Opinion
NO. 2014-CA-000638-ME
02-06-2015
PHILLIP SITAR APPELLANT v. ASHLEY SISCO APPELLEE
BRIEF FOR APPELLANT: Kathleen K. Schmidt Assistant Public Advocate Frankfort, Kentucky NO BRIEF FOR APPELLEE
NOT TO BE PUBLISHED APPEAL FROM CRITTENDEN CIRCUIT COURT
HONORABLE WILLIAM E. MITCHELL, JUDGE
ACTION NO. 14-D-00007
OPINION
REVERSING
BEFORE: CLAYTON, J. LAMBERT, AND THOMPSON, JUDGES. J. LAMBERT, JUDGE: Phillip Sitar appeals from the Crittenden Family Court's entry of a domestic violence order (DVO) entered against him on April 1, 2014. After careful review, we reverse the entry of the DVO.
On March 21, 2014, Ashley Sisco filed a DVO petition against Phillip Sitar stating the following:
I have a previous case where Phillip Sitar was incarcerated due to forcing himself on me and raping me and beating me as a teenager, when I still lived at home. Phillip was dating my mom Loretta Glover. Phillip is now out of jail, and visits houses on my same block. I feel unsafe and a nervous wreck in my own home, even work since he can just walk in and shop. Judge Mitchell has previously ordered him to move away from my home when he lived across from me in trailer 5. He visits the blue house where his children live, with their mother Catherine Counts. He will stand outside and smoke, work on Cathy's vehicles, stand on her porch, and stare. Phillip walks past my house, my trailer courts [sic] mail boxes. Phillip has also recently been hanging out and visiting Daniel Counts who lives on the West Mound Park Ave, which you can see Daniel's house from my trailer. With Phillip anywhere near my home I feel unsafe inside my trailer let alone in my yard. I feel uncomfortable even allowing my children to play in their yard with their toys just because I live in fear. Phillip called up to the Crittenden County Courthouse today and asked if there was a no contact order. And that makes me uncomfortable. I work in a public grocery store (Conrad's) and it scares me and makes me feel unsafe in my own work shop. Phillip called up to the Courthouse on 3/21 to see if there's a no contact order with me, due to me supposed to be attending a Sweet 16 Birthday party of his child's that he wants to go to but has already been told by his child's mother that he can't go. So by him calling up here I feel like he is going to do something. I just want this protection order so I can move on with mine [sic] and my children's lives without living in fear and unsafe on a day to day basis.On the petition, under the section for "Respondent's relationship to Petitioner," Ms. Sisco checked none of the available boxes but hand wrote "ex-boyfriend[sic] of my mother's who sexually abused me." The family court issued an Emergency Protection Order (EPO).
A hearing was held on April 1, 2014. When the family court asked Ms. Sisco what her relationship to Sitar was, she said, "He's my mom's ex-boyfriend." She said Sitar and her mother lived together from when Sisco was nine to fifteen years old. She said Sitar sexually molested her during that time while he was living in the home, and she alleged he raped her on multiple occasions. After Sitar and her mother, Loretta Glover, discussed getting back together and marrying, Ms. Sisco, at age seventeen, made these allegations against Sitar. He was charged with second degree rape. Sitar pled guilty to amended wanton endangerment in November or December 2013, and he served time in the Crittenden County Jail.
When asked what had happened since then, Ms. Sisco told the court that Sitar had been hanging out at the home of his children and their mother, Catherine Counts, on the next street over from her trailer "catacorner" to her. She stated that Ms. Counts' home was thirty feet away but when the court questioned whether that was possible, she said, "Well, 35—it's not far at all." Ms. Sisco said she understood him seeing his children, but she did not feel safe when he was on her block. She said Sitar would stand out on Ms. Counts' porch and would also hang out at the home of Counts' estranged husband who lives on the same street from Counts, "a couple of houses down."
