Opinion
NO. 2012-CA-000105-ME
10-12-2012
PHILLIP SITAR APPELLANT v. LORETTA GLOVER AND COMMONWEALTH OF KENTUCKY APPELLEES
BRIEFS FOR APPELLANT: Kathleen K. Schmidt Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Mary E. Rohrer Special Assistant Attorney General Marion, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CRITTENDEN CIRCUIT COURT
HONORABLE WILLIAM E. MITCHELL, JUDGE
ACTION NO. 03-D-00026
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND VANMETER, JUDGES. VANMETER, JUDGE: Phillip Sitar appeals from the Crittenden Family Court's order denying his CR 60.02 motion to set aside the court's domestic violence order ("DVO") entered against him on October 18, 2011. For the following reasons, we affirm.
Kentucky Rules of Civil Procedure.
On September 26, 2011, Loretta Glover filed a domestic violence petition on behalf of her minor child, A.B., alleging that Phillip had forced A.B. to engage in sexual acts with him on several occasions. No specific date or dates of these incidents were alleged; instead, the petition states that "on about, 20 ___, in Crittenden County, Kentucky" these incidents occurred. In the section of the petition inquiring into Loretta's relationship to Phillip, Loretta checked the box labeled former spouse. Above it, she wrote x-boyfriend and on the following line she specified Phillip is x-boyfriend. Based on facts alleged in the petition, the family court issued an emergency protective order ("EPO") and set a hearing for October 4, 2011.
Both Phillip and Loretta were present at that hearing. Loretta testified that Phillip was her ex-boyfriend and that they had lived together for approximately six years, but had not lived together for the past two years. She further testified that the alleged incidents involved her now 17-year-old daughter, A.B. (who was between 12 and 15 years old when the alleged incidents occurred), and that she had no personal knowledge of the incidents. Loretta stated that the incidents had been reported to the police, who were conducting an investigation. Phillip denied the allegations.
The court continued the hearing for two weeks to permit the alleged victim, A.B., to testify. Loretta, A.B., and Phillip appeared for the second hearing. A.B. testified that Phillip was her mother's ex-boyfriend and that he had lived with them in the home for about six years. During this time, for a period spanning four years, A.B. testified that Phillip forced her to have sexual intercourse with him "a lot" and forced her to do other sexual acts when her mother was not at home. She testified that Phillip did not currently live with them and had not lived with them for three years. A.B. stated that she presently has no contact with Phillip and that she told her mother about these incidents three months ago because she thought her mother should know.
Phillip again denied the allegations. He testified that A.B.'s allegations were an attempt to keep him and Loretta from marrying. Phillip explained that A.B. did not want Loretta and him together because he had not been a good boyfriend to Loretta in the past and did not treat them very well due to his serious drinking problem. He testified that he lived in a trailer close to Loretta's trailer in a trailer park. Loretta testified that she and Phillip had discussed marriage but had not set a date. Loretta stated that she believed her daughter's allegations, based on the way A.B. told her about the incidents and her feelings behind it.
The family court acknowledged that it had heard two completely different stories from people with personal knowledge and that no witnesses testified about these alleged incidents. The court considered Phillip's record and recited a lengthy list of past offenses, including several violent offenses and violations of DVOs. Based on the evidence presented and Phillip's prior history, the court found by a preponderance of the evidence that the allegations were likely true and issued a DVO against him. The court stated that Phillip was not to have contact with A.B. or Loretta for a year.
Soon thereafter, a criminal charge was filed against Phillip, alleging that he had violated the DVO. Phillip filed a motion pursuant to CR 60.02 to declare the DVO void. The Crittenden County Attorney's Office's motion to intervene was granted. Phillip's CR 60.02 motion was heard on January 10, 2012, at which time he argued that the information in the petition was insufficient to establish the required relationship between the parties and thus the family court lacked jurisdiction to issue the EPO. The court denied his motion, finding jurisdiction for both the EPO and DVO. The court explained that in the petition, the box former spouse was checked with x-boyfriend written above it. The court stated that it had no way of knowing whether Phillip was a former spouse or ex-boyfriend, or both, but because former spouse was checked and the nature of the allegations, the issuance of the EPO was proper since the court only had the petition to rely on when making its determination. This appeal followed.
