Kentucky Supreme Court

Circuit Court found Defendant guilty of violating a Domestic Violence Order and first-degree assault, among other convictions. Defendant appealed, alleging in relevant part that the trial court erred because it allowed testimony via zoom. The Kentucky Supreme Court found that the trial court committed error when it permitted a witness to testify via zoom in violation of Defendant’s right to confrontation afforded by the 6^th Amendment of the U.S. Constitution, and that the error required reversal of the conviction of assault.

Defendant argued that permitting a witness to testify viz zoom violated his rights under the Confrontation Clause of the 6^th Amendment of the United States Constitution. On the morning of trial, the Commonwealth informed the court and Defendant’s attorney that the Commonwealth’s expert would have to testify via zoom as he was scheduled to work at the hospital that day. The witness’s testimony was crucial in proving an essential element of the assault charge.

Defendant objected.

The Sixth amendment guarantees the accused in all criminal proceedings the right to be “confronted with the witnesses against him.” The primary purpose of which is to compel the witness “to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”

In Maryland v. Craig, 497 U.S. 836 (1990), the U.S. Supreme Court held that a defendant’s right of confrontation is not absolute and that it might be outweighed upon an adequate showing of necessity on a case specific basis. (holding that a state’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in come cases, a defendant’s right to face his or her accusers in court). In Crawford v. Washington, 541 U.S. 36 (2004), the U.S. Supreme Court rejected the balancing test holding that the 6^th Amendment does not express a preference for face-to-face confrontation, but “it commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Although contradicted, Crawford did not overrule Craig.

Applying Craig, the Kentucky Supreme Court found there was no showing of necessity, other than convenience to the witness, of balancing the victim’s interests that justified the surrender of the Defendant’s constitutional right of confrontation.  

Digested by: Emily T. Cecconi

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U.S. District Court for the Eastern District of Kentucky

Appeal filed on February 23, 2023

Family Court issued a Domestic Violence Order (“DVO”) against Combs after “a hearing of which he received actual notice” and “an opportunity to participate.” The DVO prohibited Combs from “harassing, stalking, or threatening an intimate partner,” and explicitly prohibited “the use, attempted use, or threatened use of physical force against such intimate partner that would reasonably be expected to cause bodily injury.” A few days after issuance of the DVO, Combs purchased a firearm, indicating on the purchase application he was not subjected to a DVO.

A federal grand jury charged Combs with being a prohibited person in possession of a firearm in violation of 18 U.S.C. § 922(g)(8), which prohibits a person who is subject to a domestic violence order from receiving or possessing a firearm. Combs filed a motion to dismiss the indictment arguing that 18 U.S.C. § 922(g)(8) was unconstitutional as it failed to meet the Second Amendment test set forth by the United States Supreme Court in New York State Rifle & Pistol Ass’n v. Bruen, 142 S.Ct. 2111 (2022).

The Bruen opinion reinforced a “text and history” approach to the Second Amendment, holding that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” and “to justify [the second amendment’s] regulation, the government…must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

First, the United States argued that the Supreme Court has limited the Second Amendment to law-abiding, responsible citizens. The District Court noted, however, that other courts have declined to read into the amendment a qualification that its rights only belong to law-aiding citizens, finding that a plain reading of the amendment covers all persons under the constitution. Thus, the District Court held that a plain reading of the Constitution protected Combs’ right to possess a firearm, even assuming that he was not a law-abiding, responsible citizen.

Second, the United States argued that surety statutes, which required certain individuals to post bond before carrying weapons in public, and historical laws disarming “dangerous people” provide a sufficient historical analogue to satisfy Bruen’s second amendment test. The United States argued that both surety laws and U.S.C. § 922(g)(8) attempt to prevent known allegedly reckless individuals from using a firearm in furtherance of a crime, and, therefore, have a similar social purpose. Combs argued that surety laws were insufficiently analogous the federal law, and the District Court agreed. The District Court held that U.S.C. § 922(g)(8)’s complete deprivation of an individual’s ability to possess a firearm was materially different than a sureties’ possible disarmament, if violated, and was therefore unconstitutional.

Digested by: Emily T. Cecconi

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Allen Circuit Court

Allen Family Court entered an IPO against Respondent in 2019 based on Petitioner’s allegations that Respondent stalked, harassed, and threatened her. Shortly before it was set to expire in July 2022, Petitioner filed a motion to extend the IPO for three years. The family court set the matter for a hearing, at which it extended the IPO until July 2025. Respondent filed an appeal, in which she alleged that the family court lacked jurisdiction to hear the IPO, arguing that only a district court had jurisdiction to hear such a case, and challenged the sufficiency of the evidence supporting the family court’s order granting an extension of the IPO. Petitioner did not file a brief.

