Not Error To Fail To Dismiss Domestic Violence Action Upon Victim's Request: Ky Court of Appeals Published Opinion September 30, 2016

MOORE V. MOORE

Trial Court held a bifurcated DVO hearing on a severe domestic violence incident between Husband and Wife. At the first hearing, Wife testified she was afraid of Husband and gave detailed testimony about the violent incident. After contact with Husband’s family, at the second hearing, Wife read a statement asking the Trial Court to dismiss the matter. The Trial Court issued a DVO against husband. Husband appealed arguing that “the trial court abused its discretion when it failed to grant appellee’s  [Wife’s] motion to voluntarily dismiss the DVO.”

The rules for dismissal are set forth in CR 41.01. Automatic dismissal shall be granted when the Petitioner files “a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs” or files “a stipulation of dismissal signed by all parties who have appeared in the action.” CR 41.01(1) The Court of Appeals holds that this case did not fall under CR 41.01(1), because Wife never filed anything, she simply read a statement into the record.

CR 41.01(2) allows dismissal at the discretion of the trial court. Factors the Trial Court should consider before granting the dismissal are set forth in the Supreme Court case of Sublett v. Hall. Sublett v. Hall, 589 S.W.2d 888 (Ky. 1979). Holding that domestic violence cases “involve different considerations than general civil cases” the Court of Appeals held that is was proper for the Trial Court to consider factors outside of those listed in Sublett. Thus, the Trial Court did not abuse its discretion by  denying Wife’s motion to dismiss the action noting that the Trial Court found Wife had contact with Husband’s family which “dramatically changed” her position.

Husband also argues that the Trial Court erred “when it found sufficient evidence in the record that domestic violence ‘may again occur’ under KRS403.740(1).” The Court of Appeals first reiterates that “a singular act is never sufficient to support a finding that domestic violence may recur without some additional indication, however small, that domestic violence may recur,” but ultimately holds that the Trial Court did not err in finding sufficient evidence domestic violence might occur again given the severity of the underlying event, as well as fact that the parties lived together, and Husband’s failure to obtain treatment for substance abuse.

Digested by Elizabeth M. Howell