RENDERED: APRIL 2, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1143-ME

ASHLEY HOLT APPELLANT 

v. 

APPEAL FROM HOPKINS CIRCUIT COURT

HONORABLE SUSAN WESLEY MCCLURE, JUDGE

ACTION NO. 17-D-00207-004

BROCK DUNBAR APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.

GOODWINE, JUDGE: Ashley Holt (“Holt”) appeals from the domestic violence 

order (“DVO”) entered by the Hopkins Circuit Court, Family Division on behalf of 

her former husband, Brock Dunbar (“Dunbar”) and the parties’ two minor children. 

Finding no error, we affirm.

BACKGROUND

On July 22, 2020, Dunbar petitioned the family court for a DVO 

against Holt. Based on his petition, the family court issued an emergency 
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protective order (“EPO”) on behalf of Dunbar and the children and scheduled a 

hearing on the petition.

At the hearing, Dunbar testified to an incident which occurred on July 

20, 2020, at Holt’s residence. On that day, Dunbar was leaving on a trip to 

Nashville, Tennessee, and wished to drop off a pair of shoes for the parties’ 

daughter and medication for the parties’ son at Holt’s home on his way out of 

town. He sent Holt a text message requesting to do so.1 When he received no 

response, he called her several times. Holt eventually responded by telling him to 

stay away and stating he was “going down.” Video Record (“VR”) at 8/18/2020,

11:28:50-11:28:57. Despite this response, Dunbar went to her house that evening. 

Holt did not answer when Dunbar knocked and rang the doorbell. 

However, Dunbar could hear her screaming at the children to get in the basement. 

Dunbar approached a window to speak with her. When Holt opened the window, 

she aimed a shotgun at Dunbar and said, “Get out of here. I’m going to blow your 

head off. I’m going to kill you.” VR at 8/18/2020, 11:30:09-11:30:14. Dunbar 

ducked out of her line of sight but then went back to try to speak with her again.

At this time, Holt exited her home and walked onto her screened 

porch. She was now holding a pistol not the shotgun. From the steps of the porch, 

 

1 According to Dunbar’s testimony, in the divorce action, the parties were ordered to 

communicate only through text messages. 
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she told Dunbar to leave. Dunbar walked back to his vehicle with the intention of 

leaving the premises. However, when he reached his vehicle and opened the 

driver’s side door, Holt fired three shots, all of which struck Dunbar’s vehicle. 

Assuming Holt had no more ammunition in the firearm and fearing for the safety 

of his children, Dunbar approached the porch to disarm Holt. She then shot him 

“at point blank range” in the kneecap. VR at 8/18/2020, 11:32:13. Dunbar 

disarmed Holt and she began to strike his face with her fists. 

Holt then went back inside her home. Fearful that she was going to 

return with the shotgun, Dunbar left. After leaving Holt’s home, Dunbar called his 

sister to inform her he had been shot and then called 911 while driving himself to 

the emergency room. He required surgery for his injury and was hospitalized for 

three days after the incident.

Dunbar also testified to prior violent acts by Holt, including an 

instance in which she used a taser on his neck and another where she began to 

drive away when he was exiting a vehicle, forcing him to jump from the moving 

vehicle. According to Dunbar, Holt previously threatened to commit suicide. 

The family court then heard testimony from Jack Hinton, Holt’s 

former paramour. The two dated between October 2019 and April 2020. During 

their relationship, Hinton observed several loaded firearms in Holt’s home within 

reach of the children. Holt expressed suicidal thoughts to Hinton on multiple 
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occasions, including telling him she thought she and her children would be “better 

off dead” if they contracted COVID-19. VR at 8/18/2020, 1:28:30-1:29:04. Holt 

told Hinton she hated Dunbar and wanted him “out of the picture.” Id. at 1:24:43-

1:25:14. Holt repeatedly said she wanted to shoot Dunbar and made such 

statements in front of the parties’ minor children. Id. at 1:27:34-1:27:46. Jacob

Wilkinson also testified to having been present on an occasion when Holt said she 

was going to shoot Dunbar.

