Gabriel Jones v. Dorema Heavner

RENDERED: DECEMBER 9, 2022; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2022-CA-0483-ME

GABRIEL JONES APPELLANT

APPEAL FROM DAVIESS CIRCUIT COURT
v. HONORABLE JOSEPH W. CASTLEN, III, JUDGE
ACTION NO. 22-D-00042-001

DOREMA HEAVNER APPELLEE

OPINION
AFFIRMING

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BEFORE: DIXON, GOODWINE, AND MAZE, JUDGES.

GOODWINE, JUDGE: Gabriel Jones (“Jones”) appeals from a March 30, 2022

domestic violence order (“DVO”) granted by the Daviess Circuit Court, Family

Division on behalf of Dorema Heavner (“Heavner”). After careful review, finding

no error, we affirm.
 BACKGROUND

On February 16, 2022, Heavner petitioned the family court for an

order of protection against Jones. Based on Heavner’s petition, the family court

entered an emergency protective order (“EPO”) on her behalf, scheduled a hearing

on the petition, and ordered Jones to surrender his firearms.

Jones, Heavner, and their separate counsel appeared for an initial

hearing on February 23, 2022. Jones filed motions to dismiss the petition, for a

continuance, and for sanctions on the day of the hearing. The motion for sanctions

was not addressed at the hearing. At the hearing, Jones argued the petition should

be dismissed for lack of standing because he alleged the parties never lived

together. Jones stated he needed a continuance for more time to review video

footage from Jones’s father’s house,1 and he requested Heavner narrow down the

timeframe of the alleged incidents of domestic violence that occurred at the house.

The family court ordered Heavner to provide Jones the approximate dates of the

videos described in her petition and continued the hearing for two weeks.

On March 8, 2022, the morning before the second hearing, Heavner

filed a verified amendment to the petition for domestic violence order providing

the date ranges for videos of the alleged incidents in the original petition. The

amended petition stated Heavner was not represented by counsel when she filed

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Notably, these videos were not admitted into evidence during the evidentiary hearing.

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her petition and was nervous, so she confused the dates in her petition. She

provided date ranges and more detail regarding Jones’s alleged violent acts against

her as requested.

The family court held a second hearing on March 9, 2022. Jones’s

counsel filed motions on the morning of the hearing. Jones moved for a full

evidentiary hearing, to strike the petition and amended petition, and for written

findings of fact and law. Heavner requested a continuance for time to respond to

the motions, and a police officer, who was to testify at the evidentiary hearing, was

unavailable due to a bomb threat at a local high school. Heavner also needed more

time to review videos received from Jones’s counsel. Jones’s counsel objected to a

continuance arguing Jones’s Second Amendment rights would be infringed on for

a total of six weeks before the evidentiary hearing.

Heavner filed written responses to Jones’s motions.

Jones filed a motion for injunctive relief to enjoin the suspension of

his concealed carry license until the family court made a finding on the merits.

Jones requested an emergency hearing on the motion. The family court entered an

order declining to hold an emergency hearing and denying Jones’s motion for

injunctive relief. The family court found that Jones caused much of the delay and

failed to join the sheriff as a party.

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 At the final evidentiary hearing on March 30, 2022, the family court

heard testimony from both parties and their witnesses. Heavner testified the parties

had been in a relationship since 2019 when she was nineteen years old. Heavner

moved out of her parents’ home when her father kicked her out, and she moved in

with Jones at his father’s house sometime in October 2021. She became pregnant

during that time, but she miscarried.

Heavner testified the domestic violence began before the couple lived

together. Heavner described four violent incidents that occurred between

approximately May and September 2021. During those incidents, Jones grabbed

Heavner’s arm preventing her from leaving a car twice, punched the dashboard of

Heavner’s car and left blood in it, broke Heavner’s cellphone twice, and

brandished a gun threatening to kill himself. On September 11, 2021, Heavner

alleged Jones pointed a gun at her and one of her friends, she tried to hide the clips

and other guns from him, they struggled over the gun, and he broke both of their

phones to prevent her from calling the police. On re-direct, Heavner testified this

occurred in the wee hours of September 11.

