RENDERED: JULY 16, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0141-ME
ALICE GRUNDY GEER APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 21-D-00009-001
AUSTIN SCOTT GEER APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, KRAMER, AND L. THOMPSON, JUDGES.
COMBS, JUDGE: Appellant, Alice Grundy Geer (Alice), appeals from a domestic
violence order (DVO) entered by the Hardin Family Court based upon a petition
for an order of protection filed by her husband, the Appellant, Austin Scott Geer
(Austin), on behalf of their two-year-old child. After our review, we affirm.
On January 7, 2021, Austin filed a petition for order of protection in
Hardin Family Court against Alice on behalf of their minor child, who at that time
was a little more than two years of age, having been born in September 2018.
Austin alleged that Alice struggles with mental illness, that she has not been
responsible to be with the child without supervision, and that she had spent
“multiple months” in a mental hospital in 2020. On January 5, 2021, Alice showed
up at the child’s daycare facility and entered without permission “to grab” the
child. Austin also alleged that a few weeks prior to the filing of his petition, he had
to call Elizabethtown police to have Alice removed after she showed up at his
home. Although Austin had an agreement with Alice’s family that the child could
visit with her if supervised, the family permitted Alice to take the child to her
house without supervision. Austin stated that “[w]e are currently going through a
divorce and I have requested full custody with supervised visits and I am afraid she
will harm [the child] to get back at me.”
On January 7, 2021, Alice was served and summoned to appear for
the hearing scheduled for January 11, 2021.1 The hearing was conducted remotely.
Alice was not in attendance; however, her counsel, Dawn McCauley, was present
1
The parties attached copies of the hearing transcript to their briefs. The transcript is not
included in the certified record on appeal. Therefore, we cannot consider it. Smith v. Smith, 450
S.W.3d 729 (Ky. App. 2014). However, the record on appeal does include a DVD recording of
the January 11, 2021, hearing, which we have reviewed.
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and explained that Alice was at work but that she was supposed to call in. Austin,
pro se, was present.
Alice’s counsel advised the court that the parties’ divorce case was
pending in Jefferson County and that there was a motion to transfer the case to
Hardin County. The court asked Austin if he still wanted to pursue the emergency
protective order or if he thought the situation could be resolved in the divorce case.
Austin responded that he wanted to move forward. He explained that his intention
was not to keep the baby from Alice, but that it was very important to have
supervised visitation at this time to assure that the baby is safe and receives proper
care.
After Austin was sworn, the family court asked him what happened to
cause him to file the petition. Austin explained that since February 2020, the child
has resided with him the majority of the time. On three different occasions, Alice
had to stay in a facility to get help for her mental health. Austin explained that
Alice was diagnosed “with bipolar disorder” according to the paperwork he had
from the doctor. The condition was not new, but it really took “an effect” after the
baby was born. Austin related an incident when the child had a broken arm while
in Alice’s care when he was a little more than a year old. “She always kept him in
a bed and he would always fall out.”
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Austin also testified about “just the fear of . . . the other day, what
happened at day care.” Due to COVID-19 rules, Austin had never set foot in the
day- care facility. According to Austin, Alice claimed that the COVID-19 signs
had been taken down. She went in to grab the child and “kind of threw a fit.” That
bothered the director and the daycare gave Austin a call. Austin also testified that
there were other things -- e.g., “taking a child [outside] when it’s twenty degrees
with no coat.”
On cross-examination, Austin testified that the broken-arm incident
occurred in 2019. Austin explained that he had permitted Alice to have the child
after that incident without supervision when he “felt that she was capable and not
in any of her episodes . . . .” At that point, the family court interjected and asked
Austin -- after the broken arm -- what caused him to file the petition, why he no
longer felt that Ms. Geer could provide for the child safely? Austin responded that
in the last few weeks, he became concerned because of Alice’s behavior, behavior
that he has seen in the past. “She was not able to go to work for two weeks in the
past month, because she gets really depressed, she can’t function very well.”
Austin also explained that Alice’s dad had said that when the child visited his
home, he would supervise Alice with the child. But nonetheless, he allowed Alice
to take the child to her home.
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The family court then stated that Austin “saw some of the signals that
[he] saw before and wanted to take action before the child was hurt again.” The
court apologized for having to recapitulate these facts, noting that “considering
everything and the age of the child,” it made a finding of domestic violence. The
court entered a DVO on the child’s behalf for a period of one year and ordered that
Alice have supervised visitation with the child at her expense at the parent
visitation center in Elizabethtown or with an adult approved by Austin. The family
court left that choice to Austin’s discretion, explaining that visitation had to be
supervised until the court could obtain more evidence from the divorce case.
