OPINION
Everett Buddenberg (“Everett”) appeals from a Domestic Violence Order (“DVO”) entered by the Laurel Family Court prohibiting him from any contact with his wife, Tricia Buddenberg (“Tricia”), and their three children. We agree with Everett that there was no evidence that he presented any imminent danger to the children. Hence, we must set aside the portion of the DVO relating to the children. We will not disturb the remaining portions of the DVO. We further find that there was insufficient evidence to support the trial court’s decision to hold Everett in criminal contempt for his violation of a prior Emergency Protective Order (“EPO”). Therefore, we must vacate the contempt order.
The essential facts of this action are not in dispute. Everett and Tricia Budden-berg were married in 1998. They have three children, all girls, who are ages 10, 6 and 4. Immediately prior to the filing of the petition, the parties resided in Massil-lon, Ohio. In mid-December 2008, Tricia left the marital residence with the children and traveled to Laurel County, Kentucky.
On December 15, 2008, Tricia filed a petition for an emergency protective order on behalf of herself and the children. 2 In the petition, she alleged
Petitioner [Tricia] has fled from the Respondent [Everett] due to the fact of threats that have been made to her. The respondent has a criminal complaint regarding inappropriate communication with a 13 year old female. The respondent admitted to past sexual molestation with siblings. He also has been terminated due to inappropiate (sic) internet contact with a young female child. Petitioner fears for the safety of her own daughters and she fears what he may do. He also threatened that she would regret leaving.
The trial court granted the petition and scheduled a hearing for December 22, 2008. The court rescheduled the hearing and extended the EPO because Everett was not served. Following a hearing on January 5, 2009, the trial court granted a
Thereafter, Everett filed a timely motion to set aside the contempt finding and the DVO. He asserted there was insufficient evidence that he had been personally served with the EPO at the time he made the phone contact with Tricia and the children and further that there was no evidence he had directed a third party to contact his children. He also argued that there was no evidence of domestic violence or abuse involving Tricia or the children, that the three year period for the DVO was excessive, and that he should receive visitation with the children while dissolution proceedings are pending in Ohio. Without making additional findings, the trial court denied Everett’s motion and affirmed its original order on January 15, 2009.
On appeal, Everett does not challenge the entry of the DVO with respect to Tricia. However, he argues that there was no evidence warranting the entry of the DVO with respect to the children. He also argues that the extension of the DVO for three years is unreasonable and unwarranted given the pending dissolution action in Ohio. Finally, he argues that the trial court erred by holding him in contempt because he did not attempt to contact Tricia or the children after he was personally served with the EPO.
The first issue turns on the sufficiency of the evidence supporting entry of a DVO protecting the children. Kentucky Revised Statute (“KRS”) 408.750 permits a court to enter a DVO following a hearing “if it finds from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur[.]” Under the preponderance standard, the court must conclude from the evidence that the victim “was more likely than not to have been a victim of domestic violence.”
Commonwealth v. Anderson,
There are allegations in the record that Everett engaged in “inappropriate” contact with a number of juvenile girls. Everett admitted to having recently sent inappropriate text messages to a 13-year old girl who lived nearby.
3
A police report
We agree with the trial court that Tricia has legitimate concerns about Everett’s conduct. However, we cannot find that his behavior meets the standard for granting a DVO with respect to the children. KRS 403.720(1) defines “domestic violence and abuse” as “physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, setenal abuse, or assault between family members ... [.] ” (Emphasis added). There are no allegations that Everett has ever engaged in any inappropriate conduct toward his daughters. Everett’s actions involving other children, disturbing as they are, do not rise to the level suggesting that he presents any imminent danger to his own children. Any long-term risk that Everett may offend with his own children would be better addressed as part of the custody proceedings in the dissolution action.
We note, however, that the trial court had jurisdiction to make a custody award to Tricia “if the child is present in this state and ... it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” KRS 403.828(1).
See Bissell v. Baumgardner,
Everett next argues that the three-year duration of the DVO was excessive under the circumstances. As noted above, there were no allegations that Everett ever attempted to engage in any physical or sexual abuse of Tricia or the children. Furthermore, the only basis for entry of the protective order with respect to Tricia was Everett’s veiled threat that Tricia would “regret” leaving. He also notes that the parties reside five to six hours away from each other and there is a pending dissolution action in Ohio.
We recognize the “enormous significance” which the entry of a DVO has on the parties involved.
Wright v. Wright,
However, Everett does not contest the trial court’s finding that his conduct toward Tricia amounted to an act of domestic violence or abuse. Once the court made this finding, it had the authority to fix a period for the DVO to be effective “not to exceed three (3) years.” KRS 403.750(2). The statute does not specify any particular factors in determining the
Finally, Everett argues that the trial court erred by holding him in contempt for violation of the EPO. In this case, the trial court imposed a punishment on Everett for his violation of the no-contact provisions of the EPO. Thus, the court found Everett to be in criminal contempt.
Commonwealth v. Burge,
The trial court’s exercise of its contempt powers will not be disturbed absent an abuse of its discretion.
Meyers v. Petrie,
While our review of the trial court’s exercise of its contempt powers is deferential, the trial court’s decision must be supported by sufficient evidence in the record to allow for meaningful appellate review. Here, the trial court did not make any specific findings supporting its conclusion that Everett had intentionally violated the no-contact provisions of the EPO.
Furthermore, in the case of criminal contempt, all elements, including willful disobedience, must be proven beyond a reasonable doubt.
Brockman v. Commonwealth,
Everett insisted that he did not attempt to call the children after being served. Given Everett’s contradictory testimony,
Furthermore, we are not convinced that the January 3, 2009, contact by Everett’s mother would amount to a willful violation of the EPO. The EPO specifies that “the Respondent be restrained from any communication with the above named Petitioner.” We recognize that such orders are typically interpreted to preclude both direct and indirect contact, including contact by third parties. However, the order itself only prevented Everett from contacting Tricia or the children.
We also note that Tricia informed the trial court on December 22, 2008, that she expected that Everett’s mother and stepfather would attempt to call the children. Tricia stated that she had no objection to such contact. Under these circumstances, we cannot agree that Everett willfully violated the EPO, even if he had asked his mother to make the January 3 call.
Accordingly, the Domestic Violence Order entered by the Laurel Circuit Court on January 5, 2009, is affirmed with respect to the protective order entered on behalf of Tricia and the custody and visitation provisions involving the children. However, the DVO is vacated with respect to the protective order entered on behalf of the parties’ children. The trial court shall reissue the DVO with restrictions that are consistent with this opinion. It is further ordered that the contempt order entered against Everett is vacated.
ALL CONCUR.
Notes
. Contrary to Everett’s brief, the petition filed by Tricia on December 15, 2008, includes a checkmark for the line, “Petitioner, on behalf of minor child(ren), requests ...
. The initial text message included a comment about a tight shirt the girl had been