Brendan Richard McClusky v. Janet Lee Yount ( 2023 )

RENDERED: JUNE 23, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1300-ME
BRENDAN RICHARD MCCLUSKY APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
v. HONORABLE S. MARIE HELLARD, JUDGE
ACTION NO. 22-D-00113-001
JANET LEE YOUNT APPELLEE
OPINION
AFFIRMING
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BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND JONES, JUDGES.
JONES, JUDGE: The Appellant, Brendan McClusky (“McClusky”), appeals from
a Domestic Violence Order (“DVO”) entered against him by the Shelby Circuit
Court. After careful review of the briefs and the law, we affirm.
I. BACKGROUND
The Appellee, Janet Yount (“Yount”), filed a domestic violence
petition on September 20, 2022, against McClusky, who is her grandson. Therein,
Yount recounted an incident on September 14, 2022, which happened at her home
in Shelby County as well as a history of verbal abuse. She alleged as follows:
I have had custody of [McClusky] since he was 5 [years]
old. He has been verbaling [sic] abusive to only me in
teenage [years]. I have over and over told him that the
language he uses in my house is not [ac]ceptable but it
never stops. I had told him about a month ago [he] and
his roommate were not moving in my house to save
money and [he] jumps up and called me a fuc***g bitch.
I was boiling mad. [T]his is just a [sic] for instance of
the ep[i]sodes going on in my house. On the 14th of Sept
2022 I had had enough of it. I did tell him to leave but he
let me know – [no] f*****g way. I did push him then he
hit me on my arm. I feel its best to take these steps
because its going to get worse. I was called fuc***g
c[***], fuc***g bitch, etc. He will not leave my home
when told too [sic].
(Record (“R.”) at 7-8.) Yount requested that McClusky remain away from her
residence in Shelbyville; the only contact she wanted to remain in place was “if
need medical treatment.” (R. at 10.) Later, on September 20, 2022, the on-call
judge entered an emergency protective order (“EPO”) and issued a summons. (R.
at 4.) The Shelby County Sheriff’s department served McClusky later that day
with notice that a hearing was set for September 28, 2022. (R. at 1.)
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Both parties appeared at the September 28, 2022, hearing without
legal representation. The circuit court placed each party under oath and reviewed
the petition while Yount briefly recounted the incident that occurred on September
14, 2022. (Video Record (“V.R.”) Sep. 28, 2022, Hearing – 11:14:30.) Afterward,
the circuit court asked Yount if she felt threatened by McClusky and she
responded, “uh yeah, he gets pretty hot, you know, and I do too, but I think it’s just
best that we keep our distance for a while.” (V.R. Sep. 28, 2022, Hearing –
11:16:30.) The circuit court then asked Yount if there was anything else she
wanted to add to the petition, to which she responded negatively, and then it asked
McClusky how he wished to respond. (V.R. Sep. 28, 2022, Hearing – 11:16:45.)
McClusky briefly replied and admitted that he did not leave
immediately when asked to because he was wanting to leave with his sister and
that he did “swat” at Yount when she pushed him because he did not want to fall
off her porch. (V.R. Sep. 28, 2022, Hearing – 11:17:00.) Additionally, he testified
that he believed Yount was only making a scene because police were present down
the road for an unrelated incident; that he believed a DVO would be unnecessary;
and that he would still like to visit Yount’s residence to see his mother and sister
who still lived there as well as some dogs. Id. The circuit court then stated that
based on the testimony, it would be entering a DVO for a three-year period
prohibiting all contact between Yount and McClusky; prohibiting McClusky from
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being within 500 feet of Yount’s residence; requiring McClusky to attend a 28-
week domestic violence program with Anderson County Recovery; and setting the
case for a compliance review in November of 2022. (V.R. Sep. 28, 2022, Hearing
– 11:18:00.) The entirety of the hearing lasted for around six (6) minutes.
