Matthew Ringer v. Allison Zeller ( 2022 )

RENDERED: APRIL 8, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1234-ME
MATTHEW RINGER APPELLANT
APPEAL FROM ANDERSON FAMILY COURT
v. HONORABLE S. MARIE HELLARD, JUDGE
ACTION NO. 21-D-00064-001
ALLISON ZELLER APPELLEE
OPINION
AFFIRMING
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BEFORE: COMBS, LAMBERT, AND K. THOMPSON, JUDGES.
LAMBERT, JUDGE: Matthew Ringer has appealed from the domestic violence
order (DVO) entered by the Anderson Family Court entered October 5, 2021,
pursuant to a petition filed by Allison Zeller. We affirm.
This matter began with the filing of a petition for an order of
protection by Allison against Matthew on September 27, 2021. While they never
married, Allison and Matthew had lived together. In the petition, Allison alleged
that on September 7, 2021, Matthew had engaged in an act or acts of domestic
violence and abuse based on the following circumstances:
Matthew and I would have been together for 4
years in March. We’ve known each other for about 5
years and we were engaged for 2 years. Matthew went to
prison for about 2 years. From February 2019 to
December 2020. He proposed in July of 2019. Matthew
has always had a way with words and has always
manipulated me into doing what he wanted because I
thought it was love. When Matthew and I argued we
never laid hands on each other. We said hurtful things
and sometimes got [too] close while screaming at one
another but it didn’t get physical until about 4 months
after he got out of prison, then when we argued he would
scream so hard that he would spit in my face and poke
his finger into my forehead to get me out of his way. The
way he and I dealt with things was too different for us to
understand. When something happens, I always wanted
to talk about it right away and he wanted to be left alone
to think about stuff. At times I tried to leave him be but I
did try to get him to talk to me in those times.
On September 7th, 2021, we woke up that morning
and nothing seemed wrong. I had a job interview and he
went to help a friend with something and when I called I
was trying to play a prank by saying that I was mad
because I didn’t get the job but he hung up on me and
wouldn’t answer. He texted me and we talked back and
forth (I can provide messages). He said he was going to
come get his stuff. I was at home when he got there and I
asked why he was leaving and he said it was because of
me. I followed him into the bedroom and asked what I
did to make him leave and he said “I don’t love you
anymore[.]” [O]ut of hurt and anger I started screaming
“get the [f***] out of my house[.]” [H]e then turned
around and said “what did you just say to me?” and I
repeated myself. He then left where he was stand[ing] (at
the back of the bedroom in the closet) and ran at me and I
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put my arms in front of my face to protect myself and he
grabbed both arms and pushed me from my bedroom
door to my back door, squeezing my arms, spitting in my
face and saying “is that what you [f******] wanted?”. I
started screaming “let me go” and I did try to spit in his
face to get him off of me but he is a big man and I was
afraid if I fought back he might end my life. (I can
provide pictures.) [A]fter that happened, I started
recording a video of his behavior and he admitted to
putting his hands on me. I stayed on the opposite side of
the room from him but I was scared of what he would
[do] if I tried to call someone or if I left him alone in my
house. Since September 7th, Matthew has done nothing
but harass me and threaten me. He has made fake social
media accounts to harass me, he has texted me off of
multiple phone numbers, he is messaging all of my
family and friends saying that he’s going to kill himself,
and he hacked my phone and changed the password to
my AT&T account. He is sharing my private
information, tracking my location and listening in on my
phone calls. I know this because a friend came to me and
said “I am worried for your safety because Matthew
showed up drunk to my house and was laughing and
showing me how he can see your texts, calls,
locations . . . [.]”
In addition to these things, he has contacted my
mom, my step [d]ad, my cousins who live in North
Carolina and a few of my friends trying to harass them or
to try to find me/talk to me. I [d]o have screen shot[s] of
everything. I have messages, pictures of my bruises and
videos. The actions I have taken on my own were not
enough. I cut off his phone (it is in my name) and I cut
all ties including: car insurance, debit/credit cards, bank
accounts, I’ve deleted all of his personal info from my
phone. I was his power of [attorney] for the 2 years he
was in prison. Also I work at a daycare and my boss
knows my situation, she called me to her office and asked
to see a picture of Matthew because she said a strange
man showed up asking questions but she wasn’t 100%
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sure it was him. She said it did look just like him though.
The only time I have reached out to him since he left was
the night he said he was going to kill himself, I called
twice but he didn’t answer and then on September 24 &
25 I received weird texts from a number and tried to call
but no answer.
