Guenther v. Guenther, Ky COA, Domestic Violence Order

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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with this section shall be effective until the full hearing provided for in this subsection or in KRS 403.745, or until withdrawn by the court.”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  

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