Kouns v. Kemper
| Decision Date | 06 August 2021 |
| Docket Number | 2020-CA-1335-ME |
| Parties | STUART DANIEL KOUNS APPELLANT v. ROBIN SCOTT KEMPER APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
ALL CONCUR. BRIEF FOR APPELLANT: Joshua A. K. McWilliams Versailles, Kentucky
NO BRIEF FOR APPELLEE.
BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON, AND L. THOMPSON JUDGES.
Stuart Daniel Kouns (stepfather) appeals from the Woodford Family Court's domestic violence order (DVO), which prohibited him from having contact with his stepchildren, L.M.K. and A.M.K. (children), on the basis that the hearing deprived him of due process and, in any event, there was insufficient evidence upon which a DVO could be granted.[1] We disagree that stepfather was deprived of due process but agree that there was insufficient evidence to grant the DVO because there was no reasonable infliction of fear of imminent physical injury on children where stepfather voluntarily stopped having any contact with them more than a year earlier. Accordingly, we reverse and remand.
Robin Scott Kemper (father) and Pamela Kouns (mother), divorced in 2013. Father and mother have equal timesharing with children who are both daughters, spending alternating weeks with them.
About four years before the petition was filed, mother married stepfather and children began spending half their time in mother's and stepfather's home. More than a year before the petition was filed, mother separated from stepfather. Mother continues to see stepfather, but stepfather is never at mother's home when the children are there. It is undisputed that children have not seen or had any communication with stepfather since mother moved out.
On September 22, 2020, father filed a petition for an order of protection on behalf of children. The statement supporting the petition was, as father noted, written by L.M.K., who was seventeen at the time, and read in pertinent part as follows:
I fear for my safety! In the recent weeks my family [has] been terrorized by [stepfather]. He has become abusive to my mother throwing her. On that occasion she had gone to leave his house and he did not want her to leave so he grabbed her purse attached to her arm and yanked her to the ground. He had pulled her so hard there was a lasting mark left on her arm. This has happened on more than one occasion. My sister and I fear for our safety and mother[']s life because of his aggressiveness. [Stepfather] has severe anger issues that I have witnessed. I would also like to add that he is an avid daily drinker to the point of intoxication each night. This drinking habit plays into his anger spells that seem to go out of control. A few years back while intoxicated he had shot my mother leading me to fear for my safety s[i]n[c]e that moment. On multiple accounts he has said that "if I want to hurt you I would." S[i]nce these events I have moved out of his house on account of his anger towards me. Upon moving out of his house [stepfather] has acquired several large firearms and weapons. He has s[i]nce joined a militia and for these reasons I am scared for the safety and well being of my family. I beg of you to protect me and my sister from an escalation of his anger. From these recent events of him abusing my mother I believe that this is an urgent matter.
The family court granted an emergency protective order (EPO).
At the hearing, at which both parties were pro se, the family court noted it would be hearing from father, L.M.K., and stepfather. The family court asked stepfather if he was planning to call any witnesses besides himself and he stated that he did not plan to do so.
The family court observed that mother was present and noted that because much of the petition was based upon what mother had witnessed where she was a victim, the court might need her testimony. Mother observed, "it's a difficult position for me to be put in" and stated that it would be better if she did not have to testify. Mother was excluded from the proceedings as a possible witness.
The family court instructed that father would need to testify about what he observed and not what his daughter had told him, L.M.K. would testify next and then stepfather would be given an opportunity to respond. The family court instructed the parties that they should try to speak up the best they could during their testimony and seek to not interrupt anyone else's testimony or answer a question directed to anyone else. The family court then proceeded to question the witnesses. We summarize only the testimony which is relevant to the family court's ruling and stepfather's arguments.[2]
Father testified children timeshared with mother at the residence she shared with stepfather until an incident when mother and stepfather had an argument and stepfather turned the water off when L.M.K. was in the shower. Father explained that after hearing about it, he told mother he would not let the children live with stepfather anymore. In response, mother moved out and children continued having timesharing with her. Since that time, father denied having any contact with stepfather other than one phone call regarding parenting.
Father explained he filed the petition on L.M.K.'s insistence after a recent incident where L.M.K. called him crying, telling him she heard from a neighbor that stepfather yanked mother to the ground by her handbag and bruised her. Father was concerned about how "torn up" L.M.K. was about the incident.
L.M.K. testified that although she did not have any direct contact with stepfather over the past year, when she is with mother, stepfather calls her mother multiple times a day. She testified that one time, stepfather called mother and asked where L.M.K.'s car was, as he had not seen it when he was driving by mother's home. L.M.K. testified she knew about stepfather's calls based on both what mother had told her and from overhearing phone conversations when they were happening. She explained this comment about her car worried her, so she went to see what stepfather could see from the street and observed her home and where she parked could not be seen unless he was parked on their street.
When asked whether she had witnessed acts of domestic violence between stepfather and mother while she lived with them, L.M.K. testified that stepfather inflicted severe emotional abuse on them by yelling at her sister, A.M.K., and her until they were crying or left the house. She explained it was so distressing that she and her sister would cry themselves to sleep, afraid that stepfather would hurt one of them or mother.
L.M.K. testified stepfather has a severe alcoholism problem and becomes enraged when he drinks but denied that stepfather was ever physically violent with them or damaged property, explaining that at worst he had thrown stuff in the sink and would become "basically a crazy person yelling." She testified he drinks every night to the point of intoxication.
When the family court asked if stepfather had made any threats, L.M.K. responded: "No, but he said if he wanted to hurt me he would." She could not recall the context in which stepfather made this comment.
Regarding the shower incident, L.M.K. testified that stepfather turned off the water just after she started showering and when she got out, he proceeded to yell at her until she cried. She stated she was crying so hard that she was unable to breathe, and he told her to get out of the house and told her "I was nothing." She explained that at other times stepfather yelled about everything, told her he did not like her, he did not want her in the house and that "I was a waste."
L.M.K. then testified about things her mother told her about stepfather's recent behavior, including that mother is scared because stepfather has joined a militia, and scared because stepfather has so many firearms in the house.
As to the incident which caused the impetus for filing the petition, L.M.K. stated she heard from a neighbor that stepfather was abusing mother and leaving bruises on her. L.M.K. later explained that her mother had a prominent bruise on her arm and she believed her stepfather had to yank her mother hard to cause such a bruise.
L.M.K. testified her little sister cries in the middle of the night because she is scared that if mother divorces stepfather, stepfather will hurt mother. L.M.K. testified that based on stepfather's pattern of behavior, L.M.K. fears imminent harm and believes stepfather could snap at any point.
Stepfather denied ever committing domestic violence against mother or children. He denied he had ever hurt, hit, restrained, shoved, or thrown mother or caused mother to fall. He denied ever grabbing at mother's purse. He explained he did not want to hurt anyone.
However, stepfather did testify about a recent incident where mother left his home at 4 a.m. after waking up from his snoring. He explained he woke up as mother was leaving. He was still half asleep as he told her to give him back the bowl of leftovers she was taking from his home, because she was always taking his bowls and not returning them. He grabbed at the bag that the bowl was in and they "tussled" over it a bit and they became entangled, but he did not intentionally harm her, and she did not fall.
Stepfather testified he had never done anything to cause the children to fear him. He repeatedly said he did not understand why they were in court on a domestic violence action regarding children, as he had no contact with children for over a year. He stated he never called or tried to be around children since mother moved out and had never threatened L.M.K. or stalked her. He also disagreed with L.M.K.'s testimony that mother's...
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