RENDERED: DECEMBER 22, 2021; 10:00 A.M.
TO BE PUBLISHED
OPINION OF AUGUST 20, 2021, WITHDRAWN
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1441-ME
JUSTIN KYLE JOHNSTON APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 20-D-00474-001
CINDY PATRICIA JOHNSTON APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, JONES, AND McNEILL, JUDGES.
McNEILL, JUDGE: Appellant, Justin Kyle Johnston (“Justin”), appeals from the
Hardin Family Court’s entry of a domestic violence order (“DVO”) granted on
behalf of Appellee, Cindy Patricia Johnston’s (“Cindy”) minor child. Following a
careful review of the record and the law, we affirm.
I. BACKGROUND
Justin and Cindy were married in 2017. On September 21, 2020,
Cindy, on her own behalf and on behalf of her minor child, S.O., filed a petition
seeking a DVO restraining Justin. Cindy alleged in her petition that on September
19, 2020:
My family and I were at a [friend’s] BBQ . . . when my
[12-year-old] daughter told Kim Luna that Justin
Johnston kissed her and [tried] to stick his [tongue] in her
mouth. Justin even told two of the men[,] Jose Luna and
Carslo Lowery in the back yard that “his wife and
daughter were bitches[”] over and over and never used
[their] names and stated [“]he wanted a divorce from
them.[”] Chris Green, Terra Green, Tasha Lower were
also [present] during the [incident] when my child spoke
up. I’m worried he is going to return to [the] house while
I’m not home when my child doesn’t have school.
Based on Cindy’s petition, the Hardin Family Court entered an emergency
protective order and issued a summons for Justin. The family court held a
domestic violence hearing on October 5, 2020. At the hearing, the family court
heard testimony from Cindy, Justin, and S.O. Cindy testified:
Counsel: Tell me what happened. [S.O.] made a
disclosure . . . we’ve only got a few minutes,
so . . .
Cindy: She made a disclosure at a barbecue that my
husband physically sexually assaulted her.
Counsel: By doing what?
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Cindy: That he kissed her and stuck his tongue in
her mouth. And she mentioned it to me, but
I did not believe her at the time because she
was going through phases where she was
lying.
...
Cindy: [S.O.] was not with me when she told Kim
what happened. I was in the back [yard] and
[S.O.] and Kim were in the front of the
house.
...
Counsel: Why did you file this [petition]?
Cindy: To protect my child because I am a rape
victim.
Counsel: This isn’t . . . about you. You filed this on
[S.O.’s] disclosure?
Cindy: Yes.
Counsel: And you believe S.O.’s disclosure is
truthful?
Cindy: Yes.
...
Counsel: Do you believe that a domestic violence
order is necessary to protect S.O. from Mr.
Johnston?
Cindy: Yes.
Counsel: And are you asking the court to enter a
domestic violence order against Mr.
Johnston on behalf of S.O.?
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Cindy: Yes.
...
Counsel: Judge, I’ll pass this witness. I know our
time is limited.
S.O. also provided sworn testimony at the hearing. When asked by
the family court judge whether she knew the difference between the truth and a lie,
S.O. stated that she did. S.O. also testified as follows:
Judge: You know Justin Johnston, don’t you?
S.O.: Yes.
Judge: And had Mr. Johnston . . . he’s your
stepfather, correct?
S.O.: Yes, ma’am.
Judge: Has Mr. Johnston ever done anything to you
that made you feel uncomfortable?
S.O.: Yes, ma’am.
Judge: Do you want to tell me what that was?
S.O.: Um, a couple months ago, um, he was like
drunk, drinking like bourbon and stuff and
beers. And then he got drunk while I was
sitting next to him on the couch. He pulled
me over and then he kissed me and then I
said I wanted to go to bed.
Judge: Alright where was your mother at when all
that happened?
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S.O.: She was in the bedroom because she had just
got home at 7 [o’clock] and it was about 8 or
9 [o’clock] when this situation happened.
...
Judge: So, you’re saying he pulled you to him and
he tried to kiss you, is that what you’re
saying happened?
S.O.: With his tongue, yes ma’am.
