MEADE (ANTHONY TODD) VS. CHAMBLISS (ZELLA DANIELLE)
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RENDERED: MAY 7, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000126-ME
ANTHONY TODD MEADE
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE HUGH SMITH HAYNIE, JUDGE
ACTION NO. 08-D-503806 & 08-D-503806-002
ZELLA DANIELLE CHAMBLISS
APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: CLAYTON, DIXON, AND THOMPSON, JUDGES.
THOMPSON, JUDGE: Anthony Todd Meade appeals from a domestic violence
order (DVO) and an order denying his motion for post-judgment relief pursuant to
CR 52.02. We conclude that the family court was required to render specific
findings of fact and reverse and remand.
Meade and Zella Danielle Chambliss were involved in a relationship
for a year and a half and lived together for a brief time. In June 2008, Chambliss,
who had a history of mental illness, suffered a nervous breakdown and attempted
to commit suicide in Meade’s presence. After she was released from the hospital,
the parties’ relationship ended. However, Chambliss then rented an apartment in
the same building as Meade, and the two continued working together at a nursing
and rehabilitation center.
On November 29, 2008, Chambliss requested an emergency
protective order (EPO) against Meade for allegedly harassing her because he sent
her a “depressing” e-mail. Although the EPO was denied, a summons was issued
requiring Meade to attend a subsequent court appearance.
On December 1, 2008, Meade obtained an EPO against Chambliss,
alleging she had entered his apartment when he was not home, accessed his e-mail,
taken his credit card numbers and that Chambliss attacked him at the time of her
suicide attempt. Two days later, Chambliss obtained an EPO against Meade,
alleging that a physical altercation occurred after Meade’s EPO was served upon
her.
Due to Judge Hugh Smith Haynie’s absence from the bench, Special
Judge Paula Fitzgerald presided at the hearing. Chambliss appeared at the hearing
pro se, and Meade appeared with counsel.
The court reviewed the November 29, 2008, petition and ordered it
dismissed because the allegations did not constitute domestic violence. The court
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then considered the allegations in Meade’s EPO and Chambliss’s EPO obtained in
December.
Chambliss did not deny that she had possession of Meade’s credit
card numbers, had broken into his e-mail account and entered Meade’s apartment
when he was absent. Chambliss testified that Meade threatened her and pushed her
against a wall but no other witness testified to confirm her testimony and there was
no physical evidence of injury. Although her mother was unavailable as a witness
because of a physical ailment, Chambliss was permitted to testify that her mother
would have identified the bruises on Chambliss’s back. In addition to the parties,
Meade’s new girlfriend, who lived in the apartment below Chambliss, testified that
Meade was with her at the time of the alleged physical assault upon Chambliss and
that no assault occurred.
The family court dismissed Meade’s petition against Chambliss and,
in its initial verbal ruling, dismissed Chambliss’s petition against Meade.
However, after Chambliss began crying, the family court later reversed its ruling
and stated: “I tell you what Anthony . . . I believe her” and made a finding of
domestic violence. The written order entered was a form order on which it is
recited that an “act(s) of domestic violence or abuse has occurred and may again
occur. . . .”
Meade filed a motion to alter, amend, or vacate the DVO and
requested additional findings of fact pursuant to CR 52.02, which were heard by
Judge Haynie. Although Judge Haynie expressed concern over the lack of
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specificity in the court’s finding of domestic violence, he emphasized that he did
not hear the evidence. As a result, he relied upon Judge Fitzgerald’s judgment that
the DVO was warranted and held that no further findings of fact were required.
This appeal followed.
Meade contends the court erred by denying his post-judgment motion
because he was entitled to additional findings of fact, or alternatively, that the
evidence did not support entry of a DVO against him. Because we find merit in
Meade’s initial contention and remand for specific findings of fact, we do not
address the sufficiency of the evidence.
Judge Haynie’s initial premise that he was unable to render additional
findings because he was not the initial fact-finder was in error. It is clearly
permissible for a judge to decide a case and make factual findings by reviewing the
trial record and render factual findings based on the recorded hearing. See Hamlin
Const. Co., Inc. v. Wilson, 688 S.W.2d 341, 343 (Ky.App. 1985). Alternatively,
the case could have been transferred to the judge who presided over the DVO
hearing.
Not only was Judge Haynie empowered to render findings of fact
based on the record, we conclude that following Meade’s properly filed CR 52.02
motion he was compelled to make specific findings.
CR 52.02 affords litigants the opportunity to request additional
findings. The reason for requiring specific findings of fact is to provide the
reviewing court with a basis for understanding the circuit court’s “view of the
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controversy.” Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). Because a
court speaks through its duly entered and signed written orders, absent specific
findings of fact, an appellate court cannot afford meaningful review. Midland
Guardian Acceptance Corp. of Cincinnati, Ohio v. Britt, 439 S.W.2d 313 (Ky.
1968).
In Reichle, our Supreme Court emphasized the significance of specific
findings of fact in child custody cases: DVO proceedings are no less significant.
