ARGOTTE (ALEX FABRISCIO) VS. HENDERSON (KATHLEEN RAE)Annotate this Case
RENDERED: SEPTEMBER 26, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
ALEX FABRISCIO ARGOTTE
APPEAL FROM MCCRACKEN FAMILY COURT
HONORABLE CYNTHIA E. SANDERSON, JUDGE
ACTION NO. 07-D-00166
KATHLEEN RAE HENDERSON
** ** ** ** **
BEFORE: MOORE, STUMBO AND THOMPSON JUDGES.
MOORE, JUDGE: The matter before this Court involves a Domestic Violence
Order (DVO)1 entered by the McCracken Family Court against the Appellant Dr.
Alex Fabriscio Argotte. Argotte appeals the DVO entered against him on
The original order was entered on September 10, 2007. After a motion by Argotte’s counsel
for a new trial, to alter, amend or vacate, the family court entered an order with specific findings
of fact. All references to the order are to the November 9, 2007 order unless otherwise noted.
November 9, 2007, upon the complaint of Kathleen Rae Henderson. Upon a
thorough review, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Argotte and Henderson had a two-year relationship that began in
2005. Argotte is a general surgeon at Lourdes Hospital in Paducah, Kentucky, and
Henderson worked as a surgical technician for Argotte before they dated.
Henderson spent one to two nights a week at Argotte’s home at the beginning of
their relationship; Argotte does not dispute Henderson stayed at his home but does
contest the frequency of the stays.
The parties took a trip to California in October 2006, where an
incident occurred in which Henderson suffered bruises to her face and neck that
she attributed to Argotte. Argotte denied causing Henderson’s injuries.2 In
December 2006, Henderson alleged that Argotte pushed her down some stairs at
Argotte’s home and injured her shoulder. Argotte took Henderson through the
“backdoor entrance” of the Lourdes Emergency Room to have her shoulder xrayed. 3
The parties’ relationship progressed to the next level when they
obtained a marriage license on April 20, 2007. At this time, Henderson moved all
Henderson took pictures of her injuries with her cell phone. These pictures were entered in the
record as Plaintiff’s exhibit 1.
Argotte testified that he did take her through the backdoor of the hospital emergency room to
save Henderson money. He also read the x-ray himself and prescribed Henderson pain
medication. Argotte said this was a routine process, and a privilege the doctors at the hospital
her clothes and toiletries to Argotte’s home in Rubbermaid plastic storage bins.
After acquiring the marriage license, Henderson testified that she stayed at
Argotte’s home every night he did not have his children.4 Argotte did not allow
Henderson to be there while his children visited; she alleged that she would take
some clothes with her and go to her parents’ house.5 Argotte contends that
Henderson stayed at his home one to two nights a week and on one occasion stayed
Henderson signed an affidavit on April 30, 2007, at the office of
Hargrove and Foster stating that she did not live with Argotte but with her parents
in Calvert City, Kentucky. Attorney Charles Foster of Hargrove and Foster
represented Argotte in the divorce proceedings against his ex-wife Melissa
Argotte. Argotte and his attorney contend that this affidavit is directly contrary to
Henderson’s testimony, and both assertions by Henderson cannot be correct.
Henderson’s explanation for this affidavit is that she believed the affidavit would
enable Argotte to maintain visitation with his children. Henderson testified she
Argotte has children from a prior marriage. He has them an average of two days and two
nights per week except on special occasions such as when they were out of town, etc.
Henderson’s mother testified that her daughter had not resided in her home for several months,
except when Argotte had his daughters. Henderson also had no access to a cell phone and
contact with Henderson had to go through Argotte.
