OGLESBY (ALISHIA MICHELLE) VS. LUCKETT (MATTHEW STEVEN)
Annotate this Case
Download PDF
RENDERED: NOVEMBER 7, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000578-ME
ALISHIA MICHELLE OGLESBY
v.
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE SUSAN WESLEY MCCLURE, JUDGE
ACTION NO. 08-D-00020
MATTHEW STEVEN LUCKETT
AND:
APPELLEE
NO. 2008-CA-000579-ME
ALISHIA MICHELLE OGLESBY
v.
APPELLANT
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE SUSAN WESLEY MCCLURE, JUDGE
ACTION NOS. 08-D-00017 & 08-D-00021-001
JOHN THOMAS OGLESBY
APPELLEE
OPINION
VACATING AND REMANDING
APPEAL NO. 2008-CA-000578-ME
&
AFFIRMING APPEAL NO. 2008-CA-000579-ME
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES.
DIXON, JUDGE: Alishia Michelle Oglesby (“Alishia”) appeals from two
domestic violence orders (“DVO”) entered against her by the Hopkins Circuit
Court. Although Alishia filed separate appeals, the two cases share common facts
and will be heard together.
Appellee Matthew Steven Luckett (“Matthew”) is Alishia’s exhusband. They have a thirteen-year old son, M.L., of whom they share joint
custody. Appellee John Thomas Oglesby (“John”) is Alishia’s current husband.1
John and Alishia have two sons, M.O., age two, and D.O., age ten.
On February 4, 2008, John filed a domestic violence petition against
Alishia on behalf of himself and their children, alleging physical and mental abuse
by Alishia. On February 5, 2008, Matthew filed a domestic violence petition
against Alishia on behalf of M.L. and himself, alleging Alishia was not taking care
of M.L. Alishia, who had moved to Clarksville, Tennessee, with the children, was
served with an emergency order of protection and summons in both cases.
On February 18, 2008, the Hopkins Circuit Court held a lengthy
combined hearing on both petitions. The court heard testimony from John,
1
John and Alishia filed for divorce in January 2008.
-2-
Matthew, Alishia, Alishia’s friend, William Dial, and a social worker from the
Cabinet for Health and Family Services. At the conclusion of the hearing, the
court issued a one-year DVO against Alishia restraining her from contacting
Matthew and granting him temporary physical custody of M.L. The court also
issued a one-year DVO restraining Alishia from contacting John and granting him
temporary physical custody of M.O. and D.O. These appeals followed.
Pursuant to KRS 403.750, the court may enter a DVO following a
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[.]” Under the
preponderance standard, the court must conclude from the evidence that the victim
“was more likely than not to have been a victim of domestic violence.”
Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996). Further, KRS
403.720(1) defines “domestic violence and abuse” 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 . . . [.]” On appeal, we are mindful of the trial court’s opportunity to
assess the credibility of the witnesses, and we will only disturb the lower court’s
finding of domestic violence if it was clearly erroneous. Kentucky Rules of Civil
Procedure (CR) 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986).
I.
Oglesby v. Luckett, 2008-CA-000578
-3-
We first address the DVO entered against Alishia on behalf of
Matthew and M.L. She contends that the order must be vacated because there was
no evidence she committed acts of domestic violence against them. After careful
review, we agree.
At the hearing, Matthew testified that he believed M.L. suffered
domestic violence while with Alishia because M.L. excessively missed school and
used drugs. Matthew also testified that, when Alishia moved out of the Oglesby
residence, she left M.L. at a friend’s house for three days. Matthew further
acknowledged that he became worried about M.L. after members of John
Oglesby’s family told him that D.O. sustained bruises and a shoulder injury in
Clarksville.
Alishia refuted Matthew’s allegations, but acknowledged that M.L.
sometimes fought with his stepfather, John. Alishia testified that she left the
marital home with M.L. on January 19, 2008, because M.L. and John were
involved in a physical altercation. She testified that, after leaving John, she and the
three children moved to Clarksville.
