Elvis Ugo Njere v. Jelique C. Jerry

RENDERED: AUGUST 18, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1005-ME
ELVIS UGO NJERE APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT, FAMILY DIVISION
v. HONORABLE DAVID C. PAYNE, SPECIAL JUDGE
ACTION NO. 22-D-00199-01
JELIQUE C. JERRY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.
ACREE, JUDGE: Appellant, Elvis Ugo Njere, appeals the Daviess Family Court’s
July 14, 2022 Order granting Appellee, Jelique Jerry, a Domestic Violence Order
(DVO) against him pursuant to KRS1 403.750. Having reviewed the record and
finding no error, we affirm.
1
Kentucky Revised Statutes.
The parties are not married but share one child and lived together.
Prior to the DVO, the parties were engaged to be married. On June 30, 2022,
Appellee filed her petition for a DVO against Appellant. In her petition, she
alleged several threats, displays of passionate anger, and acts of violence Appellant
committed against her. The family court held a hearing on her petition and heard
several hours of testimony from both parties. Appellee realleged the acts of
violence in her testimony and Appellant denied her allegations. At the conclusion
of the hearing, the family court granted Appellee a DVO. In its written order,
which consisted only of AOC Form 275.3, the family court checked the box
indicating that by a preponderance of the evidence, Appellant engaged in violence
against Appellee and would likely do so in the future. The family court did not
further elaborate. This appeal follows.
On appeal, Appellant’s sole argument is that the family court’s use of
AOC Form 275.3, alone did not constitute the required findings of fact to support
an order granting a DVO.
Pursuant to CR2 52.01, it is true that “[i]n all actions tried upon the
facts without a jury or with an advisory jury, the court shall find the facts
specifically and state separately its conclusions of law thereon and render an
appropriate judgment . . . .” CR 52.01. The Kentucky Rules of Civil Procedure
2
Kentucky Rules of Civil Procedure.
-2-
apply to hearings on DVO petitions. See Ghali v. Ghali, 596 S.W.2d 31 (Ky. App.
1980).
When, as here, an appellant challenges the sufficiency of the
evidence, our review is limited as appellate courts are only able to reverse a family
court’s order where the findings of fact therein are clearly erroneous. Mays v.
Porter, 398 S.W.3d 454, 458 (Ky. App. 2013) (citing CR 52.01). “Findings of fact
are clearly erroneous only if they are not supported by substantial evidence.” Id.(citing Black Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky. 1964)). “The test
for substantiality of evidence is whether the evidence, when taken alone, or in the
light of all the evidence, has sufficient probative value to induce conviction in the
minds of reasonable persons.” Id. (citing Kentucky State Racing Comm’n v.
Fuller, 481 S.W.2d 298, 308 (Ky. 1972); Janakakis-Kostun v. Janakakis, 6 S.W.3d
843, 852 (Ky. App. 1999)).
In Smith v. McCoy, the Kentucky Supreme Court indicated that only
“essential” facts are required for purposes of creating a sufficient finding of facts to
support issuing a DVO. 635 S.W.3d 811, 817 (Ky. 2021). The Court said: “we
note that in issuing a protective order, the only ‘essential facts,’ the trial court is
required to find are (1) whether an act of domestic violence and abuse, dating
violence and abuse, stalking, or sexual assault has occurred, and (2) whether it may
occur again.” Id. (citation omitted). In Smith, the family court indicated on AOC
-3-
Form 275.3 that violence had occurred and would likely occur again. Id. The
Kentucky Supreme Court concluded this constituted sufficient findings of fact to
support issuing a DVO. Id. at 818.
Here, the family court indicated that violence had occurred and would
likely occur again on AOC Form 275.3. All this information was correctly and
accurately completed within the AOC Form 275.3. 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) (quoting Pettingill v. Pettingill,
480 S.W.3d 920, 922, 925 (Ky. 2015)).
When it comes to discerning which testimony to believe, it is well
within the discretion of the family court to appropriately assign value to the
testimony heard. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (“[J]udging
the credibility of witnesses and weighing evidence are tasks within the exclusive
province of the [circuit] court.”). And, the court must only find by a
preponderance of the evidence that violence has occurred and will likely occur
again. KRS 403.740(1). In weighing Appellant’s and Appellee’s testimony, the
court believed by a preponderance of evidence Appellant engaged in violence and
would likely do so again.
-4-
Nothing in the record indicates the family court’s findings of fact are
clearly erroneous. We will not substitute our own judgment for the family court’s
and without more, there is nothing indicating the family court abused its discretion.
Finding no error, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FILED FOR APPELLEE.
Evan Taylor
Owensboro, Kentucky
-5-