Family Court did not violate due process rights, nor abuse its discretion in granting interpersonal protective order – Published Opinion from Ky. Court of Appeals


Sewell v. Sweet

Lewis Family Court

On August 20, 2021, Elizabeth Ingrid Sweet filed a motion for an emergency protective order against romantic partner James Christopher Sewell. In the petition, Sweet levied two allegations: the first alleging Sewell visited Sweet’s residence late at night unannounced, and the other alleging Sewell visited Sweet’s place of employment, with each occurrence resulting in heated arguments regarding the party’s relationship status. As a result, the family court granted a temporary IPO and held a hearing on the petition. At the hearing, Sweet testified to the events mentioned in her petition, alongside additional allegations of stalking attempts by Sewell and an incident of domestic violence, where Sewell allegedly pointed an arrow directly at Sweet’s chest in a threatening manner. Having heard this testimony, the family court continued the hearing specifically to allow Sewell time to amass witnesses and exhibits.

At the second hearing, Sweet elaborated on the aforementioned incidents, alongside two additional altercations, including an allegation of Sewell coming to Sweet’s residence intoxicated and engaging in an argument with her, and another where Sewell allegedly choked Sweet. Sweet provided photos to corroborate the latter incident, showing her bruised neck. In response, Sewell provided his own account of events, denying Sweet’s accusations and providing some photos and metadata evidence to lend credibility to his narrative. Too, Sewell provided context to his visit to Sweet’s place of employment, showcasing that such visits were a common occurrence, and not simply for the purpose of arguing. The family court ultimately found Sweet’s telling of events more credible, and entered an IPO in favor of Sweet and against Sewell, for the maximum period of three years. Sewell appealed.

In his appeal, Sewell claimed two deficiencies in the family court’s ruling. First, Sewell claimed that the family court abused its discretion and violated his due process rights by allowing Sweet to testify to events during the hearing that were not included in the filed petition. Second, Sewell stated that the family court erred in finding acts of dating violence and stalking occurred and may occur again. The Court reviewed the family court’s decision not determining “whether [the Court] would have decided it differently, but whether the findings of the [family] judge were clearly erroneous or that he abused his discretion.”

For his first complaint, Sewell argued that allowing Sweet to testify to facts outside the petition, he was unable to adequately prepare his defense to those allegations. The Court, however, found that Sewell’s due process rights were protected, both legally and practically. Relying on past cases, the Court highlighted explicit rulings stating that a Kentucky DVO cannot be issued merely on the contents of a petition. The purposes of the hearings are to allow for the needed additional information via testimony, meaning that Sweet’s elaboration on the events that led to the filing of the petition were not in error. Furthermore, as a practical matter, the Court provided a five-month gap between the first and second hearing specifically for the purpose of letting Sewell adequately prepare his arguments. Thus, the Court, finding no barrier in Sewell’s ability to make his case, affirmed the family court’s findings.

Next, Sewell contended that the family court’s finding acts of dating violence and stalking occurred and may occur again was clearly erroneous given the evidence provided. Here, the Court agreed with Sewell in part—looking at the required elements for second degree stalking, the Court found no evidence that an explicit or implicit threat with the intent to place that person in reasonable fear of sexual contact, physical injury, or death was present in the visits by Sewell. Specifically, the visits to Sweet’s workplace did not meet the statutory requirements for second degree stalking because Sewell had visited the many times prior, and though visiting with intent to argue with Sweet could be viewed as “irritating”, it was not threatening. Nevertheless, the Court found that the family court’s finding of dating violence was proper. In its opinion, the family court specifically noted Sweet’s fear and explanation of events were far more credible than Sewell’s version of events. At the hearings, the family court found Sweet’s description of the arrow incident, the choking incident, and the visits to her home and workplace in order to argue as constituting dating violence or abuse, particularly when Sewell failed to produce any compelling evidence or witnesses to support his version of events. Accordingly, the Court upheld the family court’s findings, partially, and ultimately found the family court did not err in issuing the IPO.

Digested by K. Spencer Pierson

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