Cody Dale Leonard v. Jennifer Rose Leonard

RENDERED: DECEMBER 2, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0807-ME
CODY DALE LEONARD APPELLANT
APPEAL FROM GRAVES CIRCUIT COURT
v. HONORABLE KEVIN D. BISHOP, JUDGE
ACTION NO. 22-D-00031-001
JENNIFER ROSE LEONARD APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, LAMBERT, AND TAYLOR, JUDGES.
COMBS, JUDGE: This is an appeal from a Domestic Violence Order (DVO).
After our review, we affirm.
On April 18, 2022, the Appellee, Jennifer Rose Leonard (Jennifer),
filed a petition for an order of protection against her husband, the Appellee, Cody
Dale Leonard (Cody), on behalf of herself and the parties’ two minor children.
Jennifer alleged that on April 17, 2022, Cody attempted to persuade their son to
ride on a four-wheeler with him after he (Cody) had been drinking. When Jennifer
refused to allow their son to do so, Cody “became angry, yelling and cursing. . . .
told [Jennifer] to get [her] things and leave the home.” Jennifer left with the
children and went to her parents’ home. According to the petition, Cody called
Jennifer later that evening and told her that if she did not return home with the
children within 30 minutes, Cody would “f**k [her] up. F**k your dad up and
f**k your whole world up.” Jennifer explained that Cody had been very angry and
erratic for several days prior to this occurrence:
Cody has a severe alcohol abuse problem that has been
escalated over the past 11 years to the point that he has
gotten medication to attempt to stop drinking. On
numerous occasions he has attempted to get my children
to ride with him on a four wheeler or vehicle while he
was driving drunk. Cody also has significant mental
health issues to the point that he has made numerous
threats to kill himself. I AM SCARED FOR ME AND
MY CHILDREN[.]
(Upper case original.) On April 18, 2022, the Graves District Court entered an
Emergency Protective Order (EPO). The matter was transferred subsequently to
Graves Circuit Court,1 which conducted a hearing on May 9, 2022.
Jennifer testified at the hearing. Cody had been very angry with her
on April 16, 2022. Jennifer heard a speakerphone call between Cody and their
1
According to the circuit court’s order ruling on Cody’s motion to vacate, the domestic violence
case was transferred in accordance with the local rule after Cody filed a divorce action in Graves
Circuit Court on April 22, 2022.
-2-
daughter, who was 12 years of age. Cody said that he was not coming home, and
he asked their daughter to pack some clothes for him. The daughter was upset.
Cody returned home; he was “flipping” Jennifer off and calling her derogatory
names. According to Jennifer, their daughter, who was still awake, heard it. Cody
took some clothes and left for the night.
The next morning (Easter Sunday, April 17, 2022), Cody came home.
He seemed a little more normal, and they went to church and did their Easter
festivities. That evening, Jennifer went to the shop to check on Cody. A can of
beer was on a table. Cody was slurring his words, was stumbling, and was very
angry with Jennifer. Cody asked their eight-year-old son, who was with Jennifer,
to ride with him on a four-wheeler to go fishing on their property. Jennifer said
that their son could go fishing but that he would have to ride with her and that she
would stay with them. Cody refused and told their son to get out of the car and get
on the four-wheeler. Jennifer told her son to get in the car. Cody proceeded to yell
derogatory comments, telling Jennifer to “get her s**t and get the f**k out.”
Jennifer took the children and went to her mother’s house.
About 10:30 p.m. that night, Cody called Jennifer from his brother-in-
law’s phone, demanding to know where the kids were. Jennifer said that they were
with her mother. Jennifer testified that Cody said he wanted them home in 30
minutes or that he was going to “f**k me up, f**k my dad up, and f**k up my
-3-
whole world.” Jennifer took that statement as a threat to her children because her
children are her whole world. Jennifer filed the EPO the next morning.
Jennifer further testified that Cody has had a severe drinking problem
for the last several years. Cody’s counsel objected to relevancy. The court
believed that her statement was relevant and stated that it would let Jennifer “go a
little bit, but not very far.” Following further discussion -- and objection --
regarding Cody’s drinking history and risk to the children, the court advised that it
would “sustain that [objection] for today,” directing Jennifer’s counsel to save that
line of questioning for the pendente lite hearing. The court asked Jennifer if she
understood Cody’s statements -- that he would f**k her, her dad, and her world up
-- as a threat to her personal safety. Jennifer responded, “Absolutely” -- so much
so, that she stayed up the whole night watching her kids.
On redirect, Jennifer testified that she was afraid when Cody was
telling their son to get on the four-wheeler. The court overruled Cody’s objection
to that testimony because the statements alleged that Cody was putting the child at
risk of serious physical injury if he were operating a four-wheeler while under the
influence. Jennifer further testified that she had had to pull her son off the four-
wheeler on a previous occasion when Cody was drunk. Thus, this was not the first
instance when something like this had happened.
