Jonathan Michael Estes v. Sally Ann Estes

RENDERED: AUGUST 13, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2018-CA-1769-ME
JONATHAN MICHAEL ESTES APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
v. HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 17-D-00061-001
SALLY ANN ESTES APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Jonathan Estes appeals from an order of the Oldham
Family Court which denied his Kentucky Rules of Civil Procedure (CR) 60.02
motion seeking a new domestic violence order (DVO) hearing. Appellant alleges
he is entitled to a new hearing due to newly discovered evidence and perjured
statements made by Sally Estes. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
Appellant and Appellee were married on January 1, 2005, and have
three children. On May 26, 2017, Appellee filed a domestic violence petition
against Appellant on behalf of herself and the three children. On June 29, 2017, a
hearing was held where Appellant, Appellee, and other witnesses testified.
Appellee alleged that Appellant had a temper and would verbally attack her and the
children. She testified that he would scream at them, call them names, and be
physically threatening. She described two specific instances of this which
occurred in May of 2017. Appellee also testified to other past instances of
Appellant pushing her, throwing objects at her, and breaking her personal
possessions.
Appellee also testified to statements made by the children. Appellee
testified that the middle child cut his wrists with a dull knife and asked her for a
sharper knife so he could kill himself. Appellee attributed this behavior to the
child’s having been on a visit with Appellant a few days before. Appellee also
testified that the middle child told her that he was afraid of Appellant and while
discussing it, the child vomited on the floor. Appellee attributed this behavior to
the child’s fear of Appellant. Appellant objected to all the hearsay statements of
the children, but the trial court allowed them.
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At the end of the hearing, the trial court granted Appellee’s petition
for a DVO. The court found that Appellee was in fear of imminent domestic
violence and made specific comments regarding the cutting and vomiting
incidents. The DVO was entered for a period of six months. Soon thereafter,
Appellant filed a CR 59.05 motion to alter, amend, or vacate the DVO. He argued,
amongst other things, that Appellee’s testimony regarding statements made by the
children constituted hearsay, should not have been admissible, and could not be the
basis of entering the DVO. The trial court agreed, but held:
The [c]ourt, in disregarding the Petitioner’s alleged
hearsay testimony, finds there was sufficient evidence of
record to support a finding of domestic violence and
abuse. Specifically, the record contained ample evidence
of the escalating, aggressive and irrational behaviors of
the Respondent, creating a fear of imminent physical
injury for the Petitioner, on behalf of herself and the
children. The [c]ourt was able to reach this conclusion
without considering the statements allegedly made by the
children.
The trial court did not vacate the DVO. Appellant did not appeal the entry of the
DVO.
Soon after the entry of the DVO, the parties began divorce
proceedings. During this time, Appellant claims that evidence came to light
showing that some of Appellee’s testimony during the DVO was false. Appellant
then brought the underlying CR 60.02 motion requesting a new DVO hearing
based on new evidence and perjury. The trial court denied the motion, finding no
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perjury and no new evidence that would require a new DVO hearing. This appeal
followed.1
ANALYSIS
CR 60.02 states:
On motion a court may, upon such terms as are just,
relieve a party or his legal representative from its final
judgment, order, or proceeding upon the following
grounds: (a) mistake, inadvertence, surprise or excusable
neglect; (b) newly discovered evidence which by due
diligence could not have been discovered in time to move
for a new trial under Rule 59.02; (c) perjury or falsified
evidence; (d) fraud affecting the proceedings, other than
perjury or falsified evidence; (e) the judgment is void, or
has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (f) any
other reason of an extraordinary nature justifying relief.
The motion shall be made within a reasonable time, and
on grounds (a), (b), and (c) not more than one year after
the judgment, order, or proceeding was entered or taken.
A motion under this rule does not affect the finality of a
judgment or suspend its operation.
Additionally, we note:
[o]ur standard of review of a trial court’s denial of a
CR 60.02 motion is whether the trial court abused its
discretion. The test for abuse of discretion is whether the
trial court’s decision was “arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.”