Ms. Sisco lives with her husband and her two children, a three-year-old son and an infant. She has lived in that trailer since her son was an infant. As later testimony from both Sitar and Ms. Sisco revealed, Sitar's children were living in the neighborhood first, and then Ms. Sisco's mother moved into the trailer Ms. Sisco currently occupies. Ms. Sisco subsequently moved in, and then her mother moved out and Ms. Sisco stayed. Sitar used to live across the street from her, but the court made him move. Ms. Sisco testified that Sitar does not live near her now; he lives on the other side of town. Sitar told the court that he lived in a trailer that is in front of where Ms. Sisco currently lives and that after the prior DVO was issued, they (Ms. Sisco and her family) moved in right behind him.
When questioned whether Sitar had ever threatened her, Ms. Sisco testified that one day more than a year before the hearing, she was walking, and Sitar was walking behind her, but he did not threaten her. She felt weird and called the police. Ms. Sisco admitted that Sitar never comes to her house, but she testified that she could feel him staring at her when he was outside.
Ms. Sisco filed for the EPO because Sitar's daughter was having a 16thbirthday party, and Ms. Sisco was invited because they grew up together. She wanted to go, but did not want to be bothered by Sitar at the party. She explained to the court that she did not feel she should have to go through this, as a no contact order should have been included in the criminal case, but it was not. Ms. Sisco felt like she should not have to wait until Sitar raped or beat her before she sought protection.
Sitar testified that he only goes to the neighborhood to visit his children, and that he walks on the other side of the road and does not look at Ms. Sisco. He testified that he has worked on his children's mother's vehicle in the driveway, but he cannot see over to Ms. Sisco's trailer because he is not on that side. He goes out on the porch to smoke because he is not allowed to smoke in the house. Sitar stated that he avoids Ms. Sisco's workplace and does not shop there.
Sitar pled "no contest" in the criminal case, and he explained that he did so to get it all behind him. He told the court he has changed—that he loves his children and that he and their mother and her husband all get along. He stated that he is not a threat to Ms. Sisco.
At the hearing, Sitar's counsel argued that no sufficient relationship existed between Ms. Sisco and Sitar to allow a DVO to be entered. He pointed out that the last allegation of sexual contact was from 2009, when Sitar and Ms. Sisco were living in the same home. The court commented several times that this should have been dealt with as a criminal matter, and then stated that it was basing its finding on Ms. Sisco being frightened by seeing Sitar because of abuse she suffered several years ago. The court could see that for a victim of sexual abuse, confronting the perpetrator would inflict imminent fear of future abuse or sexual abuse. The court stated, "I am not finding it as an event based on what he is doing now. It's the infliction of imminent fear based upon sexual abuse." The court also informed Ms. Sisco that it could not continue to renew a DVO on an incident that happened a long time ago. The court explained that the system was not designed to protect her from something that happened a long time ago. However, the court decided to enter a DVO for three months against Sitar. This appeal now follows.
On appeal, Sitar urges this Court to address his arguments, despite the fact that the DVO has expired and some of the issues are arguably moot. In support of this, Sitar urges this Court to consider an exception to the mootness doctrine, namely, the doctrine of "capable of repetition but evading review," that the Supreme Court of Kentucky articulated in Lexington Herald-Leader Co., Inc. v. Meigs, 660 S.W.2d 658 (Ky. 1983). "The decision whether to apply the exception to the mootness doctrine basically involves two questions: whether (1) the 'challenged action is too short in duration to be fully litigated prior to its cessation or expiration and [2] there is a reasonable expectation that the same complaining party would be subject to the same action again.'" Philpot v. Patton, 837 S.W.2d 491, 493 (Ky. 1992) (quoting In re Commerce Oil Co., 847 F.2d 291, 293 (6th Cir. 1988)).
We agree that the situation at hand is an instance where the exception to the mootness doctrine should be applied, as the duration of the DVO entered is simply not long enough for Sitar to appeal the entry, and there is a reasonable expectation that Sitar will be subject to the same action again, as Ms. Sisco has repeatedly filed for DVOs under the same set of facts and occurrences. Thus, we will review Sitar's arguments on the merits.
