RENDERED: OCTOBER 29, 2015 

TO B UBLISHED 

,Suprrittr Court of 4 eft it, 0' 

2014-SC-000456-DGE 

DATE ,g g0,4G4174)..44. 

JEFFREY PETTINGILL APPELLANT 

ON REVIEW FROM COURT OF APPEALS 

V. CASE NO. 2013-CA-001347-ME 

JEFFERSON CIRCUIT COURT 

NOS. 13-D-501731 & 13-D-501731-001 

SARA YOUNT PETTINGILL APPELLEE 

OPINION OF THE COURT BY JUSTICE KELLER 

AFFIRMING 

The Jefferson Circuit Court, Family Division, entered a domestic violence 

order (DVO) against Jeffrey Pettingill. The Court of Appeals affirmed, and we 

granted discretionary review. On appeal to this Court, Jeffrey argues that he 

was deprived of a full appellate review and that the family court erroneously 

relied on "lethality factors" when entering the DVO. For the reasons stated 

herein, we affirm the opinion of the Court of Appeals. 

I. BACKGROUND. 

On July 2, 2013, Sara Pettingill filed a domestic violence petition against 

her husband, Jeffrey. In her petition, Sara alleged that Jeffrey's violent, 

controlling, and unstable behavior made her fear for her own safety as well as 

the wellbeing of their minor daughter. She was particularly afraid because she 
had recently separated from Jeffrey and was seeking a divorce. Specifically, 

Sara described an incident when Jeffrey became angry and abused the family 

pet in front of their daughter. Sara also recounted numerous examples of 

Jeffrey's controlling behavior, including: setting up surveillance cameras inside 

their home; locking her out of bank accounts; accessing her private email and 

social media accounts; and breaking her cell phone. Furthermore, Sara 

indicated that Jeffrey had become mentally unstable and alleged that he: 

boasted about keeping a firearm in their home even though he was a convicted 

felon; threatened the life of his ex-wife who had filed domestic violence charges 

against him in Tennessee; and claimed to be an ex-CIA agent. 

Based on Sara's petition, the Jefferson family court entered an 

emergency protective order (EPO). The Sheriff was originally unable to serve 

Jeffrey, noting on the summons, "is avoiding, someone told him about 

paperwork." Nonetheless, Jeffrey did eventually receive notice of the EPO and 

summons and appeared, represented by counsel, at the scheduled domestic 

violence hearing on July 11, 2013. 

Following that hearing, the family court entered a DVO against Jeffrey on 

Administrative Office of the Courts (AOC) Form 275.3. In so doing, the court 

found by a preponderance of the evidence that acts of domestic violence or 

abuse had occurred and may occur again. For support, the family court noted 

further findings of fact on its docket sheet: 

[Jeffrey] avoided service, served 7/10/13 

The Court finds: 9 out of 12 top lethality factors in intimate partner 

1) [Jeffrey] has abused the family pet; 

2) Cyber stalking [Sara]; 

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3) Threatened the life of his ex-wife in the presence of [Sara]; 

4) Shown possessive - jealous behavior by monitoring [Sara]'s cell phone; 

5) Damaged property ([Sara]'s cell phone) throwing it against the wall; 

6) Engaged in rulemaking behaviors including not allowing [Sara] to 

drive her own car; 

7) Has prior felony conviction; 

8) Recently purchased a firearm (3/29/13); 

9) Recent separation - of the parties 

Places [Sara] at extreme risk of physical harm.' 

Jeffrey appealed the DVO to the Court of Appeals. Jeffrey argued, inter 

alia, that the family court erred when it took judicial notice of, and based its 

decision on, the domestic violence lethality factors rather than the standard set 

forth in Kentucky Revised Statute (KRS) 403.720 and 403.750. 

The Court of Appeals disagreed and affirmed the family court's DVO. 