I have pictures that he sent me of his “suicide
plan.” That night & the next morning my mom and I
called the Frankfort police department for a wellness
check. I’ve contacted AT&T 3 times to get my account
reset and it keeps getting change[d]. There is
information about me coming from him that I have never
texted about or talked on the phone about but he still
knows. I’m pretty sure he’s using my phone’s
microphone to listen in on me. He’s been contacting my
friends to meet with him to relay information to me
because I won’t talk to him. I’ve blocked him on
everything. All of this is happening daily for the last 3
weeks.
In the petition, Allison requested that the court restrain Matthew from committing
any further acts of domestic violence, from any unauthorized contact or
communication with her, from going within a specified distance of her residence
and work, and from disposing of or damaging their property. The family court did
not enter an emergency protection order (EPO) as the petition failed to “state an
immediate and present danger of dating violence and abuse [or] stalking[.]”
Instead, the court signed a protective order summons on September 27, 2021,
which was served on Matthew by the Anderson County Sheriff’s Department on
October 1, 2021.
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The court held a hearing on October 5, 2021, during which the parties
appeared via ZOOM without counsel. Allison confirmed that she and Matthew
had previously lived together. Allison testified about the acts of violence that took
place on September 7th as detailed in her petition. He ran across the room,
grabbed her arms as she put them up to shield her face, and threw her up against
the door to the bedroom. She tried to do what she could to get away, but said “he’s
pretty strong.” This action surprised and scared her as she did not expect it. This
was the only altercation between them, although Matthew had also screamed in her
face and poked her in her forehead a few times since he had returned from prison.
She did not think much of this at the time, although she did not like it. She said
she was in fear for her safety, stating that her messages and phone calls had been
listened to and her location followed through AT&T, specifically linked to the
phone number Matthew had. She also said she was scared because she filed the
petition on Monday, and on Friday, Matthew broke into her house and took
property. She thought the summons could have been issued sooner or an escort
could have taken him to her house instead of breaking in while she was at work.
She was afraid for her life, and as an example stated that a family member had told
Matthew to leave Allison’s property, and in response Matthew stated it was his
property.
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Matthew also testified. He related an argument on September 7th
with Allison over the phone where she yelled at him about spending time with
friends, which resulted in his saying he was done with the relationship. He
mentioned that he had emotional issues and anxiety, for which he needed space
and the ability to pull back when Allison wanted to argue. He had been telling
Allison for months that he was stressed out and under anxiety, and that he needed
space.
Matthew told Allison he was coming home to get his stuff and leave
on the day in question. He said he had text messages that Allison would not be
able to watch him pack his belongings. But she was in the house when he arrived
and asked him why he was so mad. She kept wanting to talk about it, while he
kept saying he just wanted to pack up his belongings and leave. Allison continued
to scream at him and told him to leave the house. Matthew stated that he got mad
at something Allison said, went over to her, and poked her in her head. Allison
threw her arms up, he grabbed her wrists not knowing if she was going to hit him,
she scarily said to let go of her, and he realized he had gotten too angry. This is the
reason he decided to leave. He let her wrists go and swung them down. He called
his mother so that she could listen over the phone. He began venting to his mother,
and Allison screamed at him again. He hung up the phone and called the sheriff’s
department. He began recording his conversation with Allison, during which he
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stated Allison was begging him to stay. He told her he did not love her anymore.
At that point, she stopped. He finished packing and left.
Matthew only returned to the house to get the rest of his property. He
denied that an EPO had been entered at that time. He said he had a full video
recording of going to the house with his boss. For three days after the incident, he
did not contact her. However, he said she had been contacting his family
members. He contacted her to demand that she stop doing this. At the end of his
testimony, he said he had proof of the incident.
At the conclusion of the hearing, the family court stated that it was
entering a three-year DVO with various terms attached. In the docket order, the
court included written findings to support its finding that an act of domestic
violence and abuse had occurred and may occur again:
Grabbed by arms + “threw” her against door; only
time this has ever happened. He broke into her house
after she did the EPO. He has screamed in her face &
poked her in the forehead. Is afraid of him.
Admitted to poking her in the forehead & grabbing
her wrists, and slung them down.
In addition to restraining Matthew from contacting Allison or being within 500 feet
of her, the court ordered Matthew to complete a domestic violence assessment and
comply with all recommendations, and that he was not to own, possess, or have
access to any weapons.
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Following the entry of the DVO, counsel made an entry of appearance
on behalf of Matthew for purposes of filing a notice of appeal, and this appeal now
follows.
On appeal, Matthew argues that the family court erred in entering the
DVO for two reasons. First, the family court did not provide him with the
opportunity to present his proof before entering the DVO. And second, there was
insufficient evidence that would permit the court to determine that domestic
violence and abuse had occurred and may occur again.