Argotte contends that they did not share anything or demonstrate to others that they were living
together. Henderson contends she bought groceries with Argotte’s credit card and cooked both
breakfast and dinner for him. Argotte was adamant that this did not happen because he would
not allow it.
continued to live with Argotte at his home until their relationship ended in late July
An altercation occurred between the two at Fat Moe’s Restaurant in
Paducah on August 3, 2007. After this incident, Henderson obtained an
Emergency Protection Order (EPO) against Argotte and filed a Domestic Violence
Petition (DVP) with the McCracken Family Court on August 6, 2007. Argotte also
filed his own EPO against Henderson the week of August 6.7 The court conducted
three separate hearings and heard lengthy testimony on all three occasions before
entering an initial order without specific findings on September 10, 2007.8 After a
motion by Argotte’s counsel to alter, amend, vacate, or, in the alternative, for a
new trial, the family court entered a November 9, 2007 order with specific findings
of fact. The family court ultimately determined that the relationship between
Argotte and Henderson qualified under the “living together” definition established
in Kentucky Revised Statute (KRS) 403. 720(3) and 403.725(1). The order also
made specific findings of fact concerning the relationship and the credibility of the
testimony presented. This appeal followed.
II. KRS 403.720(3) CHALLENGE
Argotte first contends that the court erred in ruling that the parties
lived together before and after April 2007 and by failing to establish an onset date.
Argotte declined to go further with his petition after conferring with his attorney at the
September 5, 2007 hearing.
These hearings took place in family court on August 15, September 5, and October 3, 2007.
The first focused on whether the couple had lived together, and the second concentrated on the
events of August 3, 2007.
He challenges Henderson’s standing to bring this action arguing their relationship
does not qualify under the KRS 403.720(3) definition of an unmarried couple. This
issue must be considered first to determine if the statutory definition of standing is
To consider this, we look to the Kentucky Supreme Court’s adoption of the
six-prong test used by the Kentucky Supreme court in Barnett v. Wiley, 103
S.W.3d 17 (Ky. 2003). These factors are nonexclusive; all factors do not have to
be present to determine that a couple lived together. “There must be, at a
minimum, proof that a 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.’” Id. at 20. The six prongs are:
1) Sexual relations between the parties while
sharing the same living quarters;
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.
Id. at 20.
The family court determined in its order that Argotte and Henderson
had formerly lived together, so there was standing for either party to bring their
petitions. Based on the Barnett test, the family court examined the nature of the
parties’ relationship in entering the following findings:
1) The parties engaged in sexual relations while sharing
the same living quarters including the bedroom, kitchen
of Respondent’s home with Petitioner’s clothes and
toiletry items being placed there.
2) The Court cannot find that the parties specifically
shared income or expenses but the parties did enjoy the
benefits of living together including bed and board.
3) The parties jointly used the home of Respondent
sharing the bedroom, kitchen, and other portions of the
4) The parties did not hold themselves out as husband
and wife and the Court so finds.
5) The Court can make no finding on the continuity of
the relationship between the parties.
6) The Court finds that the length of the relationship was
approximately two years.9
We review the trial court’s findings of fact pursuant to the clearly
erroneous standard. “[W]e will give due deference to the trial court’s opportunity
to judge the credibility of the witness and will not disturb its findings of facts
unless they are clearly erroneous, that is, not supported by substantial evidence.”
Randall v. Stewart, 223 S.W. 3d 121 (Ky. App. 2007). Kentucky Rules of Civil
Procedure (CR) 52.01(a trial court's findings of fact may be set aside if clearly
erroneous). Substantial evidence consists of “evidence of substance and relevant
consequence having the fitness to induce conviction in the minds of reasonable
men.” Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971).
It is “evidence which would permit a fact finder to reasonably find as it did.”
Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
The evidence must demonstrate “at a minimum proof that the
petitioner seeking a DVO share or has shared living quarters with the respondent
before a finding can be made that the two are an unmarried couple.” Randall, 223
See November 9, 2007 order.
S.W.3d at 124. The court found the testimony of Henderson and her mother to be
more credible concerning the parties’ relationship than Argotte’s. Both parties
filed Domestic Violence Petitions, and both parties selected the “unmarried,
currently or formerly living together” choice on their respective petition. Argotte
argued that he did not understand the complex legal terminology that was in the
petition. He was not certain what the phrase “unmarried, currently or formerly
living together” meant and thought he was checking the unmarried box. The
family court did not believe Argotte’s explanation that he did not understand the
legal terminology due to his lack of understanding of the English language.
