Divorce Law Journal

Judge's Recusal in Divorce Action Requires Recusal in Domestic Violence Action - Published Family Law Opinion from Ky. Court of Appeals

BOONE V.BOONE

Judge recused herself from a divorce action, after a DVO hearing, but before issuing an Order dismissing the DVO. Wife then filed motions arguing Judge should be recused from the DV case as well because she had recused herself in the divorce. The Judge denied Wife’s motions. Wife appealed arguing that “the court abused its discretion in denying her Petition for a DVO” and that the Judge “should have disqualified herself with respect to the DVO.”

The court first turns to the recusal issue. The Court of Appeals holds that when the Judge disqualified herself from the divorce, she lost jurisdiction in the DV matter. The Court of Appeals bases its decision on “very purpose” of family courts – the one family, one Judge concept..  The divorce case and the DVO were still ongoing at the time of the Judge’s recusal, therefore, recusal in one required recusal in all. As the Judge had no jurisdiction at the time she entered the Order dismissing the DVO, the Order Wife appealed from is void.

Although the DVO dismissal is void, the Court of Appeals notes that the trial court misconstrued KRS 403.720, noting Kentucky Courts liberally construe domestic violence statutes to allow victims who are reasonably in fear of immediate physical injury relief. They clarify that even potential psychological damage is encompassed by the domestic violence statutes.

Digested by Elizabeth M. Howell

Not Error To Fail To Dismiss Domestic Violence Action Upon Victim's Request: Ky Court of Appeals Published Opinion September 30, 2016

MOORE V. MOORE

Trial Court held a bifurcated DVO hearing on a severe domestic violence incident between Husband and Wife. At the first hearing, Wife testified she was afraid of Husband and gave detailed testimony about the violent incident. After contact with Husband’s family, at the second hearing, Wife read a statement asking the Trial Court to dismiss the matter. The Trial Court issued a DVO against husband. Husband appealed arguing that “the trial court abused its discretion when it failed to grant appellee’s  [Wife’s] motion to voluntarily dismiss the DVO.”

The rules for dismissal are set forth in CR 41.01. Automatic dismissal shall be granted when the Petitioner files “a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs” or files “a stipulation of dismissal signed by all parties who have appeared in the action.” CR 41.01(1) The Court of Appeals holds that this case did not fall under CR 41.01(1), because Wife never filed anything, she simply read a statement into the record.

CR 41.01(2) allows dismissal at the discretion of the trial court. Factors the Trial Court should consider before granting the dismissal are set forth in the Supreme Court case of Sublett v. Hall. Sublett v. Hall, 589 S.W.2d 888 (Ky. 1979). Holding that domestic violence cases “involve different considerations than general civil cases” the Court of Appeals held that is was proper for the Trial Court to consider factors outside of those listed in Sublett. Thus, the Trial Court did not abuse its discretion by  denying Wife’s motion to dismiss the action noting that the Trial Court found Wife had contact with Husband’s family which “dramatically changed” her position.

Husband also argues that the Trial Court erred “when it found sufficient evidence in the record that domestic violence ‘may again occur’ under KRS403.740(1).” The Court of Appeals first reiterates that “a singular act is never sufficient to support a finding that domestic violence may recur without some additional indication, however small, that domestic violence may recur,” but ultimately holds that the Trial Court did not err in finding sufficient evidence domestic violence might occur again given the severity of the underlying event, as well as fact that the parties lived together, and Husband’s failure to obtain treatment for substance abuse.

Digested by Elizabeth M. Howell

Extension of Domestic Violence Order as Sanction for Contempt - Published Opinion from Ky Court of Appeals

MORRIS V. MORRIS

Wife filed and was granted a DVO. Husband continued making threats and Wife filed a Motion for Contempt. At the hearing on Wife’s contempt motion, the trial court extended the DVO as a contempt sanction. After Husband’s appeal of its order, concerned Wife would be left without protection, the trial court vacated the order of extension made at the contempt hearing, conducted a hearing pursuant to KRS 403.750, and granted an extension of the DVO. Husband appealed that order as well.  

The Court of Appeals first looks to the extension granted as a sanction at the hearing on Wife’s motion for contempt. Although Wife had not filed a motion seeking extension, the Court of Appeals affirms the trial court’s order holding that the extension was appropriate as a sanction given it was reasonably related to the nature of Husband’s “contemptuous behavior.”

The Court of Appeals clarifies that even aside from the contempt issue the trial court could properly grant an extension of the DVO given that at the hearing evidence was presented that 1) the DVO was effective in protecting Wife, and 2) Husband intended to harm Wife when DVO expired.

The court then reverses the trial court’s order to vacate the contempt order, as the trial court had lost authority to act upon filing of the appeal. As the Court of Appeals affirmed the contempt order, Wife’s DVO protection remained in place.

Digested by Elizabeth M. Howell

DVO, Record on Appeal, Published Family Law Opinion from Ky Court of Appeals

GAMBREL v. GAMBREL

Father appealed entry of a DVO, but failed to ensure the recorded hearing was included with the record on appeal. The Court of Appeals affirmed the entry of the DVO holding, pursuant to King v. Commonwealth, that without the recorded hearing they must assume the content of the hearing supported the entry of the DVO. King v. Commonwealth, 384 S.W.3d 193, 194-195 (Ky. App. 2012). The court notes that this problem occurs most often in family court cases and cautions practitioners to designate hearings to be included in the record on appeal  to ensure all necessary electronic records are included in the record on appeal.

Digested by Elizabeth M. Howell

Threat of Suicide May Constitute Domestic Violence - Pulished Opinion, Ky Court of Appeals

CRABTREE V. CRABTREE

The Trial Court did not abuse its discretion in finding domestic violence occurred and was likely to occur again where husband threatened suicide multiple times in front of his wife and children. Husband argued that threatening to kill himself was insufficient to establish that he committed domestic violence and abuse. The Appellate Court cites an unpublished case that while a suicide threat is “not directed at hurting any family members, the inevitable consequence of such a statement is to terrorize the recipients of the information.” The Appellate Court held that the Trial Court’s DVO was proper and affirmed.

Digested by Elizabeth M. Howell.

Published Family Law Opinion from Ky Court of Appeals: DVO, Parenting Time, Writs,and Transfer of DVO to Court Where Custody Action Pending

PATTERSON V. WINCHESTER

A DVO was entered by Fayette Family Court preventing father from exercising his parenting time as ordered by Whitley Circuit Court, the court with jurisdiction and venue over custody and visitation. Father filed a motion in the Whitley Court case requesting sole custody and for restoration of his visitation rights. Mother responded by filing an original action in the Court of Appeals asking for writs of prohibition pursuant to CR 76.36.

Mother asked for writs preventing the Whitley Court from enforcing its parenting time order, preventing the Whitley Court from “modifying, amending, vacating or reversing” the DVO, and mandating the Whitley Court honor the DVO.

The Court of Appeals first sets forth the standard for a writ of prohibition, holding a writ can only be granted when "(1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted." Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).

The Court of Appeals declined to grant Mother's request for writs preventing the Whitley Court from enforcing its parenting time order and  vacating, altering or amending the Fayette DVO. The Court of Appeals holds that there is no merit to Mother's argument as the Whitley Court has jurisdiction over custody and parenting time, and Mother has the right to an appeal should the Whitley Court act erroneously.

The Court of Appeals also declined to grant a writ mandating the Whitley Court honor the DVO, holding the DVO does not take precedence over the earlier custody and visitation order.

The Court of Appeals adds that the Fayette Court should have transferred the DVO case to Whitley, stating that "the best practice is for the court where the DVO was filed to transfer the DVO action to the court where the custody action is already pending."

