Caudill v. Caudill, 2009-CA-002002-ME
Issue: Domestic Violence Order entered by Family Court reversed.
Published: Reversed
County: Pike
Bart A. Caudill appealed from a Domestic Violence Order entered by Family Court in Pike Circuit Court at the request of Kathryn L. Caudill.
The parties were involved in a divorce action in the Floyd Circuit Court. Kathryn filed a petition for a DVO in the Pike Circuit Court (the county where she resides) alleging that Bart had ignored her directions to stay away from her workplace and that she felt threatened by his verbal abuse. She further alleged that Bart had a concealed carry permit but she didn’t know if it remained in effect. After hearing testimony from both parties, the Court issued a DVO requiring Bart to stay 1000 feet away for 90 days except for visitation exchange and children’s school and sports activities.
Bart moved to alter, amend or vacate the DVO seeking specific findings on what constituted domestic violence and abuse. After hearing, Bart’s motion was denied and the Court explained that domestic violence occurred when Bart pushed his way through a door. Bart appealed.
The Court of Appeals first ordered briefs on the limited issue of whether the appeal was moot because the DVO expired before the appellate record was transmitted to the Court. Bart argued that an appeal testing the sufficiency of the evidence supporting the entry of a DVO is never moot because a DVO remains on the record of the alleged perpetrator forever and shows up on background checks for employment and volunteer activities. The Court agreed that the continuing consequences of a DVO required resolution and the appeal was not moot.
Bart argued that neither domestic violence and abuse or the future likelihood of violence and abuse was established. To enter a DVO the Court must find from a preponderance of the evidence that domestic violence and abuse occurred and may occur again. The standard requires sufficient evidence to establish that the alleged victim was more likely than not to have been a victim of domestic violence, as defined in KRS 403.720(1). The standard of review for factual determinations is whether the family court’s finding was clearly erroneous, which is not the case if the findings are supported by substantial evidence. The test is whether the findings of the trial judge were clearly erroneous or that he abused his discretion. Abuse of discretion occurs when a court’s decision is unreasonable, unfair, arbitrary or capricious.
The Court of Appeals found no testimony to support a finding of abuse as defined by KRS 403.720(1) and even the trial court characterized the case as “marginal” and granted the 90-day DVO to provide a cooling off period. The court granted the DVO based on one occasion when Bart pushed Kathryn out of the way to enter the home.
Lacking substantial evidence of domestic violence and abuse under the statutory definition, the Court of Appeals reversed the DVO entered by the Pike Circuit Court and remanded with direction to eradicate all traces of the erroneously entered DVO from the court record.
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