Amanda Havill v. Jefferson Neal ( 2023 )

RENDERED: JUNE 23, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0620-ME
AMANDA HAVILL APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. FAMILY DIVISION THREE (3)
HONORABLE LORI N. GOODWIN, JUDGE
ACTION NO. 11-D-502715-006
JEFFERSON NEAL APPELLEE
OPINION
AFFIRMING
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BEFORE: EASTON, JONES, AND LAMBERT, JUDGES.
EASTON, JUDGE: Appellant, Amanda Havill (“Amanda”) appeals from the
Jefferson Family Court’s denial of her request to extend a Domestic Violence
Order (“DVO”) against the Appellee, Jefferson Neal (“Jeff”). Amanda argues the
family court abused its discretion by declining to extend the DVO and that it erred
when it failed to make sufficient findings of fact. We conclude the family court
did not abuse its discretion in these circumstances and that it belatedly made the
requisite findings of fact to support its decision. Therefore, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Amanda has a long history of petitions against Jeff about domestic
violence. Amanda and Jeff were never married but cohabitated for a while. They
have one daughter (“Child”), now aged 12. This appeal concerns the sixth “trailer”
or subfile, one for each petition filed by Amanda. While we were not provided the
entire record, we do have relevant information about the previous filings.
Amanda filed the first petition for an Emergency Protective Order
(“EPO”) on October 9, 2011, when the Child was one year of age. The court
granted the EPO the same day. This case was dismissed eight days later by
agreement. Amanda filed the second petition a year later, on October 19, 2012,
and a second EPO was granted. This petition was also dismissed by agreement one
week later, on October 26, 2012.
Amanda filed a third petition on October 6, 2014. In this case, a
Domestic Violence Order was entered on October 20, 2014, and remained in effect
until April 11, 2016. Amanda filed petition number four on November 26, 2016.
This case was dismissed on January 9, 2017, by agreement. The fifth petition was
filed on August 26, 2020. The hearing for a DVO was continued multiple times,
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and the EPO expired per the statutory timeframe. KRS1 403.740(6). The latest
petition was filed by Amanda on October 12, 2021. It is the result of this sixth
petition which is before this Court.
The facts alleged in the petition for trailers number five and six are
identical. Amanda alleges that Jeff has perpetuated a repeated pattern of abuse
upon her for over ten years. She alleges she has suffered black eyes, a broken
nose, has been spit on, and has been verbally and mentally abused in the presence
of the Child. She alleges Jeff has threatened to kill her on multiple occasions. She
writes in the petition she possesses a recorded statement of Jeff stating he wishes
someone would kill her. She claims he owns multiple firearms and uses loaded
guns as intimidation.
In the sixth petition, Amanda adds that an EPO was granted in August
2020. She further alleges Jeff’s counsel purposefully delayed the hearing so that
the EPO expired without her knowledge. She claims nothing has changed since
that time and she is still afraid of him. Another EPO was granted in Amanda’s
favor on October 12, 2021, based on the repeated allegations in petition six.
Several continuances occurred for various reasons, and the hearing for
determination of a DVO was held on February 14, 2022.
1
Kentucky Revised Statutes.
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While much of the parties’ testimony was conflicting, the parties
agreed that the primary allegation in the fifth and sixth petitions involve a
telephone conversation that occurred on August 24, 2020. During this
conversation, the parties argued about their Child’s school uniforms. Amanda
recorded this phone conversation without Jeff’s knowledge or consent. At some
point during the call, Jeff made statements to the effect of wishing someone would
kill Amanda.
Jeff claims these statements were made to a third party who was
present with him at his residence. Jeff believed the phone conversation with
Amanda was concluded at the time he made this statement, and he thought he had
ended the call. Amanda argues that Jeff made these statements during their
conversation and that he intended for her to hear him.
Jeff tells a different story, which offers a reason for the sixth petition
other than any actual fear Amanda may have of him. Jeff claims that in June 2021,
he filed a motion to modify his parenting schedule in the circuit court custody
action. A hearing date was scheduled for December 2021. Amanda’s deposition
was scheduled for mid-October 2021. Amanda’s new counsel (who had recently
been substituted for her previous counsel) emailed Jeff’s counsel to advise that Jeff
could not be present during Amanda’s deposition because of an EPO.
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On October 12, 2021, Jeff’s counsel responded and informed
Amanda’s counsel that the EPO had expired, and he indicated Jeff would be
present at Amanda’s deposition. It was on this date Amanda filed her sixth
petition, and another EPO was granted. Due to the EPO, neither Amanda’s
deposition nor the December hearing date took place. Jeff alleges Amanda filed
the EPO as a stall tactic to continue to keep Jeff away from the Child.
