Divorce Law Journal

Kessler v. Switzer, Ky COA, No Hearing Required For Extension of DVO

Kessler v. Switzer, __ S.W.3d __ (Ky. App. 2009); 2008-CA-002083-ME

Switzer filed a motion to extend a domestic violence order (DVO) and attached an affidavit stating that she had filed charges against Kessler for violation of the DVO and that she was still in fear of Kessler. When the matter came before the court, Switzer’s counsel informed the court that the charges had been dismissed. Kessler objected to the court ordering the extension without holding a hearing in which Switzer could testify and be cross-examined. He also objected to the extension on the grounds that there was no legal standard for granting such extensions. The trial court granted the extension and this appeal followed.

The COA affirmed. The statute does not require that a hearing be held or that evidence of additional acts of domestic violence be presented in order for the court to grant an extension of a DVO. The trial court properly considered the facts and circumstances of the case. COA also found that Kessler waived his constitutional claims since he failed to follow the proper procedure pursuant to KRS 418.075.

Judge Caperton’s dissent: The trial court should not have accepted the allegations made in Switzer’s affidavit without the test of cross-examination.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Ruby v. Ruby, Ky COA, Domestic Violence, Recusal,Voluntary Dismissal

Ruby v. Ruby DOMESTIC VIOLENCE HEARINGS AND VOLUNTARY DISMISSAL 2008-CA-000122 PUBLISHED: REVERSING AND REMANDING PANEL: THOMPSON PRESIDING; MOORE CONCURS; HENRY CONCURS IN PART AND DISSENTS IN PART COUNTY: JEFFERSON DATE RENDERED: 1/23/2009

Husband appealed from TC’s entry of DVO, asserting that TC judge should have recused; that it should have granted his request for continuance and his request to obtain Wife’s mental health and prescription records; that his constitutional rights were violated because he was denied assistance of counsel, the right to confront witnesses against him, and to present his own witnesses; and that TC should have vacated DVO pursuant to an agreed order entered by the parties.

FACTS: EPO was issued against Husband after Petition for DVO filed by Wife. DVO hearing was scheduled to occur 11 days later, but Husband requested and was granted over Wife’s objection a continuance and the hearing was rescheduled to occur 15 days later. At the rescheduled hearing, Wife and her attorney appeared but Husband did not. Substitute counsel appeared on Husband’s attorney’s behalf and stated that Husband’s attorney was ill and that court staff informed Husband’s attorney that the hearing was continued. TC learned from staff that they did not inform Husband’s attorney that hearing was continued. TC contacted Husband’s attorney at home and informed him that the hearing would proceed. Substitute counsel moved for TC judge to recuse himself as Husband was an attorney that had practiced in his court. TC judge refused.

Wife testified as to extensive injury inflicted by Husband, and Husband’s substitute counsel was given the opportunity to cross-examine Wife. TC then ordered that it would hear testimony from Husband one week later, but that no other testimony would be heard. At that hearing, Husband testified that argument between Husband and Wife occurred because of Wife’s irrational behavior and that her injuries resulted from her tripping over an open dishwasher door.

One week after Husband’s testimony, TC found that Husband abused Wife and that abuse may occur in future and therefore entered DVO prohibiting contact between parties. Two days later, Husband filed motion to vacate DVO, stating that parties were attempting reconciliation and included Agreed Order in which Husband and Wife requested DVO dismissal. TC denied motion but amended DVO from “no contact” order to “no unlawful contact” order.

Judge Recusal: CA held that recusal is not necessary merely because an attorney has practiced before a judge. Only when a judge would be biased against one party is recusal required.

Continuance of Hearing and Constitutional Issues: KRS 403.740 requires that a DVO hearing be conducted within a limited time. Husband had already been granted one continuance, thus it was not an abuse of discretion for TC to deny second continuance. Regarding Husband’s contention that he was not allowed to present witnesses on his behalf, CA held that TC could have entered its decision based only on evidence presented at initial hearing date, which would not have included Husband’s testimony, and that TC gave Husband more than he was entitled to by granting the additional date for Husband to testify. Regarding his claim that he could not confront witnesses, substitute counsel for Husband did cross-examine Wife though Husband was not present.

