Brown v. Gray
| Decision Date | 07 May 2021 |
| Docket Number | NO. 2020-CA-0871-ME,2020-CA-0871-ME |
| Parties | RANDOLPH WAYNE BROWN APPELLANT v. JEANNETTE LYNN GRAY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM HARDIN CIRCUIT COURT
The parties have joint custody of their twelve-year-old twins who live primarily with Gray but with Brown every other weekend and one week per month.
On May 4, 2020, Gray petitioned for an order of protection based on a single incident. Gray had given one of the children a haircut, and when Brown saw the child on April 22 or 24, 2020, some ten days before Gray filed her petition, he expressed his disapproval by saying he "was going to f---ing kill her" (in obvious reference to Gray). Based on these facts, the circuit court found cause to issue a domestic violence order for three years. This appeal followed.
Brown filed a brief, pro se, that falls short of full compliance with our appellate rules. However, Gray filed no brief at all.
When an appellee fails to provide this Court with a brief, it is impossible to conduct the thorough review this Court desires. CR1 76.12(8)(c) modifies our review, providing as follows:
If the appellee's brief has not been filed within the time allowed, the court may: (i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case.
Pursuant to CR 76.12(8)(c)(iii), this Court could simply elect to regard appellee's failure to file a brief as a confession of error and vacate the order without considering the merits of the case. However, the Court has used a hybrid approachbefore and shall do so again. See Martin v. Cabinet for Health and Family Services, 583 S.W.3d 12, 17 (Ky. App. 2019).
Pursuant to the rule, this Court shall "accept the appellant's statement of the facts and issues as correct[.]" CR 76.12(8)(c)(i). Our examination of the record reveals no substantive contradiction of those facts and issues for the purposes of this appeal.
Consequently, in view of the standard above, Brown's "brief reasonably appears to sustain" reversal of, or in this case the vacating of, the circuit court's order on the basis of violations of procedural due process. CR 76.12(8)(c)(ii). For the purpose of appellate review, Gray's decision not to present to this Court any justification for affirming the circuit court on these grounds is an implicit confession of that court's error for these procedural irregularities. CR 76.12(8)(c)(iii). We note however, Brown has not, in this appeal, denied the facts forming the basis of the trial court's entry of the DVO.2 Therefore, we believe it isnecessary to remand the matter to the trial court for additional proceedings, ensuring Brown's due process rights are protected.
For the foregoing reasons, the Hardin Circuit Court's June 12, 2020, domestic violence order is VACATED, and this case is REMANDED for proceedings consistent with this opinion.
ACREE, JUDGE: I concur with the majority's decision to vacate the order. However, and respectfully, I do not agree that remanding for further proceedings isthe most appropriate ruling. Further proceedings would be a waste of judicial resources.
To begin, the majority is mistaken in its opinion that "Brown has not denied the facts forming the basis of the trial court's entry of the DVO." At the hearing, he expressly denied making the statement attributed to him by his son. In fact, he denied making any threat at all. He believed Gray had coached the child.
Nevertheless, the son did testify that when Brown saw the haircut Gray had given him,3 he said, "Jesus Christ, I'm going to f---ing kill her." That is evidence the circuit court was well within its authority to believe. But that belief carries with it other irrefutable facts that mitigate the reasonable reaction to such a statement (both of Gray and the circuit court), beginning with the fact that Brown never made any other similar statements. (Record (R.) at 5.)
Gray did not file her petition for two weeks after Brown allegedly made the statement. She said the delay occurred because the parties' son was "too scared to say anything back to [Brown] or tell [Gray]." (Id.) That allegation was contradicted by the son's own testimony. When the circuit court asked him, "Are you ever scared of your daddy?" His answer was, "Not really."
Gray filed her petition for a protective order after a dental appointment for the parties' son which Brown attended. (Video Record (V.R.) No. 1 6/8/2020; 10:28:37.) By Gray's own testimony, Brown had attended all such previous appointments, but because of Covid-19 protocol, the dentist would not allow both parents to meet with him. (Id. at 10:31:18.) She also acknowledged these visits were always "a point of contention" and that Brown had to file a motion for contempt because of Gray's previous repeated failures to include him. (Id. at 10:31:35.) On this occasion, however, compulsory Covid-19 protocol permitted only one person to consult with the dentist. This frustrated Brown. He pointed his finger at Gray without saying a word, told his son he would see him later, and left.
Gray never testified that she was in fear while in the dentist's office. Her representation of this incident as a "little bit of a scene" seems accurate, especially considering she did not call the dentist to testify that it was more. (Id. at 10:28:37.) Nor did the son who witnessed the "scene" describe it as fear-inducing. Gray alleged he only said it "embarrassed him." (R. at 5.)
Gray's testimony was that her fear was ginned up during the ride home as she thought about a combination of events. Gray said she thought her son was not acting normally on the ride home. So she asked him "if he had seen dad point at me and give me a mean look" and he said yes. (R. at 5.) According toGray, that is when and why he told her what Brown allegedly said two weeks earlier. (R. at 5; V.R. No. 1 6/8/2020; 10:27:44.) She testified it was then that what she earlier characterized as "a little bit of a scene," she now believed was Brown "pointing at me in a threatening manner." (V.R. No. 1 6/8/2020; 10:32:41.) It was then she said she became "extremely scared for myself and for my entire family, and for the children . . . ." (Id. at 10:32:51.)
There was other evidence, to be sure. But none of it supported an alleged threat or, assuming Brown made this statement, that such a statement (made weeks earlier and not in Gray's presence) justified a natural and reasonable fear of domestic violence. Brown's evidence, naturally, cast the events in a different light.
A worker for the Cabinet for Health and Family Services testified that the Cabinet had no intention of taking any action. The worker had interviewed the son and his twin sister and, unlike Gray, had no concern for their welfare while with Brown. She also said Brown's son gave no context to Brown's statement; i.e., "whether it was joking or, um, an actual threat." (Id. at 10:33:58.)
Then Brown took the stand in his defense. The following is the entirety of his testimony about what he said to his son:
(Id. at 10:43:58 to 10:48:05 (emphasis added).) Brown's testimony was unequivocal that his concern was with the haircut only; not once did Brown demean his son or comment on immutable traits. Why is this important? Because that was the circuit court's unfounded focus.
"The court is well familiar with this case," said the circuit court. If Gray's counsel's statement is correct, the family had been before the court off and on over the previous nine years. Apparently, Gray's counsel's starting point for each court appearance was an incident that should have been irrelevant, but that the circuit court admitted it has difficulty getting past. "Aren't you the person who . . . paid for your supervised visits with pennies?" Gray's counsel asked Brown. (Id. at 10:49:05.) The circuit court responded, (Id. at 10:49:30.)
Counsel's cross-examination of Brown added nothing further to support the allegations in the petition. When Gray's counsel passed the witness, the circuit court began asking questions.
The circuit court's focus was not Brown's alleged threatening statement; it was his parenting skills and, contrary to all the evidence, the court decided Brown's criticism went beyond the haircut itself to belittling his son.
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