Stephen Stinson v. Tracy Stinson, Ky Court of Appeals, Contempt When Domestic Violence Order Not Served

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Stephen Stinson v. Tracy Stinson

No. 2011-CA-001312-MR

Published:  Opinion reversing

County:     Barren

Stephen Stinson appeals from an order of Barren Family Court holding him in contempt of an amended domestic violence order for violating the no contact or communication provision.

A decree dissolving the parties’ marriage was entered in November, 2009.  In September, 2009, Tracy sought a DVO because Stephen’s telephone calls, text messages, and other threats caused her to fear for her safety and that of her children.  The court entered an emergency protection order and scheduled a hearing the next month.

After the hearing on October 5, 2009, a DVO forbidding Stephen from having any contact with Tracy was entered, to be effective until October 5, 2012.  Stephen was also required to complete domestic violence counseling and an alcohol and drug education program and to provide the court with certificates of completion by July 1, 2012.  He did not file the certificates of completion.

Pursuant to the order entered October 5, 2009, the court reviewed the matter on August 17, 2010 with neither party appearing in court. Stephen was held in contempt for failure to comply with the terms of the DVO and he was sentenced to ten days in jail, suspended on condition that he file the certificates by April 1, 2011.  The matter was set for review on May 10, 2011.  In a separate order, the court entered an amended DVO providing for the new date for completion of the programs and extending the amended DVO until October 5, 2012.  Two attempts to serve Stephen were returned as undeliverable.

On February 25, 2011 Tracy filed a domestic violence show cause order after she received a threatening letter from Stephen.  Both parties appeared, without counsel, on March 18, 2011.  The court allowed Stephen to file an affidavit of indigency and subsequently appointed the DPA to represent him.

At the rescheduled show cause hearing held June 24, 2011, Stephen argued that since he had not been served with the amended DVO, he could not be held in contempt for violating its terms, and that the allegedly contemptuous behavior occurred after expiration of the original DVO.  After hearing testimony from the parties, the court found Stephen in contempt.  He was sentenced to ten days in jail, suspended on the condition that he purge himself of contempt by complying with the amended DVO.  This appeal followed.

Stephen contests entry of the original DVO pursuant to the palpable error rule of RCR 10.26, arguing that Tracy failed to establish that domestic violence had occurred or was likely to occur in the future.  The Court of Appeals held that Stephen’s failure to file a timely appeal from the original DVO precluded him from contesting the original DVO in this appeal.

Stephen further argued that he could not be held in contempt for failing to comply with the amended DVO because he was never served.  Notice and service requirements apply to all orders of protection issued pursuant to KRS 403.715 and KRS 403.785.  Until an individual has been served with an amended DVO or notified of its existence and terms, there can be no finding of a violation of its terms.  Therefore, the June 24, 2011 contempt order was improperly entered and must be reversed.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

 

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