LOWELL G. ARNETT v. KATHY ARNETT
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RENDERED: MARCH 30, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-000982-ME
LOWELL G. ARNETT
APPELLANT
APPEAL FROM MAGOFFIN FAMILY COURT
HONORABLE JULIE PAXTON, JUDGE
ACTION NO. 02-D-00101-02
v.
KATHY ARNETT
APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: WINE, JUDGE; BUCKINGHAM AND HENRY, SENIOR JUDGES.1
BUCKINGHAM, SENIOR JUDGE: Lowell G. Arnett appeals from the entry of a
domestic violence order (DVO) against him by the Magoffin Family Court based upon a
petition filed by his ex-wife, Kathy Arnett. Lowell also appeals from the denial of a
DVO petition he filed against Kathy. For the reasons stated below, we affirm.
On March 27, 2006, Kathy filed a domestic violence petition alleging that
Lowell had engaged in acts of domestic violence. Specifically, the petition alleged that
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Senior Judges David C. Buckingham and Michael L. Henry sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
[a]t 9 pm on 3/26/05 I had to leave church because Lowell
had called County and State police accusing our 14 year old
son of stealing his 2 motorcycles which was purchased for
our son in 2002 and 2005. The motorcycles were locked
with Robert's [their son] chain and lock, which he cut off
because the key was missing. The Sheriff informed my
daughter that he was afraid Lowell will burn my house with
me inside. He has made these threats before. He has entered
my home without permission. He calls me names “whore”
“trashy whore” and “slut” in the presence of our child. He
has said if I ever had a man in the house “he would send us
both down the road in body bags.” In January 2006 the
Sheriff and Trooper Cramer had come to the resident to make
him leave. Trooper Cramer advised me to get an EPO at that
time.
Lowell informed me if I got any orders on him he would
“take care of me.” He is court ordered not to come to my
work place or call. He has harassed me and my co-worker.
He has made threats against us both. Lowell is mentally
unstable. I am afraid for myself and my son.
On 3/26/06 in the afternoon Lowell ordered Robert and my
nephew to park the motorcycles. Robert got back on his
motorcycle and went up the road to hide from his father.
Lowell chased him in his car up and back down the road.
Robert hides from his father in the woods and Lowell calls
the police and makes a report that the motorcycles are stolen.
Lowell punishes Robert when he is angry at me or my family.
Based on the petition, on March 27, 2006, the Magoffin Family Court
entered an Emergency Order of Protection (EPO) on behalf of Kathy and against Lowell.
The EPO set a hearing date for April 4, 2006. On March 31, 2006, counsel for Kathy
filed a motion to continue the hearing because of a scheduling conflict. The family court
granted the motion and entered an order rescheduling the hearing for April 11, 2006.
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Lowell, “fearing that something funny was about to happen”, nevertheless
appeared in court on April 4, 2006. Kathy and her attorney were present, and the court
called the case. The court asked Lowell whether he was ready to proceed, and he
responded that he didn't have an attorney and couldn't afford one. The court informed
him that it could not appoint him one. The court then began the proceedings, but it
interrupted itself to again ask Lowell if he wanted to hire an attorney. Lowell again stated
that he couldn't afford one. The question originally asked - whether he was ready to
proceed - was never specifically answered, nor did Lowell object to proceeding once the
hearing began.
The family court then heard evidence from Lowell, Kathy, and the sheriff
concerning events which occurred on March 26, 2006. Kentucky State Trooper Cramer
was also present but did not testify. Kathy gave testimony consistent with the statements
in her petition. The testimony of Lowell and the sheriff focused primarily on the
motorcycle aspects of the controversy; however, Lowell denied Kathy's allegations of
domestic violence and contended that she was being untruthful. At the conclusion of the
hearing, the court entered a three-year DVO against Lowell. The DVO, however, also
permitted Lowell to be in the vicinity of Kathy's residence at certain designated times to
feed his horses, during which times Kathy was to be absent from the residence.
Lowell subsequently sought to obtain a DVO against Kathy. While, except
for the hearing, the record from those proceedings is not contained in the record on
appeal, it appears that Lowell's petition was based on the allegation that on April 10,
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2006, while Lowell was lawfully in the vicinity of Kathy's residence to feed his horses,
Kathy stood in her driveway and waved a gun at him. Following a hearing, on April 18,
2006, the family court entered an order dismissing Lowell's petition.
