Chera Leigh Bowen v. Jackie Curtis Bowen, Jr. ( 2021 )

RENDERED: JULY 16, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0098-ME
CHERA LEIGH BOWEN APPELLANT
APPEAL FROM ANDERSON CIRCUIT COURT
v. HONORABLE S. MARIE HELLARD, JUDGE
ACTION NO. 20-D-00061-001
JACKIE CURTIS BOWEN, JR. APPELLEE
OPINION
AFFIRMING
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BEFORE: COMBS, KRAMER, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Chera Leigh Bowen (“Appellant”) appeals from
findings of fact, conclusions law, and domestic violence order rendered by the
Anderson Circuit Court, Family Division in favor of Jackie Curtis Bowen, Jr.
(“Appellee”). Appellant argues that the circuit court abused its discretion in
finding that domestic violence had occurred and may again occur. For the reasons
addressed below, we find no error and affirm the order on appeal.
FACTS AND PROCEDURAL HISTORY
On October 15, 2020, Appellee sought an order of protection against
his wife/Appellant in Anderson Circuit Court, Family Division. Appellee alleged
in relevant part that during the course of an argument with Appellant at their
residence, she picked up a shotgun with two shotgun shells and threatened to kill
herself. According to Appellee, when Appellant approached him he grabbed the
shotgun, and she grabbed his neck and broke his necklace. Appellee called the
police to report the incident. Appellee stated that Appellant threatened to have him
fired from his job, and told the police that he choked her. Appellee alleged that
Appellant is bipolar, has severe emotional highs and lows, was abusing her
medication, and was becoming increasingly violent. He stated that Appellant had
previously swerved her vehicle toward him as if she were going to hit him.
The Anderson Circuit Court entered an emergency protective order
(“EPO”) on October 15, 2020, and conducted a hearing on October 20, 2020. At
the hearing, Appellee called EMS worker Chris Hood and the parties’ adult
daughter, Laiken Bowen, to testify. After taking proof, the circuit court entered a
three-year domestic violence order (“DVO”) in favor of Appellee upon finding that
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a preponderance of the evidence demonstrated that domestic violence and abuse
had occurred and may again occur. The court made no additional findings.
Appellant then moved to alter, amend, or vacate the order. In support
of the motion, Appellant argued that the court relied on erroneous and/or
fraudulent testimony; that she did not have ample opportunity to call her medical
providers to rebut Appellee’s claims of mental health issues; and, that her family
members were prepared to rebut some of the claims made by Appellee. Appellant
also requested additional findings.
Citing Castle v. Castle, 567 S.W.3d 908 (Ky. App. 2019), the circuit
court determined that Appellant was entitled to additional findings in support of
the court’s order. The court then amended the DVO to include additional findings
that: 1) Appellee was in fear of his safety because Appellant had a shotgun in her
hands while threatening to kill herself in front of him; 2) Appellant had two
shotgun shells in her hand which she threw at Appellee; 3) Appellant grabbed
Appellee’s neck; 4) Appellant told the police that she was just trying to scare
Appellee with the shotgun; 5) Appellant swerved her vehicle toward Appellee; 6)
Appellee believes Appellant is capable of violence and he is afraid of her; and 7)
Appellant repeatedly contacted Appellee’s employer for the purpose of harassing
Appellee.
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Citing Gullion v. Gullion, 163 S.W.3d 888 (Ky. 2005), the circuit
court determined that Appellant failed to prove any of the elements necessary to
alter, amend, or vacate the DVO. This appeal followed.
ARGUMENT AND ANALYSIS
Appellant, through counsel, argues that the Anderson Circuit Court
erred in finding that domestic violence had occurred and that it might occur again.
Specifically, she contends that threats of self-harm are not automatically indicative
of domestic violence, and that her act of grabbing Appellee’s neck did not
constitute domestic violence. Appellant asserts that though she grabbed the
shotgun and threatened to harm herself, it was not a frequent or repeated threat, it
did not include threats of harm to Appellee, and was not made to include any
minor children. Appellant attempts to distinguish the instant facts from those in
Dixon v. Dixon, No. 2009-CA-0408-ME, 2009 WL 2341048 (Ky. App. Jul. 31,
2009), wherein domestic violence was found when the actor repeatedly threatened
suicide with a handgun after many phone calls in which the victim stated she
wanted no contact with the actor. Appellant also distinguishes her actions from
other case law where domestic violence was found after threats of suicide were
made in front of minor children. The substance of Appellant’s argument on this
issue is that her isolated threat of suicide, not expressly threatened to be carried out
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in front of the minor children, did not rise to the level of domestic violence as set
out in Kentucky Revised Statutes (“KRS”) 403.720.
As to her claim that grabbing Appellee’s neck did not constitute
domestic violence, Appellant notes that Appellee was the only person to testify that
Appellant was responsible for the physical altercation when he took the shotgun
from her and she grabbed Appellee’s neck. Appellant argues that this testimony
was disputed by Appellant and the parties’ adult daughter, who agreed that
Appellant had already been disarmed when the parties’ altercation became
physical. She asserts that in grabbing Appellee’s neck, she was simply attempting
to prevent him from harming her. Appellant argues that these facts do not
constitute a preponderance of the evidence that domestic violence occurred, and
that the circuit court committed reversible error in failing to so rule.
A court may grant a DVO, following a full hearing,
“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[.]” 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 . . . 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
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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).
Evidence was adduced that Appellant picked up a shotgun in the
midst of a heated verbal altercation, that she retrieved ammunition for the gun, and
that Appellee was afraid and did not know if the gun was loaded. Appellee
testified that Appellant swerved her vehicle towards him in an apparent attempt to
run him over or intimidate him. Appellant also acknowledges that she threatened
to commit suicide. A panel of this Court has previously held that threats of suicide
coupled with violent acts are sufficient to sustain a trial court’s discretionary
finding that domestic violence had occurred and was likely to occur again.
Crabtree v. Crabtree, 484 S.W.3d 316 (Ky. App. 2016); Dixon, supra. Appellant
attempts to distinguish Dixon from the matter before us, as the Dixon actor
threatened suicide more than once whereas Appellant threatened suicide only once.
Dixon makes no distinction between a single and multiple suicide threats, and we
are not persuaded by Appellant’s argument on this issue.
CONCLUSION
We conclude from the totality of the record and the law that the
Anderson Circuit Court did not abuse its discretion in finding that acts of domestic
violence and abuse have occurred and may again occur. Appellant’s menacing
behavior with the shotgun and ammunition, coupled with her threat of suicide, are
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sufficient to support the circuit court’s finding. Arguendo, even if Appellant
grabbed Appellee’s neck in a wholly defensive manner, the facts relating to the
shotgun, ammunition, and threat of self-harm are sufficient to sustain the circuit
court’s finding of domestic violence and abuse. We affirm the order of the
Anderson Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Corey M. Nichols Dorothy L. Watts
Frankfort, Kentucky Lawrenceburg, Kentucky
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