We have carefully reviewed the record, and are compelled to conclude
that the evidence does not support the court’s finding that “an act(s) of domestic
violence or abuse has occurred and may again occur.” Matthew did not allege, nor
was there evidence, that Alishia committed any act of domestic violence or abuse
against him. Furthermore, Matthew’s testimony regarding Alishia’s actions toward
-4-
M.L. did not constitute domestic violence as defined in KRS 403.720(1).2 A
Domestic Violence Order is no trivial matter. In Wright v. Wright, 181 S.W.3d 49
(Ky. App. 2005), a panel of this Court addressed the consequences of a DVO. The
Court noted,
the impact of having an EPO or DVO entered
improperly, hastily, or without a valid basis can have a
devastating effect on the alleged perpetrator. * * * In
addition, there are severe consequences, such as the
immediate loss of one's children, home, financial
resources, employment, and dignity. Further, one
becomes subject to immediate arrest, imprisonment, and
incarceration for up to one year for the violation of a
court order, no matter what the situation or circumstances
might be.
Id. at 52.
We are cognizant that the domestic violence statutes were enacted
“[t]o allow persons who are victims of domestic violence and abuse to obtain
effective, short-term protection against further violence and abuse in order that
their lives will be as secure and as uninterrupted as possible.” KRS 403.715(1).
Nevertheless, despite the deference owed the trial court, we must conclude the
court abused its discretion by finding that Matthew and M.L. were “more likely
than not” victims of domestic violence perpetrated by Alishia. See Anderson, 934
S.W.2d at 278. Consequently, we vacate the DVO entered against Alishia on
2
Arguably, Matthew’s testimony showed that Alishia made poor parenting choices; however,
there was no evidence she caused M.L. “physical injury, serious physical injury, sexual abuse,
assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual
abuse, or assault[.]” KRS 403.720(1).
-5-
behalf of Matthew and M.L. and remand this case to Hopkins Circuit Court for
entry of an order dismissing the petition.
II.
Oglesby v. Oglesby, 2008-CA-000579
We now address the DVO entered against Alishia on behalf of John
and their two children. Alishia contends that the DVO should be vacated because
there was no evidence that she committed acts of domestic violence. After careful
review of the record, we disagree.
John testified that Alishia and he had a history of physical
altercations, which he felt would continue in the future. John testified that, on
January 17, 2008, Alishia punched him, pulled his hair, and spit on him during an
argument about finances. He stated that, in the past, she had unnecessarily given
M.O. Nyquil to make him sleep. And, based on a conversation with D.O., John
feared that Alishia was needlessly medicating both children while they were living
in Clarksville. After John picked up the children in Clarksville, D.O. complained
of bruises and shoulder pain. D.O. explained to John that he was injured while
staying with Alishia’s friend, William Dial. Finally, the court also heard testimony
from a social worker who had interviewed D.O. She advised the court that D.O.
had witnessed his parents hitting and shoving each other.
Based on the testimony at the hearing, the evidence supported the trial
court’s finding of domestic violence. We are aware that, “in reviewing the
decision of a trial court the test is not whether we would have decided it
-6-
differently, but whether the findings of the trial judge were clearly erroneous or
that [s]he abused h[er] discretion,” Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky.
1982). Under the circumstances, we cannot say the court abused its discretion in
issuing the DVO against Alishia on behalf of John and the two children.
Alishia next argues that the court failed to make specific findings of
fact pursuant to CR 52.01. However, a review of the record shows that Alishia did
not request specific findings of fact following the hearing; consequently, this
argument is not preserved for our review. CR 52.04; Cherry, 634 S.W.2d at 425.
Finally, Alishia contends that she will suffer adverse consequences if
the DVO is enforced. Although Alishia’s circumstances are unfortunate, we are
mindful that she received a full and fair hearing in the trial court. The trial judge
heard Alishia’s testimony but obviously found the evidence presented by John to
be more credible. See Anderson, 934 S.W.2d at 278. Consequently, we will not
disturb the DVO entered on behalf of John and the two children.
For the reasons stated herein, we vacate the domestic violence order
issued against Alishia Oglesby on behalf of Michael Luckett and M.L. in Appeal
No. 2008-CA-000578-ME and remand the case to Hopkins Circuit Court for entry
of an order dismissing the petition.
In Appeal No. 2008-CA-000579-ME, we affirm the domestic violence
order issued against Alishia Oglesby on behalf of John Oglesby, D.O., and M.O.
ALL CONCUR.
-7-
BRIEFS FOR APPELLANT:
Amealia R. Zachary
Dixon, Kentucky
BRIEF FOR APPELLEE
Matthew Steven Luckett:
Mark Little
Madisonville, Kentucky
No Brief for Appellee
John Thomas Oglesby
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.