RENDERED: JANUARY 19, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0817-ME

CONAN BROOKS APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

FAMILY DIVISION TWO (2)

HONORABLE SHELLEY SANTRY, JUDGE

ACTION NO. 22-D-504141-002

EMILY BROOKS APPELLEE 

OPINION

AFFIRMING

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BEFORE: CALDWELL, COMBS, AND EASTON, JUDGES.

EASTON, JUDGE: Appellant, Conan Brooks (“Conan”), appeals the Jefferson 

Family Court’s issuance of a Domestic Violence Order (“DVO”) against him on 

behalf of the Appellee, Emily Brooks (“Emily”). Conan argues the family court 

erred because there was no basis for its finding that domestic violence occurred 

and is likely to occur again. He further argues the family court abused its 

discretion by considering allegations from a previous petition which had been 
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dismissed with prejudice by agreement. We conclude the family court did not err 

in its factual findings, nor did it abuse its discretion. We affirm. 

FACTUAL AND PROCEDURAL HISTORY

This is the second domestic violence petition Emily has filed against 

Conan. Emily and Conan were previously married, and they were divorced by 

decree of dissolution entered by the Jefferson Family Court in February 2023. 

Prior to the decree, while the divorce action was pending, Emily filed her first 

petition in December 2022. This petition was voluntarily dismissed with prejudice 

as part of the subsequent marital settlement agreement. 

Emily filed this second domestic violence petition in May 2023, after 

events occurring five days earlier at the parties’ son’s track practice. Based on the 

petition, an emergency protective order (“EPO”) was entered the same day. The 

petition stated Conan lost his temper, and in an angry outburst, was shouting at and 

threatening Emily. Emily further explained that this angry behavior had been 

escalating. She claimed the children were afraid of Conan as he had hit the oldest 

child on several occasions. She also went into detail of prior incidents when

Conan had hurt or frightened her, including shooting her in the face with a Super 

Soaker water gun at close range and jumping onto a car she was driving while 

screaming at her to get out of the car. Emily stated in the petition that these 
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incidents occurred in the presence of the children. These past allegations were also 

included in Emily’s initial domestic violence petition that was later dismissed.

A hearing was held on Emily’s petition on June 20, 2023. Prior to any 

testimony being heard by the family court, Conan objected to the court’s

considering any allegations in the new petition included in the first petition, as it 

had been dismissed with prejudice. The family court indicated it wanted to focus 

on the new events that occurred in May, but it would hear some testimony 

regarding the prior incidents.

 Emily testified as to the events that occurred at the May track practice. 

She stated Conan screamed at her in front of their son as well as the other 

participants and their families. She claimed he yelled obscenities at her and 

described his actions as “untethered.” She said she was “terrified” of him because 

he was unable to stay calm in front of a crowd of people. Emily testified his 

outbursts initially only occurred in the home, but it has now escalated to where he 

is yelling at her in public, without regard for who is there to witness his behavior. 

She also testified as to Conan’s previous mental health struggles. 

The family court additionally interviewed the parties’ minor child in 

chambers about the events that occurred at his practice. The child confirmed that 

Conan had yelled at Emily at his track practice in front of everyone. He stated he 
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was embarrassed by this behavior. He also said that he enjoys seeing his dad and 

misses him, as he had not seen him in a few weeks. 

 The family court issued a DVO in favor of Emily against Conan. The

family court declined to issue an order on behalf of the minor children. This 

appeal follows. 

STANDARD OF REVIEW

 A review of the family court’s decision regarding an entry of an order 

of protection is limited to “whether the findings of the trial judge were clearly 

erroneous or that he abused his discretion.” Caudill v. Caudill, 318 S.W.3d 112, 

115 (Ky. App. 2010). “Abuse of discretion occurs when a court’s decision is 

unreasonable, unfair, arbitrary or capricious.” Dunn v. Thacker, 546 S.W.3d 576, 

578 (Ky. App. 2018). A family court’s findings of fact are not clearly erroneous if 

supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 

2003). 

ANALYSIS

Conan claims the family court erred in its issuance of a DVO on 

Emily’s behalf. He first argues that no basis existed for the family court to find 

that domestic violence had occurred and may again occur. He further argues that 

the family court abused its discretion in relying on facts previously pled in a 

petition that had been dismissed with prejudice. 
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Domestic violence orders are governed by KRS1 Chapter 403. To

enter a Domestic Violence Order, a family court is required to find by a 

preponderance of the evidence that domestic violence has occurred and is likely to 

occur again. KRS 403.740. “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.” Dunn, supra at 580. “The 

definition of domestic violence and abuse, found in KRS 403.720(1), includes 

‘physical injury, serious physical injury, sexual abuse, assault, or the infliction of 

fear of imminent physical injury, serious physical injury, sexual abuse, or assault 

between family members.’” Abdul-Rahman v. Peterson, 338 S.W.3d 823, 825 (Ky. 

App. 2011).

Conan argues there were no allegations that Emily endured any 

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

assault, and therefore the only basis upon which to issue a DVO would be the 

infliction of fear of imminent physical injury or serious physical injury. We agree 

with this contention, and the family court appeared to agree as well. 

 Conan specifically takes issue with the family court’s finding that 

Emily’s fear was reasonable or imminent. He argues the facts within this case do 

not support a finding that Emily had a reasonable fear of imminent physical injury. 

