Brian Douglas v. Shelby Carter ( 2023 )

RENDERED: FEBRUARY 24, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0804-ME
BRIAN DOUGLAS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE SHELLY M. SANTRY, JUDGE
ACTION NO. 22-D-501940-001
SHELBY CARTER APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND ECKERLE,
JUDGES.
ECKERLE, JUDGE: Brian Douglas (Douglas) appeals from a domestic violence
order (DVO) entered by the Jefferson Family Court in favor of Shelby Carter
(Carter). We conclude there was substantial evidence to support the Family
Court’s findings and that its credibility determinations were not clearly erroneous.
Hence, we affirm.
On June 13, 2022, Carter filed a petition for an order of protection
against Douglas. In the affidavit supporting the petition, Carter alleged that, on
June 12:
An argument occured [sic]. I tried to leave the home so
the argument wouldn’t escalate. Brian Douglas used his
fore arm [sic] on my neck to push me against the wall.
He used his fore arm [sic] to choke me and threw me on
the ground. Then continued to hit me with his fore arm
[sic]. During this my head was hit on the wall and I have
scrapes on my knees. Prior to today, Brian was served
eviction papers to vacate my home by July 1st. Brian
Douglas has also been following me and using devices in
the home to record conversations without my knowledge.
I’ve been made aware that a gun has been purchased and
is hidden in the home. I’m fearful for my safety and I’m
fearful that he will take our child and leave the state.
Brian Douglas has made threats of harming me to family
members. He has also made threats of hurting friends of
mine.
Based on the petition, the Family Court granted an emergency
protective order (EPO) to Carter and the parties’ child. The matter proceeded to a
hearing on June 28. At that hearing, the Family Court read the petition into the
record, after which Carter adopted its contents under oath. Carter testified that she
and Douglas had been together for eight years and have a child together, but they
were never married.
About nine months before the filing of the petition, Carter informed
Douglas that she wanted to end the relationship. Carter testified that, since that
time, there has been constant arguing. She stated that Douglas’ behavior has been
-2-
erratic, and he has used physical force against her. Carter testified that a similar
incident occurred around the beginning of 2022, during which Douglas pushed her
up against a wall.
Carter further testified that Douglas told her that she was being
followed, and he had photos of her. He specifically stated that he had her followed
to Elizabethtown, and he identified specific places she had been. Douglas also told
her that he had been recording her conversations in the home, and he would send
those recordings to her family and friends. He stated that he knew people who
could hurt her or her friends. In May of 2022, Carter sent an eviction letter to
Douglas, giving him until July 1 to vacate the residence. The parties rotated living
in the house and staying with the child on weekends.
On Sunday, June 12, Carter got off work and returned home with her
mother. Carter’s sister arrived with their child shortly afterward. Later that
evening, Carter texted Douglas to ask about the television. Douglas arrived and
they got into the argument. She stated that she found empty beer bottles and
alcohol containers around the house. The physical altercation occurred when
Carter attempted to leave the house. Douglas stated that he was taking the child
and was not going to return him. Carter called the police while Douglas and the
child remained outside. Douglas was shouting and throwing water bottles in the
yard. Carter stated that her knees were scraped and bruised, and she offered photos
-3-
of the injuries. Carter also showed her injuries to the Family Court. Their child
was present during this incident.
With regard to the gun, Carter stated that Douglas owned two guns
during the relationship, but he had given those guns away. However, she learned
that Douglas purchased a gun after she asked him to leave the home. Carter stated
that family members had advised her that he had the gun hidden in the home. He
has made statements that he would break her jaw. He regularly uses alcohol, and
he admitted to drug use in the past. She stated that he has repeatedly come to her
workplace. Carter still had concerns that Douglas was going to take their child
because he was not originally from Kentucky and has no family here.
On cross-examination, Carter clarified that she had not filed an
eviction action, but her attorney sent him a letter directing him to leave. She did
not have any concerns about Douglas’ alcohol or drug use, and she was not afraid
of Douglas hurting the child. She was aware that Douglas was looking into a
custody action, and she became aware of that possibility around the beginning of
June.
Douglas’ counsel introduced the police report from the June 12
incident into the record. The police report states that the incident involved a
“rapidly-escalating verbal altercation,” and that “[n]o person involved had any
complaints of injuries.” No charges arose from the incident. Carter stated that she
-4-
told the police of injury to her knees. On re-direct, Carter denied taking out the
EPO to get Douglas out of the house or to affect a potential custody action.
