RENDERED: SEPTEMBER 17, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0186-ME

JOAQUIN FUENTES-ORDUNA APPELLANT 

v. 

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE KATHY W. STEIN, JUDGE

ACTION NO. 19-D-01464-002

VIRGINIA LINDSEY CARMICAL APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.

GOODWINE, JUDGE: Joaquin Fuentes-Orduna (“Joaquin”) appeals from a

January 14, 2021 domestic violence order (“DVO”) entered against him by the 

Fayette Circuit Court, Family Division. After careful review of the entire record, 

we affirm.
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BACKGROUND

Joaquin and Virginia Carmichael (“Virginia”) were never married, but 

they have a minor son in common. This domestic violence action arose from an 

incident on January 1, 2021, when Virginia picked up their son from Joaquin at his 

residence. In the Petition/Motion for Order of Protection (the “Petition”),

1

she 

filed on January 4, 2021 on behalf of herself and her son, Virginia stated:

Joaquin called me at 9AM and demanded that I pick up 

our son. He has been very volatile towards me lately, 

calling me “trash” and other names in front of our son. 

He also tells my son that I do not want him when I 

require him to take him on his designated visitation days. 

Due to the escalation of his recent behavior, I asked a 

male friend to accompany me because I do not feel safe. 

When I called to let Joaquin know that I’d arrived for our 

child he refused to let me take him, stating that “my child 

isn’t going with any dogs.” He told me to go back home, 

get my vehicle and return alone. When I refused to leave 

without my child and threatened to call the police, he 

came out and started his vehicle as if he were going to 

flee with my child. He also removed something from his 

glove box which appeared to be a firearm. I contacted 

police and waited for an officer to accompany me inside 

to get my child. While waiting, Joaquin was messaging 

me telling me to come in because he was leaving. I feel 

that he started the vehicle in an attempt to manipulate me 

into entering his residence and possibly harm me. Once 

the officer arrived he handed over my child and we left. 

I fear that he will harm me. He has access to firearms 

and has posted photos with them on social media. His 

disregard for authority and lack of impulse control also 

frightens me. He is undocumented and I am very afraid 

 

1 The Petition incorrectly states it was filed on December 4, 2021.
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that he will take my child and flee or relocate and I will 

not be able to find him.

The trial court entered an emergency protective order (“EPO”) that same day and 

scheduled a hearing for January 14, 2021. The parties appeared before the trial 

court on January 14, 2021. Joaquin was represented by counsel and testified 

through an interpreter. Virginia was not represented by counsel.

Virginia’s testimony in response to initial questions from the trial 

court was largely consistent with her Petition. On cross examination, Joaquin’s 

attorney asked her what act of domestic violence Joaquin committed. In response, 

she admitted: “On the date in question, I don’t believe he committed an act of 

domestic violence; however, I fear that he will in the future given his rather 

irrational behavior.” She also testified on cross examination she was fifty or sixty 

feet away from Joaquin’s vehicle when she saw him take the object out of the 

glove box and admitted she could not tell what the object was. Virginia also 

admitted she dismissed a prior petition for a domestic violence order against 

Joaquin and that while she agreed to share joint custody and equal timesharing of 

their child with him, she did not necessarily feel safe with the child being with 

Joaquin one half of the time. She explained she had spoken with an attorney and 

felt comfortable with the agreement at that time but is not comfortable with it now 

because she knows Joaquin has access to firearms.
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Virginia’s knowledge of Joaquin’s access to firearms is based upon an 

April 19, 2020 social media post of him holding a firearm and other pictures on

social media, including one he deleted the day she filed the underlying Petition. 

The photographs and social media posts were not entered into evidence at the 

hearing.

After cross examination, the trial court reviewed Virginia’s prior 

domestic violence petition against Joaquin. After reviewing the petition, the trial 

court noted the petition was filed in December 2019 and, like this Petition, was 

based upon a disagreement involving their child. The trial court stated the prior 

petition alleges Joaquin arrived home drunk and threatened to put a bullet in 

Virginia’s head if she took the child and that Virginia was concerned about 

continued threats he made against her life. 

The trial court further stated there was a January 24, 2020 hearing on 

that petition, and Virginia, who was not represented by counsel, asked for the 

petition to be dismissed without prejudice. Joaquin’s attorney2stated the parties 

had reached an agreement for 2-2-3 timesharing that prohibited Joaquin from

consuming alcohol when caring for the child. 