One night shortly after moving in together in October 2021, Heavner

confronted Jones about him seeing other women and using steroids. Jones shoved

Heavner into a closet with such force that it broke the door. Jones then threw items

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across the room, including Heavner’s cellphone, for a third time, when she tried to

call 9-1-1.

During another argument on November 6, 2021, Jones violently threw

glasses around the kitchen, which shattered on the floor. Jones again pulled out a

gun and threatened to kill himself.

On November 14, 2021, Heavner moved out of the shared residence.

Jones began stalking Heavner and hacking into her social media accounts. On

January 31, 2022, Jones was criminally charged with stalking, harassment, and

harassing communications. At the time of the hearing, the charges were still

pending. Jones’s friends also sent Heavner threatening text messages.

On cross-examination, Jones’s counsel tried to establish that Heavner

was a guest at Jones’s father’s house. She testified that Jones invited her to stay

after she was kicked out of her parents’ house, but his father did not invite her.

Heavner did not change her address on her drivers’ license, did not have a lease, or

pay utilities. However, she did move all her belongings to the shared residence

and kept them in the closet of the room they shared. Jones’s counsel also used text

messages to impeach Heavner’s testimony regarding the dates she alleged the

violent incidents occurred.

Heavner’s parents testified they saw bruises on her body. Heavner’s

father testified that he had a conversation with Jones one day about the bruises on

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Heavner’s body. When he asked Jones if he caused the bruises, Jones confirmed

that he did.

Jones’s father also testified. Jones’s counsel sought to prove that the

incident Heavner alleged occurred on September 11, 2021 could not have occurred

on that date because Jones and his father went to a baseball game in St. Louis,

Missouri. He also testified that Heavner stayed at his house here and there.

Jones’s father testified he did not see any domestic violence occur and did not see

her bruises. He testified he kept his guns in a safe after the EPO against Jones, and

he dropped Jones’s guns off at the sheriff’s office.

Jones testified last. He denied any acts of domestic violence. He

claimed he accidentally broke one of Heavner’s cellphones, did not break another,

and seemed to admit he intentionally broke one phone but on a different date than

Heavner alleged. He said he never grabbed her or deleted pictures of her bruises

from her phone. He said he would never try to hurt Heavner. Jones testified that,

on one occasion, Heavner had been in the hot tub at his father’s house. It was cold

outside, and Heavner was drunk. She tried to walk down the street wearing only a

bathing suit and wrapped in a towel. Jones testified he left bruises on her arms

trying to get her back inside the house to keep her safe.

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 On cross-examination, Jones admitted he broke more than one of

Heavner’s phones. He also admitted he threatened to kill himself in front of

Heavner.

At the close of evidence, the family court found, based on all the

witnesses’ testimony, Heavner’s testimony and that of her witnesses more credible

than Jones’s. The court further found the parties lived together in an intimate

relationship for some time. The family court then entered a DVO against Jones on

form AOC-275.3, checking the box finding the parties were “unmarried, currently

or formerly living together.” Record (“R.”) at 77. The family court also checked

the box finding “it was established, by a preponderance of the evidence . . . that an

act(s) of domestic violence and abuse . . . has occurred and may again occur[.]”

Finally, the family court checked the box requiring Jones’s “Kentucky license to

carry surrendered to [the] Court” under KRS2 237.110(13)(k). Id. The trial court

also wrote on its March 30, 2020 docket sheet: “All parties appeared and hearing

held. 3 year DVO; no contact; no communication.” R. at 79. No post-judgment

motions were filed by either party. This appeal followed.

STANDARD OF REVIEW

A family court may enter a DVO if it finds “by a preponderance of the

evidence that domestic violence and abuse has occurred and may again occur[.]”

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Kentucky Revised Statutes.

