Opinion
NO. 2015-CA-000682-ME
02-19-2016
J.B. APPELLANT v. K.B. APPELLEE
BRIEF FOR APPELLANT: J.B., Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Marc Wells Princeton, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HOPKINS FAMILY COURT
HONORABLE SUSAN WESLEY MCCLURE, JUDGE
ACTION NO. 11-D-00019 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; J. LAMBERT AND MAZE, JUDGES. LAMBERT, J., JUDGE: J.B. appeals, pro se, from the Hopkins Family Court's order denying his motion to vacate a judgment entered on November 18, 2014, extending a domestic violence order (DVO). Finding no error, we affirm the family court's April 7, 2015, order.
In February 2011, K.B. filed for a DVO against J.B. based on an allegation that she came home one day after work and found their sixteen-year old daughter in their bedroom with J.B. K.B. observed that both the daughter and J.B. smelled like whiskey. When K.B. asked the daughter why she was in their bedroom, the daughter told her that J.B. had been sexually abusing her. K.B. immediately called the Kentucky State Police. J.B. was arrested on February 17, 2011, and was charged with incest and use of a minor under sixteen in a sexual performance. The Hopkins Family Court ultimately issued a DVO on February 21, 2011, which was in effect until December 31, 2011.
J.B. is a paraplegic and is wheelchair bound. --------
In November 2011, the family court extended the DVO to remain in effect through November 15, 2014. In September 2014, K.B. again petitioned to have the DVO extended, and an order was entered on September 12, 2014, directing that J.B. was restricted from having any contact or communication with K.B. and that he would remain at least 500 feet from her and the couple's children at all times, except for court appearances. That order expires on September 10, 2017.
J.B. did not take any action with regard to the amended DVO until October 21, 2014, when he filed a motion to amend/dismiss the amended DVO pursuant to Kentucky Revised Statutes (KRS) 403.740(4) and KRS 403.745(1). The family court conducted a hearing in the matter on November 17, 2014, and K.B. and her counsel appeared before the court. J.B. did not testify, either in person or by phone. The court denied J.B.'s motion to amend/dismiss the DVO, and entered a written order establishing such on November 18, 2014.
J.B. did not receive notice of the denial of his motion by the Hopkins Family Court until December 23, 2014, after the time for filing an appeal had expired. J.B. then filed a motion for relief from final judgment pursuant to Kentucky Rules of Civil Procedure (CR) 60.02, alleging excusable neglect.
The family court denied J.B's CR 60.02 motion on April 7, 2015. In its order, the family court noted that J.B. did not receive the November 18, 2014, order because it was returned to the clerk. The court also noted that per CR 77.04(4), the failure of a party to receive notice does not affect the time to appeal, nor does it authorize a court to relieve a party for failure to appeal within the time allowed. The family court explained that even if the motion to alter, amend, or vacate had been timely filed, it would still likely deny the motion because J.B. had not provided any evidence that would support his motion to amend the DVO. The court held that K.B. and her attorney had testified and stringently opposed any amendment to the DVO, whereas J.B. had not testified or cited any supporting evidence that would persuade the court to amend or dismiss the amended DVO. This appeal now follows.
On appeal, J.B. argues that the evidence was not sufficient to support the family court's decision to continue the DVO for three years. In support of this, J.B. basically contends that the family court automatically extended the DVO without any evidence justifying the extension or any supporting factual basis. He argues that K.B. was required to prove that acts of domestic violence or threats of violence were ongoing. J.B. further argues that since he was incarcerated, he was not a threat to K.B. or the children. We disagree.
In Kingrey v. Whitlow, 150 S.W.3d 67, 69 (Ky. App. 2004), this Court held that ongoing domestic violence does not have to be proven in order to justify a trial court's decision in extending or amending a DVO. We stated:
KRS 403.750(1) provides that the district court may enter a domestic violence order "if it finds from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur [.]" "Domestic violence and abuse," as defined in the statutes, includes "physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple [.]" KRS 403.720(1). A DVO may restrain the adverse party from certain conduct, including contacting or communicating with the victim, committing further acts of domestic violence and abuse, and disposing of or damaging any of the parties' property. KRS 403.750(1)(a)-(c).
