RENDERED: JUNE 10, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1144-ME

JASON BECKETT APPELLANT 

v. 

APPEAL FROM FAYETTE CIRCUIT COURT

FAMILY COURT DIVISION

HONORABLE KATHY W. STEIN, JUDGE

ACTION NO. 21-D-00368-004

NUBIA BECKETT APPELLEE 

OPINION

REVERSING

**   **  **

BEFORE: JONES, MAZE, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Jason Beckett appeals from the August 26, 2021, Domestic 

Violence Order (DVO) of the Fayette Circuit Court, Family Court Division, sought 

by his wife, Nubia Beckett, and entered on behalf of Nubia and the couple’s three

minor children, A.M., age 15 years;

1 R.B., age 9 years; and M.B., age 4 years. The 

1 Nubia testified that Jason is not the biological father of the oldest child, A.M., but has raised 

him since a very young age.
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order also granted custody of the children to Nubia and allowed for supervised 

visitation by Jason with the children at Greenhouse17 in Lexington, Kentucky.

Because we hold that the family court’s findings were unsupported by substantial 

evidence and that the family court abused its discretion, we reverse.

 For context, we must summarize facts discerned from the record 

before us that occurred prior to the date Nubia filed the domestic violence petition 

at issue in this appeal. The parties have been in divorce proceedings since Nubia 

filed a petition for dissolution on or about April 1, 2021. On June 24, 2021, Nubia 

filed a domestic violence petition, alleging events that occurred the previous day 

(Fayette County Case No. 21-D-00368-003; referred to hereinafter as 

“Trailer -003”).2 The family court issued a summons only and a hearing was held 

on July 8, 2021. After the hearing, the family court entered an emergency 

protective order (EPO) in Trailer -003 and set a hearing for a DVO on August 12, 

2021. 

 On August 2, 2021, Nubia went to Jason’s home that he shares with 

his mother to pick up the children. Because we do not have the EPO entered in 

Trailer -003 before us, it is unclear why the parties were engaged in contact with 

one another following entry of the EPO in Trailer -003. Regardless, a 

2 The record indicates Trailers -001 and -002 were dismissed by agreement of the parties.
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confrontation ensued and Nubia filed another petition for a DVO on behalf of 

herself and the children, which stated: 

Petioner [sic] was very drunk. He almost broke my car 

window by punching it very hard. He was mad over the 

4 [year] old starting pre-K. He curse [sic] at me in front 

of the two youngest. When he was done he went inside 

intiminating [sic] my 15 [year] old. I confronted him to 

never do that. He then proceeding [sic] on pushing me 

with his stomach [and] yelling with the children around. 

The officer file [sic] a JC3. My 15 [year] old said dad 

(Jason) has been mean to him [and] does not want to be 

around him. My 9 [year] old told the officer she’s scare

[sic] of dad because of his outburst with grandma [and]

grandpa. He’s been doing this for three days based on 

what my son stated. I am very scare [sic] of this outburst 

his [sic] having for me [and] the kids. Has [sic] of now 

he has supervised visitation with the children at his mom

[sic]. He’s so bad it’s become harder [and] harder to do 

these visitation [sic]. The kids are tramatized [sic] by 

him.

 This petition was filed as Fayette County Case No. 21-D-00368-004 

(“Trailer -004”) and another EPO was issued even though an EPO was apparently 

still active in Trailer -003. The family court held a hearing on August 26, 2021, 

and both trailers were called. The family court heard testimony regarding events 

that occurred on both June 23, 2021, (Trailer -003) and on August 2, 2021 (Trailer 

-004). Nubia was represented by counsel and Jason appeared pro se. At the 

conclusion of the hearing, the family court granted the DVO. This appeal 

followed. Further facts will be developed as necessary.
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 We begin our analysis by noting that only Trailer -004 and the order 

entered on August 26, 2021, are before us on appeal. It is unclear from the record 

if a DVO was ever entered in Trailer -003, even though the hearing on August 26 

purportedly addressed both. We note that Jason filed a designation of record 

pursuant to Kentucky Rules of Civil Procedure (CR) 75.01 that included Trailer -

003, but it was not included in the record that is currently before us, nor was the 

case appealed.3

 On appeal, Jason argues that the family court abused its discretion by 

finding that an act of domestic violence occurred and may occur again, in 

contravention of Kentucky Revised Statutes (KRS) 403.720(1). He asserts that 

there was no factual basis for entry of the DVO. For the reasons stated, we agree.