On appeal, Lowell challenges both the granting of a DVO against him and
the denial of a DVO against Kathy.
Lowell does not challenge on the merits the granting of a DVO against him.
Rather, he alleges error on the basis that even though the family court had rescheduled
the hearing to April 11, the hearing was nevertheless held on April 4. Lowell also
contends that because of the changed hearing date, he was deprived of the right to call
witnesses and to present pictures concerning the March 26, 2006, incident.
Lowell does not identify the witnesses he was deprived of calling as a
result of the hearing being held on April 4 instead of April 11, nor does he identify what
their testimony would have been. The Magoffin County Sheriff and the state trooper
who responded to the March 26 incident were present at the hearing, and the sheriff gave
testimony. Lowell was given the opportunity to call the state trooper as a witness, but he
declined to do so.
The pictures to which Lowell refers apparently consist of pictures that
purportedly would have proven that his son and Kathy's nephew had cut the lock on his
barn to gain access to the motorcycles and had ridden the motorcycles on his farm
property. However, the details concerning the taking and riding of the motorcycles are
collateral to the allegations supporting the DVO. Even if the motorcycles were taken and
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ridden as alleged by Lowell, that does not refute Kathy's allegations concerning threats of
violence. Moreover, Lowell was given a full opportunity to present his side of the
events, and he aggressively attempted to persuade the court that Kathy was being
untruthful in her allegations.
We conclude that any error in holding the hearing on April 4 instead of
April 11 was harmless. Lowell was present, and he had a full opportunity to present his
side of the matter.
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order
or in anything done or omitted by the court or by any
of the parties is ground for granting a new trial or for
setting aside a verdict or for vacating, modifying, or
otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court
inconsistent with substantial justice. The court at
every stage of the proceeding must disregard any error
or defect in the proceeding which does not affect the
substantial rights of the parties.
Kentucky Rule of Civil Procedure (CR) 61.01. Because the holding of the hearing on
April 4 did not affect any substantial right of Lowell's, any error was harmless.
Finally, as previously noted, Lowell does not appeal the family court's
decision on the merits. Nevertheless, there is substantial evidence in the record to
support the court's finding 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[.]” As
such, the family court properly entered the DVO against Lowell.
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Lowell also contends that the family court erred by denying his petition for
a DVO against Kathy. Lowell filed the petition alleging that Kathy had returned home
early from work - which she admitted to - during a period when he was entitled to be near
her property to feed his horses and that she waived a gun in his direction. A hearing was
held on April 18, 2006, following which the court denied Lowell's petition for a DVO.
Kentucky Revised Statute (KRS) 403.750(1) allows the court to enter a
domestic violence order “if it finds from a preponderance of the evidence that an act or
acts of domestic violence and abuse have occurred or may again occur[.]” “Domestic
violence and abuse” is defined in KRS 403.720(1) as “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 family members or members of an
unmarried couple[.]”
In cases tried upon the facts without a jury, “[f]indings of fact shall not be
set aside unless clearly erroneous, and due regard shall be given to the opportunity of the
trial court to judge the credibility of the witnesses.” CR 52.01. “The reviewing court may
not substitute findings of fact for those of the trial court where they were not clearly
erroneous.” Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). Based upon Kathy's
testimony at the April 18, 2006, hearing, the family court's determination that she had not
engaged in acts of domestic violence and its dismissal of Lowell's petition in connection
therewith was not clearly erroneous, and, accordingly, we may not disturb its decision.
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Further, Lowell makes the vague allegation that the April 18, 2006, hearing
was not a “full hearing.” However, Lowell was represented by counsel at the hearing,
and counsel made no objection to the proceedings, nor did he seek to present additional
evidence or testimony. Therefore, this issue is not preserved for our review. “It goes
without saying that errors to be considered for appellate review must be precisely
preserved and identified in the lower court.” Skaggs v. Assad, 712 S.W.2d 947, 950 (Ky.,
1986). In any event, we have reviewed the videotape of the hearing and are persuaded
that Lowell had a full and fair opportunity to give his side of the alleged April 10, 2006,
gun-waving incident.
For the foregoing reasons, the orders of the Magoffin Family Court are
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Garland L. Arnett, Jr.
Salyersville, Kentucky
Kathy Arnett, pro se
Salyersville, Kentucky
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