RENDERED: JANUARY 8, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0761-ME
JASON MCCOY APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
v. HONORABLE DAVID A. LANPHEAR, JUDGE
ACTION NO. 20-D-00057-001
DANIEL SMITH APPELLEE
OPINION
REMANDING
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BEFORE: ACREE, CALDWELL, AND DIXON, JUDGES.
DIXON, JUDGE: Appellant (McCoy) appeals from the Warren Circuit Court’s
domestic violence protection order, entered on May 19, 2020. After careful review
of the record, briefs, and law, we remand for entry of written findings of fact.
BACKGROUND
In February 2020, Appellee (Smith) filed a petition for an order of
protection on behalf of his five-year-old daughter (Child). Therein, Smith alleged
that Child had disclosed to her therapist that McCoy, who resided with Child’s
mother, had touched her privates and hurt her on multiple occasions.
At the trial, Smith’s sole witness was Child’s therapist (Hayes). In
November 2019, Smith engaged Hayes’s services to address Child’s behavioral
problems and possible sexual behavior with another child. Over McCoy’s hearsay
objection, Hayes testified that during the course of therapy, Child made three
separate disclosures regarding McCoy touching her privates, having her touch his
privates, and taking a picture of her privates.
The trial court made findings from the bench, entered an order
adopting them by reference, and entered a domestic violence order (DVO) of
protection. This appeal timely followed. Additional facts will be introduced as
they become relevant.
ANALYSIS
After an evidentiary hearing, a court may issue a DVO if it “finds by a
preponderance of the evidence that domestic violence and abuse has occurred and
may again occur[.]” KRS1 403.740(1). We review the issuance of a DVO to
determine if the trial court’s findings are clearly erroneous or if the court abused its
discretion. Holt v. Holt, 458 S.W.3d 806, 812 (Ky. App. 2015).
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Kentucky Revised Statutes.
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McCoy raises three claims of error: (1) the trial court failed to make
written findings, (2) the trial court’s decision was clearly erroneous, and (3)
Child’s hearsay statements were improperly admitted as evidence. We need only
address his first argument as it is dispositive of the result.
“In all actions tried upon the facts without a jury[,] . . . the court shall
find the facts specifically and state separately its conclusions of law thereon and
render an appropriate judgment[.]” CR2 52.01. To be compliant, the findings of
fact must be in writing. Kiefer v. Kiefer, 354 S.W.3d 123, 124 (Ky. 2011). This
mandate applies in DVO cases. Boone v. Boone, 463 S.W.3d 767, 768 (Ky. App.
2015). Even where the trial court’s rationale is readily determinable from the
recorded proceedings, it is not excused from its responsibility to make written
findings. Id. at 769. Where the trial court fails to engage in a good-faith effort to
render written findings, we are permitted to remand the matter back to the trial
court. Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011).
As an initial point, we note that McCoy’s brief failed to include at the
beginning of his argument section “a statement with reference to the record
showing whether the issue was properly preserved for review and, if so, in what
manner.” CR 76.12(4)(c)(v). Accordingly, it would be within our discretion to, as
Smith has requested, strike this portion of the brief and forego a review of the
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Kentucky Rules of Civil Procedure.
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claim. Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). However, as a lack
of preservation itself is not a bar to this claim, we will address it on its merits
despite McCoy’s error. Anderson, 350 S.W.3d at 458.
Herein, the trial court made no written findings, beyond checking the
boxes on the form order, that it found by a preponderance of the evidence that
sexual assault had occurred and may again occur. In lieu of specific written
findings, the trial court announced oral findings from the bench and entered an
order adopting them by reference simultaneously with the DVO judgment. Smith
asserts this is sufficient and cites as authority contract dispute cases where
adoption by reference was approved.
We find Smith’s argument unavailing as contract practices are not
applicable herein. This Court has previously held that notations on a docket sheet
purporting to adopt by reference oral findings were insufficient to satisfy a court’s
obligation to render written findings. Boone, 463 S.W.3d 767. While the order at
issue is typed, we discern no practical reasons that would justify a different result.
Further, the lack of written findings precludes this Court from addressing McCoy’s
second claim, that the trial court’s decision is clearly erroneous. Accordingly, we
are compelled to vacate the DVO and remand for entry of a new order with written
findings.
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CONCLUSION
Therefore, and for the foregoing reasons, we REMAND this matter to
the Warren Circuit Court for entry of written findings.
CALDWELL, JUDGE, CONCURS.
ACREE, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
ACREE, JUDGE, DISSENTING: For the reasons stated in Williford
v. Williford, 583 S.W.3d 424 (Ky. App. 2019), I respectfully dissent.
In Williford, this Court interpreted Pettingill v. Pettingill, 480 S.W.3d
920 (Ky. 2015), as holding that a family court satisfied the requirements of CR
52.01 by “completely and accurately fill[ing] out AOC Form 275.3 and, under the
‘Additional Findings’ header, check[ing] the box [indicating its finding] . . . that an
act(s) of domestic violence or abuse occurred and may again occur.” Pettingill,
480 S.W.3d at 925 (internal quotation marks omitted).
The Supreme Court addressed the specific argument “that the family
court did not specify sufficient findings of fact to support its DVO because the
AOC Form 275.3 is deficient.” Id. The Court’s response was, “We disagree.”
After all, this is a form approved as compliant with applicable rules by the
Supreme Court for family court use. How could it be so that when a family court
completely and accurately fills out the form, there is still more to do? Why have
the form in the first place if it is inadequate to the task for which it was created?
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When the form underwent minor revision in 2016 (a year after
Pettingill), neither the Supreme Court nor the Administrative Office of the Courts
deemed it necessary even to add a few blank lines for family courts to jot down a
few findings. There is a reason. And it is stated in Pettingill.
After noting that “the family court made further factual findings on its
docket sheet,” the Supreme Court said, “The family court’s written findings of fact
were more than sufficient to satisfy CR 52.01.” Id. (emphasis added). That is,
without the separate written findings, CR 52.01 still would have been satisfied
because the additional findings were superfluous to the “finding that an act or acts
of domestic violence had occurred and may occur again on the form . . . .” Id.
(emphasis added). When “the [family] court also listed on its docket sheet nine
specific findings to support its order[,] . . . [t]his effort more than satisfie[d] the
court’s good faith duty to record fact-finding.” Id. (emphasis added).
Therefore, respectfully, I dissent.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Christopher T. Davenport Casey A. Hixson
Bowling Green, Kentucky Bowling Green, Kentucky
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