John-Robert Collins v. Felicia Ann Collins ( 2022 )

RENDERED: FEBRUARY 25, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0876-ME
JOHN-ROBERT COLLINS APPELLANT
APPEAL FROM UNION CIRCUIT COURT
v. HONORABLE BRANDI D. ROGERS, JUDGE
ACTION NO. 21-D-00036-001
FELICIA ANN COLLINS APPELLEE
OPINION
AFFIRMING
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BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: John-Robert Collins (“Appellant”) appeals from a
domestic violence order (“DVO”) entered by the Union Circuit Court on July 7,
2021. Appellant makes the following arguments: that his alleged bad acts do not
rise to the level of domestic violence as defined by Kentucky Revised Statutes
(“KRS”) 403.720(1); that there was no evidence that domestic violence and abuse
may occur again; and that the circuit court’s findings are not supported by
substantial evidence. He also argues that the circuit court violated his
constitutional rights by failing to explain to him the seriousness of a DVO, and by
not giving him the opportunity to seek counsel. For the reasons addressed below,
we find no error and affirm the DVO on appeal.
FACTS AND PROCEDURAL HISTORY
Appellant and Felicia Ann Collins (“Appellee”) were married in
October of 2010 and remained together until June of 2021. They had one child in
common (9 years old at the time of the hearing), and they were raising Appellee’s
child by a previous relationship (12 years old). On the date of the alleged incident,
the Collins family resided in Evansville, Indiana. Appellee left with the children
that day and relocated to Sturgis, Kentucky. Appellant moved to Morganfield,
Kentucky, where he has family.
Appellee filed a petition for an emergency protective order (“EPO”)
on June 15, 2021, in which she made the following allegations:1
My children and I left and fled to my mother[’]s home
because my husband John-Robert Collins has been
mentally abusive to my children and I. John-Robert was
keeping me from my medication, my children told me
they felt uncomfortable around him because he is always
very negative and goes from nice to screaming mean. He
has told my daughter to kill herself. He wants to see our
youngest who we have in common and she is scared of
him, I’m very fearful for her life if she is alone with him.
His mental state is now “I’m going to kill myself” and
1
The wording from the petition is unedited.
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guilting our children. [Name omitted] our youngest is
having panic attacks when he calls and text her. She’s so
afraid he will kidnap her. I waited this long from
Wednesday June the 9th because I didn’t know that was
an option.
Appellee, in asking for protective relief, also requested temporary custody of the
children and alleged that she is “afraid he will take my kids without me looking.”
In the petition’s space provided for additional comments, Appellee added:
Our oldest daughter doesn’t want to be alone with him
because she is scared of his intentions. He calls us names
and cusses screaming every day. He has lunged at me a
couple times scaring them & me. He has punched holes
in the wall in previous homes. He is also on meth so that
terrifies me with his mental state and him being around
our children. Like I said he snaps and his moods change
quickly for the worse. I don’t know the people he has in
our home, but I know misery loves company and I am
just very fearful for the saf[e]ty of our children, and I just
want to keep their physical & mental beings healthy.
The Union Circuit Court entered the EPO on the date the petition was filed, and
scheduled a hearing for June 30, 2021. On the date of the hearing, Appellant
appeared, but was not represented by counsel. He stated that he could not afford
representation, but understood the court’s explanation that it was not able to
appoint one for him. The parties were the only witnesses.
Appellee stated her version of the events of June 9, 2021. She
testified that the parties’ family frequently argued over money; that there was
never enough to cover all their expenses; and that Appellant would not allow
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Appellee to refill her prescriptions for anxiety and depression because the money
would be needed for rent and food. Appellant worked outside the home, while
Appellee “stayed at home with the girls.” Appellee stated that the arguing had
escalated on that day, and her husband had lunged at her while she sat on the
couch. He did not strike her, but instead ordered her to leave the house. The
children were present when the incident happened. Upon further questioning from
her attorney, Appellee recalled prior incidents dating back several years. She
stated that Appellant had punched holes in the walls of former residences; she said
he had described their situation as “killing him,” which he said would make her
complicit in his murder; he had told her of a violent dream in graphic detail, which
she had interpreted as a threat to her; one time he had knocked a cell phone out of
her hand; he had once thrown a bowl of noodles toward her; Appellant used
methamphetamine in the home (“in the bedroom and bathroom”); and he
frequently called Appellee and the daughters unthinkable names. When the court
asked Appellee whether she was afraid of Appellant, Appellee stated, “yes.”