The trial court then stated: “Based upon the dismissal without

prejudice by a person who was not represented by counsel, I am taking into 

 

2

Joaquin was represented by a different attorney at the January 24, 2020 hearing.
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consideration the allegations that were made in that petition.” The trial court asked 

Virginia if the statements she made in the prior petition were true and correct, and 

Virginia said they were. The trial court also asked her if her prior testimony 

describing the agreement for joint custody and equal timesharing referred to this 

same 2-2-3 agreement, and Virginia confirmed it did.

The trial court then questioned Virginia on how the 2-2-3 timesharing 

with Joaquin had been going. Virginia testified it was not going very well. She 

said Joaquin’s behavior towards her has been “relatively volatile.” She stated the 

party exercising timesharing was supposed to pick up the child at daycare to 

minimize contact, but Joaquin came up with excuses to force her to pick up the 

child from daycare so he could come to her residence. She believes Joaquin does 

this to stay in contact with her and to keep tabs on her. 

Virginia also testified that when Joaquin arrives to pick up the child, 

he typically makes advances towards her and rubs her hand when she is putting the 

child in the car seat. A couple of times, she allowed him to enter her residence, 

and he touched her behind or acted inappropriately.

The trial court then read into the record statements by Virginia from 

her Petition and asked Virginia to confirm that a Facebook photograph she 

referenced had been removed after she filed the Petition. Virginia responded 
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affirmatively and testified there was, however, still a picture of Joaquin with a gun 

on Instagram.

Joaquin testified next. He testified that “nothing happened” at the 

exchange on January 1, 2021. He stated that he told Virginia to get her own 

vehicle because the vehicle she had did not have a car seat for the child. He had no 

problem with her bringing a male friend to the exchange. He also stated he does 

not have any firearms, and the photo Virginia described was taken a long time ago. 

When asked by the trial court to confirm he has access to the firearm in the photo, 

he said he did not, and he has not seen the person who owned the firearm shown in 

the photograph for two or three years. 

Joaquin also testified he has never made any threats against Virginia. 

The trial court then asked Joaquin where he was when he saw Virginia arrive in the 

vehicle to pick up the child. Joaquin testified he was inside his home. The court 

asked how he was able to see if there was a car seat in the vehicle. Joaquin 

testified he wanted Virginia to get her car because it had the car seat he purchased 

for their son. The trial court found this response to be contrary to his prior 

testimony, and Joaquin clarified that he figured the vehicle in which Virginia 

arrived did not have a car seat. The trial court asked Joaquin if he was honest with 

this answer, and he stated he was. The trial court then admonished him that he 

swore an oath to be honest with all his answers.
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When the parties finished testifying, the trial court stated based upon 

the testimony, it found acts of domestic violence occurred in the past, and unless 

an order were entered, there will be further acts of domestic violence. The trial 

court did not identify orally on the record any evidence or particular grounds upon 

which its finding was based. The trial court then questioned Virginia on matters 

relating to timesharing, and Virginia provided additional testimony regarding 

Joaquin’s behavior during exchanges.

The trial court entered a DVO against Joaquin on form AOC-275.3, 

checking the box stating “it was established by a preponderance of the 

evidence . . . that an act(s) of domestic violence and abuse . . . has occurred and 

may occur again . . . .” The trial court also wrote the following on its January 14, 

2021 docket sheet: “this Pet filed previous EPO in Dec. 2019 that was dismissed 

at her request b/c they had reached a TS agreement. R was represented by counsel, 

Pet was not. Finding of DV that will continue if no DVO entered.”3 

The DVO restrains Joaquin from contacting or communicating with 

Virginia and their child, with the only exception being he can visit the child at 

Greenhouse 17.4 The DVO also restrains him from going within 500 feet of 

 

3 We do not express an opinion as to the sufficiency of the trial court’s findings. Joaquin did not 

request additional findings and only challenges the sufficiency of the evidence to support entry 

of the DVO. 

4 Greenhouse 17 is a nonprofit organization that provides, among other things, locations for 

supervised visitation, monitored exchanges, and other related services.
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Virginia’s residence and workplace. The trial court also awarded temporary 

custody of the parties’ child to Virginia, and the DVO prohibits Joaquin from 

possessing firearms for the duration of the DVO, which expires January 14, 2023.

