Thomas Aaron Stopinski v. Chelsey Amber Holthouser

RENDERED: AUGUST 25, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2023-CA-0205-ME
THOMAS AARON STOPINSKI APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
v. HONORABLE MONICA K. MEREDITH, JUDGE
ACTION NO. 22-D-00101-001
CHELSEY AMBER HOLTHOUSER APPELLEE
OPINION
AFFIRMING
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BEFORE: CETRULO, ECKERLE, AND GOODWINE, JUDGES.
GOODWINE, JUDGE: Thomas Aaron Stopinski (“Stopinski”) appeals from a
May 5, 2022 domestic violence order (“DVO”) entered against him and in favor of
Chelsey Amber Holthouser (“Holthouser”) by the Bullitt Circuit Court, Family
Division. After careful review of the record, we affirm.
Stopinski and Holthouser are divorced. The parties have two minor
children in common, B.S. and A.S., and Holthouser has a minor child, L.H. The
parties agreed to joint custody and an equal parenting schedule.
On April 12, 2022, Holthouser, on behalf of herself and the minor
children, filed a petition/motion for an order of protection alleging in pertinent
part:
I have multiple text in our parenting app where he has
threatened that I’m going under soon and he has a plan to
do so. . . . He showed up at my daughter’s gym after we
had met for our children and parked his truck behind
mine and told me he wasn’t going to move unless I rolled
down the window to talk to him. My 12 yr. old daughter
got threatened over the weekend in text from his current
girlfriend’s child stating that she was going to “knock me
and her head off.” He bought my 6 yr. old son a
cellphone and told him that he was tracking everywhere I
was. . . . I do not feel safe with meeting him for our
children, he has made it clear in text that he now knows
my current address and that I will not “be there much
longer” and he can promise me that. . . . He told my
mother that he will not stop until “I go under.”[1] At our
last meeting, April 1st, he called me a stupid bitch in
front of our children and threatened me that his current
girlfriend was in his truck and would “beat my ass.” . . .
He owns guns in his home and I’m scared for my safety
and my childrens.’ He bought my 6 year old son a cell
phone and told him there was GPS tracker on it, where he
would know where I’m at, at all times. In our last text he
said that he had something planned and he won’t stop
until I go under. He is involving our children in his
conversations about our disagreements and causing them
to have anxiety and nervousness. I am concerned for all
of us.
1
During the hearing, Holthouser testified regarding Stopinski’s statements about her going
under. Stopinski testified he was referencing that she would “go under” in the CPS investigation
and that this was not a threat to her physical wellbeing. The family court excluded this testimony
from its findings and did not rely on them in its order.
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Record (R.) at 5-12.
Based on the petition, the family court entered an emergency
protective order against Stopinski and summoned him to appear in court on April
26, 2022, but the hearing was continued until May 5, 2022. The parties appeared
before the family court on May 5, 2022. Both parties were represented by counsel
and testified at the hearing. No exhibits were entered into the record, and no other
witnesses testified.
The family court summarized the parties’ testimony in its written
findings. The following is a summary of Holthouser’s testimony:
Petitioner stated that the parties have shared parenting
time but at exchanges the Respondent is calling her
names (stupid bitch, etc.) with the children present.
Testified that Respondent has purchased a cell phone for
their 6 year old son that includes a tracker mechanism so
he knows where the child (and the Petitioner) are at all
times. Petitioner referred to written petition of April 7,
2022 events and made reference to other incidents in the
preceding days. Petitioner stated that on April 6 the
respondent pushed her on her forehead with his finger
while telling her he “didn’t give a fuck” and threatened to
have his girlfriend (who was in his vehicle) fight her.
Petitioner stated that she was shaking and scared &
respondent wanted her to roll down her window.