Digested by Elizabeth M. Howell

 

Domestic Violence Published Opinion from Ky. S. Ct. October 29, 2015

PETTINGILL V. PETTINGILL

Questions Presented: Domestic Violence. Appellate Procedure. Issues involve the use of “lethality factors” in a domestic violence determination and the interplay between CR 75.07(4) and CR 98 when the trial videotape is omitted from the record on appeal.

Wife was granted DVO against husband by family court. The family court entered a DVO on Court Form 275.3 and noted further findings of fact, nine out of twelve lethality factors, on its docket sheet. Husband appealed and the Court of Appeals affirmed the family court’s DVO. The Supreme Court granted discretionary review.

Husband first argues that he was denied his constitutional right to appellate review because the circuit court clerk failed to certify the video record of the domestic violence hearing, therefore, the Court of Appeals did not receive a copy of the recorded hearing. The Supreme Court does not consider the assignment of error because husband had clear notice the video was not part of the record. He did not mention the incomplete record in his brief for the Court of Appeals and therefore the Supreme Court holds he is foreclosed from now assigning error. Additionally, husband’s counsel conceded during oral arguments at the Court of Appeals level that the video was not relevant to the appeal. 

Next, husband argues that the family court impermissibly took notice of the lethality factors for intimate partner violence. The Supreme Court finds this argument is without merit as a trial court did not take judicial notice of the lethality factors, but rather considered them as part of judicial knowledge. A judge may use his or her background knowledge of an area, such as domestic violence, to inform its judgment. In this case, the court used the lethality factors to assess the likelihood that domestic violence would occur again. All of the adjudicative facts were proven through testimony.

Third, husband argues that the court erred by using the lethality factors as the standard to enter a DVO. The Supreme Court agrees with the Court of Appeals that the family court adhered to KRS 403.750, as evidenced, in part, by its use of the AOC Form 275.3 which “clearly tracks” the language of the statute. The court’s reference to the lethality factors does not negate the court’s finding under statute that husband inflicted fear of imminent physical injury, serious physical injury, sexual abuse, or assault and that fear, injury, abuse or assault may occur again in the future.

Finally, husband argues that the AOC Form 275.3 is deficient, therefore the family court did not specify sufficient finds of fact to support the entry of a DVO.  The court does not consider this argument, holding that the family court made sufficient findings of fact as the family court not only found domestic violence had occurred and may occur again, but also listed nine specific findings to support its order.

 Digested by Elizabeth M. Howell

Published Family Law Opinion from Ky Court of Appeals: Written Findings Required in Domestic Violence Proceedings

BOONE V. BOONE

The mandate for written findings of fact and conclusions of law applies to DVO cases. CR 52.01 and KRS Chapter 403, along with the holding in Keifer, require findings in family law cases be reduced to writing. DVOs affect child custody, therefore they fall within the purview of CR 52.01. In this case, although adequate findings were made orally from the bench, the Appellate Court remands the case to the Trial Court for written findings of fact and conclusions of law.

Keifer v. Keifer, 354 S.W.3d 123, 126 (KY. 2011).

Digested by Elizabeth M. Howell

 

Published Domestic Violence Opinion from Ky Court of Appeals March 13, 2015

HOLT V. HOLT

The appellant appealed a Bullitt County DVO, arguing the court lacked jurisdiction to enter a DVO. The petition for a DVO was originally filed in Nelson County. It was transferred to Bullitt County after the Nelson District Court determined Bullitt County would be more appropriate, as the court was already familiar with the parties. The Appellant Court first addresses subject matter jurisdiction holding that the Kentucky Family Courts all have jurisdiction to preside of matters involving domestic violence. The Court then turns to venue and finds that both the county where the victim resides, in this case Nelson, and the county where there are on-going dissolution proceedings, in this case Bullitt, are proper venues. Thus, the Appellate Court found no error with either jurisdiction or venue.

Additionally, appellant argued there was insufficient evidence to enter a DVO and no meaningful hearing. The Appellate Court affirms the entry of the DVO holding that testimony Appellant was harassing and stalking Appellee, unlawfully entered his home, had angry outbursts, frequent drive-bys, prior acts of violence, and harassing communications was sufficient evidence to support the entry of a DVO. The Court further held there was a meaningful hearing, as each party was represented by counsel, gave testimony, and had an opportunity for cross-examination.

Judge Thompson wrote separately noting the role of clerk is ministerial, and a clerk should not make a determination about the legal sufficiency or forum when a complaint is properly filed. The clerk in this case incorrectly prevented Appellee from filing in Bullitt County and instructed him to file in Nelson County. 

Digested by Elizabeth M. Howell

 

Ky Court of Appeals Published Family Law Opinion Today:Where amended DVO was entered 11/1/11, no appeal was taken, and no argument or factual assertion which arose after that date was within 5/2/13 motion to vacate the DVO, Appeals court lacks jurisdicti

Erwin v. Cruz 

Where amended DVO was entered 11/1/11, no appeal was taken, and no argument or factual assertion which arose after that date was within  5/2/13 motion to vacate the DVO, Appeals court lacks jurisdiction to consider appeal of the denial of the 2013 motion to vacate.

Application of CR to Domestic Violence Proceedings, Case Digest, Ky Court of Appeals, Wolfe v. Wolfe

Wolfe v. Wolfe, 2012-CA-000578-ME

To Be Published:   Affirming  

County:  Laurel

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.

FACTS:

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.

ANALYSIS: 

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.

FC Affirmed.

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

 

Stephen Stinson v. Tracy Stinson, Ky Court of Appeals, Contempt When Domestic Violence Order Not Served

Stephen Stinson v. Tracy Stinson

No. 2011-CA-001312-MR

Published:  Opinion reversing

County:     Barren

Stephen Stinson appeals from an order of Barren Family Court holding him in contempt of an amended domestic violence order for violating the no contact or communication provision.

A decree dissolving the parties’ marriage was entered in November, 2009.  In September, 2009, Tracy sought a DVO because Stephen’s telephone calls, text messages, and other threats caused her to fear for her safety and that of her children.  The court entered an emergency protection order and scheduled a hearing the next month.

After the hearing on October 5, 2009, a DVO forbidding Stephen from having any contact with Tracy was entered, to be effective until October 5, 2012.  Stephen was also required to complete domestic violence counseling and an alcohol and drug education program and to provide the court with certificates of completion by July 1, 2012.  He did not file the certificates of completion.

Pursuant to the order entered October 5, 2009, the court reviewed the matter on August 17, 2010 with neither party appearing in court. Stephen was held in contempt for failure to comply with the terms of the DVO and he was sentenced to ten days in jail, suspended on condition that he file the certificates by April 1, 2011.  The matter was set for review on May 10, 2011.  In a separate order, the court entered an amended DVO providing for the new date for completion of the programs and extending the amended DVO until October 5, 2012.  Two attempts to serve Stephen were returned as undeliverable.

On February 25, 2011 Tracy filed a domestic violence show cause order after she received a threatening letter from Stephen.  Both parties appeared, without counsel, on March 18, 2011.  The court allowed Stephen to file an affidavit of indigency and subsequently appointed the DPA to represent him.

At the rescheduled show cause hearing held June 24, 2011, Stephen argued that since he had not been served with the amended DVO, he could not be held in contempt for violating its terms, and that the allegedly contemptuous behavior occurred after expiration of the original DVO.  After hearing testimony from the parties, the court found Stephen in contempt.  He was sentenced to ten days in jail, suspended on the condition that he purge himself of contempt by complying with the amended DVO.  This appeal followed.

Stephen contests entry of the original DVO pursuant to the palpable error rule of RCR 10.26, arguing that Tracy failed to establish that domestic violence had occurred or was likely to occur in the future.  The Court of Appeals held that Stephen’s failure to file a timely appeal from the original DVO precluded him from contesting the original DVO in this appeal.