In its written Order/Form AOC-275.3 entered on behalf of the minor
child on January 14, 2021, the family court found in relevant part as follows:
For the Petitioner against the Respondent in that it was
established, by a preponderance of the evidence that an
act(s) of domestic violence and abuse . . . has occurred
and may again occur . . . .
Furthermore, the court ordered that its “findings of fact and conclusions of law
announced on the record . . . are expressly and specifically incorporated herein by
reference as if written in full[,]” citing Boone v. Boone, 463 S.W.3d 767, 768 (Ky.
App. 2015), and Kindred Nursing Centers, Ltd. Partnership v. Sloan, 329 S.W.3d
347, 349 (Ky. App. 2010).
Alice appeals. She first argues that she was denied due process as a
result of the limited time allowed for the hearing and the denial of any meaningful
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cross-examination.2 However, Alice’s counsel did not voice any objection at the
hearing, nor did she request a continuance. We agree with Appellee that the issue
is not preserved for our review. The lack of preservation notwithstanding, we find
no abuse of discretion in the court’s conduct of the hearing in the case before us.
Addison v. Addison, 463 S.W.3d 755, 762 (Ky. 2015) (trial court vested with
discretion in conduct of trial which appellate court will not interpose to control
absent abuse of discretion).
We address Alice’s remaining arguments together. She argues: that
the court heard no evidence of any act of domestic violence that she committed,
that none was alleged in the petition, and that the court failed to make sufficient
written findings. We disagree.
KRS3 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[.]
(Emphasis added.)
2
We may not consider any reference to matters outside the record interjected into Appellant’s
brief regarding why she did not attend the hearing. Heltsley v. Frogge, 350 S.W.3d 807 (Ky.
App. 2011).
3
Kentucky Revised Statutes.
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The allegations of the petition and the testimony presented at the
hearing established that Alice suffers from mental illness, which has required
multiple bouts of in-patient treatment and impairs her ability to function and
properly care for the child. Austin filed the petition because he no longer felt that
Alice could provide for the child’s safety based upon her recent behavior -- which
he had witnessed in the past. Alice had entered the child’s daycare facility in
violation of its COVID-19 restrictions and “had a fit”; she sent her two-year-old
child out without a coat in frigid weather; and she was unable to function. Austin
testified that she was so depressed that she was unable to go to work for two weeks
out of the past month.
In Collett v. Dailey, 371 S.W.3d 777 (Ky. App. 2011), the daughter
and guardian of an elderly woman, who recently had broken a hip, filed a petition
for a DVO alleging that her brother, James, had committed numerous acts of verbal
abuse, harassment, and interference with their mother’s caretakers. This Court
held as follows:
Because of [the mother’s] fragile condition, these actions
by James meet the statutory definition of domestic
violence. Consequently, James put her (or, in this case,
her guardian) in fear of imminent physical injury and
serious physical injury as contained in the definition of
domestic violence found in KRS 403.720(1). Therefore,
in this case, with this petitioner, the evidence supports the
issuance of a protective order.
Id. at 778-79.
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In the case before us, the family court stated at the close of the hearing
that Austin “saw some of the signals that [he] saw before and wanted to take action
before the child was hurt again.” Clearly, the family court believed that Austin
was in fear of imminent physical injury to the child based upon his uncontroverted
testimony regarding Alice’s behavior. The court made a finding of domestic
violence based on “everything” and in consideration of the age of the child. In its
written order, the court expressly and specifically incorporated its findings of fact
and conclusions of law announced on the record, citing Boone, 463 S.W.3d at 768
(“[W]e may consider oral findings of fact and conclusions of law only if they have
been specifically incorporated into a written and properly entered order.”).
We are satisfied by our review of the record that the family court’s
findings are sufficient under the facts of this case. We are also satisfied that Austin
established by a preponderance of the evidence that domestic violence occurred
because Alice’s actions put him in fear of imminent physical injury to their young
child. KRS 403.720(1).
Accordingly, we AFFIRM.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Dawn L. McCauley Jeremy S. Aldridge
Lebanon, Kentucky Elizabethtown, Kentucky
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Alice Grundy Geer v. Austin Scott Geer
Combined Opinion