In Clark v. Parrett, 559 S.W.3d 872, 875 (Ky. App. 2018), this Court
set forth the statutory definition of domestic violence and abuse and the
appropriate standards of proof and review:
“Domestic violence and abuse” is defined as
“physical injury, serious physical injury, stalking, 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[.]” Kentucky Revised Statutes (KRS)
403.720(1).[1] “Any family member or any member of an
unmarried couple may file for and receive protection . . .
from domestic violence and abuse[.]” KRS 403.750(1).
“Following a hearing . . . if a court finds by a
preponderance of the evidence that domestic violence
and abuse has occurred and may again occur, the court
may issue a domestic violence order[.]” KRS
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In the current version of the statute, effective April 1, 2021, “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 or members of an unmarried couple[.]”
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403.740(1). “Our review in this Court is not whether we
would have decided the case differently, but rather
whether the trial court’s findings were clearly erroneous
or an abuse of discretion.” Gibson v. Campbell-Marletta,
503 S.W.3d 186, 190 (Ky. App. 2016).
And in Williford v. Williford, 583 S.W.3d 424, 427-28 (Ky. App. 2019) (footnote
omitted), this Court further explained the standard of proof and review:
The preponderance of the evidence standard is met
when sufficient evidence establishes that the petitioner is
“more likely than not” to have been a victim of dating
violence and abuse, sexual assault, or stalking. See Baird
v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007)
(applying the preponderance of the evidence standard in
the context of the issuance of a domestic violence order).
Additionally, CR 52.01 provides that a trial court’s
“[f]indings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of
the witnesses.” See also Reichle v. Reichle, 719 S.W.2d
442, 444 (Ky. 1986). Findings are not clearly erroneous
if they are supported by substantial evidence. Moore v.
Asente, 110 S.W.3d 336, 354 (Ky. 2003). Substantial
evidence is evidence of sufficient probative value that it
permits a reasonable mind to accept as adequate the
factual determinations of the trial court. Id. A reviewing
court must give due regard to the trial court’s judgment
as to the credibility of the witnesses. Id.“[T]he family court is in the best position to judge the credibility of the witnesses
and weigh the evidence presented.” Williford, 583 S.W.3d at 429 (citing Hohman
v. Dery, 371 S.W.3d 780, 783 (Ky. App. 2012)). We are mindful that “[t]he
domestic violence and abuse statutes are to be interpreted by the courts to allow
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victims to obtain protection against further violence and abuse.” Kingrey v.
Whitlow, 150 S.W.3d 67, 70 (Ky. App. 2004).
Matthew’s first argument addresses whether the family court erred in
failing to provide him an opportunity to submit his “proof.” In Williford, supra,
this Court addressed the requirement that a court must conduct a full hearing
before making a decision on a DVO petition:
“[A] DVO has significant long-term consequences
for both parties[.]” Rankin v. Criswell, 277 S.W.3d 621,
625 (Ky. App. 2008). “[T]he impact of having an EPO
or DVO entered improperly, hastily, or without a valid
basis can have a devastating effect on the alleged
perpetrator.” Wright v. Wright, 181 S.W.3d 49, 52 (Ky.
App. 2005).
A DVO “cannot be granted solely on the basis of
the contents of the petition.” Rankin, 277 S.W.3d at 625.
Due process is not satisfied when a DVO is granted
without a full hearing, such as when testimony is not
presented, or is cut short. Wright, 181 S.W.3d at 53.
“[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). Without a full hearing, a trial court cannot make a
finding based upon a preponderance of the evidence.
Wright, 181 S.W.3d at 53.
Williford, 583 S.W.3d at 428.
Here, the family court certainly permitted Matthew to testify as to his
version of the events that took place on September 7, 2021. During this sworn
testimony, Matthew admitted that he had poked Allison in the forehead, grabbed
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her wrists, and slung them down, as the family court found in its docket order. The
court also permitted Matthew to testify about the context of the disagreement
between him and Allison, and Matthew offered an explanation as to why he
“slung” her arms down (he thought she might hit him). Based upon his own
admissions, we can perceive no way that any additional proof Matthew might have
wanted to show the court would in any way alter the decision the family court
made to grant the DVO. Therefore, we reject this argument.
As to the second argument, Matthew disputes that Allison had
established that an act of domestic violence and abuse occurred, including that she
was in fear of the imminent infliction of domestic violence and abuse, or that a
future act of domestic violence and abuse may occur.
In order to grant a DVO, a court must find “by a preponderance of the
evidence that domestic violence and abuse has occurred and may again occur[.]”
KRS 403.740(1). “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 or members of an unmarried
couple[.]” KRS 403.720(1). While KRS 403.720 does not contain a definition of
physical injury, KRS 500.080(13) of the Kentucky Penal Code defines “physical
injury” as “substantial physical pain or any impairment of physical condition[.]”