Afterward, the circuit court entered a standard Administrative Office
of the Courts (“AOC”) Form 275.3 order of protection for entry of a DVO. The
“Additional Findings” section read as follows:
For Petitioner against Respondent in that it was
established, by a preponderance of the evidence, that an
act(s) of ☒ domestic violence and abuse, ☐ dating
violence and abuse, ☐ stalking, ☐ sexual assault has
occurred and may again occur; or Facts set forth in
Petition are hereby adopted as findings of court.
(R. at 23) (emphasis added for portions written in by the circuit court). Nothing
was written in the portion concerning supplemental findings. The docket sheet
from the hearing states “DVO /s/” and nothing more. (R. at 21.)
This appeal followed. On appeal, McClusky brings a number of
contentions, arguing that the circuit court erred by: (1) failing to read the DVO
petition into the record; (2) failing to explain to McClusky his rights concerning
representation of counsel prior to the hearing; (3) finding that an act of domestic
violence or abuse had occurred and may occur again under a preponderance of the
evidence presented; (4) restricting him from being within 500 feet from Yount’s
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residence; and (5) ordering McClusky to attend a set number of domestic violence
classes with a particular provider. Yount did not file a responsive brief.
II. STANDARD OF REVIEW
This Court reviews the factual findings and entry of a DVO for clear
error. See CR1 52.01; Caudill v. Caudill, 318 S.W.3d 112, 114 (Ky. App. 2010).
A judgment is not clearly erroneous if it is supported by substantial evidence,
which is “evidence of substance and relevant consequence having the fitness to
induce conviction in the mind” of a reasonable person. Owens-Corning Fiberglas
Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998) (citations omitted). To the
extent the circuit court was required to interpret the statutes relevant to domestic
violence under KRS2 Chapter 403, its decisions constitute matters of law, and we
review those decisions de novo. Commonwealth v. Montague, 23 S.W.3d 629, 631
(Ky. 2000) (citations omitted).
III. ANALYSIS
To begin, we observe that Yount failed to file an Appellee’s brief
herein. This Court may impose penalties under Kentucky Rule of Appellate
Procedure (“RAP”) 31(H); however, the decision whether to impose any penalties
is within our discretion. Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007).
1
Kentucky Civil Rule of Procedure.
2
Kentucky Revised Statutes.
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Considering the serious nature of domestic violence actions, we decline to exercise
any penalties. See Wright v. Wright, 181 S.W.3d 49, 52 (Ky. App. 2005).
A. Recitation of the DVO Petition into the Record
The first matter with which McClusky takes issue is that the DVO
petition was not read into the record by the circuit court. We recognize that circuit
courts often do read DVO petitions into the record. See, e.g., Hohman v. Dery, 371
S.W.3d 780, 781 (Ky. App. 2012). Best practice may warrant that procedure, as
the circuit court must question the petitioner to the truth and veracity of the
contents of a petition and can efficiently do so after reading the entirety of the
petition aloud. See Rankin v. Criswell, 277 S.W.3d 621, 626 (Ky. App. 2008).
However, there is no requirement under our statutes or court rules stating that a
circuit court must read the entirety of the petition into the record in a domestic
violence proceeding. The trial court “is vested with a large discretion in the
conduct of the trial of causes and an appellate court will not interpose to control the
exercise of such discretion by a court of original jurisdiction, unless there has been
an abuse or a most unwise exercise thereof.” Transit Auth. of River City (TARC) v.
Montgomery, 836 S.W.2d 413, 416 (Ky.1992).
We also are not convinced by McClusky’s argument that he was
unaware of the specific allegations of the petition. Firstly, he would have received
a copy of the petition along with the summons when he was served; he does not
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deny that he ever received a copy. Additionally, the circuit court did state aloud
the date of the alleged act of domestic violence and allowed a brief recitation of the
petition allegations from Yount while the circuit court was silently reading the
petition. The circuit court also asked Yount if there was anything she wanted to
add to the petition and allowed McClusky to respond without interruption. Finally,
the circuit court did admit the petition into the record, noting on the AOC Form
275.3 order that the “[f]acts set forth in [p]etition are hereby adopted as findings of
court.” (R. at 23.) For these reasons we believe that the circuit court did not
abuse its discretion in not reading the petition verbatim into the record.