Stephen further argued that he could not be held in contempt for failing to comply with the amended DVO because he was never served.  Notice and service requirements apply to all orders of protection issued pursuant to KRS 403.715 and KRS 403.785.  Until an individual has been served with an amended DVO or notified of its existence and terms, there can be no finding of a violation of its terms.  Therefore, the June 24, 2011 contempt order was improperly entered and must be reversed.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

 

Guenther v. Guenther, Ky COA, Domestic Violence Order

Guenther v. Guenther, 2011-CA-001165-ME, (link to .pdf within minutes is broken)

Issue:  Jurisdiction to enter DVO, error in entry of DVO

Published:   Reversing and Remanding   

County:  Kenton

Ex-husband contested entry of DVO, contending FC was without jurisdiction to enter it, as DVO hearing was continued to more than 14 days after filing of EPO (though by agreement of parties) and that FC had insufficient factual basis to establish that domestic violence had occurred and may occur again.

FACTS:

Divorced but reconciled couple had an altercation in which Ex-Wife claimed that Ex-Husband grabbed her wrist and threw her to ground.  FC entered EPO and hearing was scheduled nine days later.  At the scheduled hearing, both parties and their counsel were present but asked the judge to continue the hearing as they were attempting to reach an agreement on the DVO, with the possibility of DVO dismissal.  DVO hearing was continued for 2 weeks.  At the hearing, Ex-Wife testified that she heard her back “pop” when Ex-Husband threw her to ground and that she suffered substantial pain though she did not seek immediate medical treatment.  In response to her counsel’s questions as to whether Ex-Husband had been verbally abusive to her and if she was afraid a similar physical altercation might happen again in the future, she replied “yes” with no elaboration.  Ex-Husband testified that he did not throw Ex-Wife to the ground but that she lost her balance and fell.  FC nonetheless entered DVO, finding that domestic violence had occurred and may occur again.  Ex-Husband then filed this appeal. 

ANALYSIS:

FC had jurisdiction to enter DVO

Ex-Husband argued that KRS 403.740 imposes a strict fourteen-day window during which FC must conduct EPO hearing or lose its jurisdiction to enter a DVO thereafter. Prior to its 2010 amendment, the first sentence of KRS 403.740 provided that “an emergency protective order issued in accordance with this section shall be effective for a period of time fixed in the order, but not to exceed fourteen (14) days.” As amended, the statute now reads, “An emergency protective order issued in accordance with this section shall be effective until the full hearing provided for in this subsection or in KRS 403.745, or until withdrawn by the court.” The legislature specifically deleted the language that limited the effectiveness of an EPO based on a petition to fourteen days and, in its stead, amended the statute to specifically allow an EPO to be effective until a hearing or withdrawn by the court.  The statute continues on to state that a date and time for a full hearing shall be set within fourteen days, but does not state that the hearing must be conducted and not continued. And, if the hearing is continued, then the effectiveness of the EPO can be continued until the next anticipated hearing which shall be set within fourteen days of the date from which it was continued. If the legislative intent had been for the court to conduct such a hearing and not give the court discretion to continue the hearing beyond the aforementioned fourteen days, it would not have included the language or until withdrawn by the court.  Further, the ability to continue the hearing may benefit the parties.  Just as a timely hearing envisioned by the statute allows the parties to protect their rights, so does a continuance of the hearing by their mutual agreement allow the parties to have some control over their case.   Certainly any continuance of the hearing should be in the sound discretion of the court, mindful of the purposes of the statue, and for good cause. CA held that KRS 403.740 does not prohibit a court from granting a continuance of the fourteen-day hearing on a petition for an EPO/DVO.

FC had insufficient factual basis to enter DVO

In order to issue a DVO, the petitioner must show that by a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur.  CA found that Ex-Wife’s “monosyllabic responses to her attorney’s leading questions regarding verbal abuse and her fear of future abuse similar to the altercation between the parties is insufficient to base a finding that domestic violence may occur again;” thus, entry of a DVO based on the evidence presented exceeded the discretion of the court. CA remanded to FC for it to vacate the DVO and, if appropriate, enter an EPO.

Reversed and remanded.

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

Telek v. Daugherty, Ky COA, DVO - sufficiency of evidence

Telek v. Daugherty, 2009-CA-001993-ME

Published:   Reversing and Remanding  

County:  Kenton

On remand from Kentucky Supreme Court, Father challenges sufficiency of evidence supporting FC’s entry of Domestic Violence Order.

FACTS:

Mother and Father have a son born in 1997.  An incident occurred in 2009 when Mother attempted to pick up Son from football practice.  Mother subsequently filed an EPO, alleging that at that practice she and Father got into a dispute as to when Mother was to retrieve Son; that as Mother was standing at passenger side door of Father’s van telling Son to come with her, Father grabbed her by wrist and yanked her, then shoved her out of the way; that she then called for help; that Father had been sentenced to jail time for violating multiple court orders in custody case; and that all three of her children witnessed the incident.  EPO was granted.  At the DVO hearing, Mother testified to all these facts and that although she had not been injured, she was afraid.  Father testified that he never grabbed or shoved Mother, but that she grabbed his hand from the door of the van; he also stated that he only wanted to take his Son to his home to retrieve a change of clothes and his summer reading assignment for the first day of school the following day; and that he never had any intent to harm or scare Mother.  The GAL testified that Son stated nothing had happened that day. 

At the conclusion of the hearing, FC determined only that “something happened” and recognized Father’s failure to follow FC orders and to read FC orders in his favor.  Upon Father’s request for specific findings, FC found that Father had touched and pushed Mother and that such behavior would continue in the future.  FC entered DVO, effective for three years, requiring Father to stay 500 feet away from Mother and her family other than for child exchanges or for Child’s events related to sports and school. 

ANALYSIS:

On remand from Supreme Court, Father argues that there were insufficient facts to support entry of DVO.  CA agreed, in light of previous precedents establishing that “unwanted touching,” standing alone, is insufficient evidence for entry of a DVO.  CA also found FC erred by basing its decision on Father’s actions in domestic case, holding that this bad behavior was not connected to the incident of domestic violence and therefore cannot form the basis for entry of the DVO. 

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

Daugherty v. Tellek, Ky. S. Ct., Emergency Protective Orders. Domestic Violence Orders. Time for Hearing.

Daugherty v. Telek

No. 2011-SC-000043-DGE

Published:  Opinion Reversing and Remanding

County:  Kenton

After the Kenton Family Court granted Appellant, Samantha Daugherty’s petition and issued a Domestic Violence Order against Appellee, John Telek, Appellee appealed the Order to the Court of Appeals.  The CA held that the family court lost jurisdiction to issue the DVO because it failed to conduct the DVO hearing within 14 days after issuance of an emergency protective order as required by statute.

Appellant’s petition for a DVO was filed August 18, 2009, and the family court issued an EPO to remain in effect until a hearing on August 26.  On that date, Appellee’s counsel requested the Court to reschedule the hearing so the guardian ad litem of the parties’ child could be present.  The judge agreed to the postponement and said he would re-issue the EPO at fourteen-day intervals until the new hearing date of November 13, 2009.  No objections were voiced by any parties.

On September 9, 2009, Appellee appeared in Court for the domestic violence docket and was informed by the Court that the hearing was set for November and the EPO was re-issued for another 14 days, expiring on September 23, 2009.  There was no objection to re-issuance of the EPO.

On September 22, Appellee filed a motion to dismiss the EPO alleging family court lost jurisdiction when it failed to hold a hearing within fourteen days after issuance of the original EPO.  The motion was taken under submission and the EPO was re-issued until a hearing scheduled for October 7.  On October 7, the court issued another fourteen-day EPO.