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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.” Dunn v. Thacker, 546 S.W.3d 576, 580 (Ky.

App. 2018) (citing Baird v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007)).

“Domestic violence and abuse” includes “physical injury.” KRS 403.720.

“[T]he standard of review for factual determinations is whether the

family court’s finding of domestic violence was clearly erroneous.” Dunn, 546

S.W.3d at 578 (citations omitted). A family court’s findings are not clearly

erroneous if they are “supported by substantial evidence.” Moore v. Asente, 110

S.W.3d 336, 354 (Ky. 2003) (citation omitted). Substantial evidence is that “which

would permit a fact-finder to reasonably find as it did.” Randall v. Stewart, 223

S.W.3d 121, 123 (Ky. App. 2007) (citation omitted).

Regardless of conflicting evidence, the weight of the
evidence, or the fact that the reviewing court would have
reached a contrary finding, due regard shall be given to
the opportunity of the [family] court to judge the
credibility of the witnesses because judging the
credibility of witnesses and weighing evidence are tasks
within the exclusive province of the [family] court.

Moore, 110 S.W.3d at 354 (internal quotation marks and citations omitted).

Furthermore, a family court’s evidentiary rulings should only be

reversed “where there has been clear abuse of discretion.” Page v.

Commonwealth, 149 S.W.3d 416, 420 (Ky. 2004) (citation omitted). “The test for

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abuse of discretion is whether the trial judge’s decision was arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.

English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).

ANALYSIS

On appeal, Jones argues the family court erred in: (1) determining

Heavner had standing to pursue a DVO; (2) finding domestic violence and abuse

occurred was supported by substantial evidence; (3) failing to hold a hearing

within fourteen days as required by statute; (4) failing to make required written

findings of fact and conclusions of law; and (5) accepting Heavner’s amended

petition.

We begin by addressing Jones’s arguments regarding the family

court’s findings of fact and conclusions of law, then we will turn to his procedural

argument. First, Jones argues Heavner lacked standing to obtain a DVO because

the parties did not live together. The definition of “[m]ember of an unmarried

couple” includes couples who are “living together or have formerly lived

together[.]” KRS 403.720(6). Although Kentucky has acknowledged the six

factors in State v. Kellogg, 542 N.W.2d 514, 518 (Iowa 1996) are relevant, they are

not conclusive to determining whether an unmarried couple lived together. Barnett

v. Wiley, 103 S.W.3d 17, 20 (Ky. 2003).

1. Sexual relations between the parties while sharing the
same living quarters.

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 2. Sharing of income or expenses.

3. Joint use or ownership of property.

4. Whether the parties hold themselves out as husband
and wife.

5. The continuity of the relationship.

6. The length of the relationship.

More importantly, “under the plain language of the statute, there must be, at a

minimum, proof that the petitioner seeking a DVO shares or has shared living

quarters with the respondent before a finding can be made that the two are an

‘unmarried couple’ under KRS 403.725.” Id.

In Benson v. Lively, 544 S.W.3d 159, 165 (Ky. App. 2018), this Court

applied Barnett in determining a couple who lived together for approximately six

weeks and were in an intimate relationship for six years were an “unmarried

couple” under KRS 403.725. This Court rejected the appellant’s argument that the

couple “never lived together in any permanent capacity” because the “statute

contains no minimum period of time the couple must have cohabitated before there

is standing to seek a DVO.” Benson, 544 S.W.3d at 165.

Here, the record shows Jones and Heavner had sexual relations while

living together as Heavner became pregnant though she later miscarried. Both

jointly used Jones’s father’s house. The parties were in a relationship for about

three years. The parties dispute whether they lived together for a couple weeks or

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a couple months, but “couples might experience domestic violence in the first few

days or weeks of cohabitation.” Id. At the conclusion of the evidentiary hearing,

the family court stated it found Heavner’s and her witnesses’ testimony more

credible than Jones’s and his witnesses’ testimony. It is not our province to weigh

the credibility of witnesses, and our review of the record indicates the family

court’s findings were supported by substantial evidence. The family court’s

finding that the parties were members of an unmarried couple was not clearly

erroneous. Thus, the family court correctly found Heavner had standing to seek a

DVO against Jones.