B. Right to Representation
McClusky next argues that while he understands he did not have a
right to appointed counsel, he nonetheless should have been informed of his ability
to retain an attorney, and that this affected the outcome of the hearing. We are
unpersuaded by this argument. A DVO proceeding is a civil matter. Rankin, 277
S.W.3d at 624. Parties do not have a right to appointed counsel in a civil matter
except under narrow circumstances not applicable here. May v. Coleman, 945
S.W.2d 426, 427 (Ky. 1997). Having legal representation in a civil matter is an
option afforded to a party, and there is no requirement of any court to inform a
party of their personal options – that would be tantamount to offering legal advice.
When McClusky was served with the summons, he was informed that a legal
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action was being brought against him. He then had eight (8) days to seek advice of
counsel and retain such if he chose to do so. In this instance, McClusky was given
a reasonable opportunity to retain counsel, chose to appear without counsel, and by
doing so chose to represent himself.
C. Entry of the DVO
Next, we address McClusky’s concern that the circuit court failed to
conduct a proper hearing on the matter. DVO proceedings have enormous
significance to both parties involved, and it is a disservice to the law if the parties
are not afforded a “full hearing.” Wright, 181 S.W.3d at 52-53. In Wright, this
Court held that both circuit courts involved did not conduct a proper hearing; in
one hearing the circuit court asked no questions of either party and impermissibly
relied upon extrajudicial evidence, while in the other hearing the circuit court only
asked two questions of one party and did not allow counsel to complete direct
examination. Id. at 53. Length does not necessarily equate to having a “full
hearing” though; rather, the sufficiency of process is what matters. See Rankin,
277 S.W.3d at 623-25 (holding that the DVO hearing in question was inadequate
because no testimony was offered in support of the petition, the circuit court did
not solicit any, and it only relied on the contents of the petition and extrajudicial
review of dependency cases, not because the DVO hearing was only seven (7)
minutes long and the record on appeal was only 30 pages). We observe that the
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length of the hearing and record on appeal in this case are rather short; the DVO
hearing only lasted around six (6) minutes and the record on appeal was only 27
pages. However, the circuit court properly swore in both parties; asked Yount a
question which solicited testimony; asked if Yount had anything to add to the
petition allegations; gave McClusky a chance to respond; and did not cut short the
testimony of either party. Therefore, we determine that a proper hearing as
commended by Wright took place.
Before delving into the sufficiency of the evidence, we will briefly
address the sufficiency of written factual findings, as analysis of the two go
somewhat hand-in-hand.3 A circuit court’s duty to make findings of fact is not
satisfied until its findings are reduced to writing. Keifer v. Keifer, 354 S.W.3d 123,
126 (Ky. 2011). For cases involving a DVO, notations on a docket sheet referring
to oral findings alone are not sufficient. Boone v. Boone, 463 S.W.3d 767, 769
(Ky. App. 2015). In contrast, under our current precedent, an AOC Form 275.3
completely and accurately completed is sufficient. Williford v. Williford, 583
S.W.3d 424, 430 (Ky. App. 2019). And certainly, a completely and accurately
completed AOC Form 275.3, along with some kind of additional findings, is
3
It is important to note that McClusky did not preserve the argument challenging the sufficiency
of written findings because he did not file an appropriate motion pursuant to CR 52.02. Instead,
his objection relates to the substance and sufficiency of the evidence itself and whether the
circuit court appropriately found that entry of a DVO was warranted under the preponderance of
the evidence standard.
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sufficient to satisfy the circuit court’s good faith duty to record its findings.