Husband also contended that he should have been able to call Witnesses to testify on his behalf and specifically complained that though he subpoenaed Wife’s brother and sister-in-law to appear at the second hearing date, TC judge refused to hold those witnesses in contempt. CA held that language of Kentucky statutes regarding disobedience of a subpoena is permissive and does not require the court to issue contempt citation or warrant to bring witnesses before court. The effect of issuing the citation or warrant would be to grant Husband’s second continuance, and weighing this against the possible relevancy of the testimony in question, TC’s refusal to hold witnesses in contempt was justified. The same reasoning applied to Husband’s complaint that TC should have granted his motion to compel Wife’s medical and psychiatric records; not only was the motion improperly noticed, but granting the motion would have given Husband his second continuance.

Joint Motion to Vacate DVO: Though TC found that domestic violence had occurred and would probably re-occur, parties requested just two days later to have DVO vacated. CA held that while a domestic violence petition is pending, victim can seek dismissal under CR 41. Where DVO has been entered, however, TC has discretion to deny parties’ requests to vacate, after inquiring into the voluntariness of victim’s participation in the request. TC here only asked Wife if she agreed to vacating DVO, to which she responded only “yes.” CA held that TC should have inquired further into circumstances that caused her to enter the agreement and could deny the motion only after making specific findings supporting its denial.

Reversed and remanded.

DISSENT:

TC is in best position to determine whether hearing should be required on Joint Motion to Dismiss. Given that Motion was filed such a short time after DVO entered, there was no abuse of discretion.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

One To Be Published Ky COA Decision January 23, 2009

Ruby V. Ruby, DVO entered but parties then entered into an agreed order dismissing the DVO. Trial court declined to enter agreed order, amending DVO to no unlawful contact instead. Court of Appeals affirmed entry of DVO but remanded to trial court to conduct a hearing on circumstances surrounding agreement to dismiss DVO.

Rivers v. Howell, Ky COA, Domestic Violence

Rivers v. Howell, _ S.W.3d _ (Ky. App. 2008), 2008 WL 5428209

Howell filed a domestic violence petition against Rivers.  The trial court found that Howell had standing to seek a Domestic Violence Order as a member of an “unmarried couple” as defined in KRS 403.720(3).  The parties were involved in a five year relationship.  Although the parties were engaged to be married at one time and stayed at each other’s residences for periods as long as a week, they never did marry and always maintained separate residences.  They each had access to keys to each other’s residence at various times during the relationship.  Howell’s children occasionally stayed with Rivers, but there was no permanent bed for their use. 
The Court of Appeals held that the trial court’s finding was clearly erroneous. Applying the factors set out in Barnett v. Wiley, COA found the parties fell short of the definition of an “unmarried couple.”  The domestic violence statutes do not provide protection to victims in a dating relationship, who are not cohabitating.  

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Rankin v. Criswell, Ky COA, Domestic Violence

Rankin v. Criswell, _ S.W.3d _ (Ky. App. 2008), 2008 WL 5429320

Criswell filed a petition, on behalf of her two minor children, for a domestic violence order against her former husband, Rankin.  Criswell alleged that Rankin sexually abused the parties’ daughter 7 or 8 years ago.  The trial court held a very brief domestic violence hearing, which mainly consisted of the court reading the allegations in the petition aloud and the court silently reading two separate dependency case files pending in the family court.  Neither the petition nor the dependency files were admitted into evidence and the court asked minimal questions of either party.  Neither party was represented by counsel.  The trial court entered a domestic violence order against Rankin, precluding him from having any contact with Criswell or their two minor children.  The court orally stated that the order would remain in effect until the criminal matter was resolved or until the order expired, however, the order stated that it was effective for three years.  
The Court of Appeals found that the trial court failed to conduct a full evidentiary hearing.  There was no testimony or other evidence that supported the petition.  A DVO cannot be granted solely on the basis of the contents of the petition.  At a minimum, Criswell should have been asked by the court whether the allegations in the petition were accurate.  In addition, the rules of evidence apply.  Hearsay contained in the petition cannot be considered as evidence unless an exception applies.  The court also erred in considering the dependency files, which were not in evidence and to which Rankin had no opportunity to examine or refute.  
COA remanded the case for a full evidentiary hearing with instructions for the trial court to question Criswell under oath as to the allegations and to let Rankin have an opportunity to respond.  As to the duration of the order, if one is entered, it is not dependent on the result of a criminal matter.     

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Two 12/31 To Be Published Ky COA Domestic Violence Cases

Rankin v. Criswell, et al, DVO reversed where court read dependency files without informing parties of contents nor admitting them into evidence and only evidence was petition which contained hearsay. Rivers v. Howell, DVO reversed because Howell lacked standing, as she had never lived with Rivers.