Although not his native language, Argotte went to medical school in the United
States, earned his medical license here, and has practiced in Kentucky for seven
years. Furthermore, the Domestic Violence Petition was signed in front of victims’
advocate, Janet Brown, who was present to answer any questions.
Argotte sealed his own fate on this issue when he selected on his
petition the choice of “unmarried, currently or formerly living together.” The
family court was not persuaded by his explanation of his lack of comprehension of
the phrase or what he was admitting about the parties’ relationship by selecting the
box. The family court determined that there was sufficient evidence to establish
the parties had lived together and fulfilled the requirements of the statute. After a
thorough review of the record, we find no basis for disturbing the family court’s
III. VOID FOR UNCERTAINTY CHALLENGE
Next, Argotte contends the trial court erred when it overruled his
motion to dismiss on the basis that the term “lived together” as used in KRS
403.720(3) and 403.725(1) as being void for uncertainty.10 Argotte argues that the
language used in the statute is uncertain and susceptible to more than one
reasonable interpretation and that the “man on the street” could not read the statute
and comprehend the legislature’s intent. We disagree.
A void for uncertainty interpretation is reserved for “non-punitive
civil, regulatory, or spending statutes are also invalid if they are so unintelligible as
to be incapable of judicial interpretation.” Board of Trustees of Judicial Form
Retirement System v. Attorney General of Com., 132 S.W.3d 770, 778 (Ky. 2003).
In Folks v. Barren County, 313 Ky. 515, 232 S.W.2d 1010, 1013 (1950), the Court
But where the law-making body, in framing the law, has
not expressed its intent intelligibly, or in language that
the people upon whom it is designed to operate or whom
it affects can understand, or from which the courts can
deduce the legislative will, the statute will be declared to
be inoperative and void.
A statute will only be overturned for uncertainty “where the intention of the
legislature is so obscure as to defy a rational meaning, the law cannot be given
effect.” Kerth v. Hopkins County Bd. of Ed., 346 S.W.2d 737, 741 (Ky. 1961).
Kentucky Revised Statute 403.720(3) defines member of an
unmarried couple as:
Proper notice was given to the Attorney General’s Office notifying them of a Constitutional
challenge, but the Attorney General’s office chose not to intervene in the matter.
each member of an unmarried couple which allegedly has
a child in common, any children of that couple, or a
member of an unmarried couple who are living together
or have formerly lived together.
Kentucky Revised Statute 403.725(3) states:
(1) Any family member or member of an unmarried
couple who is a resident of this state or has fled to this
state to escape domestic violence and abuse may file a
verified petition in the District Court of the county in
which he resides. If the petitioner has left his usual place
of residence within this state in order to avoid domestic
violence and abuse, the petition may be filed and
proceedings held in the District Court in the county of his
usual residence or in the District Court in the county of
current residence. Any family member or member of an
unmarried couple who files a petition for an emergency
protective order in District or Circuit Court shall make
known to the court any custody or divorce actions,
involving both the petitioner and the respondent, that are
pending in any Circuit Court in the Commonwealth. The
petition shall also include the name of the court where
Nothing in these statutes defies rational meaning or multiple
interpretations. These statutes do not contain complex legal terminology that a lay
person could not understand. These are terms used by people in the context of
their daily lives. Further, the phrases are clearly designated by the correct
punctuation to designate the distinct phrases, to avoid confusion. There is nothing
to suggest that someone could not read the statute and easily comprehend its
Domestic violence statutes “should be construed liberally in favor of
protecting victims from domestic violence and preventing future acts of domestic
violence. But the construction can not be unreasonable.” Barnett, 103 S.W.3d at
18. Kentucky Revised Statute 500.030 states: “All provisions of this code shall be
liberally construed according to the fair import of their terms, to promote justice,
and to effect the objects of the law.” There is nothing in this statute that could be
construed as unreasonable nor that would puzzle a reasonable person as to the
intent of the legislature. Accordingly, the statute and its meaning are clear and not
IV. DOMESTIC VIOLENCE RULING AND ONSET DATE
Finally, Argotte contends that the family court erred in finding that
acts of domestic violence occurred on August 3, 2007, without finding an onset
date of the parties’ living together in order to address the events in California and
in Argotte’s home. In the original order, the family court determined that the
couple had lived together on and prior to April 30, 2007. The family court made
the following conclusions in its November 9, 2007 amended order concerning the
relationship of the parties:
A. Respondent and Petitioner “lived together” as
that term is used in KRS 403.720(3) and 403.725(1)
based upon Respondent’s testimony being viewed by the
Court as incredible and the Court did not believe much of
anything Respondent said concerning the Petitioner
residing with him nor found it to be believable or true.
