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Castle v. Castle

Court of Appeals of Kentucky

January 25, 2019

CHARLES CASTLE APPELLANT
v.
ROBIN CASTLE APPELLEE

          APPEAL FROM ROWAN CIRCUIT COURT HONORABLE BETH LEWIS MAZE, JUDGE ACTION NO. 17-D-00110-001

          BRIEF FOR APPELLANT: Paula Richardson Marsha Megan Hughes Richmond Morehead, Kentucky

          NO BRIEF FILED FOR APPELLEE

          BEFORE: JONES, NICKELL AND TAYLOR, JUDGES.

          OPINION

          NICKELL, JUDGE.

         Charles Castle appeals from denial of a motion to alter, amend or vacate entry of a domestic violence order ("DVO") restraining him from unauthorized contact with Robin Castle-his wife of eight years-and A.H. And O.H., [1] her twin teenage daughters from a prior marriage. Charles alleges entry of the DVO, premised on a sexual assault having occurred and the possibility of it recurring, was an abuse of the Rowan Circuit Court's discretion because there was no testimony he sexually assaulted Robin or A.H., and there was insufficient proof he sexually assaulted O.H. Following thorough review of the record, Charles' brief, [2] and the law, we reverse and direct entry of a new judgment.

         FACTS AND PROCEDURAL BACKGROUND

         On September 29, 2017, Robin petitioned the Rowan District Court for an emergency protective order ("EPO") for herself and her daughters. The petition was based on handwritten statements prepared by Robin and O.H. Robin wrote, Charles was "verbally and mentally abusive for eight years of our marriage (8 yrs.)," and, "on September 23rd he sexually harassed [O.H.], a minor under his care, while alone with her in the car." On a separate sheet, O.H. wrote,

[Charles] has sexually assualted [sic] me 3 times as of now. The most recent occuring [sic] on September 23, 2017. He would corner me in the car alone with him and ask me sexual questions, inapproperately [sic] grabbed my boob, and pressure [sic] me into showing him my boobs (I repeatedly told him no) and tried to tell me to not tell my mom or sister what happened while in the car.

         On October 9, 2017, Charles petitioned the Rowan Circuit Court to dissolve the marriage. As a result, the EPO petition was passed from Rowan District Court to Rowan Circuit Court where Robin and O.H. testified on October 27, 2017.

         O.H. was the first witness called during the hearing. She began her direct examination by describing the events of September 23, 2017-the day of the high school Homecoming dance:

O.H. I had to pick up my friend because we were going to do makeup that day together. And Charlie and me were in the car alone, and we had to take the long way around, and he asked me a lot of sexualized questions like, -- he'd always -- he'd ask, can I see your boobs or can I touch them or he asked me if I've had an orgasm or if I knew how --if I knew what a -- if I knew what it was. He talked about my mom's sex life. He -- asked if I knew how to kiss, if I knew -- if I knew what a blow job was and --
Atty How did that make you feel, [O.H.]?
O.H. Scared. I didn't know what he was going to do. I was scared he'd pull over the car and do something to me. When I got to my friend's house, I went in her bathroom and cried for five minutes.
Atty What else occurred during the drive?
O.H. He just asked a lot of really uncomfortable questions. (CRYING) I'm sorry.
Atty Did he touch you or attempt to touch you? O.H. I don't remember him attempting to touch me that time.
Atty Did that occur on another date and time?
O.H. Yeah.
Atty Describe what occurred -- when -- what was the date, to the best of your knowledge, of that occurrence, and describe what happened?
O.H. To the best of my knowledge, it was about half a year ago. I -- I don't know if that was before or after my birthday. I could have been fifteen at the time. I don't know.
. . .
O.H. It happened six months ago, and I -- we were in the car alone again, and I might -- I was -- we were talking about the last trip I went with my mom to Lexington, and I brought up all the stores we went to and -- we went to Victoria's Secret -- we went --that time that we went, and it got onto the topic, and he asked all these questions about what bra I was wearing, and he -- he asked he [sic] if he could feel like, the material, and he grabbed my boob. That's the time that he -- he touched me.
Atty How did that make you feel?
O.H. Really uncomfortable. I don't think I talked the rest of that drive.
Atty Did you confide in your mother or another person at that time?
O.H. I talked to my mom and my best friend, Catherine. I didn't tell anyone else.
. . .
Atty Did this occur on any other occasions?
O.H. Nothing to that level. No.
Atty What are some other occurrences regarding a sexual nature that have occurred between you and Mr. Castle?
O.H. I don't know if it would be referred as sexual, but like, when -- whenever his back was hurting or something, I -- I would help him with that or like, one time, when his thigh was hurting, I had . . . to do that. . . . Whenever he had aches or something, I would help him with that. . . . That's the only time I can really think that it could be seen as something out of the ordinary.
Atty What are you asking this Court to do?
O.H. I just don't want him around me or my family.
Atty How do you feel about being in Mr. Castle's presence?
O.H. Uncomfortable. I don't want to be around him. I'm mad, mostly, but scared, too.

         O.H. clarified she meant Charles "grabbed me inappropriately" when she used the term "sexually [assaulted]" in her statement in support of the EPO. O.H. testified three incidents involving Charles made her uncomfortable; she was asked about each incident separately.

         The first incident described, but not the first chronologically-the uncomfortable conversation in the car-occurred midday on September 23, 2017, while Charles was driving her to a friend's apartment to prepare for the Homecoming dance. O.H.'s description of the awkward conversation ended without mention of anything else memorable occurring that day, but when asked about another line in her written statement-"pressured me into showing him my boobs"- she said that also happened on September 23, but did not say whether she complied with his request. In her written statement she said, "I repeatedly ...


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