During the hearing on the latest petition, Amanda testified to the
allegations in her petition. She spoke about having black eyes and having her teeth
cracked by being punched in the mouth by Jeff. She claims their Child was always
present during these incidents. Amanda alleges she’s witnessed Jeff do cocaine
and drink excessively.
Amanda admits she agreed to convert three of her prior EPO’s into No
Unlawful Contact Orders; however, she claimed they were not effective. Amanda
also admitted she contacted Jeff during a period when the prior DVO was in effect
because she was afraid to leave their Child alone with him, as the Child was not
covered by the prior DVO. Amanda testified that, eventually, Jeff’s parenting time
with the Child was required to be supervised in the separate custody action.
Amanda then testified about the phone call of August 24, 2020. She
claims she called Jeff to discuss the Child’s school uniforms. Their delivery was
delayed, so she indicated to Jeff that she had purchased substitute uniforms the
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Child could wear to school for the first day. Amanda testified Jeff became very
angry and began yelling at her. He called her names and made a statement that he
wished someone would kill her.
She recorded the phone call, and Amanda’s counsel asked to play it
for the court. Jeff’s counsel objected to the recording. He claims he had not been
provided it and had never heard it. At this point, the family court recessed for Jeff
and his counsel to listen to the recording.
When the parties returned, they informed the court they had reached
an agreement for yet another No Unlawful Contact Order. Before the terms of the
proposed order could be put fully on the record, Amanda changed her mind and
claimed she didn’t understand the agreement. She stated she did not want to
dismiss the EPO petition in exchange for a No Unlawful Contact Order. The court
then set another date to conclude the hearing.
On April 11, 2022, the family court heard a motion from Amanda to
extend the EPO, as it otherwise would expire that day. The family court stated it
did not have the authority to extend the EPO because of the six-month limitation,
but it agreed to grant Amanda a very short-term and limited DVO. The DVO
would only restrain Jeff from having contact with Amanda, not the child, and it
was only to last until the next hearing date. The family court stated the following
hearing then would be a hearing to extend the DVO.
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On May 2, 2022, the family court concluded the hearing. Over Jeff’s
objection, Amanda was allowed to play the recording of the phone call. The
family court stated the recording was very difficult to understand, and we agree. It
was impossible to understand the majority of what Jeff said during the recorded
phone call.
Jeff pointed out the relevant statement in the phone call was
part of a conversation between Jeff and a third party, not between Jeff and
Amanda. He argued it was a violation of Kentucky’s eavesdropping statute2 to
record that portion of the conversation. He argued the family court should not
consider any part of the conversation that occurred after Jeff and Amanda both
believed their conversation to be concluded. Jeff testified he had in Bluetooth
headphones during the phone conversation, and he thought he had pushed the
button to end the phone call with Amanda prior to making the statement to a third
person about wishing someone would kill her.
Jeff argued Amanda knew their conversation was concluded when the
statement was made. He entered a record of text messages between Jeff and
Amanda that were exchanged immediately after the phone conversation. Jeff
specifically references a text Amanda sent to Jeff on August 24, 2020, at 9:22 p.m.,
2
KRS 526.020.
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which read “Wow/ I heard your conversation with JD-Are you too intoxicated to
hang up your phone when our conversation was over??”3
The family court declined to grant the extension of the DVO. The
family court judge stated that but for Amanda having recorded a conversation with
a third party without Jeff’s knowledge, she would have no personal knowledge of
his statements. The family court found that Amanda’s text messages to Jeff
acknowledged their conversation was concluded. The family court stated that
while it does not dispute domestic violence has occurred in the past, Amanda’s
petition references no recent allegations of abuse, only this statement directed to a
third party. While the family court ruled orally from the bench, it did not issue any
written order until February 14, 2023, after orders from this Court to do so.
STANDARD OF REVIEW
A review of a trial court’s decision regarding an entry of an order of
protection is limited to “whether the findings of the trial judge were clearly
erroneous or that he abused his discretion.” Caudill v. Caudill, 318 S.W.3d 112,
115 (Ky. App. 2010). “Abuse of discretion occurs when a court’s decision is
unreasonable, unfair, arbitrary or capricious.” Dunn v. Thacker, 546 S.W.3d 576,
578 (Ky. App. 2018). A trial court’s findings of fact are not clearly erroneous if
3
Respondent’s Exhibit 1, Page 26.
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supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky.
2003).
ANALYSIS
Amanda argues the family court committed two errors. First, she
argues the family court abused its discretion in declining to extend the DVO.
Second, she claims the family court erred when it failed to make sufficient written
findings of fact.
Domestic violence orders are governed by KRS Chapter 403. To
enter a domestic violence order, a trial court is required to find by a preponderance
of the evidence that domestic violence has occurred and is likely to occur again.