Domestic violence is governed by KRS Chapter 403, which provides 

that the trial court may enter a DVO “if [it] finds by a preponderance of the 

evidence that domestic violence and abuse has occurred and may again occur[.]” 

KRS 403.740(1).4“Domestic violence and abuse” is defined as: 

[P]hysical injury, serious physical injury, stalking, sexual 

abuse, strangulation, assault, or the infliction of fear of 

imminent physical injury, serious physical injury, sexual 

3

In his brief to this Court, Jason Beckett states that Trailer -003 was dismissed. Nubia Beckett 

disagrees. The record before us gives no indication that Trailer -003 was dismissed. 

4 We note that the Kentucky legislature amended Kentucky Revised Statutes in 2022 and the 

relevant provisions were renumbered.
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abuse, strangulation, or assault between family members 

or members of an unmarried couple[.]

KRS 403.720(1). “The preponderance of the evidence standard is met when 

sufficient evidence establishes that the alleged victim ‘was more likely than not to 

have been a victim of domestic violence.’” Baird v. Baird, 234 S.W.3d 385, 387 

(Ky. App. 2007) (quoting Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky.

1996)).

 Our review of a trial 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. CR 

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). Because the trial court is in the best position to judge the credibility of 

the evidence, we will not substitute our opinion for that of the trial court with 

regard to the weight given to certain evidence, including the testimony of 

witnesses. CR 52.01; B.C. v. B.T., 182 S.W.3d 213 (Ky. App. 2005). 

Additionally, an abuse of discretion occurs only where the court’s decision is 
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“unreasonable, unfair, arbitrary or capricious.” Caudill v. Caudill, 318 S.W.3d 

112, 115 (Ky. App. 2010).

 The evidence presented during the hearing on August 26 regarding 

alleged domestic violence against the children was composed entirely of hearsay

testimony. The hearing began with Nubia testifying regarding events that occurred 

on June 23, 2021 (i.e., events that were the subject of Trailer -003). When asked to 

recount events of that day, Nubia testified: 

I was going to dinner with friends and it was [Jason’s] 

timeshare with the kids. On my way to dinner his mom 

called and said, “I need you to come get the kids or I’m 

gonna call CPS to get them.” And she wouldn’t tell me 

why. So when I showed up, there was already police 

officers there. And, uh, he, and he I don’t know if he was 

intoxicated or if he was just going crazy, I guess. He had 

the little one, the four-year-old, in the basement and 

wouldn’t let him go upstairs. Our daughter, our nineyear-old was upstairs and she was just happy that I came 

to pick them up. And I really don’t understand what 

happened, what made him go crazy or whatever the 

incident was.

Video Record at 11:53:05, August 26, 2021.

 The family court then admitted into evidence the police report from 

the incident (the JC3). Nubia’s counsel then pointed the family court to the last 

page of the JC3 which he argued showed that Jason’s mother was the one who

called the police and filed the JC3. The last page states, “[t]he listed complainant 

stated her adult son who lives with her with his two children refuses to care for his 
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children and uses narcotics instead. Complainant stated she is having to care for 

the children because her son refuses to.” Neither Jason’s mother nor the 

responding police officer were called to testify. Nubia also testified that M.B.

ended up staying with Jason on the date of the incident after she left. Nubia did 

not testify to witnessing or experiencing any act of domestic violence by Jason 

when she arrived at his home on June 23, 2021. Nor did she testify that she or the 

children were in fear of an act of domestic violence.

 Nubia’s testimony then turned to the events surrounding Trailer -004 

that took place on August 2, 2021. She stated that when she went to pick up the 

children, Jason was angry because she had enrolled M.B. in a pre-K program 

within Fayette County Schools without discussing it with him. Her version of 

events was that Jason came running to her car while the kids were inside the car 

and proceeded to bang and shake the window and curse at her. After testifying that 

the children were in her vehicle, she then stated that Jason went back into his home 

where she saw him get face-to-face with the oldest child.5 According to her 

testimony, Nubia then ran into the house to get between Jason and the oldest child

and told Jason to never speak to her child that way again. The parties then went 

back outside where Jason allegedly raised his arms into the air and pushed Nubia 

5 Nubia’s testimony was unclear regarding the location of the children. She testified they were in 

the vehicle, but then that A.M. was still inside Jason’s home. Jason testified that A.M. was in 

Nubia’s vehicle the entire time.
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with his stomach. It was then that an off-duty police officer, who is a neighbor, 

came over to the residence. Nubia took the children home and testified that she 

filed another JC3, but it was not presented as evidence.6 From there, Nubia’s 

testimony becomes laden with hearsay. For example, she stated A.M. told her, 

“Mom, Dad’s been mean to me for three days, he’s been bullying me.” R.B.

allegedly stated, “I’m scared of Dad.” When asked if she was scared of Jason, 

Nubia replied:

After that incident, more so, yes. Especially for the kids 

because they’re not, they don’t like it, you know. They 

voiced their opinion. [M.B.] is little, he doesn’t know, 

but the older two do. Um, my oldest said he does not 

want to be around him right now. [A.B.] hasn’t said she 

doesn’t want to be around him, she just said she’s scared.

