RENDERED: JULY 12, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-1391-ME

DARIUS BOWIE APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE ANGELA JOHNSON, JUDGE

ACTION NO. 23-D-502860-003

TYOKIA BOWIE APPELLEE 

OPINION

VACATING AND REMANDING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; A. JONES AND LAMBERT, 

JUDGES.

JONES, A., JUDGE: Darius Bowie appeals from entry of a domestic violence 

order (“DVO”) by the Family Court Division of the Jefferson Circuit Court

(“family court”) at the request of his former spouse, Tyokia Bowie. Following a 

review of the record and all applicable law, we vacate the order and remand this 

matter to the family court for additional findings of fact followed by entry of an 

appropriate order. 
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I. BACKGROUND

Tyokia filed for dissolution of her marriage to Darius on August 15, 

2023.1 They share two children.2 Shortly after she filed for dissolution, she filed 

for an emergency protective order against Darius. She alleged that he had sent a 

variety of heated text messages. She reported one incident wherein he saw that she 

was not at work and accused her of being intimate with another while in actuality

she was at her therapy appointment. In another incident, she reported he punched a 

hole in their bathroom wall. Once, after demanding to see her phone, he pressed 

an object into her rear, alleging that it was “what [she] wanted others to do.” On 

another occasion, he had stood in front of her vehicle, not allowing her to drive 

away from the home. She reported his hostile behavior was escalating so much, 

she required medication and increased therapy appointments. She also reported 

she was not sleeping, hid her phone, and kept her spare set of keys with her.

1 Darius reported in his brief that the entire record is not contained within the certified record. 

He states that their dissolution action, No. 23-CI-502442, should be included within the 

underlying action. It is not. Neither party withdrew the record on appeal, so we are unclear if 

Darius just presumed the Jefferson County Circuit Clerk’s Office would know to include the 

record, or whether this Court would take it upon ourselves to retrieve it. Neither party has filed a 

motion to supplement the record to include it. Nevertheless, it was not included. “It is the 

responsibility of the appellant to ensure that this Court receives the complete record. We must 

presume that the missing parts of the record support the findings of the [family] court.” 

Brannock v. Brannock, 598 S.W.3d 91, 95 (Ky. App. 2019) (citations omitted). Otherwise, we 

have gleaned some details of the preceding events and their agreement via the testimony at the 

evidentiary hearing. 

2 No orders of protection have been sought on behalf of the children. 
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Later, an agreed order dismissing the emergency protective order and 

a civil restraining order was filed.

3 Darius was required to be more cordial and 

respectful, and communication between them was only to relate to their children. 

At some point before Tyokia filed her second emergency protection petition, the

parties attended mediation and submitted a decree of dissolution to the court.

After the decree was submitted for entry, but before it was entered, 

Tyokia filed her second petition, which is at issue in this appeal. In addition to 

recounting some of the events alleged in her prior, dismissed petition, she included 

several new allegations that she claimed showed that Darius was stalking her and 

attempting to control with whom she associated. Specifically, she alleged that 

Darius had contacted her commanding officer at the United States Army to report 

his suspicions that Tyokia had engaged in an extramarital affair with another 

colleague at some point earlier in the year.4 Darius included a variety of “proof” in 

his email including screenshots of Tyokia’s dirty underwear which he had retrieved 

from her clothes hamper, screenshots of her text messages, video footage from 

their doorbell camera, pinpoint locations where her phone had traveled, and video 

3 Tyokia states that for reasons unknown, the order was not signed by the family court. 

4 Tyokia denies she engaged in an extramarital affair. 
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footage of the inside of her coworker’s apartment.5 Tyokia also alleged that Darius 

had been disrespectful to her during their communications, which per the 

dissolution action were supposed to be limited to issues surrounding their children. 

The evidentiary hearing commenced on November 1, 2023. Only 

Tyokia and Darius testified. Tyokia testified that she believed Darius had been 

tracking her location through her phone and/or tablet and following her, although 

she was not sure how he was doing so since he had been removed from her phone 

plan some time ago. Tyokia also testified that Darius was disrespectful in the 

parties’ communications, which were supposed to be only about the children; 

however, her testimony in this regard was somewhat vague. She also testified that 

that Darius emailed her commanding officer in the United States Army to report 

that she had engaged in an extramarital affair with one of her coworkers. She 

believed that Darius contacted her commanding officer to harass, control, or 

intimidate her and in violation of their civil restraining order. However, Tyokia

acknowledged that the United States Army does have a prohibition against adultery 

or fraternization with other members of the army, and if someone were to report 

such an act, the report would be made to the individual’s commanding officer.