Testimony was that the Respondent stated he would bust
out her window if she didn’t. After EPO was taken, but
before Respondent was served, Petitioner testified she
was sitting at [her daughter’s] cheerleading gym and
called the police to have him served. Petitioner testified
that Respondent followed her to the back of the facility in
his vehicle (with their younger children in the vehicle)
and that he approached the back window demanding that
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the parties’ son . . . come with him. Petitioner testified
that the child had a fixed stare at her and would not move
his head and that she was very scared.
R. at 30.
In its written findings, the family court summarized Stopinski’s
testimony as follows:
Respondent testified that he believes the entire action is a
result of him filing a report with CPS of his concerns
over the Petitioner allegedly drinking and driving with
the children in the vehicle. Respondent stated that there
was a constant argument about the children’s clothes not
being returned to him despite multiple requests and that
of the events testified to by the Petitioner was when he
was trying to recover his son’s Nintendo Switch and
could not get the item back from the Petitioner. On
cross, the Respondent acknowledged that he had not
actually observed the Petitioner intoxicated with the
children while driving. Respondent references DUI
allegations in Indiana, but provided no exhibits.
Respondent admitted to calling Petitioner “a drunk” on at
least 2 occasions and that he had called her a bitch but
denied the children were present. His testimony stated
that the children were in his truck during the
conversations. Respondent made a number of assertions
that the Petitioner “makes up” the schedule for parenting
time and sets all the terms. Respondent further states that
Petitioner has missed a number of exchanges involving
the children but was only able to identify one from
February 2022 and stated that on the day the EPO was
issued that the Petitioner had been to his home to pick up
the children.
Id.
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When the parties finished testifying, the family court stated based on
the testimony, it found an act of domestic violence occurred. The family court did
not orally identify any evidence or particular grounds upon which its finding was
based and stated it would enter formal written findings and a three-year protective
order.
On May 5, 2022, the family court entered a written DVO against
Stopinski on form AOC-275.3, checking the box stating, “it was established by a
preponderance of the evidence . . . that an act(s) of domestic violence and abuse
. . . has occurred and may occur again.” R. at 28. The family court also ordered
Stopinski to comply with several additional terms. The court checked the box
ordering Stopinski to surrender his license to carry concealed firearms and typed in
the following: “Respondent shall immediately surrender all firearms, weapons &
ammunition to the Bullitt County Sheriff’s office and shall not purchase or possess
firearms during the pendency of the Order.” Id. The family court checked the box
restraining Stopinski “from any contact or communication with [Holthouser] and
the following other protected person(s)” and typed in “No 3rd party or direct
communication; No Text; No emails; No social media messaging; No posts on
social media about [Holthouser] and any applicable child/ren.” Id. However, the
family court allowed Stopinski to continue communicating via “coparent app;
coparenting classes with a licensed therapist, lawful contact with children
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allowed.” Id. The court ordered Stopinski to remain “at least 500 feet away” from
Holthouser and the minor children except for “lawful contact with children
allowed” with a “CHFS approved 3rd party supervisor for exchange.” Id. The
family court ordered Stopinski to participate in the “Batterer Intervention Program
through any certified state approved provider.” R. at 29. To prevent further acts of
domestic violence and abuse the family court ordered “[Holthouser] shall complete
the Choices Program through the Center for Women and Families. Co-parenting
classes by licensed therapist. Children shall have no cell phones (tracker
devices).” Id.
In addition to completing the AOC form, the family court typed
written findings onto the docket sheet:
The Court finds that the Petitioner has met the burden
necessary in establishing that an act of domestic violence
occurred. The Petitioner has testified to multiple
instances where she felt “trapped” in parking lots, at
cheer practice, etc. when the Respondent blocked her
vehicle with his, exited his truck, and approached her
vehicle once by the driver’s window, and another by the
rear compartment of the vehicle when he followed her
behind Bullitt Athletics bldg. The Court is not persuaded
by the Respondent’s testimony that the parking lot was
full when he parked behind her vehicle or the argument
that the Petitioner could have gotten out by driving over a
grassy area especially when 1) she was the first to arrive
and 2) there is no contest that respondent left his truck
and approached her vehicle on a day not previously
scheduled for an exchange of the children.
