Manning v. Willett, --S.W.3d – (Ky. App. 2007)
Issue and Holding:
Whether the district court erred in entering, sua sponte, an order for a mutual domestic violence order. The Court held yes, as the domestic violence statutes do not provide for mutual domestic violence orders under the factual scenario in the instant case.
The parties have a child in common. Two months after the child was born, Charles was arrested for assault fourth degree and two counts of terroristic threatening for choking, beating, and threatening Kimberly. Kimberly also obtained an EPO. Charles pled guilty to the charges. Kimberly failed to appear for the domestic violence hearing and the EPO was dismissed.
Months later, Charles assaulted Kimberly again and was charged with assault fourth degree, terroristic threatening, and criminal mischief third-degree. Kimberly obtained an EPO. At the EPO hearing the judge ordered Charles to have no contact with Kimberly or her family. Charles was also sentenced on the criminal charges.
A couple months later Charles was arrested at Kimberly’ residence and charged with violation of the DVO and terroristic threatening. The police also arrested Kimberly for violating the DVO which she had obtained. Charles pled guilty to violating the DVO, and was sentenced on the new charges. The court dismissed the criminal charges against Kimberly, but then sua sponte entered a DVO for Charles against Kimberly, expressing its frustration with Kimberly inviting Charles over to her residence despite the DVO in place.
Kimberly appealed to the Circuit Court. The court affirmed the decision below relying on KRS 403.750(1) (h). The Court of Appeals granted discretionary review.
KRS 403.735(2) specifically states that a court may issue mutual protective orders only if a separate petition is filed by the respondent. This did not occur in the instant case. Charles never filed a petition and never alleged Kimberly committed acts of violence or abuse. Therefore, the district court erred in entering a DVO against Kimberly and the circuit court erred in affirming the order. The lower courts’ reliance on KRS 403.750(1) (h) and KRS 403.715(2) was misplaced.
The Court noted, with agreement, the complex physical and psychological process many domestic violence victims struggle with, quoting at length from Kimberly’s brief.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates