FROM SIMPSON FAMILY COURT HONORABLE G. SIDNOR BRODERSON,
JUDGE ACTION NO. 18-D-00044-001
FOR APPELLANT: Sam Lowe
FOR APPELLEE: John Corey Morgan
BEFORE: ACREE, NICKELL AND L. THOMPSON, JUDGES.
Penny Williford, appeals the Simpson Family Court's
August 1, 2018, domestic violence order entered against her
at the urging of her husband, Appellee, Russell Williford.
Penny claims she was not afforded a full evidentiary hearing
and that evidence presented did not meet the preponderance of
the evidence standard. After careful review, we affirm.
FACTS AND PROCEDURE
filed a petition for an order of protection against Penny on
July 18, 2018. He alleged that three days earlier Penny
"threatened to blow my head off, to kill me, that I was
going to be a dead person. Told her sister on the phone to
give her mother a box after she kills me and herself. All 3
children heard their mom threatened me and she admitted it to
the Sheriff in front of all of us." (R. at 1).
hearing was held on August 1, 2018, before the Simpson Family
Court. Russell testified that he lives in the marital
residence at 2601 Temperance Road in Franklin with Penny and
his three daughters Robbie (19), Rhaine (14), and Reece (10).
Russell stated the incident started at 8:30 AM on July 18,
2018. He said he woke up to check on his daughters, Rhaine
and Reece, who were sleeping in the same room.
stated that when he went in the room where his daughters were
still asleep he heard someone talking loudly outside the
window, apparently on a phone, saying: "Tell mom to take
the box. If I go to jail or I kill myself, then just tell her
to take it." Russell said he could not see the person
speaking but that he recognized Penny's voice. Russell
also testified that Penny said: "I'm going to go in
there and get him in an argument and blow his head off."
Russell stated neither he nor his wife own a firearm of which
he was aware but that he took Penny's statements
seriously. He said he then woke his two daughters because he
was afraid they might have to get out of the house due to
what he heard Penny say. Russell said he then asked his
daughters to listen to what he heard outside the window
because he said Penny made the above statements multiple
next testified that he ran upstairs and woke the oldest
child, Robbie, and brought her downstairs. Russell stated
that the children appeared frightened and urged him to get
out of the house, so they started making their way toward the
front door to leave. While this was happening, Russell called
9-1-1 and a sheriff's deputy arrived shortly thereafter.
After a conversation with the sheriff's deputy, Penny was
instructed to leave the premises; Russell testified that he
heard Penny admit to the sheriff's deputy that she made
the statements he reported and that she threatened him.
cross-examination Russell stated that Penny had threatened
him multiple times over the course of their thirty-two-year
relationship. He also testified that he never threatened or
testified next. Her version of the events corroborated
Russell's earlier testimony. Robbie also stated that when
Penny walked back in the house after her phone conversation
she looked at Russell and said, "You're dead."
Robbie testified that she felt scared during this time and
that she heard Penny's conversation with the
sheriff's deputy in which she admitted to him that she
was going to blow Russell's head off.
also stated that she heard Penny threaten Russell in the
past. Robbie stated that early in June 2018, Penny said,
referring to Russell: "He'll be dead soon enough, it
doesn't matter. I can't wait till he's dead.
He'll be dead soon."
Ellis, Penny's sister, testified next for Penny. She was
the person to whom Penny was speaking on the phone. Kimberley
testified that during the phone conversation Penny was upset
and venting, but she never mentioned with whom she was angry.
Kimberley did state that Penny used the phrase: "I have
taken all I can take, and I could shoot him." Kimberley
said she never knew Penny to own a gun and that she never
inquired as to whom Penny was referring when she said
was last to testify at the hearing. In response to
Robbie's testimony, Penny stated she believed Robbie was
not being truthful. Penny's position was that Russell
assaulted her multiple times throughout the course of their
relationship, but she never reported him when she could have.
The family court gave her an opportunity to testify as to any
previous assaults by Russell but narrowed the line of
questioning once Penny admitted that she neither reported
Russell nor had any evidence of such assaults beyond her
cross, Penny also admitted that in her phone conversation she
"was referring mostly to her husband," and
corroborated Russell's and Robbie's testimonies
concerning her discussion with the sheriff's deputy.
the hearing, the trial court entered a domestic violence
order for a three-year period to end on August 1, 2021. In
the additional findings, the family court checked one box,
such that the findings read: "For [Russell] against
[Penny] in that it was established, by a preponderance of the
evidence, that an act(s) of domestic violence and abuse has
occurred and may again occur . . . ." This appeal
review a decision of the family court, "the test is not
whether the appellate court would have decided it
differently, but whether the findings of the family court are
clearly erroneous, whether it applied the correct law, or
whether it abused its discretion." Coffman v.
Rankin, 260 S.W.3d 767, 770 (Ky. 2008) (quoting B.C.
v. B.T., 182 S.W.3d 213, 219-20 (Ky. App. 2005)).
preponderance of the evidence standard is met when sufficient
evidence establishes that the petitioner is "more likely
than not" to have been a victim of dating violence and
abuse, sexual assault, or stalking. See Baird v.
Baird, 234 S.W.3d 385, 387 (Ky. App. 2007) (applying the
preponderance of the evidence standard in the context of the
issuance of a domestic violence order).
52.01 provides that a trial court's "[f]indings of
fact shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court
to judge the credibility of the witnesses." See also
Reichle v. Reichle,719 S.W.2d 442, 444 (Ky. 1986).
Findings are not clearly erroneous if they are supported by
substantial evidence. Moore v. Asente, 110 S.W.3d
336, 354 (Ky. 2003). Substantial evidence is evidence of
sufficient probative value that it permits a reasonable mind
to accept as adequate the factual ...