CR 60.02(e) allows a trial court to "relieve a party or his legal representative from its final judgment, order, or proceeding" if "the judgment is void . . . or it is no longer equitable that the judgment should have prospective application[.]" CR 60.02(f) allows relief for "any other reason of an extraordinary nature justifying relief."
A judgment is void when the court, (a) does not have jurisdiction of the subject-matter, or (b) jurisdiction of the person of the adversely affected litigant, and (c) although it has jurisdiction of both the subject-matter and the person so affected, it proceeds to act in a manner and at a time forbidden by law with respect to the matters and things adjudicated. In other words, for a judgment to beLowther v. Moss, 239 Ky. 290, 292, 39 S.W.2d 501, 503 (Ky.App. 1931).
valid, the court must have jurisdiction of both the subject-matter and the person, and also have authority to render the particular judgment or grant the particular relief at the time it did.
Motions pursuant to CR 60.02 are left "to the sound discretion of the court and the exercise of that discretion will not be disturbed on appeal except for abuse." Richardson v. Brunner, 327 S.W.2d 572, 574 (Ky.App. 1959) (citation omitted). This court has stated:
In concluding that CR 60.02 relief is available as to DVOs . . . we reiterate that CR 60.02 "is designed to provide relief where the reasons for the relief are of an extraordinary nature." A very substantial showing is required to merit relief under its provisions. Our domestic violence and abuse laws have been carefully crafted to protect victims in as expeditious a manner as possible.Roberts v. Bucci, 218 S.W.3d 395, 397-98 (Ky.App. 2007) (internal citations omitted).
On appeal, Phillip first argues that the family court had no jurisdiction to grant the EPO because the DVO petition incorrectly indicated that he was a former spouse/ex-boyfriend, rather than that he formerly lived with Loretta. We disagree.
KRS 403.725(1) states that "[a]ny family member or member of an unmarried couple" may file a petition for a protective order under the domestic violence statutes. A "member of an unmarried couple" is defined as "each member of an unmarried couple which allegedly has a child in common, any children of that couple, or a member of an unmarried couple who are living together or have formerly lived together." KRS 403.720(4). A petition filed pursuant to KRS 403.725(1) may be filed by a "member of an unmarried couple on behalf of a minor family member." KRS 403.725(3). The term "family member" includes a child. KRS 403.720(2).
Kentucky Revised Statutes.
In this case, Loretta filed the petition on behalf of her minor child, A.B. Loretta qualifies as a "member of an unmarried couple" because she and Phillip formerly lived together. While Loretta did not check the box on the petition labeled unmarried, currently or formerly living together, she did check the box labeled former spouse, which is covered under KRS 403.725(1) because the term family member includes a former spouse. KRS 403.720(2). Despite Loretta's mistake, at the time the petition was filed, she was a member of an unmarried couple. In addition, at the DVO hearing, the court determined that Loretta and Phillip were members of an unmarried couple because they formerly lived together and the alleged abuse of A.B. occurred when they were living together. This court has stressed that to further the purpose of protecting victims from harm, "the domestic violence statutes should be construed liberally[.]" Rivers v. Howell, 276 S.W.3d 279, 281 (Ky.App. 2008). Here, the court properly granted the EPO since the petition indicated facts sufficient to support it. Additionally, Loretta's status as a member of an unmarried couple was confirmed before issuance of the DVO. As a result, this claim of error is without merit.
Next, Phillip contends that the EPO should not have been issued because the existence of imminent harm could not be found on the face of the petition. We disagree.
The parties agree that since this claim of error was not preserved for appeal, this court shall review it under the palpable error standard of RCr 10.26. Trial courts are authorized to issue EPOs if the court determines based on the petition that "the allegations contained therein indicate the presence of an immediate and present danger of domestic violence and abuse[.]" KRS 403.740. The petition here alleged that Phillip forced A.B. to engage in sexual acts with him on several occasions, that the police were involved in this matter, and that Loretta was advised to file for the EPO to protect herself and A.B. from Phillip. We find that the serious nature of the allegations, namely sexual abuse of a minor, the fact that the abuse was alleged to have occurred more than once, and Phillip's past history of violent offenses and violations of DVOs tend to indicate the presence of an immediate and present danger of domestic violence and abuse. As a result, the family court's issuance of the EPO based on these allegations did not result in palpable error.
Kentucky Rules of Criminal Procedure.
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The order of the Crittenden Family Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Kathleen K. Schmidt
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Mary E. Rohrer
Special Assistant Attorney General
Marion, Kentucky