The Court of Appeals recognized that family courts frequently consider IPOs, and held that, pursuant to KRS 456.030(6)(a), district and circuit courts have concurrent jurisdiction over petitions filed under that chapter. The Court then addressed Respondent’s other claim and held that the family court’s decision was not supported by sufficient evidence of stalking, the reason given for Petitioner’s motion to extend. The Court stated that although the family court checked the box on the standard form finding that stalking had occurred, it gave no additional written findings of fact and did not indicate any threats made to Petitioner by Respondent that fit within the definition of “stalking” pursuant to KRS 508.140 and KRS 508.150. Additionally, comments made by the judge from the bench were not incorporated into the standard form used to enter the extended IPO. Further, the testimony given by the parties was vague and merely reiterated statements that formed the basis for the original issuance of the IPO in 2019. No other parties testified. The Court stated that the incidences Petitioner testified to – that Respondent had walked within arm’s reach of Petitioner at their children’s school event and that Respondent had taken photos of Petitioner at their children’s sporting event – did not rise to the level of stalking. The Court held that because stalking had not occurred and because no new allegations were put forth other than those that Petitioner used to support the entry of the original IPO, the family court lacked sufficient evidence to extend the protective order. The Court reversed and vacated the IPO. 

Carter Anderson

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Jefferson Circuit Court

Robert Waggoner filed a petition for a Domestic Violence Order (“DVO”) against his ex-wife, Christina, after a dispute at their former marital home occurred. An Emergency Protective Order (“EPO”) was entered and a DVO hearing was set. Preceding the hearing, counsel for both parties discussed a potential settlement agreement that would allow all parties to access the marital home, dismiss the DVO petition, and set the matter for mediation. At the hearing, counsel made the court aware of these settlement discussions, and requested the matter be continued. The family court obliged, and recorded the following on the docket sheet:

“[P]ass 1 wk to 6-29-2021 @ 8:30 a.m. Mutual NUC [no unlawful contact] A.O. [agreed order] to be circulated b/w parties’ counsel/parties on divorce case to get [Christina] back in her house + to allow [Robert] to get tools . . . mediation to occur w/ Vish or Bowles.”

At the next appearance of the parties, Robert’s attorney informed the family court that Robert had changed his mind about proceeding with the agreement, based around Christina’s recent emptying of the parties’ joint bank accounts. Again, the matter was passed, and at the next hearing, Robert explained that he had additional concerns about entering a settlement agreement and dismissing the DVO petition, as Christina had “threatened to kill [him] and burn down the house multiple times[.]” As a result, Robert refused to dismiss the petition. Christina filed a motion to dismiss the DVO and enforce the settlement agreement. The family ultimately denied her motion, explaining that the agreement was not expressly adopted by both attorneys and the record, and thereafter entered a DVO. Christina appealed.

The Court found no exchange on the record that would enforce a contractual agreement. The presentation to the family court by the parties was that the agreement was only ever “a work in progress” with exact terms never being read into the record and “conditional and contingent terms” being used when discussing the agreement. Likewise, while the family court wrote an aforementioned summary of the potential settlement, such writing was insufficient to create a binding agreement. Thus, the family court’s orders denying the motion to dismiss and granting the DVO were affirmed.

K. Spencer Pierson

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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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Warren Circuit Court

Questions Presented: Domestic Violence. Protective Orders. Findings of Fact. Trial court made sufficient findings of fact in support of a domestic violence protective order where the judge made findings in writing on the order form and explicitly incorporated their clear oral factual findings.

After a hearing in a domestic violence proceeding, Family Court made oral factual findings and legal conclusions on the record. Concurrently, Family Court completed AOC Form 275.3, Order of Protection. It also completed a pre-typed Findings of Fact and Conclusions of Law form that it had made itself, which included blank spaces for the judge to write in the case number, parties’ names, and the date of the hearing. On the AOC form, under “Additional Findings,” Family Court checked a box indicating it also found “[f]or the Petitioner against the Respondent in that it was established, by a preponderance of the evidence, that an act(s) of sexual assault has occurred and may again occur.” The pre-typed form stated, in full:

“The matter came before the Court on May 19, 2020 for a hearing on Petitioner’s Petition for a Domestic Violence Order. At the conclusion of the hearing, the Court announced its findings of fact and conclusions of law, which form the factual and legal basis of the Court’s Order. Accordingly, IT IS HEREBY ORDERED that the findings of fact and conclusions of law announced on the record as set forth hereinabove are expressly and specifically incorporated by reference herein as if written in full. Boone v. Boone, 463 S.W.3d 767, 768 (Ky. App. 2015); Kindred Nursing Centers, Ltd. Partnership v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010). The Court shall set forth its decision in a separately entered Domestic Violence Order.”