Judge: Okay, is that the only time he’s ever done
anything like that?
S.O.: Yes. That’s the only thing I can remember.
Judge: Okay. And what did you do when he tried
to do that?
S.O.: I kind of like pulled back.
Judge: Okay. And did he say anything to you or
what did he do?
S.O.: No, um, I went to bed because I asked him if
I could go to bed and then I went off to bed.
I kind of felt uncomfortable the rest of the
night.
Judge: Yeah.
S.O.: Like I kind of stayed up late.
Judge: When did you tell your . . . did you tell your
mom when she came home, err, the next day
about what happened?
S.O.: Well, this was like . . . when my mom came
home, she was tired, she took a shower, ate
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dinner. She went to bed. Justin was . . . got
a little bit drunk because I guess it was like
his day off or something. And then the next
day I had to go to my grandma’s, um, I told
her about it in the car. . . . I don’t remember
the day, but it was definitely like a Saturday.
Based on S.O.’s testimony and the totality of the evidence presented,
the family court judge made an oral finding of domestic violence with respect to
S.O., but not with respect to Cindy. At that point, Justin’s counsel and the family
court engaged in the following exchange on the record:
Counsel: Judge, I know you’re in a hurry, but just so
the record’s clear. Are you finding that, uh,
the kiss constitutes, uh, sex abuse, or what
under the statute?
Judge: Well, I think it falls within the definition of
domestic violence because I think it put her
in fear that a kiss was going to maybe lead
to something worse. I think a child of her
age, that puts her in imminent fear of bodily
harm. So, I’m making a finding of domestic
violence. I’m going to enter the DVO for a
period of one year.
Following that hearing, the Hardin Family Court entered a DVO on
behalf of S.O. on Administrative Office of the Courts (AOC) Form 275.3.1 This
appeal followed.
1
The DVO at issue herein expired on October 5, 2021. However, its expiration does not moot
the instant appeal because of the collateral consequences of the DVO. Caudill v. Caudill, 318
S.W.3d 112, 114 (Ky. App 2010).
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II. STANDARD OF REVIEW
We review the entry of a DVO for whether the trial court’s finding of
domestic violence was an abuse of discretion. McKinney v. McKinney, 257
S.W.3d 130, 133 (Ky. App. 2008). Our review of the trial court’s factual findings
is limited to whether they were clearly erroneous. Kentucky Rules of Civil
Procedure (“CR”) 52.01; Hall v. Smith, 599 S.W.3d 451, 454 (Ky. App. 2020). A
trial court’s factual determination is not clearly erroneous if it is supported by
substantial evidence, which is evidence of sufficient probative value to induce
conviction in the minds of reasonable people. Moore v. Asente, 110 S.W.3d 336,
354 (Ky. 2003).
III. ANALYSIS
“A trial court is authorized to issue a DVO if it ‘finds by a
preponderance of the evidence that domestic violence and abuse has occurred and
may again occur[.]’” Castle v. Castle, 567 S.W.3d 908, 915 (Ky. App. 2019)
(quoting Kentucky Revised Statutes (“KRS”) 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) (citing Baird v. Baird,
234 S.W.3d 385, 387 (Ky. App. 2007)). In Caudill, this Court addressed the DVO
process and discussed the construction of DVO statutes:
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While domestic violence statutes should be construed
liberally in favor of protecting victims from domestic
violence and preventing future acts of domestic
violence[,] the construction cannot be unreasonable.
Furthermore, we give much deference to a decision by
the family court, but we cannot countenance actions that
are arbitrary, capricious or unreasonable.
Id. at 115 (internal quotation marks and citations omitted).
KRS 403.720(1) defines domestic violence and abuse as “physical
injury, serious physical injury, stalking, sexual abuse, strangulation, assault, or the
infliction of fear of imminent physical injury, serious physical injury, sexual abuse,
strangulation, or assault between family members or members of an unmarried
couple.” On appeal, Justin argues that, even assuming the incident had occurred as
S.O. alleges that it did, the act of kissing his 12-year-old stepdaughter does not,
without more, constitute domestic violence as defined by KRS 403.720(1).2 Justin
asserts that absent testimony from S.O. that she was fearful that he would attempt
to kiss her again or that he may harm her in the future, there was insufficient
evidence for the family court to find that Justin placed S.O. in “fear of imminent
physical injury.”