KRS 403.750(2) provides for the reissuance of a DVO. It states as follows:
Id. at 69. This Court went on to conclude:Any order entered pursuant to this section 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 an additional period of up to three (3) years. The number of times an order may be reissued shall not be limited. With respect to whether an order should be reissued, any party may present to the court testimony relating to the importance of the fact that acts of domestic violence or abuse have not occurred during the pendency of the order.
Contrary to the circuit court's interpretation, we do not read the statute as requiring proof of additional acts of domestic violence or abuse during the prior period before a DVO may be reissued. Rather, the statute makes it clear that testimony that such acts did not occur may be presented for the court's consideration in determining whether or not to reissue the order.Id.
A review of the hearing on November 17, 2014, reflects that the family court questioned K.B. about the DVO and the factual circumstances surrounding it. The court asked K.B. if she felt that the DVO prevented J.B. from contacting her or the children at home from prison. K.B. stated that she did and stated that she very much wanted the DVO to be extended. J.B. did not present any testimony in his motion or at the hearing that would tend to disprove K.B.'s testimony or that would have led the family court to dismiss the DVO. Thus, the family court appropriately denied J.B.'s motion to amend or dismiss in this regard. We find no abuse of discretion, as the family court's order was supported by evidence, and the family court was not required to make a finding that acts or threats of domestic violence were ongoing.
Similarly, the family court was not required to conduct a hearing before extending the DVO, which is J.B.'s second argument. J.B. contends that the family court failed to conduct a meaningful hearing, which he argues is required by statute. J.B. argues that he was never given the opportunity to present evidence or to give sworn testimony, and because a hearing was conducted without him being present, his due process rights were violated.
In Kessler v. Switzer, 289 S.W.3d 228, 232 (Ky. App. 2009), a panel of this Court cited Kingrey, supra, with approval, saying:
We agree with the Kingrey Court that KRS 403.750(2) does not require proof of additional acts of violence and that a hearing is therefore not required before an extension of a DVO is ordered. The statute clearly does not require a hearing. Further, if a hearing was required, the process articulated in KRS 403.750(2) for extending a DVO would be rendered useless, as the process would be the same as the process for originally granting a DVO. Clearly the legislature did not intend this result or the statute would not have a procedure for extending the DVO.Thus, J.B.'s arguments that he was entitled to a hearing are without merit. In fact, the family court conducted a hearing, but J.B. was not present. In its order, the family court noted that J.B. did not "move to proceed telephonically and did not provide any method by which the Court could contact him to arrange for his participation by telephone, such as the name or title of a caseworker or an extension at which to reach a caseworker at the facility where he is housed." J.B. seems to argue that he was entitled to be transported to the hearing in some way, without requesting such from the court. This argument is not supported by any reference to case law, and we find it to be meritless. The family court was not required to conduct a hearing in order to extend the DVO.
For his final argument, J.B. contends that the family court ignored Kentucky Supreme Court case law when it denied his motion under CR 60.02 for extraordinary relief. J.B. argues that the family court improperly relied on CR 77.04 and failed to consider CR 60.02. J.B. cites to Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454 (Ky. 2002), in support of his argument.
Initially, we note that CR 60.02 states that "On motion, a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding . . . ." (Emphasis added). Thus, nothing in CR 60.02 mandates that a trial court overturn its final judgment. Instead, as K.B. points out in her brief, the language of CR 60.02 indicates that a trial court has broad discretion in considering such a motion. This court will generally not reverse a circuit court's determination on a CR 60.02 motion unless we find an abuse of discretion. City-County Planning Comm'n v. Fayette County Fiscal Court, 449 S.W.2d 766 (Ky. 1974) (citation omitted).