On October 21, 2009, the family court overruled Appellee’s motion to dismiss and conducted a hearing on the issuance of a DVO.  The Court found that domestic violence had occurred and entered the DVO.  Telek appealed the DVO to the Court of Appeals.  The Court of Appeals agreed with Telek that the statute required that a hearing be held within 14 days after initial issuance of an EPO, and beyond that date a DVO based on the original petition could not be issued and family court lacked subject matter jurisdiction to issue the DVO.

The Supreme Court granted discretionary review to consider whether the statutory time limit for issuing a DVO affects the subject matter jurisdiction of the family court and also to examine the Court of Appeals’ construction of KRS 403.740 (4) applicable in 2009, when the DVO against Telek was sought.

The Supreme Court held that in deciding that a family court’s deviation from a statutory procedure divested it of subject matter jurisdiction, the Court of Appeals confused a court’s erroneous action within its jurisdiction with a court acting outside its subject matter jurisdiction.  SMJ is established by constitutional provisions and statutes assigning courts specific types of claims and causes of action.  A court is deprived of SMJ only if it has not been given, by constructional provision or statute, the power to do anything at all.  The court has SMJ when the kind of case identified in the pleadings is one which the Court has been empowered to adjudicate.  A court does not lose SMJ by misconstruing or overlooking a statute or rule governing the litigation.  Once a court acquires SMJ, challenges to its rulings are questions incident to the exercise of jurisdiction, rather than the existence of jurisdiction.

The Supreme Court agreed with Telek that the statute required “fixing” a date and time for the DVO hearing within 14 days of the issuance of EPO.  The Court noted, however, that a full hearing on a DVO may be rescheduled as circumstances require.  The statute in effect at the time did not expressly authorize serial reissuance of an EPO, nor did it specifically bar that process.

Because the Court of Appeals ruled in Telek’s favor on the grounds of SMJ, it was not necessary to rule on his claim that the evidence presented at the DVO hearing was insufficient.  If, however, upon discretionary review the Supreme Court reversed the grounds upon which the Court of Appeals based its decision, it is appropriate to remand the case to the Court of Appeals for its consideration of undecided issues.  Having reversed the Court of Appeals upon the grounds that formed the basis of its decision, the case is remanded to the Court of Appeals for consideration of Telek’s challenge to the sufficiency of the evidence.

The decision of the Court of Appeals is reversed and this matter is remanded to the Court of Appeals for proceedings consistent with this opinion.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Collett v. Dailey, Ky COA, DVO Against Guardian of Elderly Mother

Collett v. Dailey as Guardian of Hazel C. Collett

No. 2010-CA-002115-ME

County: Kenton

Published: Opinion affirming

James Collett, Jr. appealed from a domestic violence order entered August 18, 2010 in Kenton Circuit court, Family Division, finding that he perpetrated acts of domestic violence or abuse against his mother, Hazel C. Collett.

Dailey, as guardian for Hazel C. Collett, filed a domestic violence petition against James alleging verbal abuse, harassment, and interference with Hazel’s caregivers. After an evidentiary hearing, the court found that James had committed acts of domestic violence against Hazel. He was prohibited from contact or communication, directed to remain at least 500 feet away except under supervision, and ordered to vacate the residence he shared with his mother.

James contends on appeal that the family court’s finding of domestic abuse is not supported by a sufficient quantum of evidence.

Evidence presented at the hearing indicated that Hazel was 83 years old and had recently sustained a broken hip and required assisted care. James prevented caregivers from tending to his mother, giving her food and medications, and providing physical support and assistance. He removed night lights and placed throw rugs where Hazel needed to walk, even though she used a walker.

The Trial Court found that James’s actions interfered with Hazel having a secure and uninterrupted life and she was a victim of domestic violence. The Court of Appeals agreed, holding that considering the statutory definition of domestic violence and abuse and the evidence in this particular case, the Trial Court’s findings were not erroneous and the Kenton Circuit Court’s order is affirmed.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Rupp v. Rupp, Ky COA, Reissuance of DVO

Rupp v. Rupp

2010-CA-000143-ME

Published:  Affirming

County: Jefferson

Ex-Husband appealed FC’s reissuance of DVO, arguing evidence was insufficient to support its continuation.

KRS 403.750(2) authorizes the reissuance of a DVO and grants courts the authority to reissue DVOs even in the absence of additional acts of domestic violence and abuse during the prior period.  While some showing of a continued need for the DVO must be presented to the court, additional acts of domestic violence need not be proven.

In FC’s re-issuance of the DVO, FC noted that it had had numerous opportunities since initial issuance of DVO, 8 years prior, to hear the parties testify, to observe them, and to assess their credibility; that the parties had a long history of domestic conflict including domestic violence and that emotions had run high during their numerous court appearances; that two DVOs had been issued against Ex-Husband and he had previously been held in contempt of court for violating a DVO, which he had violated as recently as April 2010 by sending Ex-Wife an angry email; and that Ex-Husband was upset over CPS investigations and may have felt additional stress as a result of a pending custody proceeding.  Additionally, FC observed that the fact that the parties have a minor child creates situations in which the parties will inevitably cross paths before the child turns 18.  On this basis, FC found that domestic violence had occurred and may occur in the future; that Ex-Wife had a reasonable fear of imminent physical harm from Ex-Husband; that the DVO had been effective in preventing domestic violence in the past; and that a continued need for the DVO existed. Accordingly, FC reissued the DVO for three more years.

CA found that sufficient evidence warranted a finding that the circumstances called for the continuance of the DVO because acts of domestic violence and abuse had occurred and may again occur.  CA noted  that while due consideration was given to the potential consequences resulting from the issuance of a DVO, FC did not err by reissuing the DVO against Ex-Husband.

FC affirmed.

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

Adbur-Rahman v. Peterson, Ky Court of Appeals, Amendment of DVO

Adbur-Rahman v. Peterson

2010-CA-001366

Published:  Reversing and Remanding

County: Jefferson

Dad appealed FC’s amendment of DVO adding minor child as protected party, contending he was improperly denied full evidentiary hearing, that FC improperly made medical findings, and that FC erred by entering DVO for minor child. 

FACTS:

Mom and Dad, never married, had been before FC several times on Mom’s DVO petitions.  In November 2009, FC entered DVO protecting Mom from Dad.  In May 2010, Mom filed Motion to amend DVO to include the parties’ child.  At the hearing on the Petition, Mom testified that Child had been returned to her from Dad’s care with a rash, two burns on her leg, and a bump on her head and that he did not seek medical treatment for the burns; Dad testified that he thought that Child was burned at Mom’s house.  FC concluded that Child had third-degree burns and that Dad should have sought medical treatment for same, and this alone was cause to extend DVO to Child.  FC ordered that Dad would have supervised visitation for 3 hours each Saturday.

Dad filed motion to alter, amend, or vacate which FC denied, and Dad appealed, arguing first, that he was denied full evidentiary hearing because court refused to hear testimony (1) from Batterers’ Intervention Instructor that he was a model student and (2) from his girlfriend that she did not notice the burns prior to taking Child to Mom’s house but they were there on her return; second, that FC should have allowed testimony that Mom attempted suicide while pregnant less than 19 months prior to hearing because custody was at issue at the hearing; and finally, that the facts did not support extension of DVO to Child.

ANALYSIS:

CA first pointed out in a footnote that, although this argument was not raised by the parties, amending the terms of a DVO is fundamentally different from amending the parties to be affected by a DVO and that when a party is to be added to a DVO, the same requirements for the initial issuance of a DVO must be followed. 

Regarding the testimony of the Batterers’ Intervention instructor, CA found that FC did not err by refusing this testimony as Dad’s conduct in class had little relevance to his conduct outside of class.  However, CA agreed with Dad that he should have been permitted to call Girlfriend to testify regarding the timing of the burns and this error was not harmless.