1 Kentucky Revised Statutes.
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He points to the fact that Emily did not file the domestic violence petition until five 

days after the events occurred. There was also testimony that the parties attended 

the child’s sporting events after the track practice and sat near one another with no 

incident. 

KRS 503.010(3) defines “imminent” as “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.” 

Despite Conan’s testimony that he has never caused Emily any physical injury, he 

admitted that he did shoot her twice in the face with a water gun. This admission, 

coupled with Emily’s testimony of his escalating behavior, is adequate evidence to 

sustain a finding of fear of imminent physical injury. 

Emily explained that she waited five days to file the domestic 

violence petition based on the advice of the personnel at the Domestic Violence 

Intake Center. The family court accepted this explanation for the delay. It is 

within the family court’s purview to weigh the credibility of the witnesses. Baird 

v. Baird, 234 S.W.3d 385, 388 (Ky. App. 2007).

Conan cites to the unpublished case of Kouns v. Kemper to support his 

argument that Emily’s fear was unreasonable. Kouns is inapplicable. In Kouns, 

this Court reversed the issuance of a DVO because the applicants had not had any 

contact with the Respondent in over a year, and thus, their fear of him was not 
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reasonable. We held “that any unreasonable fear cannot form the basis of a finding 

of domestic violence.” Kouns v. Kemper, No. 2020-CA-1335-ME, 2021 WL 

3435538, at *9 (Ky. App. Aug. 6, 2021). By contrast, we do not believe Emily’s

fear in this case was unreasonable. 

We find the facts of this case more analogous to those of Hohman v. 

Dery, 371 S.W.3d 780 (Ky. App. 2012). In that case, the petitioner “believed 

[Respondent] was unable to control his emotions and that she feared his aggressive 

confrontations would escalate ‘to the next level.’” Id. at 783. Likewise, Emily 

testified Conan’s behavior had been continually escalating, in that his previous 

outbursts only occurred within the home, while the one cited in her petition 

occurred in public, with no regard as to who could witness it. 

Conan argues the family court could not consider any allegations 

contained in the previous domestic violence petition because it had been dismissed 

with prejudice. But the family court did not rely on those allegations in its finding 

that an act of domestic violence had occurred. While the family court used the 

allegations as historical background, those actions were not the primary basis of 

the court’s present findings.

 A family court is not required to disregard the history of the case or of 

the parties. See Baird, supra, at 388. The fact that a prior petition was ultimately 

dismissed does not erase the evidence and facts which may have supported the 
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initial issuance of an order. While Conan may argue that the family court should 

not have based this DVO solely on the prior allegations made in the dismissed 

petition, the family court is allowed to consider them in the context of the parties’ 

history and how that history figures into a current risk of future harm. 

Conan is making similar arguments as the Appellant in the case of 

Walker v. Walker, 520 S.W.3d 390 (Ky. App. 2017). In that case, this Court 

stated: 

[Appellant] argues that the sole act of domestic 

violence, which occurred in November of 2012, because 

it was addressed in the first DVO, as a matter of law, 

cannot be considered in determining whether to issue the 

second DVO. He argues that it meets all of the elements 

of issue preclusion under Coomer v. CSX Transp., Inc., 

319 S.W.3d 366, 374 (Ky. 2010).

However, KRS 403.735 expressly allows courts to 

look back and consider prior protective orders. It 

authorizes courts to “obtain the respondent’s Kentucky 

criminal and protective order history and utilize that 

information to assess what relief and which sanctions 

may protect against danger to the petitioner . . . .” KRS 

403.735(1)(a). While that provision concerns what relief 

is appropriate rather than the entitlement to relief itself, 

the fact that the provision allows for prior orders to be 

considered is illustrative. Further, the illustrative nature 

of KRS 403.735(1)(a) becomes all the more persuasive 

when examining KRS 403.740, which does not exclude 

prior orders from consideration. In fact, on this issue 

KRS 403.740 only requires a court determine whether 

domestic violence has occurred at some point in the past. 

KRS 403.740(1).
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Id. at 392.

Conan makes much of the family court’s finding that the child did not 

witness the water gun incident and was only aware of it because Emily told him 

about it. Yet, Conan acknowledged that the incident did occur, and he conceded 

that the children could have witnessed it because they were present in the home 

when it occurred. Just because the children apparently did not see this act on this 

occasion does not mean the family court must disregard it. Again, the family court 

did not include the minor children in the DVO; it protected only Emily. 

When reviewing the issuance of a Domestic Violence Order, “the test

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 give great deference to our trial courts 

as the finders of fact. “It has long been held that the trier of fact has the right to 

believe the evidence presented by one litigant in preference to another.” 

Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996). “The trier of fact 

may take into consideration all the circumstances of the case, including the 

credibility of the witness[es].” Id. We do not believe the family court abused its 

discretion.
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CONCLUSION

The Jefferson Family Court’s findings of fact are supported by the 

evidence and are not clearly erroneous. The Jefferson Family Court acted within 

its discretion. We AFFIRM the Jefferson Family Court. 

ALL CONCUR.

BRIEF FOR APPELLANT:

Jason A. Bowman

Louisville, Kentucky

BRIEF FOR APPELLEE:

Scott Karem

Louisville, Kentucky