OPINION
Appellant, Justin Kyle Johnston (“Justin”), appeals from the Hardin Family Courts entry of a domestic violence order (“DVO”) granted on behalf of Appellee, Cindy Patricia Johnstons (“Cindy”) minor child. Following a careful review of the record and the law, we affirm.
I. BACKGROUND
Justin and Cindy were married in 2017. On September 21, 2020, Cindy, on her own behalf and on behalf of her minor child, S.O., filed a petition seeking a DVO restraining Justin. Cindy alleged in her petition that on September 19, 2020:
My family and I were at a [friends] BBQ ․ when my [12-year-old] daughter told Kim Luna that Justin Johnston kissed her and [tried] to stick his [tongue] in her mouth. Justin even told two of the men[,] Jose Luna and Carslo Lowery in the back yard that “his wife and daughter were bitches[”] over and over and never used [their] names and stated [“]he wanted a divorce from them.[”] Chris Green, Terra Green, Tasha Lower were also [present] during the [incident] when my child spoke up. Im worried he is going to return to [the] house while Im not home when my child doesnt have school. Based on Cindys petition, the Hardin Family Court entered an emergency protective order and issued a summons for Justin. The family court held a domestic violence hearing on October 5, 2020. At the hearing, the family court heard testimony from Cindy, Justin, and S.O. Cindy testified:
Counsel: Tell me what happened. [S.O.] made a disclosure ․ weve only got a few minutes, so ․
Cindy: She made a disclosure at a barbecue that my husband physically sexually assaulted her.
Counsel: By doing what?
Cindy: That he kissed her and stuck his tongue in her mouth. And she mentioned it to me, but I did not believe her at the time because she was going through phases where she was lying.
․
Cindy: [S.O.] was not with me when she told Kim what happened. I was in the back [yard] and [S.O.] and Kim were in the front of the house.
․
Counsel: Why did you file this [petition]?
Cindy: To protect my child because I am a rape victim.
Counsel: This isnt ․ about you. You filed this on [S.O.’s] disclosure?
Cindy: Yes.
Counsel: And you believe S.O.’s disclosure is truthful?
Cindy: Yes.
․
Counsel: Do you believe that a domestic violence order is necessary to protect S.O. from Mr. Johnston?
Cindy: Yes.
Counsel: And are you asking the court to enter a domestic violence order against Mr. Johnston on behalf of S.O.?
Cindy: Yes.
․
Counsel: Judge, Ill pass this witness. I know our time is limited.
S.O. also provided sworn testimony at the hearing. When asked by the family court judge whether she knew the difference between the truth and a lie, S.O. stated that she did. S.O. also testified as follows:
Judge: You know Justin Johnston, dont you?
S.O.: Yes.
Judge: And had Mr. Johnston ․ hes your stepfather, correct?
S.O.: Yes, maam.
Judge: Has Mr. Johnston ever done anything to you that made you feel uncomfortable?
S.O.: Yes, maam.
Judge: Do you want to tell me what that was?
S.O.: Um, a couple months ago, um, he was like drunk, drinking like bourbon and stuff and beers. And then he got drunk while I was sitting next to him on the couch. He pulled me over and then he kissed me and then I said I wanted to go to bed.
Judge: Alright where was your mother at when all that happened?
S.O.: She was in the bedroom because she had just got home at 7 [oclock] and it was about 8 or 9 [oclock] when this situation happened.
․
Judge: So, youre saying he pulled you to him and he tried to kiss you, is that what youre saying happened?
S.O.: With his tongue, yes maam.
Judge: Okay, is that the only time hes ever done anything like that?
S.O.: Yes. Thats the only thing I can remember.
Judge: Okay. And what did you do when he tried to do that?
S.O.: I kind of like pulled back.
Judge: Okay. And did he say anything to you or what did he do?
S.O.: No, um, I went to bed because I asked him if I could go to bed and then I went off to bed. I kind of felt uncomfortable the rest of the night.
Judge: Yeah.
S.O.: Like I kind of stayed up late.
Judge: When did you tell your ․ did you tell your mom when she came home, err, the next day about what happened?
S.O.: Well, this was like ․ when my mom came home, she was tired, she took a shower, ate dinner. She went to bed. Justin was ․ got a little bit drunk because I guess it was like his day off or something. And then the next day I had to go to my grandmas, um, I told her about it in the car․ I dont remember the day, but it was definitely like a Saturday.
Based on S.O.’s testimony and the totality of the evidence presented, the family court judge made an oral finding of domestic violence with respect to S.O., but not with respect to Cindy. At that point, Justins counsel and the family court engaged in the following exchange on the record:
Counsel: Judge, I know youre in a hurry, but just so the records clear. Are you finding that, uh, the kiss constitutes, uh, sex abuse, or what under the statute?
Judge: Well, I think it falls within the definition of domestic violence because I think it put her in fear that a kiss was going to maybe lead to something worse. I think a child of her age, that puts her in imminent fear of bodily harm. So, Im making a finding of domestic violence. Im going to enter the DVO for a period of one year.
Following that hearing, the Hardin Family Court entered a DVO on behalf of S.O. on Administrative Office of the Courts (AOC) Form 275.3.
1
This appeal followed.