In Kurtsinger, supra, the trial court had initially denied the plaintiffs relief and granted summary judgment in favor of the defendants. The plaintiffs did not receive the trial court's order detailing such. Upon motion of the plaintiffs, the trial court vacated its own order and entered a new order, from which the plaintiffs appealed to the Court of Appeals. This Court dismissed the appeal, holding that the trial court had abused its discretion under CR 60.02 when it vacated its own order. The Kentucky Supreme Court accepted discretionary review, stating that the issue to be addressed was whether a trial court may vacate its own order under CR 60.02 "upon a finding that a party did not receive notice of entry of the order." Kurtsinger, 90 S.W.3d at 455. Explaining the interplay between CR 77.04 and CR 60.02, the Court stated:
This case need not turn on appellate rights or CR 77.04. Instead, this is nothing more than a trial court vacating an order on the basis of mistake, inadvertence, or excusable neglect and there is no doubt that a trial court has authority pursuant to CR 60.02 to grant such relief. In the order granting relief under CR 60.02 the trial court did not extend the time for appeal contrary to CR 77.04, rather the trial court merely vacated its previous order. By vacating the order the trial court returned the case to the status quo prior to the ruling on the CR 59.05 motion. We could end this opinion here but the parties have debated the interplay between CR 60.02 and CR 77.04 and we deem it expedient to address their contentions.Id. at 456.
This case reveals a latent conflict between CR 60.02 and CR 77.04. If CR 77.04 is applied literally, where appellate rights are implicated CR 60.02 is unavailable to trial courts. This would be so despite the absence of an express CR 60.02 exclusion in CR 77.04. CR 60.02 is a mistake correcting rule that allows the trial court broad discretion. We should not apply one rule in a manner that destroys another and eliminates its essential purpose. While this case arose out of a simple mistake, one could imagine outright fraud occurring in a manner that prevented a party from learning of entry of a judgment. Surely in such a circumstance, CR 77.04 would not be applied to prevent relief on egregious facts, but unless a harmony is possible between CR 77.04 and CR 60.02, such would be the result.
While we agree that Kurtsinger permits a trial court to vacate its own order when a party has not received notice in a case, we do not read it as mandating that the trial court vacate its own order. Instead, we read the Supreme Court's opinion to say that a trial court has broad discretion to reverse or vacate its own orders upon a showing of neglect or mistake, as CR 60.02 has been consistently applied in this Commonwealth.
Turning to the fact of the instant case, we cannot say that the family court abused its discretion in declining to vacate its order amending the DVO. Initially, J.B. did not take any action or file any motion with regard to the family court's September 12, 2014, order until October 21, 2014. This was outside the 30-day period, and the family court still entertained J.B.'s motion to vacate and held a hearing. Subsequent to this, J.B. failed to receive notice of the family court's order denying his motion to amend/dismiss. Had the family court vacated its order, it would have been in its discretion to do so under the circumstances. However, we cannot say that its failure to vacate amounts to an abuse of discretion. The family court addressed the merits of J.B.'s motion in its final order of April 7, 2015, even after holding that J.B.'s motion was not timely filed. J.B. had not provided any evidence, either through testimony or within his motions, which would contradict K.B.'s testimony that a DVO had been effective in providing her safety and protection from contact or fear of contact from J.B. Given the facts of the underlying case and the abuse that occurred to her children at the hands of their father, we simply cannot say that the family court abused its discretion in extending the DVO.
Finding no error, we affirm the Hopkins Family Court's April 7, 2015, order denying J.B.'s motion to vacate the DVO previously entered against him.
ALL CONCUR. BRIEF FOR APPELLANT: J.B., Pro Se
LaGrange, Kentucky BRIEF FOR APPELLEE: Marc Wells
Princeton, Kentucky