-4-
Cody called Michael Sean Richard, a neighbor, as a witness. Richard
was at the parties’ property talking with Cody on Easter Sunday. He was there
when Jennifer pulled up with her son and was there when they left. Richard did
not observe Cody slurring, drunk, or under the influence. However, Richard
testified that he had seen Cody take “maybe one or two shots of whiskey” before
Jennifer got there. On cross-examination, however, Richard testified that he was
not within earshot the whole time that Cody and Jennifer were having a discussion.
He does not know whether or not Cody and Jennifer were discussing the child’s
getting on the four-wheeler or not.
The court then asked Richard a few questions. He arrived there about
5:20 and left about 7:00 p.m. During that time frame, he saw Cody drink one to
two shots of whiskey. Richard testified that he has been around Cody when he has
been intoxicated. Richard had just started coming around again maybe two or
three months ago. A few years ago, Cody was intoxicated a lot -- essentially on a
daily basis. Over the past few months, Richard had been around Cody roughly five
or six times; Easter Sunday was the only day on which he saw Cody take a shot --
actually two shots on this occasion.
Next, Cody called his brother-in-law, Seth Jones, to testify. Jones is
married to Cody’s sister. Cody went to Jones’s house later that night. Jones was
watching television and was falling asleep. Cody asked to use the phone and made
-5-
a call on speaker. Jones heard Cody say that he wanted his kids back home in 30
minutes or that she (Jennifer) would regret it. He also heard Cody say, “f**k you
all and f**k your whole family.” Jones could not hear what Jennifer said.
Cody also called Rachel Pickering, an investigator for the Cabinet for
Health and Family Services, as a witness.
Cody himself did not testify.
On May 9, 2022, the court entered a Form AOC 275.3 Domestic
Violence Order against Cody effective until May 9, 2023, having found “that it
was established by a preponderance of the evidence that an act(s) . . . of domestic
violence and abuse . . . has occurred and may again occur[.]” The trial court
restrained Cody from any contact or communication with Jennifer and the children
except for supervised visitation as well as from going within 500 feet of their
current residence and schools; it also awarded Jennifer temporary custody.
On May 18, 2022, Cody filed a motion to vacate and alternatively to
alter or amend the DVO. On June 15, 2022, the circuit court entered a highly
detailed 16-page order denying the motion to vacate the DVO.
Cody then filed this appeal.
“KRS[2] 403.715(1) mandates that the domestic violence statutes be
interpreted to ‘[a]llow victims to obtain effective, short-term protection against
2
Kentucky Revised Statutes.
-6-
further wrongful conduct in order that their lives may be as secure and as
uninterrupted as possible[.]’” Boone v. Boone, 501 S.W.3d 434, 440 (Ky. App.
2016). KRS 403.720(2)(a)3 defines “Domestic violence and abuse” 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[.]”
A court may issue a DVO following an evidentiary hearing if it “finds
by a preponderance of the evidence that domestic violence and abuse has [sic]
occurred and may again occur . . . .” KRS 403.740(1). The preponderance of the
evidence standard is met when sufficient evidence establishes that the alleged
victim was “more likely than not to have been a victim of domestic violence.”
Gomez v. Gomez, 254 S.W.3d 838, 842 (Ky. App. 2008) (internal quotation marks
and citation omitted). “The predictive nature of the standard requires the family
court to consider the totality of the circumstances and weigh the risk of future
violence against issuing a protective order.” Pettingill v. Pettingill, 480 S.W.3d
920, 925 (Ky. 2015).
“[T]he family court is in the best position to judge the credibility of
the witnesses and weigh the evidence presented.” Williford v. Williford, 583
3
Formerly numbered KRS 403.720(1).
-7-
S.W.3d 424, 429 (Ky. App. 2019). When we review a DVO, “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, 254 S.W.3d at 842.
Findings are not clearly erroneous if supported by substantial evidence. Moore v.
Asente, 110 S.W.3d 336, 354 (Ky. 2003).
Cody’s first argument is that the evidence was insufficient for a
finding of domestic violence and abuse as defined in KRS 403.720. He contends
that infliction of fear of alleged domestic violence and abuse was not imminent;
that the finding that domestic violence and abuse “may again occur” was clearly
erroneous; and that he did not commit an act of domestic violence and abuse.
Cody re-argues his case before us. In its order denying Cody’s
motion to vacate the DVO, the trial court made extensive and thorough findings
specifically addressing Cody’s arguments regarding the sufficiency and relevancy
of the evidence as follows:
20. . . . The Court finds [Jennifer’s] testimony credible.
[Cody] ordered [Jennifer] to leave the marital residence.
