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Williford v. Williford

Court of Appeals of Kentucky

August 23, 2019



          BRIEF FOR APPELLANT: Sam Lowe

          BRIEF FOR APPELLEE: John Corey Morgan



          ACREE, JUDGE.

         Appellant, 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.


         Russell 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).

         A 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.[1]

         Russell 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 times.

         Russell 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.

         On 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 assaulted Penny.

         Robbie 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.

         Robbie 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."

         Kimberley 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 "him."

         Penny 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 recollections.

         On 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.

         After 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 followed.


         When we 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)).

         The 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).

         Additionally, CR[2] 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 ...

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