RENDERED: FEBRUARY 25, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1100-ME
RONALD SCOTT ARNOLD APPELLANT
APPEAL FROM LEE CIRCUIT COURT
v. HONORABLE MICHAEL DEAN, JUDGE
ACTION NO. 21-D-00024-001
BLANCHE ARNOLD APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES.
CLAYTON, CHIEF JUDGE: Ronald Scott Arnold appeals from the Lee Circuit
Court’s entry of a domestic violence order (“DVO”) against him. Mr. Arnold
argues that the trial court denied him a meaningful hearing as required by
Kentucky statutes. Mr. Arnold further contends that the court’s finding by a
preponderance of the evidence that Mr. Arnold had committed domestic violence
was clearly erroneous.
We agree with Mr. Arnold that the trial court erred in finding that he
had committed acts of domestic violence against his wife because such finding was
unsupported by a preponderance of the evidence. Thus, we reverse and remand
this matter to the Lee Circuit Court, with instructions to vacate the DVO entered on
August 4, 2021, and dismiss the petition filed against Mr. Arnold without prejudice
pursuant to Kentucky Revised Statutes (“KRS”) 403.730(1)(a).
FACTUAL AND PROCEDURAL BACKGROUND
On July 30, 2021, Blanche Arnold, who had initiated a dissolution
action against Mr. Arnold the preceding June after approximately forty years of
marriage, filed a petition/motion for order of protection (the “Petition”). The
Petition alleged that Mr. Arnold had engaged in acts of domestic violence and
abuse on or about July 29, 2021. Ms. Arnold’s factual statement reads as follows:
[Mr. Arnold] became very agitated accusing [Ms.
Arnold] and son of removing items from the home and
all the while [Ms. Arnold] and son were at work and
serving on grand jury. He is mis[-]using his prescription
medication and buying off the street. He threatened to
“cut his son’s guts out” and was very aggressive the
entire day to both of them.
[Mr. Arnold] returned home today – 7-30-2021 and
started same behavior. He is walking around the house
carrying a slap stick and made family members leave. I
fear for my safety and the safety of our adult son’s life.
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Our 2 yr old granddaughter has to return Sunday and this
is not an environment for this child to be in. He need[s]
help.
The Petition further alleged that a weapon was involved and that Mr. Arnold could
be armed and dangerous.
The Lee Circuit Court thereafter issued an emergency protective order
(“EPO”) and summons, which was served on Mr. Arnold that same day. The
Summons indicated that the court had scheduled a hearing for August 4, 2021, at
9:30.
On August 4, 2021, the trial court held a hearing on both Ms. Arnold’s
previous motion for a status quo order in the parties’ divorce case and regarding
the Petition. Mr. Arnold’s counsel was not present at the hearing, although he had
previously entered an appearance on behalf of Mr. Arnold. After ruling on the
status quo motion, the court indicated that it would hear evidence regarding the
Petition.
After being sworn in, Ms. Arnold testified that she reaffirmed the
statements in her DVO petition. Ms. Arnold further testified that Mr. Arnold was
abusing his prescription medicine but that Mr. Arnold would not admit to such
abuse and would not accept help. Ms. Arnold further testified that Mr. Arnold was
verbally abusive, belligerent, that the parties “needed to be apart,” and “that this
needed to be over.” Ms. Arnold also indicated that Mr. Arnold’s behavior had
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been “escalating” recently, that he had told her he would “like to mash [her]
mouth,” that he had stood in front of the door when she was trying to leave to go to
work and had grabbed her arm. While Ms. Arnold said she “did not necessarily
fear” for herself or her family, she did “worry.” Ms. Arnold also testified that, on
one occasion, Mr. Arnold had a “slap jack” in his possession and that she was
“sure” that he had a knife with him on that same occasion.
The trial court next inquired whether Mr. Arnold had any questions
for Ms. Arnold. Mr. Arnold replied in the affirmative, but instead of asking any
questions, made a series of mostly unintelligible unsworn statements attempting to
rebut Ms. Arnold’s testimony.
Thereafter, the parties’ adult son was called as a witness and sworn in.
