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