Holt did not testify, nor did she present any witnesses on her behalf. 

At the close of evidence, the family court found the following:

[T]he evidence was uncontroverted. The [c]ourt finds, 

by a preponderance of the evidence, that [Holt] 

committed an act or threat of DV against [Dunbar] in that 

she purposefully caused bodily harm to [Dunbar] by 

intentionally shooting him. The children were present 

during this assault and were positioned near enough to 

the parties that they could hear and observe the events (at 

least partially). [Holt’s] actions placed the children at 

risk of harm. The [c]court finds, by a preponderance of 

the evidence, that [Holt] committed an act or threat of 

DV against the children in that she engaged in actions 

that would appear threatening to a reasonable person and 

would cause imminent fear given the circumstances. 

Given the family’s history, [Holt’s] conduct, and the 

events to which [Dunbar] testified, the [c]ourt also finds 

that it is reasonable that [Dunbar] believes that future 

domestic violence may occur again.
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Record (“R.”) at 18. The family court entered a DVO prohibiting Holt from 

having contact with Dunbar or the children for a period of two years. This appeal 

followed. 

STANDARD OF REVIEW

To enter a DVO, the family court must find “by a preponderance of 

the evidence that domestic violence and abuse has occurred and may again 

occur[.]” KRS2 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). “The standard of review for 

factual determinations is whether the family court’s finding of domestic violence 

was clearly erroneous.” Id. (citations omitted). “Findings are not clearly 

erroneous if they are supported by substantial evidence.” Id. at 114-15 (citation 

omitted). 

ANALYSIS

On appeal, Holt argues: (1) Dunbar’s testimony lacked credibility and 

should not have been relied upon by the family court; (2) there was insufficient 

evidence to support entry of the DVO on behalf of the children; (3) she is immune 

from civil action under KRS 503.085; (4) there was insufficient evidence to 

 

2 Kentucky Revised Statutes.
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support entry of the DVO on behalf of Dunbar; (5) the family court erred by 

considering evidence outside of the record; and (6) there was insufficient evidence 

to support the court’s finding that domestic violence may again occur. 

Before reaching the merits of Holt’s appeal, we must address a 

significant deficiency in her brief. An appellant’s brief must “contain at the 

beginning of the argument a statement with reference to the record showing 

whether the issue was properly preserved for review and, if so, in what manner.” 

CR3 76.12(4)(c)(v). “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) (citation omitted). Holt’s brief is 

devoid of preservation statements for her arguments. 

“Failing to comply with the civil rules is an unnecessary risk the 

appellate advocate should not chance. Compliance with CR 76.12 is mandatory.” 

Petrie v. Brackett, 590 S.W.3d 830, 834-85 (Ky. App. 2019) (citation omitted). 

“Our options when an appellate advocate fails to abide by the rules are: (1) to 

ignore the deficiency and proceed with the review; (2) to strike the brief or its 

offending portions . . .; or (3) to review the issues raised in the brief for manifest 

injustice only[.]” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010) (citation 

omitted). Because Holt’s brief fails on the merits, we will ignore the deficiency 

 

3 Kentucky Rules of Civil Procedure.
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and proceed with review of her claims. However, counsel cannot be assured of the 

same result if non-compliant in the future. 

First, Holt argues Dunbar’s testimony lacked credibility. Specifically, 

she alleges Dunbar lied during his testimony about a substantiation of abuse

against him by the Cabinet for Health and Family Services. During his direct 

testimony, Dunbar stated he had never committed acts of domestic violence against 

Holt or the children. VR at 8/18/2020, 11:30:41-11:31:12. During crossexamination, he contradicted this testimony by admitting to a 2010 substantiation

of abuse for spanking his stepchild. Id. at 11:51:30-11:53:05. 

“[D]ue regard shall be given to the opportunity of the [family] court to 

judge the credibility of the witnesses because judging the credibility of witnesses 

and weighing evidence are tasks within the exclusive province of the [family] 

court.” Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citations omitted). 