Although his testimony is also unclear, his testimony appears to center around an
altercation between him and Mr. Arnold. Although both parties exchanged verbal
threats, and there were allegations that Mr. Arnold had a knife and his son had a
gun, neither party testified that anything physical occurred, and the police
eventually arrived at the scene. After his son’s testimony, the court swore in Mr.
Arnold, who provided a rebuttal, which again is very hard to decipher from the
videotaped record of the proceedings.
At the conclusion of the hearing, the court granted Ms. Arnold’s
Petition, stating, “clearly, you two need to separate . . . the question is, where is
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[Mr. Arnold] gonna go?” After Mr. Arnold answered that he had been staying at a
friend’s house, the court stated, “that solves it.” The court subsequently entered an
order finding that Mr. Arnold had committed domestic violence against Ms.
Arnold and that domestic violence may occur again. The DVO was effective until
January 1, 2023, and restrained Mr. Arnold from contact with Ms. Arnold and the
parties’ adult son except “as agreed.” This appeal followed.
ANALYSIS
a. Meaningful Hearing
Mr. Arnold first argues that the trial court denied him a “meaningful”
hearing as required by KRS 403.730(1)(a). KRS 403.730(1)(a) states that, upon
receiving a petition for an order of protection, “the court shall summons the parties
to an evidentiary hearing not more than fourteen (14) days in the future.”
Moreover, “the Kentucky Court of Appeals [has] made it clear that due process
requires, at the minimum, that each party be given a meaningful opportunity to be
heard.” Wright v. Wright, 181 S.W.3d 49, 53 (Ky. App. 2005) (internal quotation
marks and citation omitted) (emphasis added). In Holt v. Holt, the Court explained
the phrase “meaningful opportunity to be heard” as the court’s permitting “each
party to present evidence and give sworn testimony before making a decision.”
458 S.W.3d 806, 813 (Ky. App. 2015) (citation omitted).
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In Wright, a panel of this Court examined two cases on appeal and
determined that neither trial court had held a “full hearing” as required by the
applicable statutes. 188 S.W.3d at 53. In the first matter, the trial court had
entered a DVO without any testimony being taken from either party and had
impermissibly relied upon extrajudicial evidence in entering the DVO. Id. In the
second matter, the trial court did not permit the petitioner to complete her
testimony, interrupted her attorney, and dismissed the case after only three
questions had been asked on direct examination. Id. As a result, the Court of
Appeals concluded that the evidence taken in each of the limited proceedings was
insufficient and remanded both matters for a “‘full hearing’ as contemplated by the
statute, comprised of the full testimony of any appropriate witnesses sought to be
presented.” Id.
Similarly, in Abdur-Rahman v. Peterson, 338 S.W.3d 823, 828 (Ky.
App. 2011), the trial court issued a DVO after refusing to permit the respondent to
call a witness he had specifically requested to contact. On appeal, this Court held
that the trial court had denied the respondent a full hearing by excluding one of the
witnesses and remanded the matter for a full hearing including all relevant
testimony. Id.
Finally, in Rankin v. Criswell, 277 S.W.3d 621, 623-24 (Ky. App.
2008), the trial court’s issuance of an EPO was based upon statements in the
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written petition as well as the content of two dependency files that were not
admitted into evidence. A panel of this Court determined that the seven-minute
hearing, which was devoid of testimony by the petitioner, was inadequate. Id. at
625-26.
In this case, unlike the litigants in Wright, Abdur-Rahman, and
Rankin, the trial court set no limitations on the presentation of Mr. Arnold’s
testimony or other evidence. The court provided Mr. Arnold with the opportunity
to cross-examine both Ms. Arnold and his son while they were under oath.
Moreover, while the court did not swear Mr. Arnold in until after his son’s
testimony, and although Mr. Arnold’s response was difficult to hear on the
videotaped recording of the hearing, the trial court appeared to hear and understand
everything in Mr. Arnold’s sworn response. The court even went so far as to
overrule an objection by Ms. Arnold’s attorney and questioned Mr. Arnold
concerning his response to his son’s testimony. The court did not foreclose Mr.
Arnold’s presentation of any additional evidence or testimony. Thus, we cannot
say that Mr. Arnold was hindered from “present[ing] evidence and giv[ing] sworn
testimony” before the court made its decision. Holt, 458 S.W.3d at 813.