Id. This appeal followed.
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On appeal, Stopinski argues: (1) the DVO was not supported by
substantial evidence and (2) the family court’s findings were clearly erroneous.
To enter a DVO, the trial court must conduct a hearing and find “by a
preponderance of the evidence” that domestic violence and abuse has occurred and
may occur again. KRS2 403.740(1). “The preponderance of the evidence standard
is satisfied when sufficient evidence establishes the alleged victim was more likely
than not to have been a victim of domestic violence.” Caudill v. Caudill, 318
S.W.3d 112, 114 (Ky. App. 2010) (citation omitted). Our standard of review for
factual determinations is whether the trial court’s findings were clearly erroneous.
Id. Findings of fact are not clearly erroneous if they are supported by substantial
evidence. Id. at 114-15 (citing Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003)).
Stopinski argues the DVO was not supported by substantial evidence,
and the family court’s findings were clearly erroneous. He argues his actions
merely amounted to unwanted touching, and that there was no testimony of any
instances of physical abuse or threats. He further argues Holthouser’s subjective
fear of him, without an implicit or explicit threat of violence, is insufficient to
support a DVO.
“Domestic violence and abuse” is defined as “[p]hysical injury,
serious physical injury, stalking, sexual abuse, strangulation, assault, or the
2
Kentucky Revised Statutes.
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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). “Imminent” means “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). Under KRS 403.740(1), “[f]ollowing a hearing ordered under
KRS 403.730, if a court finds by a preponderance of the evidence that domestic
violence and abuse has occurred and may again occur, the court may issue a
domestic violence order[.]”
As Holthouser points out, this case is factually similar to Hohman v.
Dery, 371 S.W.3d 780 (Ky. App. 2012). As in Hohman, “[o]ur inquiry turns on
whether substantial evidence supports a finding that [Stopinski] inflicted upon
[Holthouser] a fear of imminent physical injury or assault.” Id. at 782. Stopinski
relies on his own testimony to support his argument that he did not cause
Holthouser to fear imminent physical injury. Despite Stopinski’s testimony to the
contrary, Holthouser testified that Stopinski pushed her on her forehead. She also
testified Stopinski threatened that he would have his girlfriend, who was present
during the altercation, physically attack Holthouser. Holthouser also testified
Stopinski followed her and blocked in her vehicle with his truck, so she could not
leave the parking lot of her daughter’s cheerleading gym. While blocked in,
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Holthouser testified Stopinski approached her vehicle and threatened to bust out
her window while she was in her vehicle with the children. She also testified
Stopinski addressed her with foul language in the presence of the children.
As in Hohman, Stopinski denies some of Holthouser’s allegations.
However, “[t]he trial court is in the best position to judge the credibility of the
witnesses and weigh the evidence presented.” Holt v. Holt, 458 S.W.3d 806, 813
(Ky. App. 2015) (citing Rupp v. Rupp, 357 S.W.3d 207, 210 (Ky. App. 2011)).
Here, both Holthouser and Stopinski testified regarding Stopinski’s conduct. They
provided some overlapping testimony and some conflicting accounts of Stopinski’s
actions. As the factfinder, the family court found Holthouser’s testimony to be
more credible. Stopinksi asks this Court to re-weigh the evidence and reverse the
DVO because he believes his own testimony is more credible than Holthouser’s.
We will not invade the province of the family court as a factfinder. Based on the
record, we conclude the evidence presented was sufficient for the family court to
find that Stopinski’s conduct caused Holthouser to fear imminent physical injury.
Thus, we conclude the DVO was supported by substantial evidence, and therefore,
the family court’s findings were not clearly erroneous.
For the foregoing reasons, we affirm the domestic violence order of
the Bullitt Circuit Court, Family Division.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kyle Louis Schickel Tammy R. Baker
Louisville, Kentucky Shepherdsville, Kentucky
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