The Court relied upon the testimony of the Petitioner and
the testimony of her mother and found it believable,
credible and true.
B. The Court finds that the Respondent’s
testimony on the California incident was particularly
unbelievable and preposterous and finds that acts of
violence occurred in California by him against the
Petitioner. The Court further finds that following such
acts of violence the Respondent hid the Petitioner in
Denton’s Motel on Lone Oak Road in Paducah,
Kentucky in order to hide her injuries from her family all
of which are usual events coinciding with domestic
C. The Court further finds that the usual events
preceding domestic violence occurred in that the
Respondent ostracized the Petitioner from her family;
controlled her movement and locked her in his house
detaining her in the bedroom and did not provide her
with the code to the security system at his house, all of
which supports the finding that the parties lived together
and the Court’s finding of domestic violence.
D. The Court further finds that the pushing
incident in the basement of Respondent’s home as
testified to by the Petitioner was an act of domestic
violence and the Court finds that the Respondent had the
Petitioner medically treated by escorting her in the back
door of Lourdes Hospital where he has privileges as a
physician, all of which the Court finds to support it’s
[sic] finding of domestic violence.
The Court finds that the Respondent filed a
verified petition for Domestic Violence in which he
claimed that the parties lived together.
The Court finds that the Affidavit sworn to
by the Petitioner in McCracken Family Court, Civil
Action No. 02-CI-00759, in which Petitioner on April 30,
2007 swore that she “...does not reside with the
Respondent” is consistent with a domestic violence
victim such as Petitioner and with the duress and
paramour control the Court often sees in domestic
violence relationships. The Court further finds that the
Petitioner appearing at Respondent’s lawyer office and
doing what she was asked to do and stating what she was
told to do is consistent with such conduct of a domestic
violence victim in domestic violence relationships.
Ultimately, it is within the discretion of the trial court to make the
final determination regarding the credibility of a witness.
[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 circumstances of the case, including
the credibility of the witness.
Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996).
The family court is granted the power to act under KRS 403.750(1):
(1) Following the hearing provided for under KRS
403.740 and 403.745, the court, 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, may:
(a) Restrain the adverse party from any contact or
communication with the petitioner except as directed by
(b) Restrain the adverse party from committing further
acts of domestic violence and abuse;
(c) Restrain the adverse party from disposing of or
damaging any of the property of the parties;
(d) Direct the adverse party to vacate the residence
shared by the parties to the action;
(h) Enter other orders the court believes will be of
assistance in eliminating future acts of domestic violence
Based on this enabling statute and the evidence, the family court
concluded that there was sufficient evidence to determine that the couple lived
together within the meaning of the statute. The statutory language does not require
an onset date be established; it only requires evidence that “acts of domestic
violence have occurred and may again occur.” Id. The determination of an onset
date is not essential to finding that domestic violence has taken place.
We must defer to the decision of the family court as to the credibility
of the witnesses who testified at trial. The court found Argotte’s own admission on
his EPO that the parties lived together to be very convincing in and of itself. The
court found that particular statement by Argotte to be a true and lasting testament
of the genuine nature of their relationship. Based on the testimony presented, the
family court determined that acts of domestic violence had occured. Because
substantial evidence supports the family court’s findings, we affirm the McCracken
County Family Court’s issuance of a DVO.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard W. Jones