RENDERED: APRIL 15, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1300-ME

RICHMOND ASHLEY POWERS APPELLANT 

v. 

APPEAL FROM SHELBY FAMILY COURT

HONORABLE S. MARIE HELLARD, JUDGE

ACTION NO. 21-D-00135-001

ANGELA ALLEN OSBORNE APPELLEE 

OPINION

REVERSING

**   **  **

BEFORE: CETRULO, DIXON, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Richmond Ashley Powers has appealed from the three-year 

domestic violence order (DVO) entered by the Shelby Family Court on October 

21, 2021. Because we agree with Powers that there was insufficient evidence to 

support the entry of the DVO, we reverse.

Angela Allen Osborne filed a petition/motion on October 9, 2021, 

seeking an order of protection against her former boyfriend, with whom she had 
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lived in the past. She indicated that a weapon was involved and that she believed 

him to be armed and dangerous. Angela set forth the basis of her petition as 

follows:

On September 30, 2021, Richmond Ashley Powers 

emailed me (to multiple email accounts) a suicide note. 

The context of the note was insulting and derogatory. 

This was not the first time that he had sent a note of [this] 

nature. 

Richmond was missing over 48 hours. I was 

notified of his whereabouts by a therapist that Richmond 

was assigned to in Baptist Health-Corbin. Richmond 

over the course of 2 days had attempted suicide twice, 

once with pills and a second time by carbon monoxide 

poisoning. Richmond had driven onto the property of a 

homeowner in Berea, Ky. It was on someone’s private 

property. Richmond was pulled from the car and taken to 

the local medical facility in Berea. When hospital 

personnel were alerted that this had been a suicide 

attempt, he was sent to Baptist Health-Corbin. The 

facility has a psychiatric unit. During the course of the 7-

day stay, I was called 3 different times by the therapist 

assigned to Richmond, asking if our relationship was 

over – I said that yes it was, all 3 times – I was told that 

“he was not going to take this well.”

His mother had relayed the message that 

Richmond was to be released from the Corbin facility 

and being transferred to a Lexington facility to be held 

for 2-3 more weeks. Surprisingly, he was released today 

10/8/21.

When I was apprised that he was missing, his 

sister, Leigh Anne Burkhard, shared with me that he had 

a handgun and that his family has dealt with decades of 

his mental illness. This was never shared with me. As 

he had a handgun and I was the subject of his suicide 
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note, I was too scared to stay in my own home in Shelby 

County and had to go stay with my mother in New 

Albany, IN until he was found. 

The last time I spoke to his therapist, she was not 

aware of the handgun as his family had not shared the 

information with her either. To my knowledge the 

handgun has not been located.

I fear for my life. He has no value of his own life 

due to the multiple suicide attempts and since I was the 

crux that started this spiral of events, I believe he has no 

value of my life. I don’t want to have to be a victim 

before attention is called to him for his behavior. I ask 

that an Emergency Protective Order be granted to protect 

me.

The court entered an Emergency Protective Order (EPO) the same day, scheduled a 

hearing, and issued a protective order summons.

The court held a DVO hearing on October 20, 2021, where both 

parties appeared with their respective counsel. Angela described Richmond as her 

former boyfriend and stated that they had lived together. During her testimony, 

Angela introduced a copy of Richmond’s suicide note, where he identified her 

multiple times as the primary source of his decision to commit suicide. She was 

fearful that he would hurt her as well. On cross-examination, Angela stated that 

her petition was solely based on the suicide note as well as later discussions she 

had with Richmond’s therapist and sister, not on any act of domestic violence that 

occurred prior to the receipt of the email on September 30, 2021. Richmond did 

not attempt to contact her after that date, and she had not been aware that he had a 
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handgun. She admitted that Richmond had not stalked her, subjected her to any 

sexual abuse, attempted to strangle her, or threatened to do any of those things. 

Richmond was not found in her home after the suicide attempt. On redirect 

examination, Angela stated that the therapist made her fearful when the therapist 

told her that Richmond was not going to take the breakup well. On re-cross 

examination, Angela stated that her fear was not based on anything that happened 

prior to September 30, 2021.

At the conclusion of the testimony, Richmond moved to dismiss the 

petition based upon Angela’s testimony. Her claim that the note was “insulting 

and derogatory” did not meet the definition of domestic violence and abuse. Her 

fear of imminent violence was not reasonable as it was based on a conversation 

made out of court by individuals who were not present to testify in court that day. 

And there was no history of abuse between them. In response, Angela argued that 

she had presented a case of imminent fear based on Richmond’s multiple suicide 

attempts as well as his mental health history and access to a handgun, which she 

had not known about. In addition, his therapist told her Richmond was not going 

to take the breakup well. He had no value for his life and therefore had no value 

for her life. The court responded that it was not going to consider all of the out-ofcourt statements and the statements by third parties as that constituted hearsay. 

