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subsection or in KRS 403.745, or until withdrawn by the court.”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