However, as an initial matter, the Court noted that its review was "severely 

hampered" by the lack of a complete record, stating that it had not received the 

video record of the hearing. The Court concluded, however, that it was 

Jeffrey's duty, as appellant, to ensure the record on appeal was sufficient and 

that because it could not review the testimony, it must assume the omitted 

record supported the decision of the family court. 

Notwithstanding the incomplete record, the Court of Appeals found that 

the family court applied the appropriate standard based on the fact that it 

properly completed the AOC 275.3 standard form. The Court reasoned that the 

additional findings noted on the docket sheet could not be seen to indicate the 

family court's disregard of the correct standard nor did the reference to 

lethality factors render the decision infirm. Furthermore, the Court found no 

I Transcribed from handwritten notes. 

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inference by the family court that it was taking judicial notice of any fact and 

that comparing its findings to the lethality factors did not change the nature or 

character of the adjudicated facts adduced during the hearing. 

The Court of Appeals denied Jeffrey's petition for rehearing, in which he 

argued that his constitutional right to judicial review had been violated by the 

Court's failure to obtain and review the complete record. This Court granted 

discretionary review, and for the following reasons, we affirm the decision of the 

Court of Appeals. We set forth additional facts as necessary below. 

II. ANALYSIS. 

On appeal to this Court, Jeffrey makes three assignments of error: (1) 

that he was denied his constitutional right to an appellate review; (2) that the 

family court erred when it took judicial notice of the lethality factors; and (3) 

that the court erred when it used the lethality factors as the standard to enter 

a DVO. We address each argument in turn. 

A. Appellate Review. 

Jeffrey argues that the circuit court clerk failed to certify the video record 

of the domestic violence hearing on appeal, and, as a result, the Court of 

Appeals did not receive a copy and could not render a full constitutional 

appellate review. Jeffrey contends that Kentucky Rule of Civil Procedure (CR) 

98(2) requires a circuit court clerk to automatically transmit a copy of the video 

record of a domestic violence hearing to a reviewing court. Thus, he contends, 

an appellant has no duty to take action whatsoever to ensure the video record 

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is transmitted. We do not need to reach the merits of this argument for two 

reasons. 

First, Jeffrey admits that he had clear notice that the video was not part 

of the record on appeal well before he submitted his brief to the Court of 

Appeals. The circuit court clerk filed a Certification of Record on Appeal on 

August 23, 2013 and served it on both parties. The Certification clearly states 

that the "entire record on appeal" does not contain a video record or CD/DVD 

Recordings. Jeffrey does not dispute that he received a copy of the 

Certification. Jeffrey filed his brief in the Court of Appeals on September 19, 

2013 or 27 days after he was notified that the record did not contain the video. 

Jeffrey made no mention of any incomplete record in his brief, and it was not 

until the Court of Appeals rendered its decision that Jeffrey assigned error to 

the missing video. Jeffrey had more than sufficient time to call attention to 

what he now argues is an incomplete record, yet he silently continued with his 

appeal. Having missed his opportunity, Jeffrey is foreclosed from assigning 

error now. 

Second, Jeffrey's attorney conceded during oral arguments that the video 

is not relevant to his client's appeal. When asked what, if anything, the video 

record would reveal that the family court did not record in its factual findings, 

Jeffrey's attorney responded that nothing would be different. He further added 

that this Court has what it needs in the written record to render a full decision 

and that the family court's findings were a fair and accurate account of what 

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was adduced at the hearing—"no more, no less." Thus, the contents of the 

video record are unnecessary for purposes of this appeal. 

Because Jeffrey is not arguing that the record fails to support the family 

court's judgment nor does he allege any other factual dispute, we do not need 

to consider this assignment of error. Questions "'which are merely advisory, 

academic, hypothetical, incidental or remote, or which will not be decisive of a 

present controversy' do not present justiciable controversies." Commonwealth, 

Kentucky Bd. of Nursing v. Sullivan Univ. Sys., Inc., 433 S.W.3d 341, 344 (Ky. 

