Scott M. Bruggeworth v. Annika Marian Bruggeworth ( 2020 )

RENDERED: NOVEMBER 6, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0382-ME
SCOTT M. BRUGGEWORTH APPELLANT
APPEAL FROM ANDERSON FAMILY COURT
v. HONORABLE S. MARIE HELLARD, JUDGE
ACTION NO. 20-D-00009-001
ANNIKA MARIAN BRUGGEWORTH APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, MCNEILL, AND L. THOMPSON, JUDGES.
GOODWINE, JUDGE: Scott Bruggeworth (“Scott”) appeals from a domestic
violence order (“DVO”) entered against him by the Anderson Family Court. After
careful review of the DVO statutes, finding no error, we affirm.
On February 2, 2020, Annika Bruggeworth (“Annika”) petitioned the
Anderson Family Court for a DVO against her husband, Scott. Annika alleged
Scott had become increasingly violent in recent years and had recently pushed her
down the stairs, hit her in the face multiple times, and prevented her from leaving
the house for her breast cancer treatment appointments. On the day Annika filed
the petition, she alleged Scott “kicked in the door and pushed my door into my
face.” Record (“R.”) at 12. Based on Annika’s petition, the family court entered
an emergency protective order (“EPO”) on her behalf and scheduled a hearing on
the petition.
During the hearing, the family court read the allegations in Annika’s
petition into the record and heard testimony from both parties. At the end of the
hearing, the family court found Annika established by a preponderance of the
evidence that an act of domestic violence and abuse had occurred and may occur
again. The family court made additional written findings regarding threatening
text messages sent by Scott to Annika and found Scott had physically pushed
Annika down the stairs. Based on these findings, the family court issued a three-
year DVO for Annika. Scott appealed.
On appeal, Scott argues: (1) the family court’s factual findings were
clearly erroneous; (2) the family court violated the KRE1 106 rule of completeness;
and (3) Annika manipulated the family court. Under Kentucky law, a court may
1
Kentucky Rules of Evidence.
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enter a DVO if it “finds by a preponderance of the evidence that domestic violence
and abuse has occurred and may again occur[.]” KRS2 403.740(1).
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. . . . The standard of review for
factual determinations is whether the family court’s
finding of domestic violence was clearly erroneous.
Findings are not clearly erroneous if they are supported
by substantial evidence.
Caudill v. Caudill, 318 S.W.3d 112, 114-15 (Ky. App. 2010) (citations omitted).
Before reaching the merits of Scott’s arguments, we must address a
significant deficiency in his brief. “There are rules and guidelines for filing
appellate briefs. . . . Appellants must follow these rules and guidelines, or risk
their brief being stricken, and appeal dismissed, by the appellate court.” Koester v.
Koester, 569 S.W.3d 412, 413 (Ky. App. 2019) (citing CR3 76.12). Scott’s brief
includes a preservation statement that makes no “reference to the record showing
whether the issue was properly preserved for review and, if so, in what manner” as
required by CR 76.12(4)(c)(v). An appellant’s compliance with this rule allows us
to undergo “meaningful and efficient review by directing the reviewing court to the
most important aspects of the appeal[,] [such as] what facts are important and
2
Kentucky Revised Statutes.
3
Kentucky Rules of Civil Procedure.
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where they can be found in the record[.]” Hallis v. Hallis, 328 S.W.3d 694, 696
(Ky. App. 2010).
Scott asserts the “record was properly preserved for appeal by filing”
his notice of appeal. Appellant’s Brief at 10. His brief does not state how he
preserved any of his arguments in the family court either in a written document or
orally, contravening CR 76.12(4)(c)(v), which states:
An “ARGUMENT” conforming to the statement of
Points and Authorities, with ample supportive references
to the record and citations of authority pertinent to each
issue of law and which shall contain at the beginning of
the argument a statement with reference to the record
showing whether the issue was properly preserved for
review and, if so, in what manner.
The language of this rule “emphasizes the importance of the firmly established rule
that the trial court should first be given the opportunity to rule on questions before
they are available for appellate review. It is only to avert a manifest injustice that
this court will entertain an argument not presented to the trial court.” Elwell v.
Stone, 799 S.W.2d 46, 48 (Ky. App. 1990) (quoting Massie v. Persson, 729
S.W.2d 448, 452 (Ky. App. 1987), overruled on other grounds by Conner v.
George W. Whitesides Co., 834 S.W.2d 652, 654 (Ky. 1992)). We require a
statement of preservation:
so that we, the reviewing Court, can be confident the
issue was properly presented to the trial court and
therefore, is appropriate for our consideration. It also has
a bearing on whether we employ the recognized standard
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of review, or in the case of an unpreserved error, whether
palpable error review is being requested and may be
granted.
Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012).
Failing to comply with the civil rules is an unnecessary risk the
appellate advocate should not chance. Compliance with CR 76.12 is mandatory.
See Hallis, 328 S.W.3d at 696.
It is a dangerous precedent to permit appellate advocates
to ignore procedural rules. Procedural rules “do not exist
for the mere sake of form and style. They are lights and
buoys to mark the channels of safe passage and assure an
expeditious voyage to the right destination. Their
importance simply cannot be disdained or denigrated.”
Id. (quoting Louisville and Jefferson County Metropolitan Sewer Dist. v. Bischoff,
248 S.W.3d 533, 536 (Ky. 2007)).
“Our options when an appellate advocate fails to abide by the rules
are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief
or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the
brief for manifest injustice only[.]” Id. (citation omitted).
Scott requested palpable error review for any unpreserved arguments.
We have reviewed the entire record and watched the entire hearing. We note that
the record on appeal is 56 pages, and the hearing was less than one hour. Video
Record (“V.R.”) at 11:10:07-11:46:25. Based on our review, Scott contested
Annika’s version of events, so we will consider his arguments regarding the family
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court’s factual findings preserved. Because “the impact of having an EPO or DVO
entered improperly, hastily, or without a valid basis can have a devastating effect
on the alleged perpetrator[,]” we choose to ignore the deficiency and proceed with
our review of these arguments. Petrie v. Brackett, 590 S.W.3d 830, 835 (Ky. App.
2019) (quoting Wright v. Wright, 181 S.W.3d 49, 52 (Ky. App. 2005)). However,
Scott failed to preserve the remainder of his arguments, so we will review them for
palpable error.
Domestic violence is governed by KRS 403.715 et seq., which
provides that domestic violence petitions must contain “[t]he facts and
circumstances which constitute the basis for the petition” alleging domestic
violence and abuse. KRS 403.725(3)(c). “Domestic violence and abuse” is
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[.]
KRS 403.720(1). “‘Physical injury’ means substantial physical pain or any
impairment of physical condition[.]” KRS 500.080(13). It can also mean
“[p]hysical damage to a person’s body.” Physical Injury, BLACK’S LAW
DICTIONARY (11th ed. 2019).
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When entering a DVO, the family court determines a petitioner has
shown by a preponderance of the evidence an act or acts of domestic violence has
occurred and may again occur. KRS 403.750(1); Matehuala v. Torres, 547 S.W.3d
142, 144 (Ky. App. 2018); see also Bissell v. Baumgardner, 236 S.W.3d 24, 29
(Ky. App. 2007). To enter a DVO, the family court must decide a petitioner is
more likely than not to have been a victim of domestic violence. Matehuala, 547
S.W.3d at 144; Wright, 181 S.W.3d at 52.
“A DVO ‘cannot be granted solely on the basis of the contents of the
petition.’” Clark v. Parrett, 559 S.W.3d 872, 875 (Ky. App. 2018) (citation
omitted). At the hearing, the family court read the factual allegations from
Annika’s petition into the record and heard testimony from both parties. Annika
testified that, three weeks prior to the hearing, Scott pushed her down a flight of
stairs, but she caught herself at the bottom. Annika further stated that she feels
threatened on occasions when Scott has not physically harmed her. She explained
that he would “air punch” at her face and come within an inch of hitting her. V.R.
at 11:19:15. Annika said she knew not to move during Scott’s air punches because
he hit her in the face and broke the skin a few years ago.
Annika then testified regarding the specific events of February 2,
2020, that led to her filing the petition. She stated:
I went out of town on business. I found out through
Locations that he went back to the strip club, lying to me
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that he was at the gym. So I came home and prepared
myself and locked the door. I put his things out, so he
wouldn’t say he didn’t have his things.
...
So I prepared for them to be out, because I have to
divorce now because he’s never going to stop. So he
came to get his stuff and the suitcase was between us and
he slammed the door in my face. I got it out – he left.
He then started texting me he was going to “break in,”
“I’m coming in, “I don’t care about the police.”
V.R. at 11:20:14-11:21:06. Annika testified she then called the police to make a
statement, and during the call, Scott reappeared at the home and started bashing
and kicking the door. The police arrived shortly thereafter, and Scott “raced off”
and told Annika “she would be sorry.” V.R. at 11:21:36-11:21:44.
Annika also presented text messages as evidence of Scott’s threats to
her. In pertinent part, Scott told Annika: “That last romp with your boyfriend will
make your life hell!!!” and “This will end badly.” R. at 26 and 43. Scott also told
Annika that he was going to break into the home multiple times.
Scott testified there was no history of abusing his wife and denied all
allegations. He stated he did not “know what she was referencing” when she
discussed him pushing her down the stairs. V.R. at 11:28:17. Scott further
testified that he believed Annika was financially motivated to file the petition.
Based on Annika’s testimony, the family court entered the order of
protection, using the AOC-275.3 form order. The family court checked the box
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finding “[f]or the Petitioner against the Respondent in that it was established by a
preponderance of the evidence, that an act(s) of domestic violence and abuse . . .
has occurred and may occurred again.” R. at 41. Additionally, the family court
made the following written findings of fact: “Respondent has made threats such as
‘this will end badly,’ and ‘[t]hat last romp with your boyfriend will make your life
hell.’ Respondent has been physically violent with the petitioner in the past (i.e.,
pushing Petitioner down the steps.)” R. at 43.
The family court followed the statutory requirements for issuing a
DVO. The court made specific findings that Annika was a victim of domestic
violence, domestic violence had occurred in the past, and it was likely to occur in
the future. The family court entered additional written findings stating a basis for
entering the DVO against Scott. As such, we conclude Annika’s testimony and
text messages presented formed a sufficient factual basis under KRS 403.740(1)
for the family court to issue the DVO.
Next, we address Scott’s argument that the family court erred finding
Annika’s testimony more credible than Scott’s. It is well-established that “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 citations omitted). As
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long as the family court’s findings “are supported by substantial evidence,” we will
not disturb them. Id. Substantial evidence is “[e]vidence that a reasonable mind
would accept as adequate to support a conclusion and evidence that, when taken
alone or in the light of all the evidence, . . . has sufficient probative value to induce
conviction in the minds of reasonable men.” Id. (internal quotation marks and
citations omitted).
Here, the family court accepted Annika’s testimony regarding the
alleged instances of domestic violence over Scott’s general denial of the
allegations. It was in the family court’s discretion to believe Annika’s testimony
and text messages to the exclusion of Scott’s testimony. Annika’s testimony
constituted substantial evidence to support the family court’s factual findings. As
such, the family court’s factual findings were not clearly erroneous, and the court
did not abuse its discretion in issuing the DVO against Scott.
Third, Scott argues the family court violated KRE 106 in allowing
Annika to introduce the text messages. He asserts Annika presented printed copies
of incomplete text messages. It appears from the exhibits presented at the hearing
that two of Annika’s and two of Scott’s longer messages were cut off in the
middle, and there is an option to “view all.” R. at 26, 34, 38, and 39. He argues
the messages were likely taken out of context because the family court did not
have copies of the full exchange. Scott attempted to show the family court
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messages on his phone. The family court asked if he brought printed copies of the
messages. Scott replied he did not and dropped the issue. He did not object to the
text messages presented by Annika during the hearing. Scott concedes he did not
preserve this issue and requests palpable error review.
KRE 106 provides: “When a writing or recorded statement or part
thereof is introduced by a party, an adverse party may require the introduction at
that time of any other part or any other writing or recorded statement which ought
in fairness to be considered contemporaneously with it.” (Emphasis added).
Annika argues the rule was not violated because Scott had the option to require
Annika to introduce the complete messages or full exchange at the time the
messages were introduced, and he failed to do so. We agree.
Furthermore, the family court did not palpably err in admitting the
text messages. We may only reverse for palpable error when “there is a
‘substantial possibility’ that the result in the case would have been different
without the error.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006)
(quoting Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003)).
Here, the introduction of the text messages did not alter the outcome of the case.
Annika testified regarding the threatening text messages from Scott and the
incident when he pushed her down the stairs. Because the family court would not
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have merely relied on the petition in the absence of the text messages, there was no
palpable error.
Finally, Scott argues Annika manipulated the family court in
requesting a DVO. Scott asserts Annika used this proceeding to “one-up” him.
Appellant’s Brief at 25. Scott’s argument cites to Annika’s financial concerns
stemming from his behavior, but he omits her concerns for her safety. We find
Scott’s argument without merit. Although Scott “is obviously dissatisfied with the
trial court’s decision, threadbare recitals of the elements of a legal theory,
supported by mere conclusory statements, form an insufficient basis upon which
this Court can grant relief.” Jones v. Livesay, 551 S.W.3d 47, 52 (Ky. App. 2018).
Apart from reciting applicable law cautioning against hastily entering a DVO or
issuing one without legal merit, Scott advances nothing of substance in support of
his contention. We will not scour the record to construct Scott’s argument for him,
and we are confident nothing in the record supports this argument. Based on our
thorough review of the trial record, Annika presented a legitimate basis for the
family court to issue a DVO against Scott.
For the foregoing reasons, we affirm the domestic violence order
entered by the Anderson Family Court.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Raven N. Turner Ryan Robey
Frankfort, Kentucky Lexington, Kentucky
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