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Halloway v. Simmons

Court of Appeals of Kentucky

September 29, 2017

DENISE HALLOWAY APPELLANT
v.
JAMES EDGAR SIMMONS APPELLEE

         APPEAL FROM OLDHAM CIRCUIT COURT HONORABLE DOREEN S. GOODWIN, JUDGE ACTION NO. 16-D-00050-001

          BRIEF FOR APPELLANT: Erin S. Kennedy Startzman Louisville, Kentucky

          BRIEF FOR APPELLEE: James L. Theiss LaGrange, Kentucky

          BEFORE: MAZE, STUMBO, AND TAYLOR, JUDGES.

          OPINION

          MAZE, JUDGE:

         This appeal arises from an Interpersonal Protective Order (IPO) entered by the Oldham Circuit Court to prevent Denise Halloway, Appellant, from stalking James Simmons, Appellee. As the record shows the trial court's findings of fact were clearly erroneous and application of law was flawed, we reverse.

         Background

         Halloway and Simmons were involved in a dating relationship and lived together in Simmons's house beginning in 2014. In November 2015, their relationship ended and Halloway moved out of Simmons's home. Simmons alleged that during their relationship in 2015, Halloway physically assaulted him at Belterra Casino. Halloway denied physically assaulting him. After their breakup, they did not continue seeing each other.

         On April 13, 2016, Simmons was at Captain's Quarters Restaurant on River Road enjoying drinks at the bar with Susan, a woman he had invited out for drinks. Halloway and Simmons saw each other as she walked through the restaurant to the outside area where she was to board the restaurant's yacht for an Easter dinner cruise. She was accompanied by her new boyfriend. Testimony was offered that Simmons was annoyed at seeing Halloway with her new boyfriend. Simmons, who drives as his personal car a limousine with his nickname, "Jimbo1, "on the license plate, contends that Halloway knew he was in the restaurant because she would have recognized his vehicle parked out front.

         Then, on May 12, 2016, Halloway had dinner with her boyfriend and another friend at the River House Restaurant and Raw Bar on River Road, before going to the attached Levee Restaurant and Bar for after dinner drinks. Simmons was at Levee. Halloway alleges that there was a verbal altercation at the restaurant during which Simmons verbally assaulted her. The record indicates that Simmons repeatedly texted Halloway that night, using explicit and degrading language. The following day, Simmons sent Halloway's son a similar message. He also contacted the deacon at her church.

         In response to Simmons's actions at Levee and the text messages he sent afterwards, Halloway sought and was issued an Emergency Protective Order ("EPO") in Jefferson County on May 13, 2016. Simmons violated this EPO on May 18, 2016, when he sent her a text message, that he contends was only sent on accident. On May 24, 2016, a Jefferson County court granted Halloway a Domestic Violence Order which prohibited Simmons from perpetrating further acts of abuse or contacting her, and he was to remain at all times 500 feet away from Halloway.

         Simmons faced misdemeanor charges in Jefferson County arising from his violation of the EPO. He had a pre-trial conference for these charges on June 13, 2016. The next day, on June 14, 2016, Simmons sought an IPO against Halloway in Oldham County.

         In his petition, Simmons accused Halloway of "targeting [his] location and coming in to such establishment[s] to cause further c[h]aos in [his] life." He also stated that, "[s]he is a pathological liar and I feel I need some type of protection for me so she [doesn't] abuse and manipulate the system by targeting my location." This temporary order was granted, prohibiting Halloway from "stalking" him, requiring her to stay 300 hundred feet away from him, and requiring "respondent to withdraw from the presence of petitioner if she enters a location where he has first occupied."

         On August 5, 2016, the trial court granted Simmons's petition for the IPO. At the hearing, Simmons testified and called one witness, Susan, and Halloway testified and called two witnesses, her son and a friend of both parties who witnessed Simmons's reaction at Captain's Quarters. The evidence presented all centered around the events at Belterra, Captain's Quarters, and Levee, and included the text messages sent by Simmons. After hearing the evidence, the trial court stated,

[t]he evidence presented today is disturbing…I think both of you share some culpability…I am going to enter an order for one year that respondent remain away from petitioner…that if you appear anywhere and you see that he's there, that you are to leave…it is basically going to work ...

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