Spencer v. Spencer, 191 S.W.3d 14 (Ky.App. 2006)
Issues and Holdings:
1. Whether the trial court had personal jurisdiction over a party who had no contact with the Commonwealth of Kentucky. The Court held no, the court had no personal jurisdiction over such party.
2. Whether under KRS 403.725(1), a provision of Kentucky’s domestic violence statute, a Kentucky court may issue a protective order against an individual over whom the court lacks personal jurisdiction. The Court held yes, the court can issue the protective order, however the order cannot impose affirmative duties on the individual over whom the court lacks personal jurisdiction.
Ava and Ken Spencer resided in Oklahoma. Ken allegedly abused Ava and their son. On May 21, 2005, Ken flew to Las Vegas. He testified that the family was planning on moving there and he went to find employment. Ava testified that she saw the trip as her opportunity to escape the abuse, and she and their son traveled to Kentucky on May 22, 2005 to stay with a close friend. On May 23, 2005, Ava filed a domestic violence petition in Warren Circuit Court. That same day, the court issued an Emergency Protective Order, which restrained Ken from having any contact with Ava and granted Ava temporary custody of their son. Ken was served in Nevada by the Sheriff’s Department.
On June 6, 2005, Ken filed a motion to dismiss for lack of personal jurisdiction. After a hearing, the court announced that it would enter an Order of Protection. When Ken’s counsel asked the court about its personal jurisdiction over Ken, the court explained that its ruling was based on KRS 403.725(1).
First, the Court analyzed whether the court had personal jurisdiction over Ken. The Court reviewed the three prong test set out in Wilson v. Case, 85 S.W.3d 589 (Ky. 2002): 1) whether the defendant purposefully availed himself of the privilege of acting within the forum state or causing a consequence in the forum state; 2) whether the cause of action arose from the alleged in-state activities; and 3) whether the defendant has such connections to the state as to make jurisdiction reasonable. All three requirements must be met for the court to have jurisdiction. The Court held that the trial court did not have personal jurisdiction over Ken, since none of the requirements were met.
Second, the Court examined whether the trial court may issue a protective order against an individual over whom it lacks personal jurisdiction. KRS 403.725(1) allows Kentucky residents to file for domestic violence protection, as well as similar filings by people who have fled to Kentucky to escape domestic violence. The statute does not have a residency requirement; therefore it is a safe harbor statute. The Court recognized that a conflict arises where an order is issued against a party who has no minimum contacts with Kentucky. In such cases, the due process rights of the defendant must be balanced against the state’s interests in protecting victims of domestic violence.
Since this was an issue of first impression in Kentucky, the Court reviewed case law of other jurisdictions. The Court most aligned with how the Supreme Court of New Jersey approached the issue. In Shah v. Shah, 184 N.J. 125, 875 A.2d 931 (2005), the court distinguished between a prohibitory order that protects the victim of domestic violence and an affirmative order that requires the defendant to take action. A prohibitory order enforces the protection the law allows and does not implicate the defendant’s substantive rights. An affirmative order, however, involves the court exercising its coercive power to compel the defendant to act. The court has the authority to impose the former, but not the latter, on an individual over whom the court lacks personal jurisdiction.
In accordance with the analysis in Shah, the Court held that the trial court’s order prohibiting Ken from breaking the law in Kentucky by approaching Ava or the child complied with the requirements of due process. The Court held that the remaining portions of the order, i.e. ordering Ken to attend domestic violence counseling, violated the limits of Kentucky courts’ jurisdiction. The Court vacated the order and remanded the case back to the trial court for further proceedings in accordance with the opinion.