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

The post <strong>Kentucky Court of Appeals reverses Allen Family Court, vacates IPO extension based on insufficient written findings to support evidence of stalking by Respondent</strong> appeared first on Goldberg Simpson - Family Law Group.

Hardin Circuit Court

On September 21, 2020, Cindy Patricia Johnston (“Cindy”), filed a petition seeking a DVO restraining order on behalf of her twelve-year-old child, S.O. The DVO was to restrain Justin Kyle Johnston (“Justin”), Cindy’s husband and S.O.’s stepfather. The petition alleged that Justin “kissed” and “tried to stick his [tongue] in [S.O.’s] mouth.” The Hardin County Family Court entered an emergency protective order based on the petition and held a subsequent domestic violence hearing. Both Cindy and S.O. provided sworn testimony which re-asserted the allegations in the petition. The family court issued a DVO on behalf of S.O. based upon the totality of the evidence; specifically, the court noted that the kiss “falls within the definition of domestic violence, because [] it put [S.O.] in fear that a kiss was going to maybe lead to something worse,” which meant that it put S.O. in “imminent fear of bodily harm”.  Justin appealed.

The Court of Appeals reviewed the family court’s factual findings, limited to whether said findings were clearly erroneous. Justin asserted that, assuming the kiss did occur, such action did not constitute domestic violence under KRS 403.720(1), as there was no reason to believe S.O. was fearful that Justin would attempt to kiss or harm her in the future. This conflicted directly with the family court’s findings, which properly incorporated its oral findings of fact into its written order, including text that stated the order was to “assist in eliminating future acts of domestic violence and abuse” and that petitioner’s established “by a preponderance of the evidence, that an act of domestic violence or abuse . . . has occurred and may occur again.”  The Court, respecting the importance of a trial court’s written findings in a family law matter, agreed with the family court: the act of an adult attempting to kiss a twelve-year-old child with tongue was sufficient to make that child fear future sexual abuse. Being a reasonable presumption, and far from clearly erroneous, the Court affirmed the family court’s decision to grant the petition.

Digested by K. Spencer Pierson

The post Family Court did not abuse its discretion in granting interpersonal protective order based on child’s fear of future domestic violence and abuse – Published Opinion from Ky. Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

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

The post Family Court did not violate due process rights, nor abuse its discretion in granting interpersonal protective order – Published Opinion from Ky. Court of Appeals appeared first on Goldberg Simpson - Family Law Group.