However, the court determined that sufficient evidence had been presented of the 
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suicide note that was frightening in nature and blamed Angela for causing the 

suicide, which the court believed could make a person fear for their safety. 

Therefore, the court denied the motion to dismiss.

Richmond testified next. He described that time in his life as very 

emotional. After he was found, he was taken to a hospital in Berea before being 

transferred to a facility in Corbin. He had not been in possession of a handgun at 

that time, nor did he own one. He was in in-patient mental health treatment for ten

days, and he was continuing with such treatment. He admitted that he had owned 

antique firearms, but that these were keepsakes and were not able to be shot. He 

had turned these over to the police department. He never threatened Angela with 

those firearms or in any other manner. His intent when he wrote the note was that 

he wanted to end his life that day. He did not intend for Angela to be harmed; he 

was focused only on his life. He did not contact Angela after he sent the note or 

before she filed her petition. He was moving into an apartment in Nicholasville 

and had no desire to continue a relationship with her. 

At the close of the testimony, Richmond argued that Angela’s 

allegations and the evidence did not meet the definition of domestic abuse and 

violence. There was no history of domestic violence between them. Rather, he 

argued that the entire case appeared to be based on the fear of physical injury based 

on the suicide note, which did not mention a firearm. He did not own a handgun, 
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and his antique longarm guns had been surrendered. There was no evidence 

introduced to establish that Richmond was a danger to anyone other than maybe 

himself, although he was actively seeking treatment. There had not been any 

threats made to Angela or any basis for a fear of imminent physical injury, except 

through conversations between Angela and Richmond’s therapist, and between

Angela and Richmond’s sister. Neither person testified at the hearing. Angela, in 

turn, pointed to the suicide note, in which Richmond named her as the primary 

cause, which she said was scary. Therefore, Angela believed she had good cause 

to be fearful for her own life. 

The court entered an oral ruling finding that Angela had established 

that an act of domestic violence and abuse had occurred and may occur again. The 

court based this on Richmond’s two suicide attempts in the recent past and the 

emailed suicide note blaming Angela for the suicide. The court found that this put 

Angela in imminent fear of injury or death that was reasonable based on the 

testimony presented that day. The court entered a three-year DVO. The court 

entered its written findings on the docket order, stating:

Resp attempted suicide twice in recent past. Resp sent 

email to Petitioner which was a “suicide note.” (See: 

Exhibit 1). In that note, Resp made comments like “that 

leaves you as the primary source,” in answer to a 

question he poses of “[w]hat drove him face down?” He 

also says things in note like, “you set this in motion, the 

final nudge.” Petitioner is fearful of these statements and 
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suicide attempts and is in imminent fear of injury, and/or 

death.

The DVO was entered on October 21, 2021, and was to be effective until October 

10, 2024. This appeal now follows.

On appeal, Richmond continues to argue that the family court erred in 

finding that he had committed acts of domestic violence that support the entry of 

the DVO and that Angela’s fear was based on statements of third parties, not prior 

acts of domestic violence. Angela did not file a responsive brief.

In Clark v. Parrett, 559 S.W.3d 872, 875 (Ky. App. 2018), this Court 

set forth the statutory definition of domestic violence and abuse as well as the 

appropriate standards of proof and review:

“Domestic violence and abuse” is defined as 

“physical injury, serious physical injury, stalking, sexual 

abuse, assault, or the infliction of fear of imminent 

physical injury, serious physical injury, sexual abuse, or 

assault between family members or members of an 

unmarried couple[.]” Kentucky Revised Statutes (KRS) 

403.720(1).[1] “Any family member or any member of an 

unmarried couple may file for and receive protection . . . 

from domestic violence and abuse[.]” KRS 403.750(1). 

“Following a hearing . . . if a court finds by a 

preponderance of the evidence that domestic violence 

and abuse has occurred and may again occur, the court 

may issue a domestic violence order[.]” KRS 

403.740(1). “Our review in this Court is not whether we 

1

In the current version of the statute, effective April 1, 2021, “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[.]”
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would have decided the case differently, but rather 

whether the trial court’s findings were clearly erroneous 

or an abuse of discretion.” Gibson v. Campbell-Marletta, 

503 S.W.3d 186, 190 (Ky. App. 2016).

And in Williford v. Williford, 583 S.W.3d 424, 427-28 (Ky. App. 2019), this Court 

further explained the standard of proof and review:

The preponderance of the evidence standard is met 

when sufficient evidence establishes that the petitioner is 

“more likely than not” to have been a victim of dating 

violence and abuse, sexual assault, or stalking. See Baird 

v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007) 

(applying the preponderance of the evidence standard in 

the context of the issuance of a domestic violence order).

