Telek v. Daugherty, Ky COA, DVO - sufficiency of evidence

Telek v. Daugherty, 2009-CA-001993-ME

Published:   Reversing and Remanding  

County:  Kenton

On remand from Kentucky Supreme Court,
Father challenges sufficiency of evidence supporting FC’s entry of Domestic
Violence Order.

FACTS:

Mother and Father have a son born in
1997.  An incident occurred in 2009 when
Mother attempted to pick up Son from football practice.  Mother subsequently filed an EPO, alleging
that at that practice she and Father got into a dispute as to when Mother was
to retrieve Son; that as Mother was standing at passenger side door of Father’s
van telling Son to come with her, Father grabbed her by wrist and yanked her,
then shoved her out of the way; that she then called for help; that Father had
been sentenced to jail time for violating multiple court orders in custody case;
and that all three of her children witnessed the incident.  EPO was granted.  At the DVO hearing, Mother testified to all
these facts and that although she had not been injured, she was afraid.  Father testified that he never grabbed or
shoved Mother, but that she grabbed his hand from the door of the van; he also stated
that he only wanted to take his Son to his home to retrieve a change of clothes
and his summer reading assignment for the first day of school the following
day; and that he never had any intent to harm or scare Mother.  The GAL testified that Son stated nothing had
happened that day. 

At
the conclusion of the hearing, FC determined only that “something happened” and
recognized Father’s failure to follow FC orders and to read FC orders in his
favor.  Upon Father’s request for
specific findings, FC found that Father had touched and pushed Mother and that
such behavior would continue in the future. 
FC entered DVO, effective for three years, requiring Father to stay 500
feet away from Mother and her family other than for child exchanges or for
Child’s events related to sports and school. 

ANALYSIS:

On remand from Supreme Court, Father
argues that there were insufficient facts to support entry of DVO.  CA agreed, in light of previous precedents
establishing that “unwanted touching,” standing alone, is insufficient evidence
for entry of a DVO.  CA also found FC
erred by basing its decision on Father’s actions in domestic case, holding that
this bad behavior was not connected to the incident of domestic violence and
therefore cannot form the basis for entry of the DVO. 

Digested by Michelle Eisenmenger
Mapes
, Diana L. Skaggs + Associates