Second, Jones argues the family court’s finding that domestic violence

and abuse occurred and may occur again was unsupported by the evidence. He

argues because Heavner changed the dates the alleged violence occurred in her

amended petition, “[t]here could be no evidence of the approximate date of the

alleged conduct because they constantly changed! . . . Moreover, concrete physical

evidence demonstrated that her allegations were untrue, which should overcome

any testimony she gave to the contrary.” Appellant’s brief at 15. Jones asserts the

photos of himself and receipts from a trip to St. Louis, Missouri prove he could not

have committed an act of domestic violence on September 11, 2021.

[T]he trier of fact has the right to believe the evidence
presented by one litigant in preference to another. The
trier of fact may believe any witness in whole or in part.
The trier of fact may take into consideration all the

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 circumstances of the case, including the credibility of the
witness.

Gomez v. Gomez, 254 S.W.3d 838, 842 (Ky. App. 2008) (citation omitted).

The family court clearly understood its role in weighing the credibility

of the witnesses. During Heavner’s testimony, the family court specifically stated

it was considering the inconsistency in Heavner’s dates in weighing her credibility.

In reviewing the video recording of the evidentiary hearing, this Court found

discrepancies in Jones’s testimony too. Specifically, Jones admitted to breaking

Heavner’s phone more than once on cross-examination when he previously denied

breaking a phone and testified at least one phone was broken accidentally.

Below and on appeal, Jones focused on discrepancies in the dates

Heavner alleged the acts of domestic violence occurred. Prior to the hearing, Jones

sought more time to review video footage from the cameras at his father’s house.

No videos were presented as exculpatory evidence at the hearing. Aside from

evidence that Jones was in St. Louis, Missouri on September 11, 2021, the only

exculpatory evidence Jones presented for all other violent acts was his and his

father’s testimony. The family court weighed Jones’s testimony against Heavner’s

and found hers more credible.

Regardless of the dates on which they occurred, the family court

found Jones pulled a gun threatening to kill a man that looked at Heavner, he

pointed a gun at Heavner, he threatened to kill himself more than once, left bruises

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on Heavner, and threw her against a closet door. The family court also found

Jones broke Heavner’s cellphone four separate times. Even after the parties broke

up, Jones continued to contact and harass Heavner. The family court clearly

weighed all testimony and found domestic violence occurred and may again based

on Heavner’s testimony, which was substantial evidence. Thus, the family court’s

findings of fact and conclusions of law were not clearly erroneous.

We now turn to Jones’s procedural arguments. For his third issue,

Jones argues the family court failed to hold an evidentiary hearing within fourteen

days as required by KRS 403.735(2)(a). He claims he preserved this argument by

objecting to the second continuance of the final hearing. However, upon review of

the video record, Jones did not make this argument below. At the hearing on

March 9, 2022, Jones’s counsel objected to the second continuance, arguing that

continuing the hearing to March 30, 2022 would mean his Second Amendment

rights being affected for a total of six weeks between the entry of the EPO and

final hearing.

Counsel never mentioned KRS 403.735(2)(a) in his objection to the

continuance, and it is inapplicable to this situation. KRS 403.735(2)(a) provides:

“If the adverse party is not present at the hearing ordered pursuant to KRS 403.730

and has not been served, a previously issued emergency protective order shall

remain in place, and the court shall direct the issuance of a new summons for a

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hearing set not more than fourteen (14) days in the future.” Jones was served with

the petition and was present for the first hearing date. He requested the first

continuance. This statute does not apply to continuances after the adverse party is

served with the petition. Additionally, Jones caused much of the delay as noted by

the family court. Thus, this argument is unpreserved and unfounded.