2014) (quoting Hughes v. Welch, 664 S.W.2d 205, 208 (Ky.App.1984)). To 

opine on a non-issue, which would not be decisive, would be to render an 

advisory opinion in violation of the constitutional mandate of this Court. 

Commonwealth v. Hughes, 873 S.W.2d 828, 830 (Ky. 1994). 

B. Judicial Notice. 

As he did before the Court of Appeals, Jeffrey continues to argue that the 

family court impermissibly took judicial notice of the lethality factors for 

intimate partner violence. He alleges the factors are not the kind of facts that 

are the proper subject of judicial notice and that the court did not follow proper 

procedure set forth in Kentucky Rule of Evidence (KRE) 201 when adopting 

them. The Court of Appeals found that this argument was without merit, and 

we agree. 

A trial court may take judicial notice of adjudicative facts that are not 

subject to reasonable dispute. KRE 201. In other words, KRE 201 allows 

judicial notice to be taken of facts which can be determined from 
"unimpeachable sources" such as "encyclopedias, calendars, maps, medical 

and historical treatises, almanacs, and public records." Robert G. Lawson, The 

Kentucky Evidence Law Handbook § 1.00(2)(c), at 7 (5th ed. 2013); see also 

Clay v. Commonwealth, 291 S.W.3d 210, 219 (Ky. 2008). Classic examples of 

facts taken by judicial notice include the definition of words, the phases of the 

moon, and reliability of some scientific tests. 

Lethality factors or "lethality predictors" for intimate partner violence are 

not facts but risk factors used by courts, law' enforcement, counselors, and 

social scientists to evaluate the threat of domestic violence between partners. 

Louise E. Graham and James E. Keller, 15 Kentucky Practice: Domestic 

Relations Law § 5:13 (West 2014); Symposium, Death by Intimacy: Risk Factors 

for Domestic Violence, 20 Pace L. Rev. 263 (2000). Common factors include: 

threats of homicide or suicide, or suicide attempts; history of domestic violence 

and violent criminal conduct; stalking; depression or other mental illness; 

obsessive attachment to victim; separation of parties; drug or alcohol 

involvement; possession or access to weapons; abuse of pets; destruction of 

victim's property; and access to victim and victim's family and other 

supporters. Id. at n. 89. 

We agree with Jeffrey that these factors are not the type of facts that are 

normally taken by judicial notice, but we also agree with the Court of Appeals 

that these factors were not taken by judicial notice. The family court's 

reorganization of facts elicited during the hearing was not done according to 

judicial notice; all the adjudicative facts were proven through testimony. The 

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list of lethality factors—presumably contained in the court's mind—was judicial 

knowledge rather than judicial notice. This Court has previously held that 

judicial knowledge and notice are inherently different and that "[w]hile a 

resident judge's background knowledge of an area may 'inform the judge's 

assessment of the historical facts,' the judge may not actually testify in the 

proceeding or interject facts (excluding facts for which proper judicial notice is 

taken)." Commonwealth v. Howlett, 328 S.W.3d 191, 193 (Ky. 2010) (quoting 

U.S. v. Berber—Tinoco, 510 F.3d 1083, 1091 (9th Cir.2007)). The family court 

had permissible judicial knowledge of the lethality factors. In other words, the 

court employed its background knowledge of domestic violence risk factors to 

inform its judgment as to whether the facts of this case indicated that domestic 

violence may occur again. 

Because no adjudicative facts were taken according to judicial notice, 

there was no violation of KRE 201. 

C. DVO Standard. 

Jeffrey also maintains his argument below that the family court 

erroneously relied on the lethality factors as the standard for issuing the DVO. 

Jeffrey asserts that KRS 403.750 and 403.720 make up the proper standard. 

A court may issue a DVO if, "[following the hearing provided for under 

KRS 403.740 and 403.745, [it] finds from a preponderance of the evidence that 

an act or acts of domestic violence and abuse [has] occurred and may again 

occur . . . ." KRS 403.750. "'Domestic violence and abuse' means physical 

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

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

between family members or members of an unmarried couple." KRS 403.720. 