Despite the contradiction, the family court found Dunbar’s testimony credible. As 

noted by the court, his testimony was uncontroverted as to the events of July 20, 

2020. We have no basis for disturbing the family court’s findings.

Second, Holt claims there was insufficient evidence to support the 

family court’s entry of the DVO on behalf of the children. A court may enter a 

DVO on behalf of children under KRS 403.720(2). “Domestic violence and 

abuse” is defined to include “physical injury, serious physical injury, stalking, 
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sexual abuse, strangulation, assault, or the infliction of fear of imminent physical 

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

family members[.]” KRS 403.720(1). 

The family court found the children were aware of the incident and, 

on that basis, found they were reasonably placed in imminent fear of domestic 

violence. R. at 18. Dunbar testified he heard Holt scream at the children, 

instructing them to go to the basement before she approached him with the 

shotgun. The children were present in the home and able to at least hear the 

incident as it occurred. With no evidence contradicting this testimony, the family 

court did not err in finding Holt placed the children in fear of imminent domestic 

violence. 

Third, Holt claims she is immune from civil action for her use of force 

against Dunbar under KRS 503.085. A review of the record reveals Holt did not 

raise this argument before the family court. “It is the accepted rule that a question 

of law which is not presented to or passed upon by the trial court cannot be raised 

here for the first time.” Jones v. Livesay, 551 S.W.3d 47, 52 (Ky. App. 2018) 

(citation and internal quotation marks omitted). Holt’s failure to make this

argument before the family court is fatal to her appeal on the issue.

Furthermore, substantial evidence supports the family court’s entry of 

the DVO on Dunbar’s behalf. Holt attempts to blame Dunbar for the incident by
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characterizing him as a “jealous ex-husband” who posed a danger to her. 

However, these allegations are unsupported by the record. Instead, the record 

shows, upon Dunbar’s arrival at her home, Holt met him with a shotgun and 

threatened to kill him. She then fired shots at him as he was attempting to leave 

the property before shooting him in the knee, physically injuring him. This clearly 

meets the definition of domestic violence and abuse under KRS 403.720(1). 

Next, Holt alleges the family court impermissibly relied on evidence 

not in the record by referring to the “family’s history” in its findings of fact. It is 

true that “[c]ourts have no authority to consider evidence outside the record or to 

incorporate new proof into the record.” Sunrise Children’s Services, Inc. v. 

Kentucky Unemployment Insurance Commission, 515 S.W.3d 186, 190 (Ky. App. 

2016) (citation omitted). However, a vague reference to a family’s history does 

not amount to consideration of evidence outside the record. Holt identifies no 

specific evidence not in the record on which the family court relied. Furthermore, 

Dunbar testified to instances from the family’s past including ongoing custody 

issues, Holt’s history of violence and threats of suicide, as well as past 

communications and interactions between the parties. On this basis, the family 

court did not err.

Finally, Holt alleges there is not sufficient evidence in the record to 

support the family court’s finding that domestic violence may again occur. It is 
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Holt’s contention that Dunbar trespassed on her property and, so long as he does 

not do so again, no such events will occur in the future. A family court is required 

to find that, without entry of the DVO, domestic violence and abuse may again 

occur. KRS 403.740(1). In making such a determination, the court must consider 

the “totality of the circumstances.” Pettingill v. Pettingill, 480 S.W.3d 920, 925 

(Ky. 2015). 

Once again, the record does not support Holt’s allegations. Instead, 

the totality of the circumstances shows she expressed her desire to shoot Dunbar on 

multiple occasions. She then fired shots at him as he was attempting to comply 

with her request to leave the property. She shot him while her children were 

present in the home and aware of the situation. Considering these events, as well 

as Holt’s ownership of multiple firearms and her history of violent and suicidal 

threats, there is sufficient and uncontradicted evidence in the record to support the

family court’s finding that domestic violence may again occur. We find no error.

CONCLUSION

For the foregoing reasons, we affirm the DVO entered by the Hopkins 

Circuit Court, Family Division. 

ALL CONCUR.
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BRIEF FOR APPELLANT:

Daniel Sherman

Greenville, Kentucky

BRIEF FOR APPELLEE:

Thresa Taylor Hinton

Madisonville, Kentucky