BADIE (RICHARD) VS. BADIE (KENITA)Annotate this Case
RENDERED: DECEMBER 19, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JOSEPH W. O’REILLY, JUDGE
ACTION NO. 06-D-501822
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BEFORE: MOORE, TAYLOR, AND VANMETER, JUDGES.
MOORE, JUDGE: The matter before this Court involves a Domestic Violence
Order (DVO) entered by the Jefferson Circuit Court against the Appellant Richard
Badie.1 Upon a thorough review of the record, we affirm.
An appellee brief was not filed in this matter. While Kentucky Rules of Civil Procedure (CR)
76.12 (8)(c) provides penalty options which an appellate court may, in its discretion, impose for
failure to file a brief, we do not believe this failure alone warrants a reversal. Flag Drilling Co.,
Inc. v. Erco, Inc., 156 S.W.3d 762, 766 (Ky. App. 2005).
I. FACTUAL AND PROCEDURAL BACKGROUND
A series of events occurred in March 2008, which prompted Kenita
Badie to file for an Emergency Order of Protection and a Domestic Violence
Petition. Kenita was temporarily separated from her husband Richard. She resided
in the couple’s apartment with their child and an additional child from a previous
relationship. Kenita claimed that Richard grabbed her face and spat on her. She
alleged that on another date Richard choked her, grabbed her face, slammed her
head down by grabbing her hair, and pinned her body down. Kenita further
alleged that later, when Richard was either unable or unpermitted to enter the
apartment, he threatened her life and the lives of her family.
In considering Kenita’s Domestic Violence Petition, the Jefferson
Circuit Court heard testimony from Kenita, Richard, and Richard’s mother, Renata
Badie.2 The circuit court found that Richard’s actions caused Kenita to be in fear
of imminent future harm and entered a DVO ordering Richard be restrained from
committing any future threats or acts of abuse against Kenita and prohibiting all
contact with Kenita or her family.3 This appeal followed.
II. STANDARD OF REVIEW
Richard also filed a Domestic Violence Petition against Kenita. Finding that Richard was not
in fear of imminent physical harm by Kenita, the circuit court did not grant his petition. Richard
did not appeal that finding.
The circuit court did not find that any domestic violence had occurred involving the couple’s
minor child and granted Richard parenting time with this child.
In reviewing the decision of the trial court the test is whether the trial
court's findings were clearly erroneous or that it abused its discretion. Gomez v.
Gomez, 254 S.W.3d 838, 842 (Ky. App. 2008). Abuse of discretion occurs when a
court's decision is unreasonable or unfair. Id. (Citations omitted).
Richard claims that the trial court judge abused its discretion in
finding that Kenita was in fear of imminent physical harm and in finding her
credible due to his claims of discrepancies in her petition regarding whether the
parties were separated. Furthermore, Richard claims that the trial judge’s actions
of limiting his witness’s testimony to the events in March 2008 discouraged
Richard from examining his witness or calling an additional witness for
Kentucky Revised Statutes (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 or members of an
unmarried couple[.]” Before issuing a DVO, a trial court must conduct a hearing
and find by a preponderance of the evidence “that an act or acts of domestic
violence and abuse have occurred and may again occur . . . .” KRS 403.750(1).
This preponderance of the evidence standard is met if sufficient evidence
establishes that the alleged victim “was more likely than not to have been a victim
of domestic violence.” Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky.
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.” Bissell v. Baumgardener,
23 S.W.3d 24, 29-30.
In the present case, the decision of the trial judge in granting the DVO was based
on the credibility of the parties. After hearing the testimony from Kenita, Richard,
and Renata Badie, the trial court chose to believe Kenita’s version of events,
concluding that an act of domestic violence had occurred against Kenita. Kenita
testified that Richard had threatened her and her family, that Richard had been
physically violent with her in the past, and that she was fearful of him. The trial
court having found Kenita to be credible, we find no error. We agree she
established by a preponderance of the evidence “that an act or acts of domestic
violence and abuse have occurred and may again occur.” KRS 403.750(1).
Richard asserts that the court’s actions of limiting his mother’s
testimony to her knowledge of the events that occurred in March discouraged him
from asking further questions or calling additional witnesses; however, Richard
was specifically given the opportunity, after the judge’s questioning of Renata
Badie, to ask any additional questions or present any other witnesses. Richard
responded that he did not wish to do so.4 Renata Badie’s testimony only consisted
of her opinion regarding Richard and Kenita’s living arrangements. Her testimony
could not address whether any act of domestic violence or abuse had occurred
because she was not present. Thus, given the evidence presented, the trial court's
credibility determination and issuance of the DVO was not clearly erroneous.
In this matter, we must defer to the decision of the trial court as to the
credibility of the witnesses who testified at trial. Because the circuit court’s
decision was not clearly erroneous or an abuse of discretion, we affirm the
Jefferson County Circuit Court’s issuance of the DVO.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jan R. Waddell
Richard represented himself in the trial court.