Castle v. Castle
567 S.W.3d 908
| Ky. Ct. App. | 2019Background
- Robin Castle petitioned for an emergency protective order (EPO) on Sept. 29, 2017, seeking protection for herself and her twin daughters after O.H. (a minor) reported sexualized questions and an earlier incident in which Charles allegedly grabbed her breast.
- O.H. testified at the Rowan Circuit Court hearing that on Sept. 23, 2017 Charles asked sexual questions in the car but did not touch her that day; she also reported a separate incident about six months earlier in which Charles grabbed her breast while driving home from grocery shopping.
- Robin confronted Charles after learning of the earlier incident; Charles allegedly said the contact was accidental and "barely brushed her." Robin did not report the incident to police until later.
- The trial court orally found O.H. credible, found sexual misconduct had occurred and might recur, and entered a Domestic Violence Order (DVO) using the AOC form, checking boxes indicating "sexual assault" had occurred and may recur. No detailed written factual findings accompanied the order.
- Charles moved to alter/amend/vacate the DVO arguing insufficient proof of sexual assault or imminent danger, and that the DVO improperly extended to Robin and A.H. (who had no allegations). The trial court denied the motion without providing written findings.
- The Court of Appeals reversed, holding the DVO must be vacated because the trial court failed to make required written findings and the record lacked a preponderance of evidence that the touching constituted sexual abuse/assault sufficient to support a DVO as entered.
Issues
| Issue | Plaintiff's Argument (Robin) | Defendant's Argument (Castle) | Held |
|---|---|---|---|
| 1. Whether the trial court properly entered a DVO based on sexual assault/abuse | The testimony (O.H.'s account and Robin's statements) showed sexualized conduct and an earlier touching, supporting fear of recurrence and a DVO | Insufficient proof: no testimony of sexual touch on Sept. 23, 2017; earlier touching not shown to be for sexual gratification or likely to recur | Reversed: trial court erred — no written findings and record lacked preponderance proof that touching was sexual abuse sufficient for a DVO |
| 2. Whether the trial court satisfied CR 52.01/related case law by making written findings | Oral findings and checked boxes on AOC form sufficiently reflected reasons for order | Trial court failed to include specific written findings of fact and conclusions of law as required | Reversed: mandatory written findings were absent; oral findings not incorporated into the written order |
| 3. Whether a DVO could be entered on behalf of Robin and A.H. absent allegations against them | Entry was appropriate out of caution given household dynamics and risk of retaliation | No allegations or proof of abuse toward Robin or A.H.; DVO cannot be entered without preponderance showing as to each protected person | Reversed as to Robin and A.H.: no grounds existed to enter a DVO for them |
| 4. Whether the trial court properly admitted Robin’s testimony about O.H.'s out-of-court statements under the Jett doctrine | Robin’s repetition of her daughter’s statements was admissible under Jett to explain subsequent conduct and context | Admission was hearsay; Jett was misapplied because Robin merely repeated what O.H. had said at trial and added nothing new | Error: trial court misapplied Jett; Robin’s repetition constituted hearsay without proper predicate |
Key Cases Cited
- Thurman v. Thurman, 560 S.W.3d 884 (Ky. App. 2018) (trial courts must make written findings to support issuance of DVOs)
- Pettingill v. Pettingill, 480 S.W.3d 920 (Ky. 2015) (CR 52.01 requires specific written findings of fact and conclusions of law in bench trials)
- Kindred Nursing Centers Ltd. P’ship v. Sloan, 329 S.W.3d 347 (Ky. App. 2010) (oral findings alone are insufficient on appeal absent incorporation into a written order)
- Bills v. Commonwealth, 851 S.W.2d 466 (Ky. 1993) (inadvertent or accidental touching is not sexual gratification)
- Edmondson v. Commonwealth, 526 S.W.3d 78 (Ky. 2017) (intent for sexual gratification may be inferred from actions and circumstances; circumstantial proof can suffice)
- Caudill v. Caudill, 318 S.W.3d 112 (Ky. App. 2010) (explaining preponderance standard and standard of review for domestic violence findings)