RENDERED: MARCH 1, 2024; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2023-CA-0628-ME
NATHAN FORD APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
v. HONORABLE ABIGAIL E. VOELKER, JUDGE
ACTION NO. 22-D-00244-002
ELIZABETH NICOLE WILSEY APPELLEE
OPINION
AFFIRMING
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BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND GOODWINE,
JUDGES.
THOMPSON, CHIEF JUDGE: Nathan Ford (“Appellant”), pro se, appeals from a
Domestic Violence Order (“DVO”) entered by the Campbell Circuit Court
restraining him from contact with Elizabeth Nicole Wilsey (“Appellee”) and their
two minor children. He argues that the circuit court improperly concluded that the
record was sufficient to support a finding of domestic violence. After careful
review, we find no error and affirm the order on appeal.
FACTS AND PROCEDURAL HISTORY
On April 27, 2023, the Campbell Circuit Court conducted a hearing
on Appellee’s petition seeking a DVO restraining Appellant from contacting her or
their two minor children. In support of the petition, she alleged that Appellant sent
her an excessive number of texts and other electronic messages with thinly veiled
threats of harm. Appellee also testified that Appellant called her multiple times
with additional veiled threats. She alleged that Appellant is mentally unstable and
carried a gun while using illegal drugs. Appellee stated that Appellant messaged
threats of coming to the home of Appellee and the children, and that she was afraid
of him. Evidence was adduced that Appellant was also the subject of a prior DVO,
which the circuit court found that he violated multiple times.
After taking proof and upon considering the record, on April 27, 2023,
the Campbell Circuit Court entered a DVO restraining Appellant from contacting
Appellee or the children, and directing Appellant to stay at least 500 feet away
from Appellee’s home and the children’s school. The circuit court cited Kentucky
Revised Statutes (“KRS”) 403.720 and Sherfey v. Sherfey, 74 S.W.3d 777, 782
(Ky. App. 2002), overruled on other grounds by Benet v. Commonwealth, 253
S.W.3d 528 (Ky. 2008), in concluding that the court was vested with discretion in
judging the weight of the evidence and credibility of the witnesses. The court
determined that Appellee’s allegations were proven by a preponderance of the
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evidence and that acts or threats of domestic violence had occurred and were likely
to occur again.
On May 2, 2023, Appellant, pro se, moved to amend the DVO. In
support thereof, Appellant argued that the record did not contain facts sufficient to
support the DVO. After review, the Campbell Circuit Court entered an order
denying the motion on May 11, 2023. This appeal followed.
STANDARD OF REVIEW
On review of a domestic violence order, the question is not whether
we would have decided the matter differently, but rather deciding if the circuit
court’s findings of fact were clearly erroneous and if the decision constituted an
abuse of discretion. Gibson v. Campbell-Marletta, 503 S.W.3d 186, 190 (Ky. App.
2016). An abuse of discretion occurs if the trial court’s ruling is “arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999).
ARGUMENT AND ANALYSIS
Appellant argues that the Campbell Circuit Court committed
reversible error in granting Appellee’s petition for a DVO. Appellant’s sole
argument is that the record does not support a finding that domestic violence or
abuse had occurred and was likely to occur again. He asserts that Judge Voelker
based her ruling solely on social media posted by Appellant criticizing Judge
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Voelker. He also argues that his contact with Appellee only resulted from him
trying to contact his children; that the record contains no evidence of domestic
violence nor threats of violence; and, that the finding that Appellee was more
likely than not to be a victim of domestic violence constituted an abuse of
discretion. He requests an order reversing the DVO.
A court may grant a DVO, following a full
hearing, “if it finds from a preponderance of the evidence
that an act or acts of domestic violence and abuse have
occurred and may again occur[.]” KRS 403.7[4]0(1).
“‘Domestic violence and abuse’ means 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 . . .
members of an unmarried couple[.]” KRS 403.720(1).
To satisfy the preponderance standard, the evidence
believed by the fact-finder must show that the victim
“was more likely than not to have been a victim of
domestic violence.”
Hohman v. Dery, 371 S.W.3d 780, 782 (Ky. App. 2012) (citation omitted).
After closely examining the record and the law, we believe the circuit
court’s findings were supported by credible evidence of record. Appellee alleged,
and the circuit court so found, that Appellant had subjected Appellee to an
onslaught of texts, messages, and phone calls that contained veiled threats of harm.
Appellee also said that Appellant messaged threats of coming to her home, and the
court found that Appellee’s testimony was “more than sufficient to give rise to a
threat of imminent harm.”
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The circuit court is best situated to judge the weight of the evidence
and credibility of the witnesses. Sherfey, supra. Though Appellant maintains that
he never harmed Appellee and would never do so, a finding of domestic violence
may be based solely on the infliction of fear of imminent physical injury. KRS
403.720(2)(a). Appellee stated that Appellant’s texts, messages, and phone calls
were threatening, and that she was afraid of Appellant. Her testimony constitutes
credible evidence in support of the circuit court’s findings. As such, those findings
are not clearly erroneous. Gibson, supra. Further, the circuit court’s ruling was
not arbitrary, unreasonable, unfair, nor unsupported by sound legal principles, and
therefore did not constitute an abuse of discretion. English, supra.
CONCLUSION
For these reasons, we affirm the April 27, 2023 DVO of the Campbell
Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
Nathan L. Ford, pro se
Cincinnati, Ohio
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