Additionally, CR 2 52.01 provides that a trial 

court’s “[f]indings of fact shall not be set aside unless 

clearly erroneous, and due regard shall be given to the 

opportunity of the trial court to judge the credibility of 

the witnesses.” See also Reichle v. Reichle, 719 S.W.2d 

442, 444 (Ky. 1986). Findings are not clearly erroneous 

if they are supported by substantial evidence. Moore v. 

Asente, 110 S.W.3d 336, 354 (Ky. 2003). Substantial 

evidence is evidence of sufficient probative value that it 

permits a reasonable mind to accept as adequate the 

factual determinations of the trial court. Id. A reviewing 

court must give due regard to the trial court’s judgment 

as to the credibility of the witnesses. Id.

In addition, the Williford Court recognized that “the family court is in the best 

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

presented.” Id. at 429 (citing Hohman v. Dery, 371 S.W.3d 780, 783 (Ky. App. 

2012)). We are mindful that “[t]he domestic violence and abuse statutes are to be 
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interpreted by the courts to allow victims to obtain protection against further 

violence and abuse.” Kingrey v. Whitlow, 150 S.W.3d 67, 70 (Ky. App. 2004). 

“Domestic violence and abuse” is currently defined in KRS 

403.720(1) 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[.]” We agree with Richmond that the family 

court based the entry of the DVO on the “fear” portion of the definition. “For 

purposes of KRS 403.720, the term ‘“[i]mminent” means impending danger, and, 

in the context of domestic violence and abuse[,] belief that danger is imminent can 

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

Fraley v. Rice-Fraley, 313 S.W.3d 635, 640 (Ky. App. 2010). 

Richmond asserts that Angela’s allegations do not rise to the level of 

domestic violence as it is statutorily defined and that, based on her own testimony, 

there is no evidence of a history or pattern of past abuse in their relationship that 

would establish a reasonable basis for her claimed fear of imminent harm. The 

suicide note, by itself, Richmond argues, is not enough to support a finding that he

had committed an act of domestic violence. We agree.

Richmond cites to several cases in support of his argument. In Ashley 

v. Ashley, 520 S.W.3d 400 (Ky. App. 2017), this Court held that the wife had 
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established a fear of imminent physical injury that was not solely based upon a 

threat of suicide:

In the present case, we cannot hold that the incident 

where Michael smacked the chip off of Ashley’s arm 

constituted a physical injury within the definition of 

domestic violence or abuse. However, the definition also 

includes “the infliction of fear of imminent physical 

injury,” which we hold Ashley established by a 

preponderance of the evidence. She testified under

questioning by her attorney and the family court that she 

feared for her safety after Michael, who was intoxicated, 

smacked the chip off of her arm and that she did not 

know what would have happened if 911 had not called 

back at that moment. Michael admitted that he might 

have struck Ashley with more force because he had been 

drinking. But what pushed this into the realm of 

domestic violence was Michael’s text message to Ashley 

threatening to commit suicide.

Id. at 405 (footnote omitted). In a footnote, the Court noted that the husband had a 

concealed carry license. Id. at n.1. In the present case, unlike in Ashley, there is no 

evidence of past violence, and Richmond did not have a concealed carry license. 

The only element that is similar is the threat to commit suicide.

In Crabtree v. Crabtree, 484 S.W.3d 316 (Ky. App. 2016), the 

husband repeatedly threatened to commit suicide in front of his wife and children 

by shooting himself with a shotgun unless she agreed to stay married. The 

husband admitted this at the DVO hearing and that he had told his work supervisor 

that he intended to harm himself. Id. at 317. 
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This Court relied on two unpublished opinions to support its 

conclusion that the wife in Crabtree had established that an act of domestic 

violence and abuse had occurred under these circumstances:

In the unpublished decision in J.D.Y. v. B.H.D., 

No. 2007-CA-001519-ME (2008 WL 4182050) 

(September 12, 2008), a panel of this Court was 

presented with a factual scenario similar to that herein, 

and concluded:

After reviewing the record, the family 

court’s findings that the father committed 

domestic violence and abuse against the 

mother and their children were proper. The 

domestic violence statute cannot be 

interpreted as narrowly as the father 

suggests. The father informed the mother 

that he would commit suicide in the 

presence of their three children. While the 

father contends that this threat was not 

directed at hurting any family members, the 

inevitable consequence of such a statement 

is to terrorize the recipients of the 

information. Moreover, while the children 

did not hear their father’s threat, they 

necessarily were ensnared in the threat as 

well. Accordingly, the family court’s 

findings were not clearly erroneous, and the 

issuance of the domestic violence orders was 

proper.