If granted, it may afford the victim protection from
physical, emotional, and psychological injury, as well as
from sexual abuse or even death. It may further provide
the victim an opportunity to move forward in establishing
a new life away from an abusive relationship. In many
cases, it provides a victim with a court order determining
custody, visitation and child support, which he or she
might not otherwise be able to obtain. The full impact of
EPOs and DVOs are not always immediately seen, but
the protection and hope they provide can have lasting
effects on the victim and his or her family.
On the other hand, 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. To
have the legal system manipulated in order to “win” the
first battle of a divorce, custody, or criminal proceeding,
or in order to get “one-up” on the other party is just as
offensive as domestic violence itself. From the prospect
of an individual improperly accused of such behavior, the
fairness, justice, impartiality, and equality promised by
our judicial system is destroyed. 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.
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Rankin v. Criswell, 277 S.W.3d 621, 624-625 (Ky.App. 2008) (quoting Wright v.
Wright, 181 S.W.3d 49, 52 (Ky.App. 2005)). In addition to the potential impact a
DVO can have on the parties and child custody, findings of fact enlighten third
parties, such as employers, as to the reason for its entry.
We conclude that CR 52.02 is applicable to DVO proceedings and,
when a proper CR 52.02 motion requesting specific findings is made, the court is
required to render specific findings of fact to support its decision including that
domestic violence occurred as defined in KRS 403.720 and that the requirements
of KRS 403.750 have been met. There must be: “(a) specific evidence of the
nature of the abuse; (b) evidence of the approximate date of the respondent's
conduct; and (c) evidence of the circumstances under which the alleged abuse
occurred.” Further, “after conducting the evidentiary hearing, the court must then
decide whether, under the preponderance of the evidence standard, domestic
violence has occurred and may occur again.” Rankin, 277 S.W.3d at 626.
Based on the foregoing, the DVO entered by the Jefferson Family
Court is reversed and the case remanded for the entry of specific findings of fact.
CLAYTON, JUDGE, CONCURS.
DIXON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
DIXON, JUDGE, DISSENTING: Because I believe the majority in
this case drastically changes a procedural rule, I must respectfully dissent. CR
52.02 provides an avenue for a party to request a trial court for additional findings
to support its judgment. The rule itself, as well as case law, makes clear the court
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may make additional findings and may amend its judgment. Nothing in this rule
mandates that a court must make additional findings upon a motion made by a
party under this rule. See McKinney v. McKinney, 257 S.W.3d 130, 134 (Ky.App.
2008). Certainly, many times a trial court’s failure to make further findings results
in remand, as the majority mandates here. The majority would however, now
require all trial courts to make additional findings under CR 52.02. The majority
writes, “…we conclude that following Meade’s properly filed CR 52.02 motion
[the trial judge] was compelled to make specific findings.” (emphasis added). This
vast pronouncement is rendered without any citation to authority whatsoever and
flies utterly in the face of the plain language of the rule itself. As an intermediate
court, our decisions necessitate findings consistent with established procedural
rules. The majority however, has chosen to write into CR 52.02 a requirement not
intrinsic to the Rule. I believe this is error.
Moreover, I do not believe that remand is necessary under CR 52.02,
as it has historically been applied. The majority notes the impact domestic
violence orders have on victims and alleged perpetrators. It quotes precedent
which observes that “… the legal system [can be] manipulated in order to ‘win’ the
first battle of a divorce, custody, or criminal proceeding,” thus making the
domestic violation petition suspect. See Rankin supra, at 624-625. However, there
is no evidence in the case before us that any of these factors are present here.
Apparently there are no children born to this couple, they are not married, and
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there is no evidence that any criminal charges have been filed against either the
petitioner or respondent.
Our Supreme Court has determined that a trial court must find that a
DVO is warranted by a preponderance of evidence standard. “It merely requires
that the evidence believed by the fact-finder be sufficient that the [petitioner] was
more likely than not to have been a victim of domestic violence.” Commonwealth
v. Anderson, 934 S.W.2d 276, 278(Ky. 1996). Where the trial court sits as the
finder of fact, those findings may only be set aside on appeal if clearly erroneous.
CR 52.01; Gomez v. Gomez, 254 S.W.3d 838, 842(Ky.App. 2008). Further, the
issue is not whether we would have decided the case differently; rather, our
concern on appeal is whether the court’s findings were clearly erroneous or an
abuse of discretion. Cherry v. Cherry, 634 S.W.2d 423, 425(Ky. 1982).
While Meade’s CR 52.02 motion properly preserved his request for
additional findings, I am of the opinion that additional findings were unnecessary
for meaningful appellate review. A review of the record in this case establishes
that Judge Fitzgerald spoke at length about the three separate petitions before her,
and that she concluded by plainly articulating her belief that Chambliss’ testimony
was the most credible and that domestic violence had occurred. The court clearly
made the essential findings of domestic violence required by KRS 403.750(1).
Judge Fitzgerald was in the best position to weigh the evidence, and she found
Chambliss to be the most credible witness. Under our standard of review I see no
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need to remand this matter for additional findings. Consequently, I would affirm
the Jefferson Family Court.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Daniel J. Canon
Louisville, Kentucky
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