Appellant then testified. He began by repeating that he could not
afford an attorney because his money had been spent moving to Morganfield,
Kentucky to be closer to his support system. Appellant insisted that he did not
keep Appellee from filling her prescriptions. He testified that the couple had a
joint checking account, the debit card was in Appellee’s name, and she had a car.
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Appellant acknowledged expressing his opinion that the family needed the money
($400.00 for each prescription refill) for feeding the children and paying the rent,
but denied keeping the medication from her. He testified that he had encouraged
Appellee to speak to her physician about prescribing a less expensive remedy.
Appellant also denied committing any violence toward the family members and
instead characterized his speech as impassioned. He would get particularly upset
with Appellee when, after working ten to twelve hours, he would return home to
find her still in bed. He admitted knocking the telephone out of her hand on one
occasion, but denied that it was anywhere near her face at the time. He also denied
throwing a bowl of food toward her. He said that both parties participated in
illegal drug use. Appellant testified that he has sought help from a new doctor in
Henderson, Kentucky, and is doing all he can to get his “moods under control.”
The court found that Appellant had placed Appellee in fear of
imminent harm. A temporary supervised visitation schedule was entered, with the
parties agreeing on Elaine Powell to conduct the supervision. The court advised
Appellant that it would be providing him with a list of acceptable providers for him
to get a mental health and addiction assessment. The court emphasized that
assessment should be a top priority for Appellant. The court informed the parties
that a DVO would be entered for one year’s duration, but that time frame could be
amended “sooner or later depending on the circumstances.” Appellant was warned
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that a violation of the protective order constituted a crime, and that the parties
should approach the court for amendment rather than attempt to come to an
agreement without court approval.
The court entered written findings on July 7, 2021. Appellant hired
counsel who entered an appearance and filed a timely notice of appeal. This Court
ordered the matter expedited.
ARGUMENTS AND ANALYSIS
Appellant argues that Appellee failed to establish by a preponderance
of the evidence that an act of domestic violence had occurred. Specifically, he
contends that the alleged acts that occurred on or prior to June 9, 2021, do not rise
to the level of domestic violence and abuse set out in KRS 403.720(1). Appellant
also asserts that the circuit court erred in entering the DVO as Appellee failed to
establish by a preponderance of the evidence under KRS 403.740(1) that domestic
violence and abuse may occur again. In addition, Appellant argues that the court’s
findings are not supported by substantial evidence. Finally, Appellant claims that
the court violated his rights by not adequately explaining to him the severity of a
DVO and not allowing him the opportunity to seek counsel before moving forward
with the evidentiary hearing. In sum, he requests an opinion reversing and
dismissing the Union Circuit Court’s DVO.
A court may grant a DVO, following a full
hearing, “if it finds from a preponderance of the evidence
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that an act or acts of domestic violence and abuse have
occurred and may again occur[.]” KRS 403.740(1).
“‘Domestic violence and abuse’ means 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 or] members of an unmarried couple[.]” KRS
403.720(1). To satisfy the preponderance standard, the
evidence believed by the fact-finder must show that the
victim “was more likely than not to have been a victim of
domestic violence.” Commonwealth v. Anderson, 934
S.W.2d 276, 278 (Ky. 1996). “On appeal, we are
mindful of the trial court’s opportunity to assess the
credibility of the witnesses, and we will only disturb the
lower court’s finding of domestic violence if it was
clearly erroneous.” Buddenberg v. Buddenberg, 304
S.W.3d 717, 720 (Ky. App. 2010).
Hohman v. Dery, 371 S.W.3d 780, 782 (Ky. App. 2012).