Video Record at 11:58:20, August 26, 2021. 

Jason, who was pro se, did not object to the hearsay evidence. When 

asked what relief she was requesting, Nubia stated that she knew the children: 

[M]iss their dad [Jason], but I wouldn’t mind visitations 

for a little bit somewhere that’s not his mom’s house and 

someone can actually watch. I want full custody because 

he is not capable. He is not capable of taking care of 

these kids.

6 The statements in the petition on August 2, 2021, combined with Nubia’s testimony, were 

somewhat confusing in that the petition seemed to indicate the neighbor who was an off-duty 

officer and came to Jason’s home filed a JC3. However, Jason testified that the off-duty officer 

simply instructed Nubia to leave and did not file a report. Rather, Nubia contacted police after 

she left with the children and at that point a JC3 was filed.
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Video Record at 11:58:52, August 26, 2021.

 The family court then engaged in an exchange with Nubia’s counsel, 

who informed the court that the Cabinet for Health and Family Services was 

currently conducting an investigation and that they were waiting on a drug test 

from Jason. Counsel made it clear that Jason had not refused a drug screen, only 

that they were still awaiting the results of the test.

7

 

 When Nubia was finished presenting proof, Jason was not afforded an 

opportunity to cross-examine Nubia, but rather, the family court stated, “[y]ou’ve 

heard her testimony. Please tell me what you have to say in response.” Jason 

began telling his version of events that differed factually from Nubia’s version. 

For example, Jason stated that he, not his mother, called the police to his home on 

June 23, 2021. He also testified, as concerned the August 2 incident, that the 

oldest child was already in the car when he knocked on the car window, and Nubia 

did not enter his home to come between them, but that she was in fact the 

aggressor because she “ran up and got in [his] face.” 

 At the conclusion of the hearing, the family court judge stated she was 

entering the DVO “based upon the JC3 that has been placed into evidence and the 

testimony that [Nubia] gave regarding the situation when she arrived at [Jason’s] 

7 No representative from the Cabinet for Health and Family Services testified at the hearing. 

Other than counsel’s unsworn statements, there was no evidence presented that the Cabinet was 

conducting an investigation.
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mother’s residence.” The JC3 clearly referred to events pertaining to Trailer -003

that occurred on June 23, 2021. It is unknown if “the situation” when Nubia 

arrived at Jason’s mother’s house referred to events related to Trailer -003, Trailer

-004, or some combination of both. 

 To the extent that the family court relied on evidence pertaining to the 

events of June 23, 2021, in issuing the DVO in Trailer -004, we must conclude that 

the court abused its discretion in this regard. Nubia’s knowledge of events prior to 

her arrival at Jason’s home was based entirely on inadmissible hearsay from 

Jason’s mother. And, the officer who filled out the JC3 was not called to testify at 

the hearing. Nubia did not testify that upon her arrival at Jason’s house, she 

witnessed an act of domestic violence against the children. Likewise, she did not 

testify that Jason perpetrated an act of domestic violence against her. By allowing 

Nubia to testify about statements made to her by the children and Jason’s mother, 

the family court allowed testimony in the record that constitutes inadmissible 

hearsay. See Allen v. Gueltzow, 535 S.W.3d 333, 335 (Ky. App. 2017). A DVO 

petition is subject to the same evidentiary standards as other forms of evidence.

Rankin v. Criswell, 277 S.W.3d 621, 625 (Ky. App. 2008). Unless an exception 

applies, hearsay contained in a petition should not be considered as evidence. Id. 

Nubia’s testimony was mostly inadmissible hearsay that the family court should 
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not have considered in making its decision. See G.E.Y. v. Cabinet for Hum. Res., 

701 S.W.2d 713, 715 (Ky. App. 1985).8

 The family court further abused its discretion at the hearing by 

allowing the JC3 report from June 23, 2021, into evidence. Pursuant to the 

Kentucky Rules of Evidence (KRE) 803(8), a police report is not exempt 

from hearsay, unless it is offered for an admissible purpose. See also Kerr v.