CA found no error in FC refusing to hear testimony regarding Mom’s mental health history given the length of time that had passed since the alleged suicide attempt and that there were no allegations regarding Mom’s mental health status since Child’s birth. 

CA found that any error by FC in making medical findings was harmless as the crux of FC’s finding was Dad’s indifference towards Child’s burns, not the degree to which Child had been burned. 

Lastly, CA found Dad’s argument regarding error in issuing DVO moot because case would be remanded to FC on other grounds.

Reversed and remanded. 

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

CHFS v. Hon. Garber and Hon. Bowles, Ky COA, Writs of Mandamus and Prohibition

Commonwealth of Kentucky, Cabinet for Health and Family Services

v.

Hon. Eleanore Garber, et al.

and

Commonwealth of Kentucky, Cabinet for Health and Family Services

v.

Hon. Jerry J. Bowles, et al.

No. 2010-CA-0012260OA and

No. 2010-CA-001351-OA

Published:  Petitions granted

County:     Jefferson

 

        The Cabinet for Health and Family Services filed original actions in the Court of Appeals after two divisions of Jefferson Family Court entered orders in domestic violence proceedings directing the Cabinet to investigate certain individuals for the risk of dependency, neglect, or abuse of children.

 

        The Cabinet argued that the Family Court acted outside its jurisdiction and violated the separation of powers doctrine by ordering an investigation instead of reporting suspected child dependency, neglect, or abuse pursuant to KRS 620.030 and KRS 620.040.  By ordering an investigation, the Family Court usurped the executive function of the Cabinet to determine the necessity of an investigation and, if warranted, initiating the investigation.

 

        The Cabinet also asserts that it is entitled to a writ based on the fact that the Family Court was acting within its jurisdiction, but erroneously, and there is no adequate remedy by appeal and great and irreparable injury will result.  Since the Cabinet subjected itself to contempt proceedings, however, it has an adequate remedy by appeal.

 

By ordering the Cabinet to conduct an investigation, the Family Court acted outside its jurisdiction and violated the separation of powers of Section 28 of the Kentucky Constitution.  Division Five of Jefferson Family Court is prohibited from enforcing its Order of June 15, 2010 and Division Six is prohibited from enforcing its July 8, 2010 Order.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Carpenter v. Schlomann, Ky COA, DVO – Evidentiary Hearing Required

Carpenter v. Schlomann, No. 2010-CA-000027-ME

March 11, 2011

Published:  Reversed and Remanded

County:     Shelby

 

        Wife appealed from Shelby Circuit Court Order of Protection entered on behalf of husband.  Court of Appeals reversed and remanded after finding that trial court failed to conduct a full evidentiary hearing and relied upon extrajudicial evidence.

 

        On November 16, 2009, husband filed a petition seeking an Emergency Protective Order, claiming wife had struck him with a piece of lumber a year before and had attacked him a few weeks earlier.  At the hearing on November 17, wife testified briefly as to her version of events, but was never sworn, although husband was permitted to question wife as to her statements.  The EPO was extended to November 25, 2009 and referred to Cabinet for Health and Family Services.

 

        At hearing on November 25, 2009 an employee of the Cabinet testified and trial court gave temporary custody of the parties’ children to the Cabinet, but did not address the EPO.   When the parties appeared before the court on December 16, 2009, the court acknowledged its failure to address the EPO and had extended it a second time.  The trial court then granted a DVO against wife on behalf of husband and this appeal followed.

 

        Wife argued that trial court erred by entering DVO without conducting a hearing or taking testimony, and that it was error to enter an EPO based on a petition alleging no immediate, recent, or serious threat of violence and lacking allegations necessary to support a finding of domestic violence and abuse as required by statute.

 

        When reviewing TC’s issuance of a DVO, CA reviews findings for clear error and with considerable deference.  The requirement of a full hearing is not met when testimony is not given or cut short.  Here, the trial court relied on sworn testimony of only one party and the unsworn rebuttal of the other.  In addition, the trial court relied on extrajudicial evidence, referring to allegations made in a companion case, but failing to cite the allegations.  Since a finding of domestic violence based on extrajudicial evidence is clearly erroneous, the TC’s entry of a DVO without proper evidentiary basis was erroneous.

 

        CA held that issuance of EPO was not error because husband’s petition alleged physical violence as well as death threats and that he was afraid of his wife.

 

        The DVO was reversed and the matter remanded for further consistent proceedings.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

 

Pasley v. Pasley, Ky COA, Evidence Insufficient for Entry of DVO

Pasley v. Pasley, 2009-CA-001857-ME

Published:   Reversing and Remanding

County: Jefferson

CA found that FC abused its discretion by entering DVO where Petitioner made no allegations of physical abuse, physical injury, or threats of physical abuse but only provided her unsupported statement that she was unsure what Respondent would do and was afraid of him. Petitioner’s testimony that Respondent had stared at the parties’ children at their school and her belief, contradicted by Respondent’s testimony, that Respondent had broken into her home did not provide by a preponderance of the evidence that an act of domestic violence and abuse had occurred and may again occur, and FC therefore abused its discretion.  Reversed and remanded for vacation of DVO.  

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

 

Telek v. Daugherty, Ky COA, Jurisdiction to Enter Domestic Violence Order

Telek v. Daugherty, 2009-CA-001993-ME

Published:   Reversing and Remanding

County: Kenton

If Respondent has been served with EPO, hearing for DVO must occur within 14 days of entry of the EPO, or the court loses subject matter jurisdiction to hold the hearing and has no jurisdiction to re-issue an EPO or enter a DVO.  In this case, even though the original EPO was re-issued and the hearing rescheduled to a time beyond the fourteen-day period at the request of Defendant’s counsel, the family court lost jurisdiction at the expiration of the fourteen-day period, for subject matter jurisdiction cannot be waived. 

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

Caudill v. Caudill, Ky COA, Domestic Violence

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.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

Fraley v. Fraley, Ky Domestic Violence and Evidence

Fraley v. Fraley, 2009-CA-002167-ME  

Issue:  Domestic Violence Order, abuse of discretion

Published:   Reversing

County: Bourbon

 

Husband appealed DVO entered by FC, arguing that FC applied wrong definition of “domestic violence” and abused its discretion by allowing an unsworn, unidentified person to interject at the DVO hearing, by allowing the admission of hearsay statements set forth in the domestic violence petition, and by considering the impact of alleged hearsay statements on Wife; and that FC clearly erred when it found that an act of domestic violence occurred.

 

FACTS:

Alleging that her marriage counselor told her in an individual session that Husband was a dangerous person, that he was a man with no conscience, and that she needed to run from him, Wife sought the protection of an EPO and DVO.  At the DVO hearing, Wife stated that she was generally fearful of Husband, but did not relay any particular instance that made her feel fearful, only that she was uncertain as to how far would go due to his jealousy and unreasonableness.  She stated that she came to believe that Husband was a sociopath after meeting with the marriage counselor.  FC denied Husband’s request to have the marriage counselor identified.  FC indicated that it could not consider what the counselor said, only how it impacted Wife’s thinking.  During the court hearing, a woman in the back of the courtroom informed the court that Wife had contacted the Bluegrass Domestic Violence Program regarding the same issues before the court.  This woman was not identified or sworn in. FC concluded that domestic violence had occurred because it includes conduct that causes someone to fear for their safety, so it could take the form of words, driving by someone’s house, etc.

 

ANALYSIS:

Definition of “domestic violence” and Claim that FC clearly erred when it found that an act of domestic violence occurred:

CA found that circumstances of the case did not meet definition of domestic violence because there was no evidence that Husband inflicted the fear of imminent physical injury on Wife; thus FC abused its discretion in entering the DVO.

