JAMES A. PONTRICH, JR. v. JOSEPH W. O'REILLY, JEFFERSON DISTRICT COURT JUDGE AND ALICIA PONTRICH
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RENDERED: May 5, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002580-MR
JAMES A. PONTRICH, JR.
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JOSEPH O'REILLY, JUDGE
ACTION NO. 04-D-503851
JOSEPH W. O'REILLY,
JEFFERSON DISTRICT COURT JUDGE
AND
ALICIA PONTRICH
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM,1 JOHNSON, AND TAYLOR, JUDGES.
BUCKINGHAM, JUDGE:
James A. Pontrich, Jr., appeals from a
domestic violence order (DVO) entered against him by the
Jefferson Family Court pursuant to a domestic violence petition
filed by Alicia Pontrich.
James contends that Alicia failed to
meet the statutory requirement of proving that domestic violence
1
This opinion was completed and concurred in prior to Judge David C.
Buckingham’s retirement effective May 1, 2006. Release of the opinion was
delayed by administrative handling.
has occurred and may occur again.
See KRS2 403.750(1).
We
affirm.
After more than eight years of marriage, James filed a
petition for dissolution of marriage on October 26, 2004.
He
testified that he did so because it had become apparent to him
that Alicia no longer wanted to be married to him.
He further
testified that he was unaware at the time that Alicia was seeing
another man.
James stated that in late November 2004 he received a
phone call telling him that Alicia was at a certain residence in
Frankfort visiting a male friend.
James and his brother drove
to the residence and observed the car Alicia was driving in the
driveway of the residence.3
James looked in the car and saw two
dozen roses, which he removed and threw in the street.
Other
items in the car were left undisturbed.
After learning of Alicia’s apparent infidelity, James
then called Alicia’s place of work after hours and left a
message to her on her voicemail.4
There was testimony at the
hearing that James advised Alicia that she would be lucky if he
2
Kentucky Revised Statutes.
3
James stated that one reason he drove to the Frankfort residence was because
Alicia had demanded maintenance in the divorce proceeding and that he knew
her infidelity would impact the resolution of that issue.
4
James testified that he did so because he had no other way of contacting
Alicia.
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did not post photographs on the internet or “do something else.”5
There was also testimony that James sent Alicia an e-mail
discussing the divorce proceedings and how “things could get a
lot worse.”
Furthermore, James called Alicia’s brother and told
him of Alicia’s infidelity.
In addition, James packed up Alicia’s clothes and
dropped them off early one morning at her brother’s house.6
After doing so, James took a bar of soap and marked on the
vehicle Alicia had been driving.
Among other things, James
wrote “slut,” “home wrecker,” “I cheat on my husband,” and “I
was unfaithful.”
James admitted that he did the things he did
because he was angry and hurt.
Alicia filed a domestic violence petition in the
Jefferson Family Court.
She did not allege that James had
physically injured or assaulted her in any manner.
Rather, she
alleged several facts that she claimed caused her to be afraid
of James.
In her petition, Alicia made reference to James’s
writing on her car while it was parked at her brother’s house,
James’s call to her brother, the aforementioned e-mail, and the
5
There was no indication that James had any photographs of Alicia with her
male friend. Although the record is not clear, he may have taken photographs
of Alicia’s car in her friend’s driveway.
6
Alicia and James had separated, and Alicia had told James that she was
staying with her brother and his wife.
-3-
fact that James had scratched up a photo of the two of them and
had left it on top of her personal belongings that he had
delivered to her brother’s residence.
Finally, Alicia alleged
that James has a history of alcohol and drug abuse.
She alleged
her fear that James would physically harm her or her family.
James and Alicia both testified at a hearing before
the Jefferson Family Court on December 8, 2004.
Following the
hearing, the court entered a domestic violence order finding
that James had committed acts of domestic violence or abuse
against Alicia and that such acts may occur again.
The court
ordered that James be restrained from committing further acts of
abuse or threats of abuse, restrained from possessing any
firearms, and restrained from any contact with Alicia, except
for court appearances, depositions, or mediation.
Additionally,
James was ordered not to dispose of or damage any of the
property belonging to him and Alicia and was ordered to
participate in counseling services.
This appeal followed.
James argues on appeal that the evidence was
insufficient to prove domestic violence and abuse and that the
court thus erred in entering the DVO.
Specifically, James
referred to evidence concerning a voicemail he left for Alicia
at her workplace and to the incident where he wrote on her car
with soap.
James contends that his message to Alicia on her
voicemail “cannot be considered domestic violence; as such
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protected speech is not encompassed in the definition of
domestic violence under KRS 403.720.”
He also contends that
Alicia’s testimony that she is afraid of him is insufficient
because “[a] person’s feelings are not good enough.”
Also,
James testified that his acts were in the “heat of passion” and
that he was “angry.”
He maintains that Alicia brought the
domestic violence petition against him because he had discovered
her involvement in an extramarital affair.
KRS7 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[.]”
Here, the court based its finding of domestic
violence and abuse on “the infliction of fear of imminent
physical injury[.]”
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
7
Kentucky Revised Statutes.
-5-
the trial court to judge the credibility of the witnesses.”
52.01.
CR8
“The reviewing court should 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).
In relation to the voicemail James left for Alicia, we
reject his argument that it was “protected speech.”
As the U.S.
Supreme Court stated in Giboney v. Empire Storage & Ice Co., 336
U.S. 490, 498, 69 S.Ct. 684, 93 L.Ed. 834 (1949), “[i]t has
rarely been suggested that the constitutional freedom for speech
and press extends its immunity to speech or writing used as an
integral part of conduct in violation of a valid criminal
statute.
We reject that contention now.”
We also reject James’s argument that “a person’s
feelings are not good enough” to warrant sanctions for mere
words or communications.
This court stated in Yates v.
Commonwealth, 753 S.W.2d 874 (Ky.App. 1988), as follows:
It is the conduct that is controlled; the
manner used which intrudes on an
individual’s right to be left alone and not
the thoughts or ideas conveyed. Freedom of
speech does not include freedom to convey
messages when, where, and how one chooses.
That right must be adjusted to the rights of
others.
Id. at 876.
8
Kentucky Rules of Civil Procedure.
-6-
Having reviewed the record in this case, we cannot say
that the trial court was clearly erroneous in its determination
that James committed acts of domestic violence and abuse against
Alicia by “the infliction of fear of imminent physical injury…”
to her.
Based on this factual determination, we conclude that
the court did not abuse its discretion in entering the DVO.
The order of the Jefferson Family Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
LuAnn C. Glidewell
Louisville, Kentucky
BRIEF FOR APPELLEE, ALICIA
PONTRICH:
Elizabeth Dodd Lococo
Louisville, Kentucky
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