Fourth, Jones argues the family court erred in failing to make written

findings of fact and conclusions of law beyond checking the boxes on form AOC-

257.3. Counsel alleges this argument was preserved by filing his motion for

written findings of fact on March 9, 2022, three weeks before the final hearing.

Jones did not file any post-judgment motions requesting additional findings under

CR3 52.02, so although he filed a preemptive motion, this argument is unpreserved.

Additionally, when issuing a protective order, family courts are only

required to make two findings: “(1) whether an act of domestic violence and

abuse, dating violence and abuse, stalking, or sexual assault has occurred, and (2)

whether it may occur again.” Smith v. McCoy, 635 S.W.3d 811, 817 (Ky. 2021).

As in Smith, the family “court made both of these findings in writing on AOC

Form 275.3” by checking the requisite boxes. Id. “Any additional factual findings

the trial court makes in issuing a protective order are merely supporting those

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Kentucky Rules of Civil Procedure.

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ultimate factual findings and are not ‘essential[]’” under CR 52.01. Id. Thus, the

family court made sufficient findings of fact and conclusions of law.

Finally, Jones argues the family court erred in accepting Heavner’s

amended petition as it was defective statutorily and procedurally. Jones makes

several sub-arguments, which we will address in turn. Jones argues Heavner failed

to move the family court to amend her petition. CR 15.01 provides:

A party may amend his pleading once as a matter of
course at any time before a responsive pleading is served
or, if the pleading is one to which no responsive pleading
is permitted and the action has not been placed upon the
trial calendar, he may so amend it at any time within 20
days after it is served. Otherwise a party may amend his
pleading only by leave of court or by written consent of
the adverse party; and leave shall be freely given when
justice so requires. A party shall plead in response to an
amended pleading within the time remaining for response
to the original pleading or within 10 days after service of
the amended pleading, whichever period may be longer,
unless the court otherwise orders.

In Jones’s motion for a continuance, he requested Heavner provide

him more specific dates and times of the alleged incidents, so he could review

video footage from his father’s house. The court ordered Heavner to provide the

information Jones specifically requested. Jones requested clarification of the

petition in writing, and the family court ordered Heavner to provide the

information requested. Arguably, she had both written permission and leave of the

court to amend her petition.

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 Regardless, CR 15.01 permitted Heavner to amend her complaint as a

matter of course. The domestic violence statutes, specifically KRS 403.730 and

403.735, describe an abbreviated and expedited hearing schedule and make no

mention of responsive pleadings. The statutes do not specifically prohibit

responsive pleadings, but we need not pass on that issue. Although Jones filed a

motion to dismiss and other motions before Heavner filed the amended complaint,

“[a] motion to dismiss is not a responsive pleading.” Kentucky Lake Vacation

Land, Inc. v. State Property and Bldgs. Commission, 333 S.W.2d 779, 781 (Ky.

1960). Heavner filed her amended petition exactly twenty days after filing her

original petition and Jones had not filed a responsive pleading, so she was entitled

to file her amended petition as a matter of course.

Next, Jones argues the petition did not meet the statutory requirements

of a DVO petition under KRS 403.725(3) and (4). This argument is unfounded

and unsupported by case law. The statute refers to the initial petition and does not

mention amended petitions. Heavner’s amended petition incorporates her original

petition by reference, and Jones does not allege the initial petition was deficient.

Additionally, Jones argues the amended petition violates the Kentucky

Penal Code because Heavner’s amended petition contradicts her original petition.

The family court never found that Heavner committed perjury under KRS 523.080.

As we discussed above, the family court weighed the credibility of Heavner’s

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pleadings and testimony and found in her favor. We cannot, for the first time on

appeal, determine Heavner committed a crime. The trial court considered this

argument below and appropriately weighed her credibility. Thus, the family court

did not err in accepting Heavner’s amended petition.

CONCLUSION

For the foregoing reasons, we affirm the domestic violence order of

the Daviess Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Christopher W. Riccio Katina B. Miner
Owensboro, Kentucky Bowling Green, Kentucky

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