Carter’s mother, Carol Busan, testified that Carter contacted her on
the evening of June 12. Carter was crying and asked her to call the police. Busan
went to the house and saw Douglas in the driveway speaking to the police officer.
Busan stated that Carter’s knees were red and swollen. Busan stated that Carter
told her about the incident and prior incidents, but Busan had never witnessed the
alleged abuse. Carter took the pictures while the officers were on the scene. On
cross-examination, Busan stated she had not noticed any injuries to Carter’s knees
earlier that day.
Douglas testified that he got into an argument with Carter about
removing his possessions from the house. He stated that the situation earlier that
day was tense but never violent. He testified that he received Carter’s text about
the television and went back to the house. As he was trying to leave, Carter stated
she wanted to leave. Douglas stated that Carter tried to prevent him from leaving.
She fell to the ground than and then claimed he hit her. Douglas went back in the
house, retrieved the child, and then waited for the police to arrive. He stated that
he had not been drinking that day. He admitted that he previously owned a gun but
stated that he did not currently own one.
-5-
On cross-examination, he denied any physical altercation with Carter.
He also denied making any threats. He was asked about a text he shared with
Carter’s sister in which he complained about the man who Carter was seeing. In
the text, he stated, “I promise you guys that if she brings that piece of sh*t around
[the child] I will kill him.” The text was followed by a picture of a handgun.
Douglas stated that he did not own the gun in the picture, and that the picture was
related to an earlier conversation. On re-direct, Douglas stated he took the picture
from the internet, and that the conversation involved hobbies. Douglas’ counsel
introduced a copy of the text message and photo of the gun.
Following this testimony, the Family Court entered the DVO on
behalf of Carter but not the child. The Court found that an act of domestic
violence occurred and may occur again. The Court entered the DVO for one year,
providing that Douglas was to have no contact and remain at least 500 feet away
from Carter. The Court directed that Douglas vacate the residence and not possess
any firearms. The Court noted that any issues relating to the child would be
resolved in the custody action. Douglas now appeals from the entry of the DVO.
KRS1 403.740(1) provides that “if a court finds by a preponderance of
the evidence that domestic violence and abuse has occurred and may again occur,
1
Kentucky Revised Statutes.
-6-
the court may issue a domestic violence order. . . .” The preponderance of the
evidence standard is met when sufficient evidence establishes that the alleged
victim was “more likely than not to have been a victim of domestic violence.”
Caudill v. Caudill, 318 S.W.3d 112, 114 (Ky. App. 2010). KRS 403.720(1)
defines “[d]omestic violence and abuse” 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[.]”
As an appellate court, we review the Family Court’s issuance of a
DVO to determine “whether the court's findings were clearly erroneous or . . . it
abused its discretion.” Holt v. Holt, 458 S.W.3d 806, 812 (Ky. App. 2015)
(citation omitted). See also Caudill, 318 S.W.3d 114-15. A court’s findings of
fact are clearly erroneous only if they are unsupported by substantial evidence; that
is, evidence sufficient to induce conviction in the mind of a reasonable person.
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). However, this Court will
engage in a de novo review with regard to the Family Court’s application of law to
those facts. Buddenberg v. Buddenberg, 304 S.W.3d 717, 720 (Ky. App. 2010).
Douglas argues that there was no factual basis to support the Family
Court’s finding that an act of domestic violence occurred and may again occur. He
focuses on the absence of any testimony or witnesses to corroborate Carter’s
-7-
testimony. But as trier of fact, the Family Court has the right to believe the
evidence presented by one litigant in preference to another. Bissell v.
Baumgardner, 236 S.W.3d 24, 29-30 (Ky. App. 2007). Furthermore, this Court
must be mindful of the Family Court’s opportunity to observe and assess the
credibility of the witnesses. CR2 52.01.
In this case, the Family Court clearly found Carter’s testimony about
the June 12 incident to be more credible than Douglas. The Family Court also
accepted her testimony about the prior incident and threats. While Douglas
complains that the photo of the gun was “taken out of context,” the Family Court
found that evidence relevant to establish both the prior threat and that acts of
domestic violence may again occur. In light of the testimony as a whole, there was
substantial evidence to support the Family Court’s credibility determinations.
The Family Court’s factual findings were based on those
determinations. Under the circumstances, we find substantial evidence to support
those findings. Therefore, the Family Court did not abuse its discretion in entering
the DVO against Douglas.
Accordingly, we affirm the DVO entered by the Jefferson Family
Court.
2
Kentucky Rules of Civil Procedure.
-8-
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Derrick L. Harris Katie Brophy
Lexington, Kentucky Louisville, Kentucky
-9-