In support of the DVO, Appellee alleged that she experienced fear of
imminent physical injury per KRS 403.720(1), and it was upon this basis that the
circuit court entered the DVO.2 The question for our consideration, then, is
whether the finding of domestic based on fear of imminent physical injury was
clearly erroneous. Hohman, supra.Appellee testified that Appellant had a history of methamphetamine
use; that he knocked a cell phone out of her hand and threw a bowl of food toward
her; that he punched holes in the wall; that he could get “screaming mean”; that he
2
The court found that “[t]here has been a pattern of behavior by R[espondant] that has placed
P[etitioner] in fear of imminent harm.”
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has a suicidal mental state; and that he lunged at her in a threatening manner and
got within one foot of her face. Appellee also stated that Appellant threatened
suicide many times; cursed at Appellee’s child and told the child she should kill
herself; and told Appellee that if she left him he would wake her by engaging in a
sex act while wrapped in the skin of a freshly killed deer. Appellee interpreted this
as a threat to her safety. Appellant denied throwing food at Appellee. He
acknowledged his drug usage, mood swings, and threats to harm himself. He said
the story about the deer skin was not to be taken seriously, and in retrospect he
acknowledged that it was not funny.
In considering this testimony, the circuit court found Appellee’s
testimony credible and Appellant’s testimony not credible. As the trier of fact, the
circuit court is best situated to make this determination. Hohman, 371 S.W.3d at
783. Appellant properly notes that he never struck Appellee, and reiterates that the
events she recounted spanned a period of time going back to the couple living at a
prior residence. This tends to support his claim that Appellee does not have a fear
of imminent physical injury. Nevertheless, Appellee gave testimony of Appellant’s
chronic, threatening behavior, mood swings, and drug use contemporaneous with
Appellee’s filing of the petition. At the time of the hearing, she alleged that she
was afraid of Appellant and fearful for her daughter’s life. She also stated that the
parties’ youngest daughter has panic attacks when Appellant calls or texts, and that
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her older daughter from a prior relationship doesn’t want to be alone with
Appellant and is afraid of him. She said Appellant cusses and screams at them
“every day.”
“[D]omestic 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) (citation omitted).
Given the relatively low preponderance of the evidence standard, our duty to
liberally construe domestic violence statutes in favor of protecting victims, and
with recognition of the lower court’s discretion in making these determinations, we
do not conclude that the Union Circuit Court’s finding of domestic violence was
clearly erroneous. Based on the evidence, Appellee was in fear of imminent
physical injury. Additionally, Appellant’s history of threatening and angry
behavior toward Appellee and the children supports a conclusion that domestic
abuse may happen again.
Lastly, Appellant argues that the circuit court violated his
constitutional rights by not adequately explaining to him the severe consequences
of a DVO and by not allowing him the opportunity to seek counsel before moving
forward with the evidentiary hearing. To our knowledge, Appellant did not raise
below his claim that the circuit court improperly failed to explain the severe
consequences of a DVO. “A basic general principle of the Rules of Civil
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Procedure is that a party is not entitled to raise an error on appeal if he has not
called the error to the attention of the trial court and given that court
an opportunity to correct it.” Little v. Whitehouse, 384 S.W.2d 503, 504 (Ky.
1964) (citation omitted). As such, we will review this issue only for manifest
injustice. Ford v. Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021).
“[A] party has a meaningful opportunity to be heard where the trial
court allows each party to present evidence and give sworn testimony before
making a decision.” Holt v. Holt, 458 S.W.3d 806, 813 (Ky. App. 2015) (citation
omitted). The Union Circuit Court conducted a full hearing and heard testimony
from both parties. Appellant cites no case law or statutory law for the proposition
that the trial judge has duty to inform the parties of the seriousness of a DVO
proceeding in advance of the hearing so that the parties may properly prepare.
Further, the duty rested with Appellant to bring counsel to the hearing if that was
his choice. Though he stated that he was unable to afford counsel, he subsequently
was able to engage appellate counsel. We find no violation of Appellant’s
constitutional rights, and no manifest injustice.
CONCLUSION
The DVO entered by the Union Circuit Court was not clearly
erroneous. Appellant’s constitutional rights were not violated as he had a
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meaningful opportunity to respond to Appellee’s petition. For these reasons, we
find no error and affirm the DVO of the Union Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
M. Alexander Russell J.T. Skinner
Henderson, Kentucky Morganfield, Kentucky
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