 

Claim regarding unsworn, unidentified person:

Because Husband did not object at the hearing, CA’s standard of review was palpable error.  Although action was improper and court should have admonished the woman and stated that her statement would not be considered in its decision-making, it did not result in manifest injustice to Husband so no palpable error.

 

Claim regarding admission of hearsay statements:

FC stated that it would not consider the marriage counselor’s statements, which remedied the situation, so there was no error.

 

Claim regarding FC’s consideration of impact of hearsay statements on Wife:

FC erred in considering these statements as it was the counselor’s statements, not Husband’s, that caused Wife’s fear.

 

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

 

 

2010 Kentucky Domestic Relations Legislation

The 2010 Session of the Kentucky Legislature enacted the following legislation affecting domestic relations matters.

    House Bill 1is known as Amanda’s Bill in honor of Amanda Ross who was killed in 2009 in a domestic violence incident.  The Act allows judges to order violators of a Domestic Violence Order to wear a global positioning system tracking device to monitor abuses and help make sure they maintain the required distance from their victims.  Felony charges may be brought against DVO violators who attempt to remove a court-ordered tracking device.

    House Bill 289amends relevant sections of Kentucky Revised Statutes to require the Kentucky Employees Retirement System, the County Employees Retirement System, the State Police Retirement System, the Kentucky Teachers’ Retirement System, the Legislators’ Retirement Plan, and the Judicial Retirement Plan to honor qualified domestic relations orders if the orders meet the requirements established by the retirement systems or plan and by this legislation.  Affected statutes are KRS 6.525, 16.645, 61.690, 78.545, 161.700, and 21.540.

    The Act amends KRS 16.505, 61.510, 78.510, 161.220, and 21.540 to define a qualified domestic relations order as any judgment, decree, or order issued by a court or administrative agency which relates to the provision of child support, alimony payments, or marital property rights to an alternate payee and to define an alternate payee as a former spouse, child, or other dependent of a member or retired member of the retirement systems; amends KRS 161.620 to clarify that the minimum benefit payment will not apply if the order reduces the member’s payment below the minimum.  The bill also amends KRS 161.585 to provide procedures for responding to and providing testimony when an employee of the Kentucky Teachers’ Retirement System is subpoenaed; amends KRS 161.700 to conform to KRS 403.190(4); and amends KRS 21.540 to provide authorization for the Judicial Form Retirement System to promulgate administrative regulations.

    Finally, HB 171 amends KRS 382.135 to specify that the in-care-of address is not required in deeds making certain types of conveyances, including deeds which transfer property through a court action pursuant to a divorce proceeding. The link we have to this bill doesn't work. If you have it, please post a comment. Thanks.

Wooldridge v. Zimmerer, Ky COA, Jurisdiction To Extend Domestic Violence Order

WOOLDRIDGE v. ZIMMERER, 2009-CA-001786-ME   

Issue:  Jurisdiction to Extend Previously-Issued DVO

Published:   Vacated and Remanded with Instructions to Dismiss

County: Jefferson

 

Wooldridge appealed from FC order extending DVO for an additional three years, contending FC did not have jurisdiction to do so as original term of DVO had expired at time of court’s order.

 

FACTS:

On August 17, 2006, Zimmerer filed a DV petition against Wooldridge and, after hearing, FC entered a DVO, which was effective until August 28, 2009.  On August 27, 2009, Zimmerer filed another DV petition against Wooldridge. An EPO was entered, which was effective until September 8, 2009, the date of hearing. After both parties testified, FC concluded that Zimmerer’s new allegations were insufficient for the entry of a 2^nd DVO.  FC ordered original DVO to be extended for another 3 years from the date the original order expired, holding that, since Zimmerer had filed a new petition for another DVO prior to the expiration of the original DVO, FC still had jurisdiction.  FC held that the “petition” could be viewed as a motion to extend the current DVO.

 

ANALYSIS:

CA held that although a DVO can be reissued even where no additional violence or abuse had occurred during the pendency of the DVO, that is an evidentiary issue, not a jurisdictional issue as was presented in this case.  Even though proof is presented to a court that a DVO could be reissued, the court must still have jurisdiction to extend an order.  Because she filed a petition for another DVO, Zimmerer’s original DVO still expired on August 28, 2009. On that date, she no longer was protected by the DVO but was under the protection of the newly issued EPO. Unfortunately for Zimmerer, at EPO/DVO hearing FC held that the allegations in the EPO were not sufficient for the granting of another DVO.

 

CA rejected Zimmerer’s argument that the filed petition was intended as a motion to extend the 2006 order, holding that the DVO statutes establish the jurisdictional prerequisites for extending a DVO and these jurisdictional parameters must be maintained to maintain the efficacy of these statutes. FC does not have the authority to re-characterize a “petition” for a DVO as a motion for an extension of a DVO.

 

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

 

 

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  

 

Hunter v. Mena, Ky COA, Domestic Violence

Hunter v. Mena, 2009-CA-000494-ME

Issue: Domestic Violence Order

Published: Affirming in part, Reversing in part, Remanding

County: Jefferson

 

Hunter appealed a Domestic Violence Order (DVO), which prohibited contact with his former girlfriend, Mena, and his nephew. 

 

FACTS:

Mena lived with Hunter and his nephew, Christopher.  Hunter discovered that Mena and Christopher had become romantically involved.  Hunter stole Mena’s purse, had his niece physically attack her, and committed other acts of harassment.  Mena moved out and briefly stayed with Christopher’s mother, at a shelter, and then went to stay with her mother in Indiana.  Mena filed an EPO, and a DVO was issued after a hearing.  The DVO was amended following a rehearing approximately a month later.  Hunter appealed. 

 

ANALYSIS:

Hunter asserted three claims on appeal: 1)DVO improperly prohibited contact with Christopher, a non-party, 2) family court lacked subject matter jurisdiction to enter DVO since Mena was not a Kentucky resident at the time, and 3) the evidence contradicted court’s finding that he committed acts of domestic violence against Mena. 

First, COA found that Christopher was a minor.  At the time that Mena filed her EPO, Mena’s mother filed an EPO on Christopher’s behalf as his next friend.  The EPO was entered, but later rescinded at the rehearing since Mena’s mother was not a Kentucky resident.  To qualify as a “next friend” the individual must reside in Kentucky.  However, in order to protect Christopher the court entered a requirement on Mena’s DVO that Hunter have no contact with Christopher.  This was error.  Christopher is entitled to the protection of the domestic violence statutes, but since he is a minor Mena should have filed a petition on his behalf.  She did not. Therefore, the no contact requirement in Mena’s DVO regarding Christopher must be stricken.

        Second, COA found that Mena did not abandon Kentucky as her legal residence when she went to stay with her mother in Indiana.  She made every effort to stay in Kentucky and only went to Indiana after Hunter refused to leave her alone.  There was no evidence that Mena intended to establish permanent residency in Indiana.  The Kentucky court had subject matter jurisdiction. 

    Finally, COA found that the testimony and evidence presented at the hearing was conflicting and the COA would not substitute its judgment for that of the trial court.  The evidence was legally sufficient to support the family court’s decision. 

 

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

Proposed Amanda Ross Domestic Violence Prevention Act (Kentucky)

Update: The bill is now HB1 and is here.  The link below no longer works.

 

Here is the link to the pre-filed bill, BR251, relating to a global positioning monitoring system amendment to Kentucky’s domestic violence statute. It would also permit a petitioner to request that the respondent be prohibited from going to certain designated places requested by the petitioner. Apparently respondents would pay the cost unless unable, in which case approved vendors would bear cost responsibility. The courts would be authorized to conduct a risk assessment to determine whether monitoring would deter future violence.

