RENDERED: FEBRUARY 3, 2023; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2022

- CA

- 0591

- ME
BRETT LUCKABAUGH APPELLANT

v. APPEAL FROM WARREN CIRCUIT COURT

HONORABLE DAVID A. LANPHEAR, JUDGE ACTION NO. 22

- D

- 00015

- 001

MARCIA LUCKABAUGH APPELLEE

OPINION AFFIRMING
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BEFORE: CETRULO, DIXON, AND EASTON, JUDGES. EASTON, JUDGE: Brett Luckabaugh (“Brett”) appeals from the Warren Circuit Court’s o rder, entered on March 16 , 2022, which granted an o rder of p rotection , specifically a d omestic v iolence o rder (“DVO”), to his mother, the Appellee, Marcia Luckabaugh (“Mar ci a”)

. Appellant argues the c ircuit c ourt e rred by entering the DVO

. Finding no error, w e affirm.- 2

- I. FACTUAL AND PROCEDURAL HISTORY On December 29, 2021, Marcia filed a p etition for o rder of p rotection in the Marshall Family Court against her son , Brett

. In the p etition, Mar ci a alleges
Brett threatened to kill her during a phone call , which took place on December 25,
2021. The Marshall Family Court granted a n e mergency p rotecti ve o rder on December 29, 2021, and th at court set a hearing for January 11, 2022.

O n January 4, 2022, an o rder t ran sferring was entered, sending the case to Warren County. There is no indication of any objection to this transfer.
Brett had not been served with the initial summons. T he Warren Family Court
issued a subsequent summons with a n ew court date of January 19, 2022. Brett was served with this summons on January 7, 2022.

After a first continuance at the request of Brett’s c ounsel and a second
continuance d ue to i llness of Mar ci a’s counsel , the court held an evidentiary hearing on Marc h 16, 2022 . Both parties testified

. After the evidentiary hearing, the trial court granted M ar ci a a DVO against Brett for six (6) months, to expire on September 16, 2022. In addition to AOC F orm 275.3, t he trial court issued
f indings of f

act and c onclus ions of l aw, which stated the c ourt announced its findings of fact and conclusions of law on the record and incorporat ed them into the written order

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- II. STANDARD OF REVIEW We review the issuance of a DVO by the trial court for abuse of discretion. Johnston v. Johnston , 639 S.W.3d 428, 431 (Ky. App. 2021). T he trial court’s findings of fact shall not be set aside unless they were clearly erroneous. Kentucky Rules of Civil Procedure (“CR”) 52.01. A tria l court’s findings of fact are not clearly erroneous if supported by s ubstantial evidence. Moore v. Asente , 110 S.W.3d 336, 354 (Ky. 2003).

We note Mar ci a did not file a brief after her counsel withdrew f rom his representation of her in this matter , alth ough she did file a pro se document

. We are permitted discretion in how to address this failure under RAP 1 31(H)(3)

. We decline to sanction Mar ci a for failure to file a brief. The factual and legal issues were fairly presented by the record itself , which was not voluminous

.

III. ANALYSIS
Brett a rgues the trial court erred in granting the DVO

. His argument is two

- fold

. F irst, the trial court was influenced by inappropriate bias or prejudice when assessing t he credibility of the parties . Second, the facts do not support a finding that domestic violence is likely to occur in the future.

We find no basis for Brett’s assertion the trial court demonstrated any
bias or prejudice during the proceedings

. Brett relies upon one particul ar remark

1 Kentucky Rules of Appellate Procedure

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made by the judge after the hearing when the judge explained his reasoning for his decision: “I don’t know of any reason why a mother would create a fiction that her
child intended to kill her. I just, I cannot

. . . I cannot imagine that.” Br ett argues this statement illustrates an inherent bias applied to th is case. We disagree.

First, we will not usually address issues not raised with the trial court. Regional Jail Authority v. Tackett , 770 S.W.2d 225, 228 (Ky. 19 89 ). Brett did not seek recusal of the judge after the supposedly offending comment. Even if considered, the single statement, taken out of the context of the entire statement of the court does not show a sufficient bias to justify disqualification. The court ’s comments would have to be of such a nature to indicate a fair decision by the court was impossible. Brown v. Commonwealth , 297 S.W.3d 557, 5 6 3

- 6 4 (Ky. 2009).

The comment was not made at the beginning of the court’s comments. It was made after approxi mately seven minutes of explanation. It was followed by the judge commenting on Mar ci a’s lack of motive to make up the allegation, not the motive of all mothers. The record here does not support any finding of partiality or bias to justify the relief Bre tt request s .

As for Brett’s second contention, we begin with the requirements for a valid o rder of p rotection. “A trial court is authorized to issue a DVO if it ‘finds by a preponderance of the evidence that domestic violence and abuse has occurred

an d may again occur [

. ] ’” Castle v. Castle , 567 S.W.3d 908, 915 (Ky. App. 2019).- 5

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Domestic violence includes not just acts of violence but words o r actions creating a fear of such violence. KRS 403.7 2 0(2)(a). In the present case, the trial court filled out AOC Form 275.3, and checked the box under “Additional Findings” which
stated : “For the Petitioner against the Respondent in that it was established, by a preponderance of the evidence, that an act (s) of domestic violence and ab use . . . has occurred and may again occur [

. ] ”

The trial court made additional oral findings on the record, which were then incorporated into written f indings of f

act and c onclusions of l aw, also dated March 16, 2022. The Court has reviewed these oral fin dings. The oral statements support the written summary. Brett admits he was very angry during the phone call at issue . Brett admits he called Mar ci a a bitch as well as using a

more vulgar term of a c***. Brett further admits he told Mar ci a to f *** hers elf. While Brett denied the spoken state ment of an intent to kill Mar ci a, he admits he told her it was “nice knowing you.” He admits expressing frustration over people talking about his friend Dan. Mar ci a testified the threat to kill was related to
anyo ne who might say something about Dan.

The trial court was entitled to accept any part of the testimony as true

. In doing so, the trial court here could accept Brett’s admission of being very angry and making various insults . The judge could also accept Mar ci a’s statement of the
threat to kill. Mar ci a also commented on the influence of Brett’s friend Dan as a- 6

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reason to believe the threats would be repeated. It was supposed comments about Dan which led to the first threat. Given the anger in the situation and the history between these parties, including a recent hospitalization of Brett for mental health obser vation upon Mar ci a’s petition , the judge was justified in finding the required likelihood of further threats being made.

When reviewing an o rder of p rotection, “the test is not whether we would have decided it differently, but whether the court’s f indings were clearly erroneous or that it abused its discretion.” Gomez v. Gomez , 254 S.W.3d 838, 842 (Ky. App. 2008). We give great deference to the trial courts a s the finders of fact. “It has long been held that the trier of fact has the right to bel ieve the evidence presented by one litigant in preference to another.” Commonwealth v. Anderson , 934 S.W.2d 276, 278 (Ky. 1996). “The trier of fact may take into consideration all
the circumstances o f the case, including the credibility of the witness [ es ] .” Id. The trial court acted within its discretion in this case.

IV. CONCLUSION For the foregoing reasons, we affirm the Warren Family Court.

ALL CONCUR

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BRIEF FOR APPELLANT: Tim Hendrix Bowling Green, Kentucky NO BRIEF FOR APPELLEE

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