[Jennifer] complied. The Court concludes she did so out
of fear and for the protection of her children. Later,
[Jennifer] heard [Cody] via telephone, demand the return
of the children within 30 minutes or “I will f*** you up,
f*** your dad up, and f*** up your whole world.” The
Court is of the opinion that when someone says he will
“f*** you up” it is reasonable to conclude the proponent
of that statement means to do harm to the recipient of the
statement. . . . When a proponent of a statement says he
will “f*** up your whole world,” it is reasonable to
-8-
conclude the proponent means to do the recipient such
severe harm of a such a nature that the recipient’s very
existence will be changed forever. This Court deems this
to be an infliction of fear of imminent physical injury,
serious physical injury, sexual abuse, strangulation, or
assault between family members.
21. . . . The Court finds the 30 minute demand by [Cody]
to return the children or [Cody] “will f*** you up”
makes the threat imminent. The Court finds a 30-minute
time period, in rural Graves County, to be an imminent
threat. It is a threat which is pending. It is time sensitive.
. . . The Court further finds the phrase “and f*** your
whole world up” is a threat to harm [Jennifer] in such a
manner as to be a complete end to her world. . . . In
short, the Court finds the words used by [Cody], as
testified to by [Jennifer], to be threatening words . . . of
such an outrageous nature that a reasonable person would
conclude that they were in fact threats of domestic
violence. All of these threats by [Cody] were impending
and were, therefore, imminent. Further, [Cody], by his
own witness stated “you will regret this.” The Court
believes this could be interpreted as another threat.
The statutory hearing standard requiring that acts
of domestic violence “have occurred” can be satisfied by
threats of infliction of fear. It does not require actual
physical injury because of the definition of “domestic
violence” as set forth in KRS 403.720(1)[4]. . . . The fear
exhibited by [Jennifer] was evident in her testimony --
she left after being ordered to do so and she became
extremely afraid after the threatening phone call from
[Cody]. After reviewing the video of the hearing, the
Court is even more convinced an act of domestic
violence occurred . . . .
22. The Court notes [that Cody] argues there is no
history of domestic violence presented at the hearing and
4
Now numbered KRS 403.720(2)(a).
-9-
therefore there cannot be a finding that any domestic
violence acts may occur in the future. If this were the
case, then domestic violence victims would have to be
assaulted at least twice before they could seek a
protective order. The Court is of the opinion that this is
not the intent of the legislature, and this is simply not the
law. A person may seek a domestic violence order on the
first act of domestic violence being perpetrated upon
them . . . . The Court further finds, based upon [Cody’s]
severe alcohol issues, that an act of domestic violence
may occur again. The Court notes [Jennifer] testified she
had to remove the child from the four-wheeler on a prior
occasion when [Cody] was drunk. The Court notes
[Cody’s] own witness testified that [Cody] was
intoxicated almost daily a few years ago. The Court
finds by a preponderance of the evidence that an act of
domestic violence may occur in the future and [Jennifer]
is entitled to a Domestic Protective Order. The Court
notes there was no evidenced [sic] offered by [Cody] that
he no longer has an alcohol problem.
....
24. [Cody] next argues irrelevant evidence of [his] prior
alcohol use while attempting to operate an ATV was
admitted. The Court finds the admission of the limited
testimony was relevant as it relates to the likelihood that
domestic violence may occur in the future. Further, if it
was in error, then it was harmless error as there was
testimony by [Cody’s] witness that [Cody] was
intoxicated almost daily during the time he was close to
[Cody] a few years ago.
(Emphases original.)
As was its prerogative, the circuit court found that Jennifer was a
credible witness and that her testimony provided a substantial evidentiary
foundation to support the trial court’s findings that an act of domestic violence and
-10-
abuse had occurred and might again occur. Consequently, the trial court’s findings
are not clearly erroneous. We find no abuse of discretion.
Next, Cody argues that the circuit court erred by permitting the
introduction of irrelevant evidence regarding his drinking. Cody contends that
even if the evidence were arguably relevant, any probative value was substantially
outweighed by its prejudicial nature. “Rulings upon admissibility of evidence are
within the discretion of the trial judge; such rulings should not be reversed on
appeal in the absence of a clear abuse of discretion.” Simpson v. Commonwealth,
889 S.W.2d 781, 783 (Ky. 1994).
We wholly agree with the circuit court’s detailed analysis of this issue
as set forth above. Allowing Jennifer’s limited testimony on the issue was not an
abuse of discretion. We have found no error in the court’s sound reasoning and
meticulous findings.
Accordingly, we affirm.
ALL CONCUR.
-11-
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Chris Hendricks Jeffery P. Alford
Murray, Kentucky Paducah, Kentucky
Jessica F. Flinn
Murray, Kentucky
-12-