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.

Standards of Practice for Lawyers Representing Victims of Domestic Violence, Sexual Assault and Stalking in Civil Protection Order Cases

These Standards of Practice (2007) are available online from the American Bar Association, Commission On Domestic Violence. Adopted by the American Bar Association House of Delegates in August 2007, these black letter Standards of Practice are intended to improve the quality of legal representation of victims of domestic violence, sexual assault and stalking; to enable lawyers to effectively, ethically, and holistically represent victims in civil protection order cases; and to raise awareness about the need for high-quality representation for victims of domestic violence, sexual assault and stalking in civil protection order cases. Our hope is that the Standards (and additional commentary) will be integrated into trainings for new and/or pro bono attorneys representing victims in protection order cases and provide guidance for organizations advocating for victims of domestic violence. Download StandardsBlackLetter.pdf

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10 Myths About Custody And Domestic Violence And How To Counter Them

From the American Bar Association, Lawyers who represent victims of domestic violence in custody matters often encounter these common myths. This one-page tip sheet provides facts and recent statistics for use in litigation.Download custody_myths.pdf

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KY Victim Notification Network Expands To Inform Victims Of Court Dates

AOC News: Court information now available to victims through VINE Court Service from Kentucky Law Review. From the press release:

For 12 years the safety of victims and the acronym VINE have gone hand in hand in Kentucky. Now that protection has extended beyond the confines of the jail cell, when offenders are released from custody, and into the courtroom.

The Kentucky Department of Corrections and the Kentucky Court of Justice have collaborated to implement the new VINE Court Service program. The program will allow victims in 17 Kentucky counties to register to be notified about changes in an offender’s status and about upcoming court events in felony cases through the automatic notification system VINE (Victim Information and Notification Everyday).

VINE Court Service went live in the Daviess County pilot site on Sept. 24, 2007, and will be implemented in 16 other Kentucky counties by Oct. 15, 2007. The other counties are Boone, Boyd, Bullitt, Campbell, Christian, Fayette, Franklin, Hardin, Kenton, Laurel, McCracken, Oldham, Pike, Shelby, Spencer and Warren.

“Crime victims shouldn’t have to worry about when their offenders are going to be in court – they deserve every bit of protection we can provide,” said Corrections Commissioner John D. Rees. “This grant has enabled us to enhance our VINE service to take the notification system into the court arena and through this partnership with the Kentucky Court of Justice, crime victims who use this service will have one more layer of protection.”

"This new level of notification will help ensure the safety of crime victims and give them a greater opportunity to participate in Kentucky’s legal process," said Chief Justice Joseph E. Lambert. "This is a positive collaboration with the Department of Corrections that furthers our ongoing efforts to improve public access to state courts."

Victims can register to be notified by e-mail, telephone or both by visiting www.courts.ky.gov or by calling the VINE 800 number at 800-511-1670. Live operator assistance will be available 24/7 in both English and Spanish.

VINE Court Service is funded through a Bureau of Justice Assistance grant the Department of Corrections received to enhance its victims service programs. VINE Court Service will be expanded if additional funding becomes available. In 1996, Kentucky became the first state in the nation to offer automated statewide victim notification. The Department of Corrections contracts with Louisville-based Appriss Inc., developer of the VINE system, to deliver the service.

Can't wait until it expands to Jefferson County. This is a huge improvement. While it is nice for victims to have a "heads up" when the perpurtator is released from jail, it would be so much better to have notice of the court proceeding to have input on whether the inmate ought to be released.

Bissell v. Baumgardner, DVO and Emergency Custody Jurisdiction; Recusal

Bissell v. Baumgardner, ___S.W. 3d ___ (Ky. App. 2007), decided September 21, 2007

Husband appealed a DVO, which awarded temporary custody of the parties’ child to Wife. Husband argued the court did not have personal or subject matter jurisdiction to enter the order. Husband also argued the judge should have recused himself. CA held that the court did have jurisdiction and the judge's failure to recuse himself was not error.
The parties lived in KY but moved to UT. Eventually, they filed for divorce and Wife moved back to KY. While returning the parties’ child to Wife, after weekend visitation, Husband threatened to shoot Wife. Wife filed a domestic violence petition and an EPO was granted. Wife’s stepfather, a former judge, attended the DVO hearing with Wife. Husband requested the judge recuse himself because Wife’s stepfather had contributed to the judge’s campaign. The judge refused to recuse himself and entered a DVO awarding Wife temporary custody of the child. The judge orally stated that the temporary custody order was subject to modification by the UT court. The judge, however, did not include this finding in his written order.
CA held that the TC had both personal and subject matter jurisdiction to enter the order. CA opined that TC had subject matter jurisdiction because KY courts have jurisdiction to enter EPOs and DVOs to anyone who is a resident of KY or has fled to KY to escape domestic violence. CA reasoned that Wife had re-established her KY residency, therefore, the TC had subject matter jurisdiction. CA also opined that the TC had personal jurisdiction because Husband made the threat on Wife’s life in KY. The CA, however, remanded the case and instructed the TC to alter its’ written order to reflect that the temporary custody award was made based on TC’s temporary emergency jurisdiction. Also, the written order should acknowledge that any other custody issues should be addressed by the UT court. Finally, CA held that the TC judge’s refusal to recuse himself was not error. There was no indication from the record that the judge was biased and a judge is not required to recuse himself just because a party or their counsel has made contributions to the judge’s campaign.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates.

Baird v. Baird, Re-Issuance of Domestic Violence Orders

Baird v. Baird, ___S.W.3d__ (Ky. App. 2007)

Ex-Husband appealed from TC’s order reissuing domestic violence order against him, arguing that there was no evidence to support the DVO. Parties’ 34-year marriage culminated in an incident in which Ex-Husband threw Ex-Wife against a shower wall and held a gun to her head. Ex-Wife moved out of marital residence and the parties divorced in 1997. In 1998, a DVO was entered against Ex-Husband after he threatened to kill Ex-Wife and all her co-workers. DVO expired in 2001, at which time Ex-Husband again began following and threatening Ex-Wife. Another DVO was entered in early 2003, to expire in 2006. A few weeks before this DVO expired, Ex-Wife filed a motion to extend it for another three years. TC did so after a brief hearing. Ex-Husband appealed to CA, and CA rendered unpublished opinion in 2006 vacating the DVO and remanding to TC, noting that what appeared to be the sole ground for re-issuance of the DVO was Ex-Wife’s testimony that life had been “much more peaceful” with DVO in place, and that, on remand, TC should give proper consideration to the restrictiveness of a DVO as well as all the facts and circumstances surrounding the case before rendering a decision. TC held second hearing, and again re-issued DVO. Ex-Husband appealed again.
CA held that TCs have authority to reissue DVOs even in the absence of additional acts of domestic violence and abuse during the prior period. However, there must be some showing of a continuing need for the DVO. CA recognized that TC considered history of domestic violence in the parties’ marriage; that Ex-Husband’s conduct after the marriage left in Ex-Wife in fear; that during the time post-marriage when no DVO was in place, Ex-Husband again began to harass Ex-Wife; and that when CA’s last opinion on this matter was rendered, Ex-Husband attempted to retrieve his guns from the Sheriff’s office even before TC received notice that DVO had been vacated. Thus, CA found that there existed sufficient evidence to reissue the DVO.

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

Mandatory Arrests For Domestic Violence Offenders Criticized

The Protection Battered Spouses Don’t Need is the title caption of a New York Times Op-Ed piece this week, online here. From the article by Radha Iyenga, a fellow in health policy research at Harvard,

TWO decades ago, in an effort to curb domestic violence, states began passing “mandatory arrest” laws. Police officers responding to a call for help would no longer need to determine whether one person was truly violent or out of control; every time someone reported abuse, the police would simply be required to make an arrest.

