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

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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.

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