The Court of Appeals held this did not meet the mandates of CR 52.01 requiring a trial court to make written factual findings. The Supreme Court disagreed. CR 52.01 requires the trial court to finds the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment. Previously, the Court of Appeals has held that findings of fact and conclusions of law must be specifically incorporated into a written and properly entered order. Here, Family Court  made findings of fact and conclusions of law orally at the end of the hearing. It also fully and accurately completed AOC Form 275.3, finding, by a preponderance of the evidence, that acts of sexual abuse had occurred and may occur again. Finally, it entered a written order expressly and specifically incorporating its oral findings and conclusions into the written order. This was sufficient to engage in at least a good faith effort at fact-finding and that the found founds be included in a written order. The only “essential facts” the trial court is required to find are (1) whether an act of domestic violence and abuse, dating violence and abuse, stalking, or sexual assault has occurred, and (2) whether it may occur again. Family Court made both of these findings in writing on AOC Form 275.3. Any additional factual findings the trial court makes in issuing a protective order are merely supporting those ultimate factual findings and are not “essential.”

Digested by Nathan R. Hardymon

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Fayette Circuit Court

Glynis was married to Johnathan’s deceased brother. Glynis petitioned for an interpersonal protective order (IPO) against Johnathan. At the hearing, Glynis testified that she and Johnathan had not seen or spoken to each other for several years before her husband’s death. However, thereafter, they checked in on each other regularly. Johnathan had visited Glynis’ home on more than one occasion. During one visit, Johnathan brought a gun, which Glynis requested he not bring back. Johnathan gave Glynis $400 for her husband’s funeral, which she thought was a gift. Glynis introduced several text messages between her and Johnathan, in one of which he indicated he was going to have sexual intercourse with Glynis and would be at her house “tomorrow.” The next day, Johnathan indicated via text message that he was on his way to Glynis’ home. She allowed Johnathan inside. Johnathan then removed his gun from its holster and placed it on a stool. He demanded that Glynis repay him the $400. Glynis replied that she was unable to repay him and questioned whether the sexually explicit text messages were sent to her by mistake. Johnathan said he knew who he was texting and had been sexually aroused by hugging her previously. He told Glynis she was going to have sex with him to repay him or he would “do it for her.” Glynis testified that she was frightened by Johnathan’s conduct and ran to her bedroom to get her cellphone to call the police. Johnathan followed her, grabbed her in a “bear hug” and attempted to pull her into the bedroom. His body was against her back with his arms pressing beneath her breasts. Glynis held onto the doorframe to keep from being pulled into the bedroom, broke free, ran outside and reported the incident to the police. Glynis testified that she was traumatized by the event and no longer felt comfortable sitting on her porch or being outside after dark. She also installed additional locks on her doors.

James Jennings, Glynis’ friend, testified next that he was present when Glynis received the initial text messages from Johnathan, which text messages made Glynis upset and scared. He testified that since the incident, Glynis appeared worried about her doors being locked.

Johnathan then moved for a directed verdict, which Family Court denied. Johnathan testified that he did send Glynis the text messages, but claimed they were meant for his acquaintance, Candice Walker, with whom he frequently engaged in sexually explicit conversations. He stated he did not recognize the mistake even after Glynis responded. He admitted going to Glynis’ home but only to tell her he could not give her any more money. He testified that Glynis petitioned for the IPO because he refused to give her additional funds. He further testified that he was not physically attracted to Glynis.

Candice next testified that she occasionally engaged in sexually explicit conversations with Johnathan and had received messages from Johnathan on the dates Johnathan texted Glynis and went to her home. However, she could not recall the contents of the messages but testified they were likely sexual in nature. Johnathan then renewed his motion for a directed verdict, which Family Court denied.

Family Court entered an IPO, finding Glynis’ testimony to be more credible and that Johnathan’s actions constituted attempted sexual assault. Family Court further found Johnathan committed sexual abuse in the third degree and stalking. Johnathan appealed.

Johnathan argued that (1) Family Court improperly interpreted KRS 456.010(6) to include attempted sexual assault and abused its discretion in finding attempted sexual assault occurred and may again occur; (2) Family Court abused its discretion in finding stalking occurred and may again occur; (3) Family Court abused its discretion in finding Johnathan committed sexual abuse in the third degree; and (4) Family Court erred in denying his motions for directed verdict.