II. STANDARD OF REVIEW
We review the entry of a DVO for whether the trial courts finding of domestic violence was an abuse of discretion. McKinney v. McKinney, 257 S.W.3d 130, 133 (Ky. App. 2008). Our review of the trial courts factual findings is limited to whether they were clearly erroneous. Kentucky Rules of Civil Procedure (“CR”) 52.01; Hall v. Smith, 599 S.W.3d 451, 454 (Ky. App. 2020). A trial courts factual determination is not clearly erroneous if it is supported by substantial evidence, which is evidence of sufficient probative value to induce conviction in the minds of reasonable people. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). III. ANALYSIS
“A trial court is authorized to issue a DVO if it ‘finds by a preponderance of the evidence that domestic violence and abuse has occurred and may again occur[.]’ ” Castle v. Castle, 567 S.W.3d 908, 915 (Ky. App. 2019) (quoting Kentucky Revised Statutes (“KRS”) 403.740(1)). “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.” Caudill v. Caudill, 318 S.W.3d 112, 114 (Ky. App. 2010) (citing Baird v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007)). In Caudill, this Court addressed the DVO process and discussed the construction of DVO statutes: While domestic violence statutes should be construed liberally in favor of protecting victims from domestic violence and preventing future acts of domestic violence[,] the construction cannot be unreasonable. Furthermore, we give much deference to a decision by the family court, but we cannot countenance actions that are arbitrary, capricious or unreasonable.
Id. at 115 (internal quotation marks and citations omitted).
KRS 403.720(1) defines domestic violence and abuse 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, strangulation, or assault between family members or members of an unmarried couple.” On appeal, Justin argues that, even assuming the incident had occurred as S.O. alleges that it did, the act of kissing his 12-year-old stepdaughter does not, without more, constitute domestic violence as defined by KRS 403.720(1). 2
Justin asserts that absent testimony from S.O. that she was fearful that he would attempt to kiss her again or that he may harm her in the future, there was insufficient evidence for the family court to find that Justin placed S.O. in “fear of imminent physical injury.”
In addressing Justins arguments on the merits of the family courts findings, we must first address the scope of what to consider on review.
The DVO issued by the family court consists of the courts having filled out AOC Form 275.3 and checking the box under the “Additional Findings” heading corresponding to “For the Petitioner against the Respondent in that it was established, by a preponderance of the evidence, that an act(s) of domestic violence or abuse ․ has occurred and may again occur[.]” Moreover, the family court checked the box under the “Additional Terms of Order” heading conveying the following term:
In order to assist in eliminating future acts of domestic violence and abuse, dating violence and abuse, stalking, or sexual assault IT IS HEREBY ORDERED that the findings of fact and conclusions of law announced on the record as set forth hereinabove are expressly and specifically are expressly and specifically [sic] incorporated by reference herein as if written in full. Boone v. Boone, 463 S.W.3d 767, 768 (Ky. App. 2015); Kindred Nursing Centers, Ltd. Partnership v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010). We are mindful that “[a] family court is obligated to make written findings of fact showing the rationale for its actions taken under KRS Chapter 403, including DVO cases, even if the rationale may be gleaned from the record.” Thurman v. Thurman, 560 S.W.3d 884, 887 (Ky. App. 2018). Indeed, the importance of a trial courts written findings is emphasized in family law matters. See, e.g., id.; Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011); Keifer v. Keifer, 354 S.W.3d 123, 125-26 (Ky. 2011). The family courts method of incorporating its oral findings into its written order, however, was recently approved by the Kentucky Supreme Court in Smith v. McCoy, No. 2021-SC-0050-DGE, 635 S.W.3d 811 (Ky. Aug. 26, 2021):
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As previously described, the trial court made findings of fact and conclusions of law orally at the end of the hearing. It also fully and accurately completed AOC Form 275.3, finding, by a preponderance of the evidence, that acts of sexual abuse had occurred and may occur again. Finally, it entered a written order expressly and specifically incorporating its oral findings and conclusions into the written order. We hold this was sufficient to meet the trial courts duty to engage in at least a good faith effort at fact-finding and that the found facts be included in a written order. Id. at 817 (internal quotation marks and citation omitted). Considering Smith, the family courts oral findings of fact were properly incorporated into its written order and we consider those findings in an effort to determine whether the family court erred.
We agree with the rationale expressed by the family court. The act of an adult attempting to kiss a twelve-year-old child with his tongue is more than sufficient to create a concern in the childs mind that sexual abuse may occur in the future. In the family courts words, “it put her in fear that a kiss was going to maybe lead to something worse. I think a child of her age, that puts her in imminent fear of bodily harm.” That is a reasonable presumption under the circumstances. We certainly cannot say that such a finding is clearly erroneous. When reviewing a decision on a DVO petition, “the test is not whether we would have decided it differently, but whether the courts findings were clearly erroneous or that it abused its discretion.” Gomez v. Gomez, 254 S.W.3d 838, 842 (Ky. App. 2008) (citations omitted). As the family court did not abuse its discretion in entering the DVO, its decision will not be disturbed on appeal.
For the foregoing reasons, we affirm the family courts decision to grant the petition for a DVO.
FOOTNOTES
1
. The DVO at issue herein expired on October 5, 2021. However, its expiration does not moot the instant appeal because of the collateral consequences of the DVO. Caudill v. Caudill, 318 S.W.3d 112, 114 (Ky. App 2010).
2
. We note that in his testimony at the October 5, 2020 hearing, Justin did deny that the incident took place as described by Cindy and S.O.
3
. A previous version of this Opinion was rendered by the Court on August 20, 2021, six days before the Kentucky Supreme Court rendered its Opinion in Smith. In light of the similarity of the issues and the guidance provided in Smith, this Court withdrew its previous Opinion by order entered September 3, 2021.
McNEILL, JUDGE:
ALL CONCUR.