ALMASYABI (FIRAS) VS. BAGHIT (KHADIJA)
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RENDERED: DECEMBER 13, 2019; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2019-CA-000903-ME FIRAS ALMASYABI v. APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE A. CHRISTINE WARD, JUDGE ACTION NO. 19-D-500176-001 KHADIJA BAGHIT APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, COMBS, AND MAZE, JUDGES. COMBS, JUDGE: Firas Al Masyabi1 appeals from the domestic violence order of the Jefferson Family Court entered on January 23, 2019, that restrained him from The Notice of Appeal utilizes the spelling of “Almasyabi.” However, the court documents attached to the record indicate “Al Masyabi,” the spelling that we have adopted in this opinion. 1 unauthorized contact with Khadija Baghit, his spouse. Following our review, we affirm. On the evening of January 21, 2019, pursuant to the provisions of KRS2 403.730, the family court, ex parte, issued an emergency protective order for the benefit of Khadija. Upon reviewing Khadija’s petition, the court found that there was an immediate and present danger of domestic violence and abuse. Firas was ordered to vacate the residence shared by the parties and to avoid contact with Khadija. He was summoned to appear on January 23, 2019, for a hearing before the family court. Following the hearing conducted on January 23, 2019, the court found that Firas had pushed Khadija on multiple occasions and that Khadija was justifiably afraid for her safety. A domestic violence order was entered restraining Firas from further acts of abuse or threats of abuse and any unauthorized contact with Khadija. In a domestic violence treatment order entered on the same date, Firas was ordered to enroll in and to complete domestic violence offender treatment. On February 5, 2019, Firas filed a motion to vacate the domestic violence order. He contended that he had not been given a fair opportunity to prepare and to present his evidence. He also argued that the evidence relied upon 2 Kentucky Revised Statutes. -2- by the court was insufficient to justify entry of the order against him. On February 20, 2019, the court ordered that a hearing on the motion be conducted on February 28, 2019. Following the hearing conducted on February 28, 2019, the court decided to conduct another evidentiary hearing concerning Khadija’s petition because of a malfunction of the court’s recording equipment during the hearing which had been held on January 23, 2019. Meanwhile, the domestic violence order remained in effect, and another hearing was scheduled for May 9, 2019. The hearing conducted on May 9, 2019, was extensive. Both Khadija and Firas were represented by counsel. Based on the testimony and its observations of Firas during the proceedings of May 9, the court found that Firas had difficulty restraining himself. It also found that Firas believed that Khadija was his property and that Firas believed that he was wholly justified in pushing and threatening her. The court was persuaded that Firas had repeatedly grabbed Khadija and had pushed her onto a couch and into a wall. The domestic violence order was re-issued. On May 20, 2019, Firas filed a motion to alter, amend, or vacate the domestic violence order. Once again, Firas argued that he had not been given a fair opportunity to prepare and to present his evidence. He also argued that Khadija’s testimony was inconsistent, incredulous, and perjured. He contended -3- that the evidence was insufficient to support issuance of the court’s domestic violence order. In an order entered on June 4, 2019, the court denied the motion to alter, amend, or vacate. This appeal followed. As a preliminary matter, we note that Firas’s appellate briefs are not in compliance with the provisions of CR3 76.12. They do not conform to the pagelimit requirements of CR 76.12(4)(b). Pursuant to the provisions of CR 73.02(2), where a party fails to comply with the appellate rules, we are authorized (among other remedies) to dismiss the appeal, strike the offending briefs, and impose fines. We have nonetheless elected to disregard the error and to review the merits of this case. We caution counsel, however, to comply in the future or to be subject to the reprisals which we have refrained from imposing in this case. See Hawkins v. Miller, 301 S.W.3d 507 (Ky. App. 2009); Mullins v. Ashland Oil, Inc., 389 S.W.3d 149 (Ky. App. 2012); Hallis v. Hallis, 328 S.W.3d 694 (Ky. App. 2010); Koester v. Koester, 569 S.W.3d 412 (Ky. App. 2019). On appeal, Firas argues that he was not afforded a fundamentally fair hearing in this matter because he was not provided at least seventy-two (72) hours following service of the summons to prepare for the court’s hearing conducted on 3 Kentucky Rules of Civil Procedure. -4- January 23, 2019. In support of his argument, Firas relies upon the provisions of KRS 403.735(2)(a). The provisions of KRS 403.735(2) apply to hearings ordered pursuant to the provisions of KRS 403.730, which direct the family court to review a petition for an order of protection immediately upon its filing. If the petition indicates that domestic violence and abuse exist, the court “shall summons the parties to an evidentiary hearing not more than fourteen (14) days in the future.” KRS 403.730(1)(a). Service of the summons and hearing order must be made upon the respondent personally. The statute provides that the summons may reissue if service has not been made on the respondent by the scheduled hearing date and time. KRS 403.730(1)(b). Where the respondent is not present at the scheduled evidentiary hearing and has not been served, KRS 403.735(2)(a) provides that the court’s emergency protective order shall continue