Commonwealth, 400 S.W.3d 250 (Ky. 2013). The family court indicated that it 

was relying on the contents of the JC3 in its decision to enter the DVO (i.e., it was 

erroneously admitted into evidence to show the truth of the matter asserted). As 

noted, neither the police officer or Jason’s mother were called to testify at trial. 

Thus, not only was the JC3 itself hearsay, but the statement contained therein from 

Jason’s mother constituted hearsay within hearsay and was also inadmissible 

evidence.

 Hearsay excluded, the family court was left with very little evidence

to consider. Even if the court accepted Nubia’s version of events on August 2, 

2021, as true, the only substantive evidence was Nubia’s testimony that Jason 

8 We are cognizant that Jason, acting pro se at the hearing, did not object to the introduction of 

the hearsay evidence and testimony. However, Kentucky Rules of Civil Procedure (CR) 61.02 

clearly permits this Court to review unpreserved error and reverse the family court upon a 

showing of manifest injustice. See Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006). Based 

upon our review of the meager record in this appeal, including the August 26 hearing video, we 

must conclude that a palpable error occurred under CR 61.02. 
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banged on her car window, cursed, got face-to-face with A.M., and pushed against 

her with his stomach. 

While “domestic violence statutes should be construed 

liberally in favor of protecting victims from domestic 

violence and preventing future acts of domestic 

violence[,]” Barnett v. Wiley, 103 S.W.3d 17, 19 (Ky.

2003), “the construction cannot be unreasonable.” Id. 

(citing Beckham v. Board of Education of Jefferson

County, 873 S.W.2d 575, 577 (Ky. 1994)). Furthermore, 

we give much deference to a decision by the family 

court, but we cannot countenance actions that are 

arbitrary, capricious or unreasonable. See Kuprion [v.

Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994)].

Caudill, 318 S.W.3d at 115. 

 This Court has previously held that a husband pushing his wife out of 

the way to enter the home did not constitute domestic violence. Id. at 115. This 

Court has similarly held that a father’s grabbing of mother’s wrist and shoving her 

did not rise to the level of domestic violence. See Telek v. Daugherty, 376 S.W.3d 

623, 628 (Ky. App. 2012). In light of those holdings, and given the totality of the 

circumstances, we cannot say there was sufficient evidence to support the family 

court’s finding that an act of domestic violence occurred in this case. Such a 

finding was clearly erroneous as Nubia failed to establish by a preponderance of 

admissible evidence that an act of domestic violence occurred against her or the 

children.
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 The record before this Court shows that the parties are engaged in 

contentious divorce and custody proceedings. Nubia filed the first DVO petition 

(Trailer -001) the day after she filed the petition for dissolution of marriage. While 

that case was ultimately dismissed and is not before us, we note that this is the 

fourth petition that has been filed since initiation of dissolution proceedings.9 

Further, a large portion of the testimony at the August 26, 2021, DVO hearing 

focused not on whether an act of domestic violence had occurred, but instead 

pertained to Jason’s business ventures and finances. It was revealed that Jason 

owns and operates numerous sober-living facilities and recovery-based services 

throughout the Lexington, Kentucky, area. The family court wanted to know 

where the facilities were located; the hours of operation; the names of the various 

entities; when Jason obtained state approval; whether Nubia has access to financial 

and other information regarding Jason’s businesses; and whether the Cabinet for 

Health and Family Services uses Jason’s facilities. While such evidence may be 

relevant to the divorce action, it is totally irrelevant to whether an act of domestic 

violence occurred on the date in question. This Court has previously held:

[T]he impact of having an EPO or DVO entered 

improperly, hastily, or without a valid basis can have a 

devastating effect on the alleged perpetrator. To have the 

legal system manipulated in order to “win” the first battle 

of a divorce, custody, or criminal proceeding, or in order 

9 The record before us shows that Trailer -002 was filed by Jason against Nubia on behalf of the 

children, but was also dismissed by agreement of the parties.
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to get “one-up” on the other party is just as offensive as 

domestic violence itself. 

Rankin, 277 S.W.3d at 624-25.

 Accordingly, the August 26, 2021, DVO of the Fayette Family Court 

is reversed and set aside. 

MAZE, JUDGE, CONCURS.

JONES, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE 

OPINION.

BRIEF FOR APPELLANT:

Derrick L. Harris

Lexington, Kentucky

BRIEF FOR APPELLEE:

Carl D. Devine

Lexington, Kentucky