Sitar argues that the family court improperly entered the DVO because the evidence did not support a finding that an act or acts of domestic violence occurred. Sitar also argues that a sufficient relationship did not exist between him and Ms. Sisco to justify the entry of a DVO. Because we think the second argument has merit, we will address it first.
In support of his argument that a sufficient relationship did not exist to justify the entry of the DVO, Sitar points to the language of KRS 403.725(3). That statute states that any "family member," "member of an unmarried couple," or "an adult family member or member of an unmarried couple on behalf of a minor family member" may file a domestic violence petition described in KRS 403.725(1). "Family member" is defined as a "spouse, including a former spouse, a grandparent, a parent, a child, a stepchild, or any other person living in the same household as a child if the child is the alleged victim." "Member of an unmarried couple" is defined by KRS 403.720(4) as meaning "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."
Sitar also points out that forms have been authorized for use in filing domestic violence petitions. In the section about "Respondent's relationship to petitioner," separate boxes for the following relationships exist: 1) spouse, 2) former spouse, 3) unmarried, with children in common, 4) unmarried, currently or formerly living together, 5) child, 6) stepchild, 7) parent, 8) grandparent, 9) person who lives in the same household as a child(ren) if the child(ren) is the alleged victim.
As stated above, Ms. Sisco did not check any of the above boxes when she filed for the DVO, but instead wrote "ex-boyfreind [sic] of my mother's who sexually abused me." In the family court's order, the court similarly did not check a box. Sitar argues that the family court therefore failed to make a finding that a sufficient relationship existed between Ms. Sisco and Sitar to give the court authority upon which to grant the DVO.
In support of his argument, Sitar points to the case of Rivers v. Howell, 276 S.W.3d 279 (Ky. App. 2008), wherein this Court held that an ex-boyfriend, without another qualifying relationship, is not someone against whom a DVO can be sought. There, a panel of this Court determined that the purpose of the domestic violence statutes was not furthered by entry of a DVO against an ex-boyfriend. The Court quoted Barnett v. Wiley, 103 S.W.3d 17 (Ky. 2003), wherein the Supreme Court of Kentucky pronounced: "The point of the domestic violence legislation is to protect victims from harm caused by the persons whose intimate physical relationship to the victim increases the danger of harm, either because the parties live in physical proximity or because the relationship is one whose intimacy may disable the victim from seeking protection." Id. at 18 (quoting Louise E. Graham and James E. Keller, 15 Kentucky Practice: Domestic Relations Law § 5.1 at 107 (2d Ed. West 1997)).
We agree with Sitar that Ms. Sisco is not a person whose intimate physical relationship with Sitar increases the danger of harm. While she had been a child living in the home of her mother and Sitar, she is currently not a child living in that home, and instead is an adult who is capable of seeking protection from Sitar.
We agree with Sitar that a sufficient relationship did not exist to justify the entry of a DVO in this case. While we certainly are cognizant of the allegations Ms. Sisco made against Sitar and do not downplay the criminal case related to this matter, the reality is that the court failed to include a protective order in the criminal case. The family court acknowledged several times that this should have been dealt with in the criminal matter. Further, the court also stated that it could not keep renewing the DVO based on an incident that happened a long time ago. The court advised Ms. Sisco that this system was not designed to protect her from something that happened a long time ago. Reluctantly, we agree. Ms. Sisco and Sitar no longer have any type of domestic relationship. Sitar is not Ms. Sisco's stepfather, she does not live with him in any type of domestic setting, and she does not have a relationship with him. Accordingly, the relationship is not "domestic" as is required for the entry of a domestic violence order. Because a sufficient relationship does not exist to justify the entry of the DVO, the family court erred as a matter of law when it entered the order against Sitar.
Based on the foregoing, we reverse the family court's April 1, 2014, domestic violence order.
ALL CONCUR. BRIEF FOR APPELLANT: Kathleen K. Schmidt
Assistant Public Advocate
Frankfort, Kentucky
NO BRIEF FOR APPELLEE