. . . The decision as to whether to grant or to deny a
motion filed pursuant to the provisions of CR 60.02 lies
1
We must note that the DVO in this case has long since expired.
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within the sound discretion of the trial court. The rule
provides that a court may grant relief from its final
judgment or order upon various grounds. Moreover, the
law favors the finality of judgments. Therefore, relief
may be granted under CR 60.02 only with extreme
caution and only under the most unusual and compelling
circumstances.
Age v. Age, 340 S.W.3d 88, 94 (Ky. App. 2011) (citations omitted).
CR 60.02 allows appeals based upon claims of error that
“were unknown and could not have been known to the
moving party by exercise of reasonable diligence and in
time to have been otherwise presented to the court.” The
rule represents the codification of the common law writ
of coram nobis, which allows a judgment to be corrected
or vacated based “upon facts or grounds, not appearing
on the face of the record and not available by appeal or
otherwise, which were not discovered until after
rendition of judgment without fault of the parties seeking
relief.”
Sanders v. Commonwealth, 339 S.W.3d 427, 437 (Ky. 2011) (citations omitted).
In those instances where grounds relief upon for
relief under a 60.02 motion are such that they were
known or could have been ascertained by the exercise of
due diligence prior to the entry of the questioned
judgment, then relief cannot be granted from the
judgment under a 60.02 proceeding. Relief afforded by a
60.02 proceeding is extraordinary in nature and should be
related to those instances where the matters do not appear
on the face of the record, were not available by appeal or
otherwise, and were discovered after rendition of the
judgment without fault of the party seeking relief.
Bd. of Trustees of Policemen’s & Firemen’s Ret. Fund of City of Lexington v.
Nuckolls, 507 S.W.2d 183, 186 (Ky. 1974).
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As stated previously, after the DVO was entered, the parties began
divorce proceedings. Appellant claims that during these proceedings, evidence
came to light showing Appellee perjured herself during the DVO hearing.
Appellant focuses on three instances of alleged perjured testimony.
The first is in regard to the cutting incident. After the DVO was
entered, child protective services (CPS) got involved with the family. A report
written by a CPS investigator indicated that the knife used by the middle child in
the cutting incident was fake and that there were no marks on the child’s arm.
Appellant claims that Appellee’s testimony at the DVO hearing that the middle
child was involved in a suicidal cutting incident was perjury because the child
could not break the skin with the fake knife. Appellee responded by arguing that
she did not say the knife was fake, only dull. Appellee believed the more
concerning issue was the child emulating suicidal behavior. Appellee also
acknowledged that the knife did not pierce the child’s skin, but did leave marks on
the arm.
Also regarding the cutting incident, during the DVO hearing,
Appellee stated that it occurred on May 16, 2017, a few days after the child visited
Appellant. During the divorce proceeding, evidence revealed that it occurred on
May 19, 2017, about a week after the child’s visit with Appellant. Appellant
claims that Appellee purposefully misstated the date as May 16 in the DVO
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proceeding to make it closer to the visit with Appellant in order for the cutting to
be attributed to said visit. Appellee claims that her use of the incorrect date was a
simple error.
The second instance of alleged perjured testimony was Appellee’s
statement that the middle child threw up while discussing how afraid he was of
Appellant. During the divorce proceedings, a custodial evaluator spoke to the
children. The evaluator’s report stated that the vomiting incident was discussed
with the middle child and the child threw up while he was discussing the divorce
with Appellee. Appellant claims Appellee lied during her testimony when she
stated the child vomited while discussing how scared he was of Appellant.
Appellee denied this allegation during the divorce trial and the child was not called
to testify. Appellee claims this is not perjured testimony, but simply conflicting
accounts of what actually occurred.
The third instance of alleged perjury concerns Appellee’s testimony
during the DVO hearing that Appellant had been physically violent toward her.
