Background
Whitten and Everitt were in a four-year dating relationship and had one child together. They lived together but were in the process of separating when, on November 11, 2025, Everitt told their daughter that her mother would have to move out after the holidays and go to a homeless shelter. When the daughter relayed this to Whitten, she became enraged, punched and kicked Everitt, threatened to slit his throat while he slept, and spat on him. Everitt obtained an emergency protective order the next day.
At the December 11, 2025 DVO hearing in Daviess Family Court, the trial court initially offered Whitten a stipulated agreement with a 500-foot no-contact order, AppClose communication, and equal parenting time. Whitten rejected the stipulation and insisted on a full hearing. Both parties appeared pro se. The court viewed video recordings on Everitt’s phone corroborating his testimony about Whitten’s threats and physical assault.
Whitten argued she had documentary evidence of prior abuse by Everitt and that her reaction was a response to provocation and duress. She sought to introduce evidence including texts, police reports, prior DVOs from other states, and psychiatric records. The trial court permitted her to cross-examine Everitt about prior incidents but did not admit most of the documentary evidence. The court entered a DVO requiring Whitten to stay 500 feet from Everitt, surrender her concealed carry permit, and communicate only through AppClose.
The Court’s Holding
The Kentucky Court of Appeals affirmed the domestic violence order. The court found that the preponderance of the evidence supported a finding that domestic violence and abuse had occurred and might occur again. The statutory definition of domestic violence includes “the infliction of fear of imminent physical injury” between unmarried couple members. Everitt’s testimony that he feared Whitten would carry out her threats to slit his throat—coupled with the video recordings showing Whitten making these explicit threats while punching, kicking, and spitting on him—constituted substantial evidence of both actual violence and a credible fear of imminent physical injury.
The court rejected Whitten’s contention that Everitt’s fear was merely pretextual or strategic. Although Everitt initially answered “No” when asked if he was fearful, he clarified that he was “absolutely” afraid when confronted with Whitten’s specific threat to slit his throat. The court noted that credibility determinations and weighing of evidence are within the exclusive province of the trial court and found no clear error in the trial court’s factual findings.
The court also rejected Whitten’s due process argument regarding the exclusion of documentary evidence. It found that Whitten did not formally present most of the evidence to the trial court for a ruling on admissibility and that the trial court’s decision to focus on the testimony and video evidence from the November 11 incident was not an abuse of discretion. The court did permit Whitten to cross-examine Everitt about prior incidents of violence.
Key Takeaways
- Threats of imminent physical harm, when accompanied by actual physical violence and corroborated by video evidence, satisfy the preponderance-of-the-evidence standard for issuing a DVO.
- A respondent’s fear of domestic violence need not rest solely on verbal threats; physical acts such as punching, kicking, and spitting, combined with explicit threats, establish both past violence and risk of future harm.
- Trial courts have discretion to limit documentary evidence of prior incidents when the immediate incident provides substantial evidence of domestic violence; appellate review applies an abuse-of-discretion standard.
- Inconsistency in a respondent’s testimony about fear (initially answering “No” then “Yes”) does not undermine credibility when clarified during cross-examination and supported by corroborating video evidence.
Why It Matters
This decision reinforces Kentucky’s commitment to protecting domestic violence victims while establishing that credible fear of imminent injury can be proven through a combination of threats and accompanying physical acts. The opinion clarifies that DVOs are not precluded simply because a dispute occurs in an emotionally charged context or because the parties have a history of conflict. The court emphasized that isolated verbal outbursts do not, standing alone, satisfy the statute, but verbal threats paired with corroborating physical violence—as here—clearly do.
The decision also addresses the use of generative AI in legal briefs, with the court cautioning that it found hallucinated case citations in Whitten’s pro se brief and warning of “severe penalties” for future non-compliant filings. This reflects courts’ increasing attention to AI-generated legal arguments and the importance of accuracy in citations and case law.