Additionally, although Mr. Arnold’s counsel did not appear at the
hearing, Mr. Arnold was provided with proper service of the Petition and
Summons, which clearly stated that the court would hold a hearing on the matter
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on August 4, 2021. Moreover, the record reflects that the trial court attempted to
contact Mr. Arnold’s counsel via telephone prior to beginning the DVO hearing.
Accordingly, we conclude that Mr. Arnold was provided with a meaningful
hearing as required by statute and in accordance with due process prior to entry of
the DVO against him.
b. Domestic Violence or Abuse
Mr. Arnold next asserts that the evidence presented at the hearing was
not sufficient proof beyond a preponderance that Mr. Arnold had committed
domestic violence and abuse against Ms. Arnold. This Court has previously noted
that, pursuant to Kentucky Rule of Civil Procedure (“CR”) 52.01:
a trial court’s findings of fact may be set aside if clearly
erroneous. However, we are mindful that in reviewing
the decision of a trial court 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. Abuse of discretion occurs when a court’s
decision is unreasonable or unfair.
Gomez v. Gomez, 254 S.W.3d 838, 842 (Ky. App. 2008) (citation omitted). “The
test for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire
and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citation omitted).
The General Assembly enacted KRS 403.715 to 403.785 to allow
victims of domestic violence and abuse to, among other reasons, “obtain effective,
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short-term protection against further wrongful conduct in order that their lives may
be as secure and as uninterrupted as possible[.]” KRS 403.715(1). KRS
403.740(1) permits a court to issue a DVO if, following an evidentiary hearing, the
court “finds by a preponderance of the evidence that domestic violence and abuse
has occurred and may again occur[.]” 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[.]” “Physical injury” is defined in Kentucky’s
Penal Code as “substantial physical pain or any impairment of physical
condition[.]” KRS 500.080(13).
Nevertheless, as discussed by a panel of this Court in Wright, “the
impact of having an EPO or DVO entered improperly, hastily, or without a valid
basis can have a devastating effect on the alleged perpetrator.” 181 S.W.3d at 52.
Indeed, “there are severe consequences, such as the immediate loss of one’s
children, home, financial resources, employment, and dignity.” Id. Additionally,
“one becomes subject to immediate arrest, imprisonment, and incarceration for up
to one year for the violation of a court order, no matter what the situation or
circumstances might be.” Id.
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In the present case, while Ms. Arnold stated that Mr. Arnold had
engaged in inappropriate verbal language and that the parties frequently argued,
she also said that she was not necessarily “fearful” but more “worried” about Mr.
Arnold’s behavior. Ms. Arnold’s only allegation of unwanted physical contact
with her was that Mr. Arnold had grabbed her arm during an argument and told her
that she could not go to work until she helped him find a specific item. We do not
believe that this incident rises to the level of “physical injury” described in KRS
500.080(13).
Moreover, while Ms. Arnold alleges one incident in which Mr. Arnold
had a “slap jack” and possibly a knife and that he did not want anyone coming into
the house, she did not allege or testify that he had threatened her with the weapons
or that she was imminently fearful that he would use them against her. We see no
evidence in the record that Ms. Arnold proved by a preponderance of the evidence
that Mr. Arnold had made any specific threats of imminent violence against Ms.
Arnold.
Additionally, the parties’ twenty-six-year-old son testified about an
altercation between him and Mr. Arnold. However, Ms. Arnold provided no
testimony regarding this incident. There was no dispute that Ms. Arnold – and Ms.
Arnold alone – was the petitioner in this action and that at the times of the
incidents in question, Mr. Arnold had every right to be at his home. The parties’
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adult son could have sought his own EPO against Mr. Arnold, but he did not do so.
Consequently, the trial court erred in finding that Mr. Arnold committed domestic
violence or abuse against Ms. Arnold.
CONCLUSION
For the foregoing reasons, we reverse and remand this matter to Lee
Circuit Court, with instructions to vacate the DVO entered on August 4, 2021, and
dismiss the Petition without prejudice pursuant to KRS 403.730(1)(a).
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Thomas P. Jones Jean Kelley Cunningham
Beattyville, Kentucky Shelbyville, Kentucky
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