Pettingill v. Pettingill, 480 S.W.3d 920, 925 (Ky. 2015) (holding that a complete
and accurate AOC Form 275.3 with a box checked under the “Additional
Findings” section along with factual findings made on a docket sheet is sufficient);
Smith v. McCoy, 635 S.W.3d 811, 813-17 (Ky. 2021) (stating that a complete and
accurate AOC Form 275.3 with a box checked under the “Additional Findings”
section along with a pre-typed regularly used Findings of Fact and Conclusions of
Law form incorporating oral findings made on the record was sufficient); cf.
Thurman v. Thurman, 560 S.W.3d 884, 887 (Ky. App. 2018) (holding that a mere
filling out of an AOC Form 275.3 indicating that domestic violence existed but not
making any additional findings on the form or otherwise was not sufficient).
In this case, the circuit court filled out an AOC Form 275.3, marked a
box under the “Additional Findings” section stating that an act of domestic
violence or abuse occurred and may occur again, and incorporated the petition
allegations as findings by reference in that order. (R. at 22-24.) We conclude this
was sufficient and permits this Court to engage in a meaningful appellate review of
the sufficiency of the evidence itself.
Pursuant to KRS 403.740, following a hearing conducted under KRS
403.730, if a circuit court finds by “a preponderance of the evidence that domestic
violence has occurred and may again occur,” it may issue a DVO. The
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preponderance of the evidence in a DVO proceeding occurs when the alleged
victim was more likely than not to have been a victim. Baird v. Baird, 234 S.W.3d
385, 387 (Ky. App. 2007). “[I]n reviewing the decision of a trial court the test is
not whether we would have decided it differently, but whether the court’s findings
were clearly erroneous or that it abused its discretion.” Gomez v. Gomez, 254
S.W.3d 838, 842 (Ky. App. 2008) (citations omitted).
The phrase “domestic violence and abuse” is defined as “[p]hysical
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). “Physical injury” can mean any “substantial physical
pain or any impairment of physical condition” or “[p]hysical damage to a person’s
body.” Petrie v. Brackett, 590 S.W.3d 830, 835 (Ky. App. 2019) (citing KRS
500.080(13) and BLACK’S LAW DICTIONARY (11th ed. 2019)). The definition of
“imminent” is “impending danger, and, in the context of domestic violence and
abuse as defined by KRS 403.720, belief that danger is imminent can be inferred
from a past pattern of repeated serious abuse.” KRS 503.010(3); Collett v. Dailey,
371 S.W.3d 777, 779 (Ky. App. 2011).
Yount describes the contact between herself and McClusky during the
September 14, 2022, incident as a “hit” or a “smack” to her arm. (R. at 7); (V.R.
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Sep. 28, 2022, Hearing at 11:15:30.) From the record, it is difficult to determine if
this rose to the level of a “physical injury,” as Yount did not testify – nor did the
circuit court ask – if the hit left any marks or even caused any pain. Regardless,
there exists substantial evidence that an infliction of fear of imminent physical
injury occurred.
In Hohman, we held that the circuit court did not abuse its discretion
when finding that an infliction of fear of imminent physical injury existed, though
no physical injury occurred, based on the petitioner’s testimony that she felt
threatened by the respondent’s actions which included clenching his fists, yelling,
and gritting his teeth, that the respondent lacked self-control and the ability to
control his emotions, and that she feared his behavior was going to escalate “to the
next level.” 371 S.W.3d at 782-83. McClusky’s hitting of Yount’s arm is like the
aggressive body language of Hohman. We recognize that this may have been in
response to Yount’s pushing him, but McClusky did not dispute that he hit her or
provide any testimony to refute it other than that he “swatted” at her to avoid
falling off the porch. It was the circuit court’s prerogative to determine based on
the testimony and evidence whether McClusky struck Yount out of anger with a
desire to harm or frighten her or simply to prevent himself from falling off the
porch without a desire to harm or frighten Yount. The circuit court believed
Yount. This was its prerogative.
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Also, Yount’s testimony that things will only get worse or could
possibly lead to “really physical altercations” is like the petitioner’s belief in
Hohman that the respondent’s behavior was going to escalate to the next level.
