIEW
A circuit court may enter a DVO if it “finds by a preponderance of the
evidence that domestic violence and abuse has occurred and may again occur[.]”
KRS4 403.740(1). At the time of entry of the DVO, “domestic violence and abuse”
was defined 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
or members of an unmarried couple[.]
KRS 403.720(2)(a).5 “The preponderance of the evidence standard is met when
sufficient evidence establishes that the alleged victim ‘was more likely than not to
4
Kentucky Revised Statutes.
5
Although not yet in effect at the time of the drafting of this Opinion, we note that the Kentucky
General Assembly enacted legislation in the 2023 session to amend the definition of domestic
violence and abuse in KRS 403.720 to be
[p]hysical injury, serious physical injury, stalking, sexual assault,
strangulation, assault, or the infliction of fear of imminent physical
injury, serious physical injury, sexual assault, strangulation, or
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have been a victim of domestic violence.’” Baird v. Baird, 234 S.W.3d 385, 387
(Ky. App. 2007) (quoting Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky.
1996)).
Our review of a circuit court’s decision to grant or deny a DVO “is not
whether we would have decided it differently, but whether the court’s findings
were clearly erroneous or that it abused its discretion.” Gomez v. Gomez, 254
S.W.3d 838, 842 (Ky. App. 2008). An abuse of discretion occurs only where the
court’s decision is “unreasonable, unfair, arbitrary or capricious.” Caudill v.
Caudill, 318 S.W.3d 112, 115 (Ky. App. 2010).
III. ANALYSIS
On appeal, Everett argues Rebecca failed to prove by a preponderance
of evidence that domestic violence “may again occur” after the July 5, 2022,
incident pursuant to KRS 403.740 which provides, in relevant part,
(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;
assault between family members or members of an unmarried
couple[.]
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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;
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[.]
First, Everett argues the family court orally stated it believed domestic
violence could reoccur, but instead found that it may again occur in the DVO. We
are unpersuaded by Everett’s attempt to split hairs and differentiate between
“could” and “may.” Even if we indulge his argument in terms of the vernacular, he
provides no authority for any legal differentiation. Moreover, it is well-established
law in Kentucky that
[a] trial court “speaks only through written orders
entered upon the official record.” Kindred Nursing
Centers Ltd. Partnership v. Sloan, 329 S.W.3d 347, 349
(Ky. App. 2010). “[A]ny findings of fact and
conclusions of law made orally by the circuit court at an
evidentiary hearing cannot be considered by this Court
on appeal unless specifically incorporated into a written
and properly entered order.” Id.Castle v. Castle, 567 S.W.3d 908, 916 (Ky. App. 2019).
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Consistent with the statutory requirements, the family court found that
Everett’s act of domestic violence toward Rebecca may again occur, despite using
the word “could” in explaining to the parties why it was entering the DVO.
Accordingly, there was no error.
Everett’s next argument is equally unpersuasive. He contends that,
because there were no further acts of domestic violence committed between
issuance of the EPO and the DVO hearing, Rebecca failed to prove that domestic
violence may again occur. However, the law cited by Everett pertains to
reissuance or extension of a DVO, not initial entry of a DVO. It is true that KRS
403.740(4) states, in relevant part, that “[t]he fact that an order has not been
violated since its issuance may be considered by a court in hearing a request for a
reissuance of the order.” In the instant action, the issue before the family court was
whether domestic violence occurred on July 5, 2022, and whether it may again
occur. The issue was not whether any additional acts of domestic violence had
occurred between entry of the EPO and the DVO hearing.6
Although Everett and Rebecca gave differing versions of the events of
July 5, 2022, the family court clearly found Rebecca’s testimony more credible.
Regardless of conflicting evidence, the weight of the
evidence, or the fact that the reviewing court would have
6
Even when considering whether to reissue/extend a DVO “the absence of additional actions of
domestic violence is merely one factor which the court may consider in deciding whether to
extend a DVO.” Cottrell v. Cottrell, 571 S.W.3d 590, 592 (Ky. App. 2019) (emphasis added).
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reached a contrary finding, 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.
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (internal quotation marks and
footnotes omitted).
The record before us shows that there was at least a preponderance of
evidence to support entry of the DVO. The family court attempted to
accommodate Everett’s employment termination by ordering the distillery was an
exception to the requirement that he must stay 500 feet away from Rebecca at all
times. Although Everett characterizes his loss of employment as unnecessarily
punitive in response to “the alleged holding of [Rebecca’s] wrist,” the actions of
Everett’s employer in response to the DVO are not controlled by the family court
or this Court.
IV. CONCLUSION
For the foregoing reasons, the judgment of the Daviess Family Court
is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
David L. Yewell Candy Yarbray Englebert
Owensboro, Kentucky Owensboro, Kentucky
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