The Court of Appeals held that KRS 456.010(6) includes attempted sexual assault. KRS 456.010(6) defines sexual assault as “conduct prohibited as any degree of rape, sodomy, or sexual abuse under KRS Chapter 510 or incest under KRS 530.020”, which does not include attempted sexual assault. To read it to exclude attempted sexual assault would run counter to the legislative intent of “[a]llow[ing] victims to obtain effective, short-term protection against further wrongful conduct in order that their lives may be as secure and as uninterrupted as possible[.]” Furthermore, providing protection through an IPO to someone who is in a dating relationship with someone who placed him or her in imminent fear of sexual abuse and barring the same protection to someone who was not in a romantic relationship would be absurd.

The Court of Appeals held that Family Court did not abuse its discretion in finding attempted sexual assault occurred and may occur again. The trial court, not the appellate court, is the trier of fact and is responsible for judging the credibility of witnesses. Family Court found Glynis’ testimony to be more credible, which a review of the record showed not to be an abuse of discretion.

The Court of Appeals held that Family Court did not err by finding Johnathan stalked Glynis. A person is guilty of stalking in the second degree when he intentionally (a) [s]talks another person; and (b) [m]akes an explicit or implicit threat with the intent to place that person in reasonable fear of (1) [s]exual contact as defined in KRS 510.010; (2) [p]hysical injury; or (3) [d]eath. To “stalk” means to engage in an intentional course of conduct [d]irected at a specific person or persons; [w]hich seriously alarms, annoys, intimidates, or harasses the person or persons; and [w]hich serves no legitimate purpose. The course of conduct shall be that which would cause a reasonable person to suffer substantial mental distress. “Course of conduct” is a pattern of conduct composed of two (2) or more acts, evidencing a continuity of purpose. One (1) or more of these acts may include the use of any equipment, instrument, machine, or other device by which communication or information is transmitted, including computers, the Internet or other electronic network, cameras or other recording devices, telephones or other personal communications devices, scanners or other copying devices, and any device that enables the use of a transmitting device.

Jonathan’s actions did constitute the requisite “course of conduct.” Johnathan repeatedly sent Glynis text messages, including one in which he indicated he was going to have sex with her; went to her home uninvited and armed; told her he would “do it for her” if she refused sex; made additional sexual comments; and attempted to pull her into a bedroom. These acts show a continuity of purpose, and he attempted at least two acts with his purpose of sexual intercourse with Glynis regardless of her unwillingness to participate.

Glynis was seriously alarmed, intimidated, or harassed by Johnathan’s actions. She was upset and frightened by his initial text messages. She was frightened when Johnathan came to her home demanding money or sexual intercourse. Glynis ran from Johnathan and called the police. Further, Johnathan’s actions were explicitly threatening, which conduct would put a reasonable person in fear of sexual contact and cause a reasonable person substantial mental distress.

The Court of Appeals held that Family Court did not err by finding Johnathan committed sexual abuse in the third degree. A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter’s consent. Sexual contact is any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party. Johnathan’s manner of touching Glynis, his prior words and actions, as well as the timeframe in which the incident occurred support Family Court’s finding that the “bear hug” was for Johnathan’s sexual gratification and constituted sexual contact to which Glynis did not consent.

The Court of Appeals held that Family Court did not err in denying Johnathan’s motions for a directed verdict. A directed verdict is improper in a bench trial; the proper motion is for involuntary dismissal. However, even thereunder, Family Court did not err, because Family Court properly found Glynis’ testimony credible, and evidence was sufficient to survive the motions.

Digested by Nathan R. Hardymon

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After an incident on the bus where Doe, a minor, allegedly put T.L.C., a minor’s hand near Doe’s penis while slapping T.L.C.’s hand, telling him to “slap his meat,” Ramey, T.L.C.’s mother, petitioned for an interpersonal protective order (“IPO”). A temporary IPO was granted.

The hearing on the petition took place before the adult session of the district court. At the hearing, the district court warned Doe’s mother that Doe’s testimony could be used in criminal proceedings against Doe and that Doe had the right not to testify. Doe declined to testify. The district court entered an IPO after hearing testimony. The IPO contained no written findings. Doe appealed to the circuit court.

The circuit court affirmed the district court, holding that Doe could be represented by his mother as she was his guardian, that Doe had no right to counsel in a civil proceeding, that the district court has subject matter jurisdiction, that the district court’s warnings were appropriate, and that the IPO was properly granted on the basis of sexual assault. Doe appealed to the Court of Appeals.

