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

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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.

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