Wolfe v. Wolfe, 2012-CA-000578-ME
To Be Published: Affirming
Mom appeals denial of DVO on child’s behalf claiming that Kentucky Rules of Civil Procedure do not apply to DV proceedings and she was denied opportunity to offer proof during DV hearing.
On 10/28/11, Mom filed for EPO on Daughter’s behalf. EPO was issued and Dad was ordered to appear on November 7, 2011. That hearing was continued due to lack of service on Dad. New Hearing was set for November 21, 2011. Both parties appeared along with the Cabinet. Cabinet reported their investigation was not complete, and the hearing was continued several more times until February 23, 2012, after the Cabinet investigation was complete.
At that hearing, Mom moved for continuance to obtain certified medical records from University of Kentucky Healthcare. Though she had filed a Notice of Intent to introduce medical records, University of Kentucky had refused to honor subpoena, stating the records would not be produced without a court order. Dad objected, stating that Mom had sought the records without notice to him, without giving him an opportunity to review the medical records, and therefore not in compliance with Kentucky Rules of Civil Procedure. Trial Court denied motion to continue. At the conclusion of the hearing, Trial Court denied the Petition and Mom appealed.
Mom claimed DV proceedings are statutory summary proceedings to which ordinary Rules of Civil Procedure do not apply. She argued that DV proceedings are meant to be expedited proceedings with a specific timeline prescribed by statute, and this timeline does not provide enough time to comply with Kentucky Rules of Civil Procedure. CA found that, as in DNA proceedings, though there is shortened time to hold hearings, continuances alleviate any injustice this may create. As this case was continued a number of times, no injustice occurred.
Mom also complained that she was unable to ask a question of a witness, but as there was no avowal testimony, this error was not preserved for review.