STANDARD OF REVIEW

To enter a DVO, the trial court must conduct a hearing and find “by a 

preponderance of the evidence” that domestic violence and abuse has occurred and

may occur again. KRS5 403.740(1). “The preponderance of the evidence standard 

is satisfied when sufficient evidence establishes the alleged victim was more likely 

than not to have been a victim of domestic violence.” Caudill v. Caudill, 318 

S.W.3d 112, 114 (Ky. App. 2010) (citation omitted). Our standard of review for 

factual determinations is whether the trial court’s findings were clearly erroneous. 

Id. Findings of fact are not clearly erroneous if they are supported by substantial 

evidence. Id. at 114-15 (citing Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003)). 

ANALYSIS

On appeal, Joaquin argues: (1) the trial court abused its discretion in 

finding that an act of domestic violence and abuse occurred and may occur again; 

(2) it was an abuse of discretion for the trial court to use the alleged act of domestic 

violence from the previously dismissed domestic violence petition as the basis for 

 

5 Kentucky Revised Statutes.
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granting a DVO in this case; and (3) Virginia’s grievances should have been 

addressed in family court instead of domestic violence court.

Before addressing Joaquin’s arguments, we must first discuss the

parties’ violations of CR6 76.12. It is a dangerous precedent to permit appellate 

advocates to ignore procedural rules. Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. 

App. 2010). Procedural rules “do not exist for the mere sake of form and style. 

They are lights and buoys to mark the channels of safe passage and assure an 

expeditious voyage to the right destination. Their importance simply cannot be 

disdained or denigrated.” Id. (quoting Louisville and Jefferson Cty. Metropolitan 

Sewer Dist. v. Bischoff, 248 S.W.3d 533, 536 (Ky. 2007)).

Here, Joaquin did not comply with CR 76.12(4)(c)(v), which requires 

at the beginning of each argument “a statement with references to the record 

showing whether the issue was properly preserved for review, and, if so, in what 

manner.” “It is not the function or responsibility of this court to scour the record 

on appeal to ensure that an issue has been preserved.” Koester v. Koester, 569 

S.W.3d 412, 415 (Ky. App. 2019) (citing Phelps v. Louisville Water Co., 103 

S.W.3d 46 (Ky. 2003)). We require a statement of preservation:

so that we, the reviewing Court, can be confident the 

issue was properly presented to the trial court and 

therefore, is appropriate for our consideration. It also has 

a bearing on whether we employ the recognized standard 

 

6 Kentucky Rules of Civil Procedure.
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of review, or in the case of an unpreserved error, whether 

palpable error review is being requested and may be 

granted.

Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012).

CR 76.12(4)(c)(v) also requires an appellant’s argument to contain 

“ample supportive references to the record[.]” Joaquin’s brief references the video 

record in his statement of the case. This, however, does not satisfy CR 

76.12(4)(c)(v)’s separate requirement for his brief’s argument to contain “ample 

supportive references to the record.” In violation of CR 76.12(4)(c)(v), Joaquin’s 

brief contains only a handful of citations to the record in his first argument and 

none in his second and third arguments.

Also, Joaquin’s appendix does not comply with CR 76.12(4)(c)(vii), 

which requires appellants to include copies of the findings of fact, conclusions of 

law, and judgment in the appendix. Joaquin’s appendix includes only the trial 

court’s January 14, 2021 docket sheet and the Petition. It omits the trial court’s 

AOC Form 275.3 DVO and does not list the documents it includes and where each 

such document may be found in the record. CR 76.12(c)(vii).

Compliance with CR 76.12 is mandatory, and failing to comply with 

the civil rules is an unnecessary risk appellate advocates should not chance. Petrie 

v. Brackett, 590 S.W.3d 830, 834-35 (Ky. App. 2019) (citing Hallis, 328 S.W.3d at 

696). “Our options when an appellate advocate fails to abide by the rules are: (1) 
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to ignore the deficiency and proceed with the review; (2) to strike the brief or its 

offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief 

for manifest injustice only[.]” Hallis, 328 S.W.3d at 696 (citing Elwell v. Stone, 

799 S.W.2d 46, 47 (Ky. App. 1990)). 

Before deciding this issue, we note Virginia failed to file a brief. 

Subject to exceptions that do not apply here, the filing of a brief by appellants and 

appellees is mandatory. CR 76.12(1). Our options when an appellee fails to file a 

brief include: (1) accept the appellant’s statement of the facts and issues as 

correct; (2) reverse the judgment if appellant’s brief reasonably appears to sustain 

such action; or (3) regard the appellee’s failure as a confession of error and reverse 

the judgment without considering the merits of the case. CR 76.12(8)(c). 

“The decision as to how to proceed in imposing such penalties is a 

matter committed to our discretion.” Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. 

App. 2007) (citations omitted). We recognize that issuance of a DVO is a serious 

matter, as it affords the victim protection from physical, psychological, and 

emotional harm. Matehuala v. Torres, 547 S.W.3d 142, 145 (Ky. App. 2018). 

Joaquin did not request a review for palpable error. “However, ‘the impact of 

having an EPO or DVO entered improperly, hastily, or without a valid basis can 

have a devastating effect on the alleged perpetrator.’” Id. (quoting Wright v. 

Wright, 181 S.W.3d 49, 52 (Ky. App. 2005)). We will, therefore, review for 
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manifest injustice only. Elwell, 799 S.W.2d at 48. “[T]he required showing is 

probability of a different result or error so fundamental as to threaten a [party’s] 

entitlement to due process of law.” Petrie, 590 S.W.3d at 835 (quoting Martin v. 

Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006)).7

Joaquin first argues the trial court abused its discretion in finding an 

act of domestic violence or abuse occurred and may again occur. “Domestic 

violence and abuse” is defined as “physical injury, serious physical injury, 

stalking, sexual abuse, strangulation, assault, or the infliction of fear of imminent 

physical injury, serious physical injury, sexual abuse, strangulation, or assault 

between family members or members of an unmarried couple[.]” KRS 403.720(1). 

“Imminent” means “impending danger, and, in the context of domestic violence 

and abuse as defined by KRS 403.720, belief that danger is imminent can be 

inferred from a past pattern of repeated serious abuse.” KRS 503.010(3).

After careful review of the record, we find no manifest injustice in the 

trial court’s finding that an act of domestic violence occurred and may occur again 

if a DVO is not entered. We first address the trial court’s finding that an act of 

domestic violence or abuse occurred. 

 

7 Our decision to review for manifest injustice only is based solely on Appellant’s failure to 

comply with CR 76.12(4)(c)(v), which sets forth the requirement for preservation statements. 

See Blackaby v. Barnes, 614 S.W.3d 897, 900 n.4 (Ky. 2021) (indicating palpable error review is 

appropriate only where briefing defect pertains to statements regarding preservation of error). 

Appellant’s argument contains no preservation statements.
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The trial court’s docket sheet indicates this finding is based upon 

Joaquin’s threats against Virginia’s life contained in her December 2019 petition. 

The petition itself is not part of the record on appeal; however, after reading 

statements from it into the record, the trial court asked Virginia if those statements 

were true, and she stated they were. See Hohman v. Dery, 371 S.W.3d 780, 781 

(Ky. App. 2012) (stating the court read the petition into the record, and the 

petitioner adopted the statements contained in it); KRE8 614(b) (stating “[t]he court 

may interrogate witnesses, whether called by itself or by a party.”). It was 

reasonable to infer that Joaquin’s threat in December 2019 to put a bullet in 

Virginia’s head and other threats against her life caused Virginia to fear imminent 

injury and, therefore, constitute an act of domestic violence.

This is not a situation in which the trial court took judicial notice of 

information contained in the December 2019 petition. Instead, it read from the 

petition and questioned Virginia about it. Joaquin did not object to the trial court’s 

review of the December 2019 petition. Nor did he object to the trial court’s

questioning of Virginia about the threats. Joaquin also had the opportunity to 

cross-examine Virginia relating to these threats.

Joaquin denied threatening Virginia. Much deference, however, is to 

be given to the decision of a trial court, and “[a] family court operating as finder of 

 

8 Kentucky Rules of Evidence.
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fact has extremely broad discretion with respect to testimony presented and may 

choose to believe or disbelieve any part of it.” Bailey v. Bailey, 231 S.W.3d 793, 

796 (Ky. App. 2007). It is clear from the record that the trial court questioned 

Joaquin’s truthfulness.

We also find no error in the trial court’s finding that domestic 

violence or abuse may occur again. To make this finding, the trial court must 

consider the totality of the circumstances. See Pettingill v. Pettingill, 480 S.W.3d 

920, 925 (Ky. 2015) (“The predictive nature of the standard requires the family 

court to consider the totality of the circumstances and weigh the risk of future 

violence against issuing a protective order.”). 

