Laura K. Vore-Sheldon v. Larietta Lynn Dennis

RENDERED: JANUARY 20, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1150-ME
LAURA K. VORE-SHELDON APPELLANT
APPEAL FROM HARRISON CIRCUIT COURT
v. FAMILY COURT DIVISION
HONORABLE HEATHER FRYMAN, JUDGE
ACTION NO. 21-D-00034-001
LARIETTA LYNN DENNIS, ON
BEHALF OF HELEN SHELDON APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Laura K. Vore-Sheldon brings this appeal from a September
1, 2021, Order of Protection entered in the Harrison Circuit Court, Family Court
Division, restraining her from having contact with Helen Sheldon. We reverse and
remand.
On August 13, 2021, Larietta Lynn Dennis, on behalf of Helen
Sheldon, filed a Petition for Order of Protection against Laura K. Vore-Sheldon.
Larietta is the biological granddaughter and the adopted daughter of Helen.
Larietta had also recently been appointed the emergency guardian of Helen. And,
Laura is married to Bert Sheldon. Bert is the biological grandson and the adopted
son of Helen.1
The entirety of the allegation that formed the basis for the filing of the
Petition for an Order of Protection is as follows:
There is a pending court case with Bert M. Sheldon.
Laura is the wife of. There are restraining orders in place
to keep Helen Sheldon safe from Bert.
Today 8-13-21, Laura Vore-Sheldon went to the nursing
home where Helen Sheldon recides [sic] to visit without
Gaurdian [sic] consent. Gave a false name who she was
to try to visit with Helen Sheldon. Laura stated her name
was Jenni with this being a [sic] ongoing criminal case
with Bert M. Sheldon. I ask for a restraining order
against Laura from the victom [sic].
Following an evidentiary hearing, the family court granted an Order of Protection
on September 1, 2021, in favor of Helen and against Laura. In the Order of
Protection, the family court issued a Domestic Violence Order (DVO) that
restrained Laura from having any contact or communication with Helen and
1
When the Petition for Order of Protection was filed on August 13, 2021, there were numerous
criminal charges pending in Harrison Circuit Court against Bert Sheldon, including the knowing
abuse/neglect of an adult (Kentucky Revised Statutes 209.990(2)). The charges stemmed from
allegations that Bert had abused and/or neglected Helen Sheldon. Bert and his wife, Laura, were
living with Helen at the time. As a result of the criminal charges, there was apparently a no
contact order in place that prevented Bert from having contact with Helen.
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required Laura to remain at least 500 feet away from the nursing home where
Helen resided. This appeal follows.
The issuance of a DVO is governed by Kentucky Revised Statutes
(KRS) 403.740, which provides that a family court may enter a DVO if it “finds 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 “[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, or assault between family members or members of an
unmarried couple[.]” KRS 403.720(2)(a).
Our review of a trial court’s decision to grant or deny a DVO “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). We will not set aside findings of fact unless the
findings are clearly erroneous. Moore v. Asente, 110 S.W.3d 336, 353-54 (Ky.
2003). Findings of fact are clearly erroneous if not supported by substantial
evidence. Id. Substantial evidence is evidence of a probative value that a
reasonable person would accept as adequate to support a conclusion. Id.Additionally, an abuse of discretion occurs only where the court’s decision is
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“unreasonable, unfair, arbitrary or capricious.” Caudill v. Caudill, 318 S.W.3d
112, 115 (Ky. App. 2010).
In the case sub judice, the family court conducted an evidentiary
hearing. The witnesses called to testify at the hearing were Larietta, Laura, and an
attorney previously appointed as Helen’s guardian ad litem. Larietta’s testimony
focused upon her belief that Laura drove by Larietta’s house three times in one
day. Larietta further testified that the following day, Larietta received a call from
the nursing home saying Helen’s sister, Betty Martin, was there to visit Helen.
According to Larietta, the nursing home staff also advised her that the woman
accompaning Betty identified herself to the nursing home staff as Jenni. Larietta
testified that she went to the nursing home and confirmed that Jenni was actually
Laura. Larietta also stated that the nursing home staff asked Laura to leave
because she did not have any form of identification. Larietta further testified that
Betty attempted to discuss with Helen the situation involving Bert.
Laura was the next witness to testify at the hearing. Laura testified
that she drove Betty to the nursing home to visit Helen. Laura acknowledged that
she gave the nursing home a false name because of the “friction” related to the
pending criminal charges against her husband, Bert. Laura further stated that she
did not visit with Helen but rather returned to the car to wait for Betty to visit with
Helen. After the visit was concluded, Laura drove Betty home.
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The attorney serving as guardian ad litem for Helen also briefly
testified at the hearing. The attorney’s testimony was mostly background
information but also included that the nursing home had given him a letter that
stated Helen was upset after Betty’s visit. However, the attorney did not have any
first-hand knowledge of the events that occurred at the nursing home on the day of
Betty’s visit.
Obviously absent from the evidence presented was any act of physical
injury, serious physical injury, sexual abuse, assault, or the infliction of imminent
fear of same. In fact, Laura did not even talk with Helen during Betty’s visit. In
the absence of substantial evidence supporting the family court’s finding that
domestic violence or abuse occurred and may occur again, we are compelled to
conclude that the family court abused its discretion by issuing the DVO against
Laura. In sum, we reverse the September 1, 2021, Order of Protection and remand
for the family court to dismiss the Petition for Order of Protection.
We view Larietta’s remaining contentions of error as moot or without
merit.
For the foregoing reasons, the September 1, 2021, Order of Protection
is reversed and this matter is remanded to the family court for proceedings
consistent with this Opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
James Paul Brannon
Paris, Kentucky
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