Valentine v. Horan, Ky COA, Domestic Violence

Valentine v. Horan, --S.W.3d—(Ky. App. 2008), 2007-CA-002010-ME

Based on events between the parties in 2002, Valentine was convicted of assault in the fourth degree and two counts of sexual abuse in the first degree. Valentine is currently appealing his conviction pursuant to RCr 11.42. As part of his investigation into the evidence associated with his trial, Valentine filed an open records request with the Educational Professional Standards Board concerning Horan. When Horan learned of the request she filed a petition for an EPO. She was afraid Valentine was trying to find personal information about her due to his impending parole and/or expiration of his sentence. She was afraid he would harm her again. The court issued the EPO, as well as a DVO, which prohibited Valentine from gathering information about Horan regarding her address, employment, or personal data and from coming within 1000 feet of her. Valentine appealed.
Based on the criminal convictions for assault and sexual abuse arising from the acts of domestic violence and the higher standard of proof required in criminal matters, the COA found that the evidentiary standards had been met under KRS 403.740 and KRS 403.750. The Court also found that domestic violence may occur again, since Valentine is inquiring about Horan after all these years. Valentine’s arguments regarding failure to receive notice and service of the EPO were moot, since the EPO had expired. DVOs do not have the same notice and service requirement. COA found that the court had complied with the full hearing requirement by holding a hearing with Horan and a separate telephonic hearing with Valentine. AFFIRMED.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Gomez v. Gomez, KY COA, Domestic Violence Jurisdiction

Gomez v. Gomez, __ S.W.3d __ (Ky. App. 2008), 2007-CA-001919-ME, May 9, 2008

Appellee filed a domestic violence petition in district court requesting an emergency protective order against the Appellant. The district court did not issue an emergency protective order, but did issue a summons and set the matter for a hearing. After the family court held a full evidentiary hearing, it issued a domestic violence order. Appellant appealed the order alleging that 1) since the district court failed to issue an emergency protective order, the family court lacked jurisdiction to either hold a hearing or enter a domestic violence order and 2) insufficiency of the evidence. COA found that the family court did have proper jurisdiction. Family courts are the primary forum for matters concerning domestic violence and abuse, although the district courts have concurrent jurisdiction to enter emergency protective orders under KRS 403.725. The Court found no statutory language to support Appellant’s position that district courts retain exclusive jurisdiction unless an emergency protective order is issued. Of special significance in the instant case was the fact that the parties also had a pending divorce action, which gave the family court jurisdiction under KRS 403.725(4) as well. COA also found that the family court’s issuance of the domestic violence order was supported by the evidence and was not clearly erroneous.
AFFIRMED.
Digest by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Meyers v. Hon. Bruce Petrie (KY) DVO Contempt Counseling

Meyers v. Hon. Bruce Petrie, 233 S.W.3d 212 (Ky. App. 2007)

Family court judge held Meyers in contempt for not completing domestic violence counseling, which was ordered by the court. As punishment for this contempt the judge ordered Meyers to attend the same counseling. Meyers argued that because the DVO, under which the counseling had been ordered, had expired the family court lacked jurisdiction to require him to attend the counseling.
CA held that it was not an abuse of discretion for the family court to order Meyers to attend counseling after the DVO had expired. CA reasoned that the family court was not attempting to enforce the DVO after it expired but was exercising its contempt powers. CA opined that “courts of this Commonwealth have inherent powers to punish individuals for contempt.” CA acknowledged that it may be a little unorthodox to order some one to attend counseling as punishment for contempt. However, the court stated that when punishing a contemptuous individual the “punishment should be reasonably related to the nature and seriousness of the party’s contemptuous behavior.” Therefore, sentencing Meyers to attend counseling as punishment for his contempt was appropriate.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates

U of A School of Law Dean Shares Her Domestic-Abuse Story

Domestic violence crosses all socio-economic lines. Yet, victims often find it difficult to access help. Beyond the usual "I'm afraid to make him mad" reason for not seeking orders of protection, those who are economically fortunate are burdened with a heightened sense of shame. Thus, we were please to read in the Arkansas Benton County Daily Record that University of Arkansas law school dean Cynthia Nance is sharing her story of domestic violence. The article is online. Maybe sharing her story will save lives.