First, the Court of Appeals held that the district court lacked subject matter jurisdiction to hear the matter, because the juvenile court was the only court with jurisdiction. It reasoned that jurisdiction over IPO cases is not vested in the circuit court. Where the respondent is a minor, IPO hearings must take place before the juvenile court, because it has exclusive jurisdiction in all cases relating to minors in which jurisdiction is not vested in some other court and in proceedings concerning any child living or found within the county.

Second, the Court of Appeals held that the district court deprived Doe of due process by advising Doe that his testimony in the IPO hearing could be used against him in juvenile and criminal proceedings. It reasoned that testimony in IPO proceedings is only admissible for impeachment in criminal proceedings. This prohibition applies to juvenile proceedings, because the Fifth Amendment privilege against self-incrimination has been extended to juvenile proceedings, and therefore, it is appropriate to extend the statutory protections adults receive to juveniles. Therefore, a waiver of Doe’s right to present his own testimony as evidence could not be knowingly, voluntarily, and intelligently made where he was given inaccurate advice by the district court.

Third, the Court of Appeals held that written factual findings are required for IPO cases just as they are for DVO cases.

Finally, the Court of Appeals held that it would be a very large inference to assume that Doe forced T.L.C. to touch Doe’s penis through his pants for sexual gratification, which would be required for a finding of sexual assault, where the only testimony was that Doe touched and hit T.L.C.’s hands.

Digested by Nathan R. Hardymon

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Hall petitioned for a protective order on behalf of herself and Hall and Smith’s two minor children, alleging that Hall was once married to Smith; that they have two children in common; that Smith is controlling and manipulative; that Smith has been stalking Hall; that there was physical abuse at the end of their marriage and mental abuse before that; that the Children are being mentally abused by Smith; that Smith pulled a gun on an ex-girlfriend and her boyfriend; that Smith was violating a restriction not to go within 1,000 feet of Hall’s home; that Smith newly acquired a gun; and that she believed Smith would hurt her and the children.

The reviewing judge declined to enter an emergency protective order, finding no imminent threat, but issued a summons for Smith. Family Court held a hearing, wherein Hall gave testimony. Family Court inquired as to what actions of Smith would be relevant to a determination of imminent danger or acts of domestic violence. Hall provided no testimony which supported entry of a domestic violence order. Family Court disallowed the testimony of the children, but allowed Hall to place the testimony in the record by avowal. On appeal, Hall argues that (1) Family Court erred by not entering a domestic violence order in response to her petition and testimony; (2) Family Court erred by not hearing the children’s testimony; and (3) Family Court erred by not entering adequate findings.

The Court of Appeals held that Family Court did not err by not entering a domestic violence order in response to Hall’s petition and testimony, because there were no allegations or testimony of physical abuse or injury, threats of physical abuse, or imminent danger of domestic violence. The Court of Appeals held that Family Court did not err in not allowing the children’s testimony, because the avowal testimony showed no evidence of domestic violence occurring or likely to occur. Finally, the Court of Appeals held that Family Court erred by making insufficient written finding to show the basis of the dismissal of the petition. Although it reasoned that “[i]t would seem unduly burdensome and unnecessary for a court to make findings of fact that establish a non-finding of necessary facts,” it held that checking the box on the Kentucky Court standardized form showing that there were not sufficient findings of fact to support the entry of a domestic violence order would satisfy the written findings requirement.

Digested by Nathan R. Hardymon

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After a physical altercation between Father and Son, wherein Father restrained Son so that Son could not continue hitting him, Mother filed a petition for a protective order for Son. At the hearing, the testimony revealed that Son pushed Father several times and then hit him in the chest. Father then restrained Son and asked his girlfriend to call the police. Family Court entered a domestic violence order (“DVO”), but it did not make a finding that what Father did resulted in a physical injury or constituted an act of domestic violence, and only summarized the family’s history before issuing the DVO. Father appealed.

The Court of Appeals held that Family Court erred in granting the DVO, because Family Court did not make a finding that what Father did resulted in physical injury or constituted domestic violence, failed to follow the statutory requirements for issuing a DVO, and failed to make specific findings that Son was a victim of domestic violence, that domestic violence had occurred in the past, and that it was likely to occur in the future. Thus, due to Family Court’s failure to make a finding of a physical injury, past or present physical threats of abuse, or fear of imminent harm, Family Court did not follow the statutory requirements for granting a DVO.

Digested by Nathan R. Hardymon

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