Thus, in this case, the family court was required to determine whether, by a 

preponderance of the evidence, Jeffrey inflicted fear of imminent physical 

injury, serious physical injury, sexual abuse, or assault and whether fear, 

injury, abuse, or assault might occur in the future. The court properly made 

this finding. 

Following the hearing, the family court found that Sara had met the 

burden above and entered a DVO against Jeffrey. To document this order, the 

court completely and accurately filled out AOC Form 275.3 and, under the 

"Additional Findings" header, checked the box corresponding to "for [Sara] 

against [Jeffrey] in that it was established, by a preponderance of the evidence, 

that an act(s) of domestic violence or abuse occurred and may again occur." To 

supplement this finding, the family court made further factual findings on its 

docket sheet, which are recounted above. 

We agree with the Court of Appeals that the family court adhered to the 

proper standard and that its reference to lethality factors does not indicate 

otherwise. The finding made on AOC Form 275.3 clearly tracks the language of 

KRS 403.750 and applies the proper standard. Additionally, the reference to 

lethality factors on the docket sheet does not negate the court's previous 

finding. The court merely used its judicial knowledge of common risk factors to 

evaluate whether domestic abuse may occur in the future, as required by the 

statutory standard. The predictive nature of the standard requires the family 

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court to consider the totality of the circumstances and weigh the risk of future 

violence against issuing a protective order. In hindsight, perhaps the family 

court should not have employed social science terminology in describing its 

analysis; nonetheless, the substance of the court's reasoning was not 

erroneous. 

Finally, Jeffrey argues that the family court did not specify sufficient 

findings of fact to support its DVO because the AOC Form 275.3 is deficient. 

We disagree. 

CR 52.01 provides that "[i]n all actions tried upon the facts without a 

jury or with an advisory jury, the court shall find the facts specifically and 

state separately its conclusions of law thereon and render an appropriate 

judgment . . . ." We are also guided by this Court's holding in Anderson v. 

Johnson, 350 S.W.3d 453, 458 (Ky. 2011) ("CR 52.01 requires that the judge 

engage in at least a good faith effort at fact-finding and that the found facts be 

included in a written order") as well as Keifer v. Keifer's admonishment to trial 

courts to include written findings in all orders affecting child custody. 354 

S.W.3d 123, 215 (Ky. 2011). 

The family court's written findings of fact were more than sufficient to 

satisfy CR 52.01. In addition to clearly finding that an act or acts of domestic 

violence had occurred and may occur again on the form, the court also listed 

on its docket sheet nine specific findings to support its order. Jeffrey does not 

contend that these findings are not accurate or that they had not been proven 

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during the hearing; therefore, we need not weigh their substantive value. This 

effort more than satisfies the court's good faith duty to record fact-finding. 

We need not consider Jeffrey's argument that AOC Form 275.3 is 

deficient because, as we held above, the family court made more than sufficient 

findings of fact. Therefore, regardless of the alleged deficiencies in AOC Form 

275.3, proper findings were made and recorded in the case at bar. 

III. CONCLUSION. 

For the reasons stated above, we affirm the opinion of the Court of 

Appeals. 

Minton, C.J., Abramson, Barber, Cunningham and Keller, JJ., concur. 

Venters, J., not sitting. Noble, J., concurs but would state that "lethality 

factors" are merely a series of factors often found to have been present after the 

fact of domestic violence (and certainly not all of them in every case), and as 

always, a court must exercise independent judgment as to the weight of the 

presence of any of the factors in the case before it, as such factors have not 

been normed nor found to be statistically predictive. 

COUNSEL FOR APPELLANT: 

William David Tingley 

COUNSEL FOR APPELLEE: 

Dina Abby Bartlett 

Bryan Daniel Gatewood 

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