Buddenberg v. Buddenberg, Ky COA, Domestic Violence Order, Contempt

Buddenberg v. Buddenberg  2009-CA-000274-MR

Issue:  Domestic Violence Order

Published:   Affirming in Part, Vacating in Part, and Remanding

County: Laurel

 

Husband appealed from DVO entered by family court (FC), prohibiting him from any contact with Wife and Children for three years, and from criminal contempt for willful violation of EPO. 

 

FACTS:

Husband and Wife lived in Ohio with Children, three girls ages 10, 6, and 4.  Wife moved to Kentucky with Children and filed for EPO.  In the Petition, Wife alleged that Husband had made threats against her, that he had  a pending criminal complaint regarding inappropriate communication with a 13 year old girl, that he had incestuous relationship with siblings as a child, and that he had been fired due to inappropriate internet contact with a young girl.  EPO was issued and scheduled a hearing, which was subsequently rescheduled because Husband had not been served.  After hearing FC granted a DVO on behalf of Wife and Children, gave temporary custody of Children to Wife, and directed that Husband have no contact due to his past misconduct. However, FC specified that custody and visitation orders could be modified by Ohio court in pending dissolution action. Finally, without making specific findings, FC held Husband in contempt of court for his violation of the EPO. On appeal, Husband argued that there was no evidence warranting DVO with respect to Children, that the extension of the DVO for three years was unreasonable given the pending dissolution action in Ohio, and that FC erred by holding him in contempt because he did not attempt to contact Wife or Children after he was personally served with the EPO.

 

ANALYSIS:

DVO as to Children:

CA acknowledged Wife’s legitimate concerns as to Children’s safety with Husband due to allegations in record that Husband engaged in “inappropriate” contact with juvenile girls, Husband admitting to sending inappropriate text messages to a 13-year old girl, Husband having  been fired from his employment due to viewing of pornography and sending inappropriate “chat” messages to juvenile girls, and Husband admitting that he had engaged in inappropriate contact with his sisters while he was a teenager. CA nonetheless found that there was no substantial evidence that Husband’s behavior meets the standard for granting a DVO with respect to the children, because there were no allegations that Husband has ever engaged in any inappropriate conduct toward his daughters and his actions involving other children did not rise to the level suggesting that he presents any imminent danger to his own children, and those concerns are better addressed as part of the custody proceedings in the dissolution action.  However, FC had jurisdiction to make emergency custody award to Wife in her DVO, which Husband did not contest.  CA therefore did not disturb custody and visitation orders.

DVO Three Year Duration: 

Once the court made a finding that grounds existed for entry of a DVO as to Wife, it had the authority to fix a period for the DVO to be effective for up to three years.  There are no statutory factors to be met in determining the duration of the DVO. CA held that while the evidence might have supported a shorter duration for the DVO, FC did not abuse its discretion. 

Criminal Contempt for EPO Violation:

CA noted that FC did not make any specific findings supporting its conclusion that Husband had intentionally violated the no-contact provisions of the EPO, and that there is no clear evidence in the record concerning when Husband was personally served with the EPO.  An EPO is not effective until the sooner of the time of personal service or when the respondent is given notice of the existence and terms of the order by a peace officer or the court.  TC might have concluded due to Husband’s contradictory testimony as to when he was served with the EPO that he made contact with the children after service. However, FC did not make such a finding.  Without definitive evidence that Husband had been served before he attempted to call the children, CA held that FC could not find beyond a reasonable doubt that Husband willfully violated the terms of the EPO.  CA also held that Husband’s mother’s contact did not amount to a willful violation of the EPO. Though EPOs and DVOs are typically interpreted to preclude both direct and indirect contact, including contact by third parties, this was not specified in the EPO.  Moreover, Wife informed FC that she expected that she had no objection to Husband’s mother’s contact.  CA held that even if Husband requested the contact, such did not amount to a willful violation of the EPO under the circumstances.

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