Std of Review: Family Law; Domestic Violence Order Issues (DVO)

When reviewing the entry of a DVO, our standard of review is whether the trial court abused its discretion. “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” McKinney v. McKinney, 257 S.W.3d 130, 133 (Ky. App. 2008). A reviewing court may not substitute its findings of fact for the trial court’s unless they are clearly erroneous. Bennett v. Horton, 592 S.W.2d 460 (Ky. 1979). A factual finding is not clearly erroneous if it is supported by substantial evidence. “‘Substantial evidence’ is evidence of substance and relevant consequence sufficient to induce conviction in the minds of reasonable people.” Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky. App. 2002). Furthermore, CR 52.01 instructs: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”

In order to issue a DVO, the trial court must first conduct a hearing and find “from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur.” KRS 403.750(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.” Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996). Domestic violence and abuse is defined as “physical injury, serious physical injury, sexual abuse, 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.

In the instant case, the record reflects that the trial court abused its discretion by entering the DVO. Specifically, we note that there were no allegations of physical abuse or physical injury, nor were there any allegations of threats of physical abuse in Ms. Pasley’s petition for an emergency protective order.    The only allegation in the petition of any perceived threat was Ms. Pasley’s unsupported statement that she was unsure what Mr. Pasley would do and was afraid of him. A review of the videotaped hearing further indicates that Ms. Pasley did not orally make any allegations of any physical injuries or abuse, nor did she allege that she had fear of imminent physical injury. In fact, the record is devoid of any indications that there was ever any domestic violence between Mr. Pasley and Ms. Pasley.




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