KRS 403.740. “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.” Dunn v. Thacker, 546 S.W.3d at 580. “The
definition of domestic violence and abuse, found 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.’” Abdul-Rahman v. Peterson, 338 S.W.3d 823, 825
(Ky. App. 2011).
Amanda first argues the family court abused its discretion because it
based its ruling on the finding that had Amanda not recorded a conversation to
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which she was not a party, she would not have any personal knowledge of Jeff’s
threat. As it turns out, the propriety of Amanda’s recording of the conversation is
not decisive in our review. Amanda testified as to Jeff’s statements, and Jeff did
not deny making those statements. The family court allowed the recording to be
played, although as previously stated, most of Jeff’s side of the conversation was
so muffled it was incoherent. Even if Amanda had not recorded the conversation,
she still heard Jeff’s statement, which she perceived as a threat.
We must apply the wording of the statute which speaks in terms of
“infliction of fear of imminent physical injury.” The family court could have
found Jeff’s statement, considering the history of these parties, equated to a threat
adequate to make a finding of domestic violence, but the family court was not
required to do so in these circumstances. By contrast, in Williford v. Williford, 583
S.W.3d 424 (Ky. App. 2019), the petitioner overheard several threats with an
actual plan to kill the petitioner: “I’m going to go in there and get him in an
argument and blow his head off[.]” Id. at 426.
With that being said, the family court acted within its discretion to
deny the extension with a finding that Jeff had not inflicted fear of injury on
Amanda since Jeff did not direct the statement to Amanda, and the statement did
not express any plan beyond a thoughtless and flippant general death wish, which
is too often stated when formerly intimate persons break up. While Amanda
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testified that Jeff made additional statements to her during their telephone
conversation that were threatening in nature, Jeff testified his only statement in that
manner was to the third party with him in the room. The family court’s
determination of which party’s testimony to believe was not an abuse of discretion.
“The family court is in the best position to judge the credibility of the witnesses
and weigh the evidence presented.” Id. at 429.
“A court may enter a DVO ‘if it finds from a preponderance of the
evidence that an act or acts of domestic violence and abuse have occurred and may
again occur . . . .’” Bissell v. Baumbardner, 236 S.W.3d 24, 29 (Ky. App. 2007)
(citing KRS 403.740(1)). The family court did not find that an act of domestic
violence had occurred in this instance. While the family court acknowledged that
acts of violence occurred in the past, it did not find the allegations in the petition
met the evidentiary standard.
A family court is not required to disregard the history of the case or of
the parties. See Baird v. Baird, 234 S.W.3d 385, 388 (Ky. App. 2007). As
previously discussed, this is the sixth domestic violence petition filed in this action,
filed over a span of ten years. The parties also have a corresponding custody
action regarding their minor child. The family court reviewed the multiple prior
agreements to convert EPOs into No Unlawful Contact Orders, the agreements to
continue, and the agreements to dismiss previous EPOs. The family court in this
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instance looked at the totality of the circumstances to make its finding that an act
of domestic violence had not occurred. The denial of the extension of the DVO
was not an abuse of discretion.
Amanda further argues the family court failed to make sufficient
written findings of fact. “A family court is obligated to make written findings of
fact showing the rationale for its actions taken under KRS Chapter 403, including
DVO cases, even if the rationale may be gleaned from the record.” Thurman v.
Thurman, 560 S.W.3d 884, 887 (Ky. App. 2018). This includes cases where a
family court denies the petition for a DVO. Hall v. Smith, 599 S.W.3d 451, 455
(Ky. App. 2020). However, “it would seem unduly burdensome and unnecessary
for a court to make findings of fact that establish a non-finding of necessary facts.”
Id. This Court in Hall determined that checking a particular box on AOC form
275.3 in a DVO case where the trial court declined to issue a DVO would meet the
requirement of written factual findings. Id.If checking the box on the standardized form is adequate fact-finding
to affirm the denial of the issuance of a domestic violence order, the order issued
by the family court in this instance is clearly sufficient. While the family court’s
order was delayed, it did include written findings that it did not find by a
preponderance of the evidence that an act of domestic violence had occurred.
When reviewing an order regarding the issuance of an order of
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protection, “the test 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). We give great deference
to the trial courts as the finders of fact. “It has long been held that the trier of fact
has the right to believe the evidence presented by one litigant in preference to
another.” Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996). “The
trier of fact may take into consideration all the circumstances of the case, including
the credibility of the witness.” Id.CONCLUSION
The Jefferson Family Court’s findings of fact are supported by the
evidence and are not clearly erroneous. The Jefferson Family Court acted within
its discretion. For the foregoing reasons, we affirm the ruling of the Jefferson
Family Court.
LAMBERT, JUDGE, CONCURS.
JONES, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE
OPINION.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Allison S. Russell B. Mark Mulloy
Shanna R. Ballinger Louisville, Kentucky
Louisville, Kentucky
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