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Matthew asserts that the only portion of the definition of “domestic
violence and abuse” that the court could have used to support the entry of the DVO
addressed the infliction of fear of imminent physical injury, etc. At the outset, we
disagree with this assertion because Allison certainly could have experienced a
physical injury when Matthew grabbed her wrists and pushed her arms down, or
from Matthew poking his finger into her forehead. In addition, Allison testified
that Matthew pushed her against a door, and in her petition she offered to provide
photographs of her bruises, although these were not introduced during the hearing.
Matthew raises a constitutionality question regarding the portion of
the definition of “domestic violence and abuse” that includes the infliction of fear.
He argues that fear is a subjective emotion and, therefore, the definition is too
vague and overbroad to pass constitutional muster as applied to him. Accordingly,
he claims that his due process rights were violated.
Before a party may seek review of the constitutionality of a statute,
certain requirements must be met. KRS 418.075 provides in relevant part that:
(1) In any proceeding which involves the validity of a
statute, the Attorney General of the state shall, before
judgment is entered, be served with a copy of the
petition, and shall be entitled to be heard, and if the
ordinance or franchise is alleged to be unconstitutional,
the Attorney General of the state shall also be served
with a copy of the petition and be entitled to be heard.
(2) In any appeal to the Kentucky Court of Appeals or
Supreme Court or the federal appellate courts in any
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forum which involves the constitutional validity of a
statute, the Attorney General shall, before the filing of
the appellant’s brief, be served with a copy of the
pleading, paper, or other documents which initiate the
appeal in the appellate forum. This notice shall specify
the challenged statute and the nature of the alleged
constitutional defect.
In addition, Kentucky Rules of Civil Procedure (CR) 24.03 provides, “When the
constitutionality of an act of the General Assembly affecting the public interest is
drawn into question in any action, the movant shall serve a copy of the pleading,
motion or other paper first raising the challenge upon the Attorney General.”
“[S]trict compliance with the notification
provisions of KRS 418.075 is mandatory[.]” Benet v.
Commonwealth, 253 S.W.3d 528, 532 (Ky. 2008).
“Among the purposes underlying this statute is the right
of the people, by the chief law officer, to be heard on
matters affecting the validity of duly enacted statutes.”
Maney v. Mary Chiles Hosp., 785 S.W.2d 480, 481 (Ky.
1990) (citing KRS 15.020). “Likewise, the prevention of
collusive, non-adversarial proceedings between or among
litigants which might result in the invalidation of state
law is a matter of public interest.” Id.....
“[T]he intent of the Legislature in its enactment of
KRS 418.075 is clear that no judgment shall be entered
which decides the constitutionality of a statute until the
Attorney General is given notice and an opportunity to be
heard.” Maney, 785 S.W.2d at 482.
Delahanty v. Commonwealth, 558 S.W.3d 489, 507-08 (Ky. App. 2018).
In the present case, the body of the notice of appeal states, in full:
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Comes now Matthew Ringer, through counsel and
gives notice that he appeals the final order of domestic
violence in the above styled case on October 5, 2021.
On appeal the Appellant will be Matthew Ringer
and the Appellee will be Allison Zeller.
The Attorney General of Kentucky was served with a copy of the notice of appeal
as well as with the brief Matthew filed in this appeal. However, Matthew failed to
raise this constitutional question prior to the entry of the DVO below as mandated
by KRS 418.075(1). Based on his status as a pro se respondent below, we will not
hold him accountable for this failure. But Matthew then retained counsel, who
filed his notice of appeal. While the Attorney General was served with the notice
of appeal, the notice did not “specify the challenged statute and the nature of the
alleged constitutional defect” pursuant to KRS 418.075(2). The basis of the
constitutional challenge was not known until Matthew filed his brief. Therefore,
we must hold that Matthew failed to properly preserve the constitutionality issue
for our review, and we shall address it no further.
Finally, Matthew argues that Allison failed to present sufficient
evidence to establish that an act of domestic violence would happen again. We
disagree. In her petition, Allison detailed Matthew’s behavior over the three weeks
after the September 7th incident at her home, which included allegations of
harassment via social media, listening and tracking her through her phone, and
contacting her family, friends, and possibly her employer. During the hearing,
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Allison testified that this behavior scared her. In addition, she claimed that
Matthew had broken into her house and taken property a few days after she filed
her DVO petition, which also scared her. This is sufficient to establish by a
preponderance of the evidence that domestic violence and abuse may again occur.
Accordingly, we find no error or abuse of discretion in the family
court’s entry of the DVO.
For the foregoing reasons, the domestic violence order entered by the
Anderson Family Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
John Gerhart Landon
Lexington, Kentucky
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