Opinion
NO. 2018-CA-000628-ME NO. 2018-CA-001150-ME
07-05-2019
JOSEPH MATTHEW BYRDWELL APPELLANT v. CHANTELE BYRDWELL APPELLEE
BRIEFS FOR APPELLANT: Joseph Matthew Byrdwell, pro se Smithfield, Kentucky BRIEF FOR APPELLEE: Jonathan O. Wells LaGrange, Kentucky
NOT TO BE PUBLISHED APPEALS FROM HENRY CIRCUIT COURT
HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 16-D-00043-001 OPINION
VACATING
** ** ** ** **
BEFORE: KRAMER, NICKELL AND L. THOMPSON, JUDGES. L. THOMPSON, JUDGE: Joseph Byrdwell (hereinafter referred to as Appellant) appeals from multiple orders of the Henry Circuit Court, Family Division. The orders being appealed are as follows: an order entered on March 20, 2018, which denied a motion to dismiss or modify a domestic violence order (DVO); an order entered on May 15, 2018, which reissued a DVO for another year; an order entered on June 18, 2018, which modified the DVO to allow Appellant to attend his children's extracurricular activities; and another order entered on June 18, 2018, denying a motion to vacate or modify a DVO. We hold that Appellant's due process rights were violated in this case; therefore, we vacate the DVOs entered on and after May 15, 2018. All other issues raised by Appellant are moot.
Appellant raises multiple constitutional challenges on appeal. Arguing Kentucky's Attorney General was not notified of these challenges as required by KRS 418.075, Appellee moved this court to strike portions of Appellant's brief. Via separate order, this Court determined the Attorney General was properly notified of the challenges and denied the motion to strike. The Court's resolution of the appeal has made the constitutional challenges moot. --------
On May 24, 2016, Chantele Byrdwell (hereinafter referred to as Appellee) filed a petition for an emergency protective order (EPO) against Appellant. Appellee also sought protection from Appellant on behalf of their two minor children. The EPO was granted that same day and a hearing was scheduled for May 27, 2016. After the hearing, wherein both parties testified, the trial court entered a DVO which precluded Appellant from contacting Appellee or their children. Appellee was also granted temporary custody of the children. The DVO was entered for a one-year period and would expire on May 27, 2017. Appellant moved to vacate the DVO about a month later, but that motion was denied. Neither the DVO nor the order denying the motion were appealed. On April 14, 2017, Appellee petitioned the court to reissue the DVO previously entered. On May 2, 2017, the trial court reissued the DVO. The terms of the new DVO were the same as the previous one except that it would now expire on May 27, 2018. On May 30, 2017, Appellant moved to dismiss the new DVO or to modify it and allow visitation with the children. On July 11, 2017, the trial court entered an order which was supposed to deny Appellant's motion but did not do so clearly. The court then entered another order on March 20, 2018, which unequivocally denied Appellant's motion.
On May 8, 2018, Appellee again petitioned the court to reissue the DVO. On May 15, 2018, the court reissued the DVO. The new DVO would expire on May 27, 2019. Appellant was not notified of Appellee's petition to reissue the DVO and was unable to respond to her petition before the court entered the new DVO. On May 25, 2018, Appellant moved to vacate the new DVO. He argued that there had been no new acts of domestic violence justifying the reissuing of the DVO. He also argued that he was not served with Appellee's petition; therefore, his due process rights were violated. Prior to the court ruling on Appellant's motion, Appellant filed additional pleadings which raised constitutional issues regarding the DVO statutes.
On June 14, 2018, the trial court amended the May 15, 2018 DVO by allowing Appellant to have contact with the children. The DVO would still expire on May 27, 2019. On June 18, 2018, the trial court entered two orders. One order allowed Appellant and Appellee to both attend the children's extracurricular activities so long as Appellant did not approach Appellee. The other order denied Appellant's May 25, 2018 motion to vacate. This appeal followed.
Although Appellant appeals from multiple orders, we conclude that his appeal from the June 18, 2018 reissued DVO determines the outcome of the case. As previously stated, Appellant was not notified of Appellee's petition to reissue the DVO and had no chance to respond before the court ruled. Appellant brought this to the trial court's attention via a motion to vacate pursuant to Kentucky Rule of Civil Procedure (CR) 59.05 and CR 60.02. The trial court denied the motion. The court believed this was similar to the case of Kurtsinger v. Bd. of Trustees of Kentucky Ret. Sys., 90 S.W.3d 454 (Ky. 2002). In Kurtsinger, a plaintiff was not notified of an order of the trial court. This caused him to miss the appeal deadline. When the error was discovered, the plaintiff moved to vacate the order pursuant to CR 60.02. The trial court granted the plaintiff's motion. The case ultimately went to the Kentucky Supreme Court, which affirmed. The Court held that it is within the trial court's broad discretion whether to vacate an order pursuant to CR 60.02 when a party was not notified of the order.