CPS spoke with Appellee’s therapist during its investigation. The CPS report
stated that per Appellee’s therapist, Appellee reported that Appellant had “not laid
a hand on her or the children,” only that he had damaged property and was
demeaning toward the children. Appellant claims this directly contradicts her
testimony of some physical violence at the DVO hearing. Appellee argues that
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Appellant was able to call her therapist as a witness during the DVO hearing, but
did not. She also alleges that the therapist’s records were submitted into evidence
during the divorce proceedings and do show that Appellee reported to her that
Appellant had been physically abusive.
After reviewing the arguments of the parties, the record, and the
relevant case law, we conclude that the trial court did not abuse its discretion in
denying Appellant’s CR 60.02 motion. First, we must note that very little of the
record from the divorce proceedings is contained in the record before this Court.
“It is incumbent upon Appellant to present the Court with a complete record for
review. When the record is incomplete, this Court must assume that the
omitted record supports the trial court.” Chestnut v. Commonwealth, 250 S.W.3d
288, 303 (Ky. 2008) (citations omitted). With this in mind, we will now analyze
Appellant’s argument.
The trial court held that Appellant has not uncovered new evidence or
perjured testimony. The trial court believed all that was proven was that there was
conflicting evidence presented by the parties. The court also held that it still
believed there was sufficient evidence to enter the DVO, despite Appellant’s new
evidence. Finally, the court also held that there has been no finding that Appellee
perjured herself during the DVO hearing or offered false evidence.
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We agree with the trial court. At the outset we believe that
Appellant’s CR 59.05 motion resolved most of the issues he raises here. The trial
court disallowed the hearsay statements of the children, but still found enough
evidence to enter the DVO. The CR 59.05 motion eliminated most of the issues
surrounding the cutting and vomiting incidents.
In addition, we believe that some of this alleged new evidence could
have been discovered during the DVO hearing. For example, Appellant could
have asked additional questions during the DVO hearing about the cutting incident.
With a little more probing, the fact that the knife did not break the skin of the child
could have been revealed.
We also believe that the date of the cutting incident is immaterial.
May 16 and May 19 were both multiple days after the child’s visit with Appellant.
Appellant made the argument during the DVO hearing that the cutting incident did
not happen soon after a visit with him, but while the child was in the care and
custody of Appellee.
In addition, whether the child vomited while talking about his fear of
Appellant or generally talking about the divorce is conflicting evidence, not
necessarily perjury. The same goes for whether Appellant had been physically
violent in the past. Appellant claims he had not been, but Appellee claims he had.
The Court of Appeals . . . [is] entitled to set aside the
trial court’s findings only if those findings are clearly
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erroneous. And, the dispositive question that we must
answer, therefore, is whether the trial court’s findings of
fact are clearly erroneous, i.e., whether or not those
findings are supported by substantial evidence.
“[S]ubstantial evidence” is “[e]vidence that a reasonable
mind would accept as adequate to support a conclusion”
and evidence that, when “taken alone or in the light of all
the evidence, . . . has sufficient probative value to induce
conviction in the minds of reasonable men.” Regardless
of conflicting evidence, the weight of the evidence, or the
fact that the reviewing court would have reached a
contrary finding, “due regard shall be given to the
opportunity of the trial court to judge the credibility of
the witnesses” because judging the credibility of
witnesses and weighing evidence are tasks within the
exclusive province of the trial court. Thus, “[m]ere doubt
as to the correctness of [a] finding [will] not justify [its]
reversal,” and appellate courts should not disturb trial
court findings that are supported by substantial evidence.
Moore v. Asente, 110 S.W.3d 336, 353-54 (Ky. 2003) (footnotes and citations
omitted). Here, the same trial judge presided over the DVO hearing, the divorce
proceedings, and the CR 60.02 motion. She was in the best position to judge the
credibility of the witnesses and determine if Appellee perjured herself. The court
did not believe such was the case and we will defer to her judgment.
CONCLUSION
Based on the foregoing, we affirm the judgment of the trial court.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Allen McKee Dodd James L. Theiss
Louisville, Kentucky James Daniel (“J.D.”) Theiss
LaGrange, Kentucky
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