Telek v. Daugherty, 2009-CA-001993-ME
Published: Reversing and Remanding
On remand from Kentucky Supreme Court, Father challenges sufficiency of evidence supporting FC’s entry of Domestic Violence Order.
Mother and Father have a son born in 1997. An incident occurred in 2009 when Mother attempted to pick up Son from football practice. Mother subsequently filed an EPO, alleging that at that practice she and Father got into a dispute as to when Mother was to retrieve Son; that as Mother was standing at passenger side door of Father’s van telling Son to come with her, Father grabbed her by wrist and yanked her, then shoved her out of the way; that she then called for help; that Father had been sentenced to jail time for violating multiple court orders in custody case; and that all three of her children witnessed the incident. EPO was granted. At the DVO hearing, Mother testified to all these facts and that although she had not been injured, she was afraid. Father testified that he never grabbed or shoved Mother, but that she grabbed his hand from the door of the van; he also stated that he only wanted to take his Son to his home to retrieve a change of clothes and his summer reading assignment for the first day of school the following day; and that he never had any intent to harm or scare Mother. The GAL testified that Son stated nothing had happened that day.
At the conclusion of the hearing, FC determined only that “something happened” and recognized Father’s failure to follow FC orders and to read FC orders in his favor. Upon Father’s request for specific findings, FC found that Father had touched and pushed Mother and that such behavior would continue in the future. FC entered DVO, effective for three years, requiring Father to stay 500 feet away from Mother and her family other than for child exchanges or for Child’s events related to sports and school.
On remand from Supreme Court, Father argues that there were insufficient facts to support entry of DVO. CA agreed, in light of previous precedents establishing that “unwanted touching,” standing alone, is insufficient evidence for entry of a DVO. CA also found FC erred by basing its decision on Father’s actions in domestic case, holding that this bad behavior was not connected to the incident of domestic violence and therefore cannot form the basis for entry of the DVO.