The trial court in this case believed a similar situation had occurred and denied Appellant's motion to vacate due to improper service. The court found that it had broad discretion to do so. We believe this case is distinguishable from Kurtsinger. Kurtsinger concerned a plaintiff not being notified of a trial court's order. Here, Appellant was not notified that Appellee was seeking to extend the DVO. This precluded Appellant from responding to Appellee's petition and having any meaningful opportunity to be heard.
DVOs are issued to protect victims of domestic violence, but "[i]t is important to remember that a person subject to a DVO is placed under significant restrictions. Consequently, a DVO should not be renewed merely at the request of the petitioning party. Rather, there must be some showing of a continuing need for the DVO." Kingrey v. Whitlow, 150 S.W.3d 67, 70 (Ky. App. 2004) (Knopf, J., concurring). We must determine whether or not a person subject to a DVO should be given appropriate due process protections before a DVO is reissued.
[D]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. (D)ue process is flexible and calls for such procedural protections as the particular situation demands. Accordingly, resolution of the issue . . . requires analysis of the governmental and private interests that are affected. More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976) (citations and quotation marks omitted).
Based on the Mathews factors listed above, we conclude that, at a minimum, Appellant should have been given notice of Appellee's petition to reissue the DVO. A DVO greatly restrains the freedoms of a person. As in this case, Appellant was ordered not to contact Appellee or his children. Also, Appellee was given custody of the children. A father's separation from his children is a huge burden that requires some due process protections. A parent has a "protected liberty interest in the care and custody" of a child. Morgan v. Getter, 441 S.W.3d 94, 112 (Ky. 2014).2 Furthermore, Kentucky case law states that a hearing is not required before a DVO is amended, extended, or reissued, Kessler v. Switzer, 289 S.W.3d 228, 232 (Ky. App. 2009). Because there is no need for another hearing to extend a DVO, notice of the petition to reissue or extend is even more necessary as it might be the only opportunity for a person restrained by a DVO to respond.
We also believe that case law, statutory law, and our civil rules support our conclusion. Notice is important in our jurisprudence. Without proper notice to an opposing party, there can be no valid court orders. Harris v. Dennis, 248 S.W.2d 420, 421 (Ky. 1952); Lynch v. Commonwealth, 610 S.W.2d 902, 907 (Ky. App. 1980).
Additionally, Kentucky Revised Statute (KRS) 403.740(4) states:
A domestic violence order shall be effective for a period of time fixed by the court, not to exceed three (3) years, and may be reissued upon expiration for subsequent periods of up to three (3) years each. The fact that an order has not been violated since its issuance may be considered by a court in hearing a request for a reissuance of the order.Without giving Appellant an opportunity to respond to Appellee's petition to reissue the DVO, how would a trial court determine if previous DVOs had not been violated? It is unlikely someone seeking to reissue a DVO would voluntarily give the court this information. The most likely avenue for the court to determine this would be from the response of someone being restrained by the DVO.
Finally, CR 5.01 indicates that Appellant should have been notified of Appellee's petition before the court entered the new DVO. CR 5.01 states:
Every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar papers shall be served upon each party except those in default for failure to appear. Parties so in default
shall be given notice of pleadings asserting new or additional claims for relief against them by summons or warning order issued thereon as provided in Rule 4.A petition seeking to reissue a DVO clearly fits within CR 5.01.
Appellee argues that failing to give notice of her petition should not preclude her from getting the DVO reissued. She claims that Appellant was given the opportunity to respond to her petition via CR 59.05 and CR 60.02. While it is true that Appellant did respond to the new DVO via motions to vacate pursuant to CR 59.05 and CR 60.02, we believe it is inappropriate to force a party to respond to a petition in this manner. These rules are used only for extraordinary purposes. They are not to be used for introducing evidence or making arguments which could have been presented to the court before the entry of the judgment being attacked. Gullion v. Gullion, 163 S.W.3d 888, 893 (Ky. 2005); Sanders v. Commonwealth, 339 S.W.3d 427, 437 (Ky. 2011). Issues regarding whether or not a DVO should be reissued should be raised before the DVO is reissued.
Failure to notify Appellant of the petition to reissue the DVO was a violation of due process and requires us to vacate the May 15, 2018 DVO. In addition, the June 14, 2018 amended DVO was based on the May 15, 2018 DVO; therefore, it must also be vacated. The last valid DVO in this case was entered on May 2, 2017. That DVO expired on May 27, 2018. Once a DVO expires, the trial court is without jurisdiction to amend to reissue it. Fedders v. Vogt-Kilmer, 292 S.W.3d 905, 908 (Ky. App. 2009). If Appellee wishes to obtain a DVO against Appellant, she must petition the court for a new DVO.
Based on the foregoing, we vacate the May 15, 2018, and June 14, 2018 DVOs. Appellant raises other issues on appeal, but they are moot.
NICKELL, JUDGE, CONCURS.
KRAMER, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Joseph Matthew Byrdwell, pro se
Smithfield, Kentucky BRIEF FOR APPELLEE: Jonathan O. Wells
LaGrange, Kentucky