5 Tyokia was unsure how Darius obtained the locations from her phone, but she believed that he 

obtained the video footage of the inside of the coworkers’ apartment while he was engaged in a 

video chat with one of the parties’ children. 
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For his part, Darius admitted that he used poor judgment when he 

contacted Tyokia’s commanding officer and pledged that he would not do so again 

as he has now had time to come to terms with the end of the parties’ marriage. 

However, he nonetheless maintained that he had gathered significant evidence of 

her infidelity and that he had done so for the purpose of reporting her conduct to 

her commanding officer. He believed he was justified in doing so as he was 

engaged in the constitutionally protected activity of free speech.

Following the hearing, the family court found by a preponderance of 

the evidence that domestic violence had occurred and would likely occur again. It 

stated on the video record that Darius had engaged in stalking in that he was 

“engaging in a pattern of behavior in order to intimidate in order to well, with no 

good purpose” and although Darius had testified that he was planning on moving 

to Dallas, “that does not stop [him] from picking up a phone, or tracking, or being 

aggressive in communications.” It entered a domestic violence order finding that 

stalking had occurred, stating on the docket sheet that he “[tracked] her phone and 

made other efforts to exercise control by reporting alleged adultery to her 

commanding officer even though the marriage was over.”

This appeal followed. 
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II. ANALYSIS

Our review of a family court’s decision to grant or deny a DVO “is 

not whether we would have decided it differently, but whether the court’s findings 

were clearly erroneous or that it abused its discretion.” Gomez v. Gomez, 254 

S.W.3d 838, 842 (Ky. App. 2008). We will not set aside findings of fact unless 

they are clearly erroneous, or unsupported by substantial evidence. CR6 52.01; 

Moore v. Asente, 110 S.W.3d 336 (Ky. 2003). “[F]indings of fact are clearly 

erroneous only if they are manifestly against the weight of the evidence.” Frances

v. Frances, 266 S.W.3d 754, 756 (Ky. 2008) (citation omitted). An abuse of 

discretion occurs only where the court’s decision is “unreasonable, unfair, arbitrary 

or capricious.” Caudill v. Caudill, 318 S.W.3d 112, 115 (Ky. App. 2010).

Prior to entry of a DVO, the court must find “from a 

preponderance of the evidence that an act or acts of 

domestic violence and abuse have occurred and may 

again occur . . . .” KRS[7] 403.750(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. 

Id. at 114 (citation omitted). Pursuant to KRS 403.720(2)(a), domestic violence 

and abuse is defined as “[p]hysical injury, serious physical injury, stalking, sexual 

6 Kentucky Rules of Civil Procedure. 

7 Kentucky Revised Statutes. 
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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[.]” 

Darius argues before us that the family court abused its discretion

when it issued a DVO with erroneous findings and under insufficient facts to do so, 

and that his conduct did not amount to stalking. We will address each in turn, 

beginning with the family court’s findings of fact.

While the family court made certain oral findings of fact at the 

hearing’s conclusion, it did not expressly incorporate those findings into its written 

order.8 Accordingly, we can only consider the family court’s written findings. Id. 

Its written order provides: 

The court finds by the preponderance of the evidence that 

DV occurred and could occur again. The Respondent 

stalked the Petitioner tracking her phone, and made other 

efforts to exercise control by reporting alleged adultery to 

her commanding officer even though the marriage was 

over. The Respondent to continue w/ visits, exchanges to 

occur w/ 3rd party. 

8

In Smith v. McCoy, 635 S.W.3d 811 (Ky. 2021), the Kentucky Supreme Court held that busy 

family courts do not need “to transcribe their clear oral findings in protective order cases” and 

that appellate courts may consider such findings so long as the oral findings have been 

“expressly and specifically incorporate[ed]” into its final written order. Id. at 817-18. 
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11/1/2023 Order. Darius maintains that the family court’s written findings do not 

sufficiently establish a factual basis to support its conclusion that domestic 

violence (stalking) had occurred and may occur again. 

While stalking is not defined in the DVO statutes, the statutes 

providing for the issuance of interpersonal protective orders (“IPO”) do contain a 

definition of stalking. Given that DVOs and IPOs share a common objective and 

are similar in other respects, we have previously concluded that it is appropriate to 

borrow the definition of “stalking” contained in the similar IPO statutes. Flintroy 

v. Gallegos-Esparza, No. 2021-CA-0928-ME, 2023 WL 324617, at *3 (Ky. App. 

Jan. 20, 2023).

9

 

The IPO statute defines stalking as “conduct prohibited as stalking 

under KRS 508.140 or 508.150, or a criminal attempt, conspiracy, facilitation, or 

solicitation to commit the crime of stalking[.]” KRS 456.010(8). KRS 508.140 

provides:

(1) A person is guilty of stalking in the first degree,

(a) When he intentionally:

1. Stalks another person; and

2. Makes an explicit or implicit threat with the 

intent to place that person in reasonable fear of:

9 This unpublished opinion is cited as persuasive authority pursuant to Kentucky Rules of 

Appellate Procedure (“RAP”) 41.
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a. Sexual contact as defined in KRS 510.010;

b. Serious physical injury; or

c. Death; and

(b) 1. A protective order has been issued by the court 

to protect the same victim or victims and the 

defendant has been served with the summons or order 

or has been given actual notice; or

2. A criminal complaint is currently pending with a 

court, law enforcement agency, or prosecutor by 

the same victim or victims and the defendant has 

been served with a summons or warrant or has 

been given actual notice; or

3. The defendant has been convicted of or pled 

guilty within the previous five (5) years to a felony 

or to a Class A misdemeanor against the same 

victim or victims; or

4. The act or acts were committed while the 

defendant had a deadly weapon on or about his 

person.

(2) Stalking in the first degree is a Class D felony.

KRS 508.150 provides: 

(1) A person is guilty of stalking in the second degree 

when he intentionally:

(a) Stalks another person; and

(b) Makes an explicit or implicit threat with the intent 

to place that person in reasonable fear of:

1. Sexual contact as defined in KRS 510.010;
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2. Physical injury; or

3. Death.

(2) Stalking in the second degree is a Class A 

misdemeanor.

 

In turn, these two statutes must be read in combination with KRS 

508.130, which defines stalking as: 

(1) (a) To “stalk” means to engage in an intentional

course of conduct:

1. Directed at a specific person or persons;

2. Which seriously alarms, annoys, intimidates, or 

harasses the person or persons; and

3. Which serves no legitimate purpose.

(b) The course of conduct shall be that which would 

cause a reasonable person to suffer substantial mental 

distress.

(2) “Course of conduct” means a pattern of conduct 

composed of two (2) or more acts, evidencing a 

continuity of purpose. One (1) or more of these acts may 

include the use of any equipment, instrument, machine, 

or other device by which communication or information 

is transmitted, including computers, the Internet or other 

electronic network, cameras or other recording devices, 

telephones or other personal communications devices, 

scanners or other copying devices, and any device that 

enables the use of a transmitting device. Constitutionally 

protected activity is not included within the meaning of 

“course of conduct.” If the defendant claims that he was 

engaged in constitutionally protected activity, the court 

shall determine the validity of that claim as a matter of 
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law and, if found valid, shall exclude that activity from 

evidence.

To summarize, for an individual to be granted a DVO for stalking, the 

family court must find by a preponderance of the evidence that the respondent:

engaged in two or more acts directed at the victim that 

seriously alarmed, annoyed, intimidated, or harassed the 

victim, that served no legitimate purpose, and would 

have caused a reasonable person to suffer substantial 

mental distress, and that these acts may occur again. 

Additionally, the individual must prove that there was an 

implicit or explicit threat by the perpetrator that put the 

victim in reasonable fear of sexual contact, physical 

injury, or death.

Halloway v. Simmons, 532 S.W.3d 158, 162 (Ky. App. 2017) (citations omitted). 

Additionally, if the respondent alleges that he was engaged in a constitutionally 

protected activity, the family court must determine the validity of that claim as a 

matter of law. If found valid the family court cannot consider that act to support its 

findings. 

We recognize the very busy docket faced by our family courts and do 

not wish to heap more work on their shoulders. However, we must follow binding 

precedent and cannot engage in our own fact finding. The family court’s written

order, which does not incorporate its oral findings and pronouncements, is lacking 

essential findings to support entry of a DVO for stalking. Therefore, we must 

vacate and remand for additional findings of fact. 
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On remand, the family court shall make more specific written findings 

of fact. Specifically, before entering a DVO based on stalking, the family court

must, at a minimum, find that Darius engaged in two or more acts directed at 

Tyokia that seriously alarmed, annoyed, intimidated, or harassed her; the acts

served no legitimate purpose; the acts would have caused a reasonable person to 

suffer substantial mental distress; and the acts were accompanied by an implicit or 

explicit threat that put Tyokia in reasonable fear of sexual contact, physical injury, 

or death and that such acts may occur again. Moreover, since Darius claims that he 

was engaged in the constitutionally protected act of free speech when he emailed 

Tyokia’s commanding officer, the family court must evaluate the validity of that 

claim before it considers the email as one of the acts. 

III. CONCLUSION

For the foregoing reasons, we vacate the family court’s DVO order 

and remand this matter for the additional findings of fact and entry of an 

appropriate order. In doing so, we make no judgment on the ultimate outcome of 

this matter. 

ALL CONCUR.
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BRIEFS FOR APPELLANT:

Matthew R. Lemme

New Albany, Indiana

BRIEF FOR APPELLEE:

Catherine J. Kamenish

Louisville, Kentucky