Virginia’s testimony regarding Joaquin’s prior threats supports this 

finding. See KRS 503.010(3) (stating “belief that danger is imminent can be 

inferred from a past pattern of repeated serious abuse.”). In addition, Virginia 

testified that Joaquin’s behavior has been hostile, volatile, and irrational, and she 

provided evidence of various actions by Joaquin at exchanges indicating further 

acts of domestic violence may occur.

For example, she testified he makes excuses to pick up their child at 

her residence to keep tabs on her. She also testified of photographs showing him 

with firearms. She testified he made advances towards her and touched her 

inappropriately at exchanges. Also, like the exchange in December 2019 when he 
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threatened Virginia, there is evidence Joaquin still refuses, at least initially, to 

allow Virginia to take their child at scheduled exchanges. At the January 1, 2021 

exchange, she testified Joaquin would not give her the child because he said he did 

not want the child to go with a dog. At the same exchange, she saw him take a 

black object out of his vehicle’s glove box and testified he told her to leave and 

come back alone to his apartment. She felt he wanted her to come in his apartment 

to harm her. Furthermore, at the time Virginia filed this Petition, their child was 

not even three years old. The parties will continue to co-parent for many more 

years. Considering the totality of the circumstances, we conclude the trial court 

did not err in finding acts of domestic violence may occur again. 

The cases relied upon by Joaquin to argue the trial court abused its 

discretion in issuing the DVO are factually distinguishable. In each case, the DVO 

was reversed because entry of the DVO was not supported by substantial evidence. 

In Caudill, 318 S.W.3d at 115, the trial court erred by issuing a DVO based solely 

upon an “unwanted touching,” which consisted of pushing a person out of the way 

to enter the home. In Pasley v. Pasley, 333 S.W.3d 446, 448 (Ky. App. 2010), the

petitioner relied upon an unsupported statement that she was unsure what the 

respondent would do and was afraid of him. Also, while allegations in Hall v. 

Smith, 599 S.W.3d 451, 453 (Ky. App. 2020), contain similarities to the Petition 

here, there was no evidence in Hall that an act of domestic violence occurred, and 
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there was no evidence of an imminent danger of domestic violence. Unlike these 

cases, there is evidence Joaquin committed an act of domestic violence in 

December 2019. There is also evidence of ongoing conflict at exchanges since 

2019 supporting Virginia’s claim that she fears future acts of domestic violence.

Joaquin’s second argument is it was an abuse of discretion for the trial 

court to base the DVO upon acts of domestic violence alleged in the December 

2019 domestic violence petition. He argues Virginia could not have been in 

genuine fear of imminent harm from those threats because she did not mention 

them in her Petition or in her initial testimony at the hearing and because she 

dismissed the December 2019 petition by agreement and then agreed to joint 

custody and equal timesharing. “We reiterate that the family court is in the best 

position to judge the credibility of the witnesses and weigh the evidence 

presented.” Hohman, 371 S.W.3d at 783. Also, the trial court questioned 

Joaquin’s truthfulness and was free to believe or disbelieve any part of the parties’ 

testimony. Bailey, 231 S.W.3d at 796.

Last, Joaquin argues Virginia’s concerns should have been addressed 

in family court instead of through a petition for a DVO. More specifically, he 

argues Virginia’s motivation in filing the domestic violence petition was to litigate 

child custody issues at less expense and to try and obtain an advantage in child 

custody disputes with Joaquin. We recognize, of course, that DVOs are intended 
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to protect victims of domestic abuse. Manning v. Willett, 221 S.W.3d 394, 397 

(Ky. App. 2007). We also do not condone the frivolous use of obtaining DVOs to 

manipulate courts “in order to get ‘one-up’ on the other party” in some other 

proceeding such as a civil lawsuit. Wright, 181 S.W.3d at 52. Here, however, we 

conclude the trial court did not err in issuing the DVO, and Joaquin directs us to 

nothing in the record to support his contrary argument. 

CONCLUSION

For the reasons stated above, we affirm the Fayette Circuit Court’s 

January 14, 2021 DVO against Appellant Joaquin Fuentes-Orduna.

ALL CONCUR.

BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.

Daniel L. Thompson

Lexington, Kentucky