In addressing Justin’s arguments on the merits of the family court’s
findings, we must first address the scope of what to consider on review.
2
We note that in his testimony at the October 5, 2020 hearing, Justin did deny that the incident
took place as described by Cindy and S.O.
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The DVO issued by the family court consists of the court’s having
filled out AOC Form 275.3 and checking the box under the “Additional Findings”
heading corresponding to “For the Petitioner against the Respondent in that it was
established, by a preponderance of the evidence, that an act(s) of domestic violence
or abuse . . . has occurred and may again occur[.]” Moreover, the family court
checked the box under the “Additional Terms of Order” heading conveying the
following term:
In order to assist in eliminating future acts of domestic
violence and abuse, dating violence and abuse, stalking,
or sexual assault IT IS HEREBY ORDERED that the
findings of fact and conclusions of law announced on the
record as set forth hereinabove are expressly and
specifically are expressly and specifically [sic]
incorporated by reference herein as if written in full.
Boone v. Boone, 463 S.W.3d 767, 768 (Ky. App. 2015);
Kindred Nursing Centers, Ltd. Partnership v. Sloan, 329
S.W.3d 347, 349 (Ky. App. 2010).
We are mindful that “[a] family court is obligated to make written
findings of fact showing the rationale for its actions taken under KRS Chapter 403,
including DVO cases, even if the rationale may be gleaned from the record.”
Thurman v. Thurman, 560 S.W.3d 884, 887 (Ky. App. 2018). Indeed, the
importance of a trial court’s written findings is emphasized in family law matters.
See, e.g., id.; Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011); Keifer v.
Keifer, 354 S.W.3d 123, 125-26 (Ky. 2011).
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The family court’s method of incorporating its oral findings into its
written order, however, was recently approved by the Kentucky Supreme Court in
Smith v. McCoy, No. 2021-SC-0050-DGE, ___ S.W.3d ___, 2021 WL 3828565
(Ky. Aug. 26, 2021):3
As previously described, the trial court made findings of
fact and conclusions of law orally at the end of the
hearing. It also fully and accurately completed AOC
Form 275.3, finding, by a preponderance of the evidence,
that acts of sexual abuse had occurred and may occur
again. Finally, it entered a written order expressly and
specifically incorporating its oral findings and
conclusions into the written order. We hold this was
sufficient to meet the trial court’s duty to engage in at
least a good faith effort at fact-finding and that the found
facts be included in a written order.
Id. at *4 (internal quotation marks and citation omitted). Considering Smith, the
family court’s oral findings of fact were properly incorporated into its written order
and we consider those findings in an effort to determine whether the family court
erred.
We agree with the rationale expressed by the family court. The act of
an adult attempting to kiss a twelve-year-old child with his tongue is more than
sufficient to create a concern in the child’s mind that sexual abuse may occur in the
3
A previous version of this Opinion was rendered by the Court on August 20, 2021, six days
before the Kentucky Supreme Court rendered its Opinion in Smith. In light of the similarity of
the issues and the guidance provided in Smith, this Court withdrew its previous Opinion by order
entered September 3, 2021.
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future. In the family court’s words, “it put her in fear that a kiss was going to
maybe lead to something worse. I think a child of her age, that puts her in
imminent fear of bodily harm.” That is a reasonable presumption under the
circumstances. We certainly cannot say that such a finding is clearly erroneous.
When reviewing a decision on a DVO petition, “the test is not
whether we would have decided it differently, but whether the court’s findings
were clearly erroneous or that it abused its discretion.” Gomez v. Gomez, 254
S.W.3d 838, 842 (Ky. App. 2008) (citations omitted). As the family court did not
abuse its discretion in entering the DVO, its decision will not be disturbed on
appeal.
For the foregoing reasons, we affirm the family court’s decision to
grant the petition for a DVO.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Douglas E. Miller Cindy P. Johnston, pro se
Radcliff, Kentucky Elizabethtown, Kentucky
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