Guenther v. Guenther

KELLER, Judge,

concurring in result only in part and dissenting in part:

I concur in result only as to the Majority’s conclusion that the trial court had *803jurisdiction and that it properly continued the domestic violence hearing. However, I disagree with the Majority’s conclusion that there was insufficient evidence presented at the domestic violence hearing to enter the DVO. As set forth in Caudill v. Caudill, 318 S.W.3d 112, 114-15 (Ky.App.2010):

Prior to entry of a DVO, the court must find “from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur.... ” 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. The definition of domestic violence and abuse, as expressed in KRS 403.720(1), includes “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....” The standard of review for factual determinations . is whether the family court’s finding of domestic violence was clearly erroneous. Findings are not clearly erroneous if they are supported by substantial evidence. “[I]n reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion.” Abuse of discretion occurs when a court’s decision is unreasonable, unfair, arbitrary or capricious.

(Citations omitted).

Having carefully reviewed the record, I cannot say that the trial court’s findings were clearly erroneous. As noted by the Majority, Rachelle testified that Keith grabbed her wrist and jerked the picture out her hand so hard that she heard her back pop. Keith then threw Rachelle to the ground. Keith testified that he grabbed the picture out of Rachelle’s hand and that Rachelle lost her balance and fell. Based on Rachelle’s testimony, I cannot say that the trial court, as the fact-finder, abused its discretion in concluding that an act of domestic violence occurred. See Buddenberg v. Buddenberg, 304 S.W.3d 717, 720 (Ky.App.2010) (noting that the trial court is in the best position to judge the credibility of the witnesses and weigh the evidence presented).

As to whether domestic violence may occur again, the Majority holds that Rachelle’s monosyllabic responses to leading questions are not sufficient evidence to support the court’s finding. I disagree for four reasons. First, I do not necessarily agree that the question asked by counsel regarding the likelihood of a reoccurrence of violence was a leading question. A leading question is “one that suggests the answer to the person being interrogated, esp., a ‘yes’ or ‘no.’ ” Black’s Law Dictionary 897 (7th ed.1999). Counsel asked Rachelle, “Are you fearful that these actions of domestic violence will occur again?” That is not a leading question because it is neutral. It does call for a yes or no answer, but it does not suggest which of those answers is correct.

Second, even if the question was leading, “judgments will not be reversed because of leading questions unless the trial judge abused his discretion and a shocking miscarriage of justice resulted.” Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky.App.2007). I discern no abuse of discretion because a victim’s fear of continued domestic violence is a key element necessary to support a DVO. I know of no better way to elicit that information than to ask the victim.

Third, although it might have been better if Rachelle had expanded on her answer, she was not required to do so. The trial court is permitted to believe or disbelieve any sufficiently probative evidence *804presented, and the length of a response is not indicative of its sufficiency or probative value.

Fourth, Keith was present during the hearing and had the opportunity to present evidence to contradict Rachelle’s testimony. The trial court determined that he did not do so, and it is not for this Court to second guess that determination.

Therefore, I agree that the trial court did not err when it continued the DVO hearing; however, I disagree that there was insufficient evidence to support the trial court’s issuance of a DVO. Accordingly, I would affirm.