Id. at *4. See also Dixon v. Dixon, No. 2009-CA000408-ME (2009 WL 2341048) (July 31, 2009) (“[W]e 

believe Kathey’s testimony regarding the incidents when 

she contends O’Dell put a handgun to his head and 

threatened suicide was substantial evidence of a 

probative nature which would indicate that she felt 

threatened by O’Dell’s actions.”) Id. at *2.
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Crabtree, 484 S.W.3d at 318-19. In addition, the wife testified that the husband 

had been violent in the past and that she feared for her and the children’s physical 

safety. Id. at 319. In the present case, Richmond threatened to commit suicide 

away from Angela, and in fact attempted to do so many miles away from her, and 

he had not been violent in the past. 

And in Matehuala v. Torres, 547 S.W.3d 142 (Ky. App. 2018), this 

Court reversed a DVO that was based upon the husband’s throwing out the wife’s 

personal property without first contacting her:

[N]o evidence of violence or harm was presented, nor 

was any testimony elicited regarding infliction of fear of 

imminent injury, abuse or assault. The sole reason relied 

on by the trial court in entering the DVO was Omar’s 

discarding of items personal property from a seemingly 

abandoned trailer home. We conclude this is insufficient 

under the law. The complete lack of evidence of past or 

present physical threats or abuse, contact between the 

parties, or fear of imminent harm, wholly undermines the 

trial court’s conclusion. Omar’s actions in disposing of 

Jeanetta’s personal property without first contacting her 

may not have been reasonable or sensible, but those acts 

do not rise to the level of domestic violence as that term 

is statutorily defined.

Id. at 145. As in this case, Richmond contends that there was no evidence to 

support the infliction of fear of imminent injury.

Our review of Richmond’s September 30, 2021, email containing his 

suicide note reflects that it contains the motivation behind his decision to end his 

life. Richmond certainly blamed Angela for this decision, but he in no way stated
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or even alluded to the notion that he intended to physically hurt her or commit this 

act in her presence. His threat of violence was towards himself rather than any 

other person. Angela described the note as “insulting and derogatory” in her 

petition, which we cannot hold meets the definition of domestic violence and 

abuse. In her petition, Angela stated that because Richmond did not value his own 

life and named her as the cause of his planned suicide, he did not value her life, 

leading her to fear for her life. While receiving such a note would certainly be 

upsetting, we do not agree that this note could reasonably have caused Angela to 

be in imminent fear for her own safety. Based on the circumstances of this case, 

including a lack of history of domestic violence and a suicide note that did not 

indicate a plan to harm her or anyone other than himself, we cannot agree with the 

family court that Angela had a reasonable fear of imminent harm. 

We also agree with Richmond that any fear Angela expressed was 

based upon the statements of third parties whose testimony or evidence was not 

presented at the hearing. Angela testified that Richmond’s sister told her that he 

had a history of mental illness as well as a handgun and that his therapist told her 

that Richmond would not take the breakup well. The family court indicated that it 

would not be relying on statements of third parties, which was correct. In Fraley, 

supra, this Court addressed a similar situation where a third party instilled the fear 

in the wife, not the husband:
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In the present case, Gail contradicted herself 

multiple times in the hearing, stating at times that she 

was not fearful of Dale and that she did not worry about 

her safety, and at other times stating that she would feel 

unsafe if the court did not enter a protection order. 

Nonetheless, she never alleged that Dale had acted 

violently toward her in the past, had injured her, or had 

threatened violence in any way. She based her alleged 

fear of Dale on her marriage counselor’s uninformed 

opinion that Dale had sociopathic tendencies and on the 

fact that her counselor told her Dale had unplugged 

Gail’s telephone to keep her from having outside contact. 

The family court properly stated that, under the 

circumstances of this case, it would not consider the 

opinions that the marriage counselor provided to Gail. 

However, the court stated that it would consider the 

“impact” of those opinions on Gail; the court erred in 

doing so.

It was the marriage counselor who instilled fear in 

Gail. There were no allegations or evidence that Dale 

had ever acted violently toward Gail or threatened violent 

actions toward her. Consequently, the family court erred 

in finding that the circumstances of this case met the 

definition of “domestic violence and abuse” because 

there was no evidence that Dale inflicted the fear of 

imminent physical injury on Gail. Thus, the family court 

abused its discretion in entering the DVO against Dale in 

this case.

Fraley, 313 S.W.3d at 640. 

Turning to the present case, we agree with Richmond that the family 

court abused its discretion in finding that an act of domestic violence and abuse 

had occurred and may occur again. Angela’s fear was not reasonable based upon 
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contents of the suicide note and the lack of violence in the past. Her belief that the 

note was insulting and derogatory does not rise to the level of domestic violence.

For the foregoing reasons, the domestic violence order of the Shelby 

Family Court is reversed.

CETRULO, JUDGE, CONCURS.

DIXON, JUDGE, CONCURS IN RESULT ONLY.

BRIEF FOR APPELLANT:

Trevor M. Nichols

Lexington, Kentucky

NO BRIEF FOR APPELLEE.