(V.R. Sep. 28, 2022 Hearing – 11:15:30.) Considering the circumstances, we
believe McClusky’s actions rise to the level of infliction of fear of imminent
physical injury, and so the circuit court did not err when it found that an act of
domestic violence occurred.
In determining whether domestic violence may again occur, the circuit
court must consider the “totality of the circumstances and weigh the risk of future
violence against issuing a protective order.” Pettingill, 480 S.W.3d at 925. In the
petition, Yount stated that McClusky had engaged in verbal abuse and foul
language several times and that he would not leave her residence when asked to do
so, which she reiterated during the hearing. McClusky did not challenge or dispute
this by his testimony. Considering Yount’s statement about feeling threatened, the
history of verbal abuse, and the rest of the circumstances, we do not believe the
circuit court erred in finding that an act of domestic violence may again occur.
D. 500 Feet Restriction
KRS 403.740(1)(a)(4) grants the circuit court the authority to restrain
the adverse party from “[g]oing to or within a specified distance of a specifically
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described residence.” Additionally, KRS 403.740(2) provides that when imposing
a restriction, the circuit court shall do the following:
(a) Afford the petitioner and respondent, if present, an
opportunity to testify on the issue of the locations and
areas from which the respondent should or should not be
excluded; (b) Only impose a location restriction where
there is a specific, demonstrable danger to the petitioner
or other person protected by the order; (c) Specifically
describe in the order the locations or areas prohibited to
the respondent; and (d) Consider structuring a restriction
so as to allow the respondent transit through an area if the
respondent does not interrupt his or her travel to harass,
harm, or attempt to harass or harm the petitioner.
McClusky takes issue that the circuit court failed to ascertain whether
Yount lived at the address listed on the DVO, and that there was no “specific
demonstrable danger” concerning that location. When she filed the petition, Yount
included the address and asked for McClusky to be restrained from going there.
(R. at 10 and 20.) McClusky did not contest that the address is Yount’s residence
during the hearing; based on the statements of both parties during the hearing there
was no question that the residence in question was Yount’s even though the exact
address was not stated on the record. Both parties also testified that McClusky had
his own residence and no longer lived with Yount. We are unaware of any
requirement that the circuit court must find a more specific demonstrable danger to
restrict an adverse party from the residence of a victim other than domestic
violence or abuse occurred and may again occur. A residence is where someone
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lives and sleeps, so it necessarily follows that if an adverse party is restricted from
being 500 feet from a victim, the circuit court can also restrict that party from
being within 500 feet of the victim’s residence, if the circuit court considers KRS
403.740(2), which in this case it did.
E. Counseling with Anderson County Recovery
In addition to restraining an adverse party from a particular location,
KRS 403.740(1) allows a circuit court to direct one or both parties to receive
counseling services available in the community. KRS 403.7505 provides authority
to the Cabinet for Health and Family Services to promulgate certification standards
for mental health professionals that may provide court-mandated treatment services
for domestic violence offenders.
There is no language granting leave to circuit courts to assign a
particular provider or how long classes must last when ordering domestic violence
counseling; however, there is no language prohibiting them from doing so either.
Had the legislature wanted to completely bar circuit courts from choosing a
specific provider, it would have explicitly done so in the statutes. Regardless,
McClusky did not properly preserve his argument challenging the specificities of
the domestic violence classes ordered for appeal anyway. He did not object to the
classes when they were ordered during the hearing, no motion has been filed with
the circuit court requesting a different provider, and no statement on how this issue
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was preserved is contained in his brief. McClusky’s arguments for why a different
provider may be more appropriate are well taken, but the most we choose to do in
this instance is to review the issue for manifest injustice. See Petrie v. Brackett,
590 S.W.3d at 834 (citations omitted). Based on the discussion above, there is no
manifest injustice, as the circuit court’s actions were not contrary to statute.
IV. CONCLUSION
Accordingly, we hold that the circuit court did not abuse its discretion
and we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
Carrie Cotton
Frankfort, Kentucky
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