It seemed like a good tactic — at least to people who work with victims of domestic violence. (Police officers tended to be less enthusiastic, because they prefer to make arrests at their own discretion.) Arrests would immediately stop the violence and might discourage abusers from further acts of abuse.

But 20 years later, it seems the mandatory arrest laws are having an unintended, deadly side effect. The number of murders committed by intimate partners is now significantly higher in states with mandatory arrest laws than it is in other states.

The opinion piece goes on to say

What the laws did not take into account was that eventually the victims of violence would come to realize that if they called the police, their abuser would certainly be arrested. And over the years, it turns out, that realization seems to have led victims to contact the police less.

I recently conducted my own study of mandatory arrest laws by comparing the rates of murders by intimate partners before and after the laws went into effect. Intimate partner homicides have generally decreased in the past 20 years, perhaps because greater awareness of the problem of domestic violence has led to the creation of more resources for victims. But in states with mandatory arrest laws, the homicides are about 50 percent higher today than they are in states without the laws.

The mandatory arrest laws were intended to impose a cost on abusers. But because of psychological, emotional and financial ties that often keep victims loyal to their abusers, the cost of arrest is easily transferred from abusers to victims. Victims want protection, but they do not always want to see their partners put behind bars.

In some cases, victims may favor an arrest, but fear that their abusers will be quickly released. And many victims may avoid calling the police for fear that they, too, will be arrested for physically defending themselves. The possibility of such “dual arrests” is most worrisome for victims who have children at home.

The situation is different in incidents in which abuse is suffered by people who are not intimate partners — children, for example. The certainty of arrest does nothing to deter the reporting of such cases, usually by teachers, doctors or other third parties. In fact, my research shows that in states with mandatory arrest laws there are fewer murders of non-intimate-partner family members than there are in states without the laws.

Despite two decades of increased public awareness, domestic violence remains a serious problem. Arresting abusers is often desirable, as are efforts to educate the police about domestic violence and effective intervention and to provide treatment and support for victims. But it makes no sense to keep following a strategy that discourages victims from reporting abuse.

I think in any call for reform it is important to distinguish mandatory arrests for violation of an existing order of protection from arrests at the initial call to the police, before an emergency protective order is entered. I firmly believe that arrests for violation of a domestic violence order lessen the lethality risk of intimate partner violence and doubt that the possibility of future arrests discourages victims from initially seeking protection. Time and studies will tell.
Thanks to Janet Langjahr of Florida Divorce Law Blog for pointing out this editorial.

Manning v. Willett

Manning v. Willett, --S.W.3d – (Ky. App. 2007)

Issue and Holding:
Whether the district court erred in entering, sua sponte, an order for a mutual domestic violence order. The Court held yes, as the domestic violence statutes do not provide for mutual domestic violence orders under the factual scenario in the instant case.

Facts:
The parties have a child in common. Two months after the child was born, Charles was arrested for assault fourth degree and two counts of terroristic threatening for choking, beating, and threatening Kimberly. Kimberly also obtained an EPO. Charles pled guilty to the charges. Kimberly failed to appear for the domestic violence hearing and the EPO was dismissed.
Months later, Charles assaulted Kimberly again and was charged with assault fourth degree, terroristic threatening, and criminal mischief third-degree. Kimberly obtained an EPO. At the EPO hearing the judge ordered Charles to have no contact with Kimberly or her family. Charles was also sentenced on the criminal charges.
A couple months later Charles was arrested at Kimberly’ residence and charged with violation of the DVO and terroristic threatening. The police also arrested Kimberly for violating the DVO which she had obtained. Charles pled guilty to violating the DVO, and was sentenced on the new charges. The court dismissed the criminal charges against Kimberly, but then sua sponte entered a DVO for Charles against Kimberly, expressing its frustration with Kimberly inviting Charles over to her residence despite the DVO in place.
Kimberly appealed to the Circuit Court. The court affirmed the decision below relying on KRS 403.750(1) (h). The Court of Appeals granted discretionary review.

Analysis:
KRS 403.735(2) specifically states that a court may issue mutual protective orders only if a separate petition is filed by the respondent. This did not occur in the instant case. Charles never filed a petition and never alleged Kimberly committed acts of violence or abuse. Therefore, the district court erred in entering a DVO against Kimberly and the circuit court erred in affirming the order. The lower courts’ reliance on KRS 403.750(1) (h) and KRS 403.715(2) was misplaced.
The Court noted, with agreement, the complex physical and psychological process many domestic violence victims struggle with, quoting at length from Kimberly’s brief.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Roberts v. Bucci

Roberts v. Bucci

Question: Does the family court have jurisdiction to consider a CR 60.02 motion involving a DVO?

Answer: Yes. By its plain language, CR 60.02 provides an avenue by which a party may seek to be relieved from a “final judgment, order, or proceeding.” Where the issuance of a DVO adjudicates all of the rights of both parties in the proceedings with nothing left for its consideration, the order is final. In fact, in cases where issuance of a DVO adjudicates all rights of the parties, the parties also have the right to appeal. Therefore, the relief afforded by CR 60.02 as to “final judgments, orders, or proceedings” is available as to DVOs if a movant sets forth any of the criteria covered by the rule.

As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates, www.LouisvilleDivorce.com.

Girlfriend Can't Get A Domestic Violence Order In Kentucky Unless Living With Boyfriend

Randall v. Stewart, a to be published decision of the Kentucky Court of Appeals found here held that a girlfriend who did not live with her boyfriend could not obtain the protection of a domestic violence order against him.

The digest:

Girlfriend sought a DVO from the trial court after Boyfriend attacked her when she tried to break up with him. Boyfriend and Girlfriend did not have a child nor did they have any other familial relationship. Trial court entered DVO, despite lack of evidence that Boyfriend and Girlfriend shared a residence. Boyfriend appealed to CA, arguing that because he and Girlfriend did not live together, she did not have standing to seek a DVO.

According to KRS 403.725(1), any “member of an unmarried couple” may file a petition for a domestic violence order. For the purposes of KRS Chapter 403, the phrase “member of an unmarried couple” has been defined as “each member of an unmarried couple which allegedly has a child in common, any children of that couple, or a member of an unmarried couple who are living together or have formerly lived together.” KRS 403.720(3). Following Barnett v. Wiley, 103 S.W.3d 17 (Ky. 2003), CA held that there must be a finding that the couple shared living quarters, and if so, then the trial court should consider the following six criteria to find that they are living together:

1. Sexual relations between the parties while sharing the same living quarters;

2. Sharing of income or expenses;

3. Joint use or ownership of property;

4. Whether the parties hold themselves out as husband and wife;

5. The continuity of the relationship; and

6. The length of the relationship.

CA held that, because there was not substantial evidence to support the finding that Boyfriend and Girlfriend lived together when the DVO was entered, Girlfriend did not have standing to seek the DVO and trial court clearly erred in entering the DVO. CA, however, pleaded with the legislature to remedy our too-narrow domestic violence statute: “while we lack the authority to expand the scope of KRS 403.725 to cover dating relationships, this case illustrates the compelling need for the General Assembly to consider such an expansion.”

Note: House Bill 396 (HB 396/CI) was introduced and posted in committee on February 14, 2006. This bill would expand KRS 403.720 to allow dating partners to obtain domestic violence protective orders.

As digested by Michelle Eisenmenger Mapes

Domestic Violence Among Refugee and Immigrant Women

Domestic Violence Among Refugee and Immigrant Women is among the posts this week at the Family Law Prof Blog. It links to an audio of a National Public Radio broadcast by Meqdes Mesfin.

Spencer v. Spencer

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.

Facts:
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).
Ken appealed.

Analysis:
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.