in effect. The court is required to continue the evidentiary hearing and to direct the issuance of a new summons for a hearing set not more than fourteen (14) days in the future. The court is authorized to repeat the process of continuing the hearing and reissuing a new summons until the respondent is served in advance of the scheduled hearing. Where service has not been made on the respondent at least seventy-two (72) hours prior to the scheduled hearing, the statute permits the court to continue the hearing again for -5- another fourteen (14) days or fewer. Provision for a speedy evidentiary hearing is necessary because the court’s initial protective order is issued by the court ex parte. The statute does not require that the court continue the hearing where the respondent has not been served at least seventy-two (72) hours prior to the scheduled hearing. Nevertheless, principles of due process require that each party to a legal proceeding has a meaningful opportunity to be heard. Clark v. Parrett, 559 S.W.3d 872 (Ky. App. 2018). “[A] party has a meaningful opportunity to be heard where the trial court allows each party to present evidence and give sworn testimony before making a decision.” Holt v. Holt, 458 S.W.3d 806, 813 (Ky. App. 2015). At the initial hearing, conducted on January 23, 2019, Firas did not request a continuance. Instead, he indicated to the court that he had prepared all the evidence he needed to show that Khadija’s allegations against him were false. He testified regarding the disputed events and read aloud the parties’ social media and/or text messages. He described the parties’ disagreements and vehemently denied that he had been harsh or violent with Khadija. In contrast, Khadija testified that Firas was routinely violent with her. The court did not restrict Firas’s opportunity to rebut that testimony. -6- The family court’s second hearing, conducted on May 9, 2019, was lengthy. Both Khadija and Firas were represented by counsel. The family court gave Firas’s counsel wide latitude both in his extensive cross-examination of Khadija and in his direct examination of Firas. During cross-examination of Firas, the court cautioned Khadija’s counsel to permit Firas to complete his answers, and counsel complied. Firas was afforded a fundamentally fair proceeding. He was given fair notice of the first hearing and full opportunity to be heard. Without reservation, he expressed to the court that he was ready to proceed. Firas was given fair notice of the second hearing and retained able counsel to represent him. There was no error. Next, Firas contends that the family court erred in issuing a domestic violence order because Khadija’s testimony was inconsistent, vague, and otherwise unbelievable. He contends that only his version of the facts was credible. Having examined the entirety of the record, we disagree. In issuing a domestic violence order, a court must find by “a preponderance of the evidence that domestic violence and abuse has occurred and may again occur[.]” KRS 403.740(1). Domestic violence 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, -7- strangulation, or assault between family members . . . .” KRS 403.720(1). “Under the preponderance standard, the evidence must establish that the alleged victim was more likely than not to have been a victim of domestic violence.” Rankin v. Criswell, 277 S.W.3d 621, 624 (Ky. App. 2008) (citing Wright v. Wright, 181 S.W.3d 49, 52 (Ky. App. 2005)). Because the family court had the opportunity to hear the testimony and to evaluate the witnesses, we may not consider whether we would have decided the case differently. We may only determine whether the findings of the family court were adequately supported by the evidence. Gibson v. Campbell-Marletta, 503 S.W.3d 186, 190 (Ky. App. 2016). There was sufficient evidence in this case to indicate that an act or acts of domestic violence had occurred and might occur again. At the hearing conducted on January 23, 2019, Khadija testified that Firas pushed her onto a sofa, pushed her against a wall, grabbed her by the face, verbally abused her, and controlled her through access to money and transportation. Khadija said that she was afraid of Firas. Firas’s testimony that the parties continued to be affectionate at points following the violent episodes does not undermine the court’s findings. The court’s decision to issue the domestic violence order cannot be reversed on this basis. Firas next argues that the court erred by drawing an impermissible inference from his statement indicating that Khadija “belongs” to him. Firas -8- contends that the court wrongfully inferred that since he regarded Khadija as his chattel, he had been violent with her. Firas argues that the court “perhaps, unwittingly, equates Shariah Law with violence against women.” We disagree. From the undisputed testimony that Firas regards Khadija as his property, the court inferred that he also believes that he was justified in pushing Khadija. This inference is reasonable. And it supports the court’s finding that based upon a preponderance of the evidence, an act or acts of domestic violence may again occur. There was no error. Finally, Firas objects to the court’s finding that he was unable to restrain himself at the court’s hearing of May 9, 2019. However, in view of counsel’s concession that Firas inappropriately interjected himself during the proceedings, we see no reason to address the matter. Based upon the foregoing, we AFFIRM the order of the Jefferson Circuit Court. ALL CONCUR. BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE: Dean H. Sutton Louisville, Kentucky John Young Louisville, Kentucky -9-
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