NATHAN J. WRIGHT v. JAMIE C. WRIGHT and TERESA ANN FRALEY v. TROY DENNIS FRALEY
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RENDERED:
DECEMBER 9, 2005; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000540-ME
NATHAN J. WRIGHT
APPELLANT
APPEAL FROM FLOYD FAMILY COURT
HONORABLE JULIE PAXTON, JUDGE
ACTION NO. 04-D-00252-002
v.
JAMIE C. WRIGHT
AND
APPELLEE
NO. 2005-CA-000657-ME
TERESA ANN FRALEY
v.
APPELLANT
APPEAL FROM LEE CIRCUIT COURT
HONORABLE WILLIAM W. TRUDE, JR., JUDGE
ACTION NO. 05-D-00010-001
TROY DENNIS FRALEY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI AND HENRY, JUDGES; POTTER, SENIOR JUDGE. 1
GUIDUGLI, JUDGE:
In this consolidated action, Nathan J. Wright
has appealed from the three-year Domestic Violence Order
(hereinafter “DVO”) entered by the Floyd Family Court on
February 9, 2005, while Teresa Fraley has appealed from the Lee
Circuit Court’s February 18, 2005, dismissal of her Emergency
Protection Order (hereinafter “EPO”).
Both appellants assert
that they were denied a full hearing, to which they claim to be
statutorily entitled.
Because we agree that neither the Floyd
Family Court nor the Lee Circuit Court afforded either appellant
a full hearing, we vacate both orders, and remand the matters to
the respective courts for further proceedings.
APPEAL NO. 2005-CA-000540-ME
On February 3, 2005, Jamie Wright, who had initiated a
dissolution action the preceding July, filed a Domestic Violence
Petition/Motion in the Floyd Family Court, alleging that her
husband, Nathan, had engaged in an act or acts of domestic
violence and abuse on February 1, 2005. 2
Jamie’s factual
statement reads as follows: 3
1
Senior Judge John W. Potter, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
2
While the petition lists the date as February 1, 2004, and the witness to
the petition indicated that the form was subscribed and sworn to on February
3, 2004, we believe that the year should have been listed as 2005.
3
Spelling and grammatical errors have not been corrected.
-2-
A brief dispute occurred, and Nathan was
very angry. He made some comments that made
me realize he was not in a safe state of
mind for the children and I to be around. I
phoned a friend to inform her of the
situation. She phoned KSP to let them know
I was vacating the home with the children.
I was afraid that if they weren’t informed,
he would have kept me from getting the
children out of the home. The KSP met with
me, and noticed a place on my eye where I
had ran into the refridgerator earlier that
day. They would not accept that being the
reason for the bruises on my face. They
took further action, and arrested him. I am
now afraid that he will become more furious
with me, thinking I had him arrested, and
try to somehow harm me (or) take our son
from me. He is not in a safe state of mind,
and I’m afraid that he will react to this
ordeal without thinking the situation
through.
The family court entered an Emergency Order of Protection and
Summons the same day, restrained Nathan from committing further
acts of abuse or threats of abuse and from any contact or
communication with Jamie, and ordered Nathan to remain 1,000
feet away from Jamie and her family.
A hearing was scheduled
for February 9, but the family court did not hold a hearing that
day.
Rather, the family court heard arguments from counsel for
the parties, and indicated on the record that it was aware of a
911 call and the involvement of law enforcement, as well as that
a child had been removed in Johnson County because of this
altercation. 4
Counsel also indicated that the entry of an agreed
4
Counsel for Jamie stated that a child from a previous relationship was
declared dependent and removed from Jamie by the Johnson District Court
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restraining order in conjunction with the dissolution proceeding
had been discussed.
Furthermore, counsel for Jamie appeared to
state that Jamie did not want to restrain Nathan, but was
interested in seeking counseling.
However, the family court
specifically stated on the record:
Considering that this domestic violence
altercation led to the involvement of law
enforcement, apparently there was a 911 call
that I am getting a transcript of.
Considering that that led to removal of your
child in Johnson County, there’s no way that
I’m not going to enter a DVO.
The family court also ordered the Cabinet to investigate the
matter and put in place a safety plan.
Finding in the written
order that Jamie had established by a preponderance of the
evidence that an act of domestic violence or abuse had occurred
and might occur again, the family court entered a DVO, which
would be effective for three years until February 9, 2008.
Nathan was ordered to remain 500 feet away from Jamie and
members of her family, and was referred to offender counseling.
Nathan timely filed a notice of appeal from the DVO.
In his brief, Nathan argues that the family court did
not hold a hearing prior to entering the DVO, in violation of
KRS 403.740 and 403.745, and made its decision based on its
knowledge or belief of events occurring outside of the record.
Jamie did not file a responsive brief.
because she and Nathan had reconciled without having received any counseling
or professional help.
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APPEAL NO. 2005-CA-000657-ME
On February 4, 2005, Teresa filed a Domestic Violence
Petition/Motion with the Lee District Court, alleging that her
husband, Tory Dennis Fraley, had engaged in domestic violence on
or about January 31, 2005.
At Teresa’s request, a 911
dispatcher completed the petition, including the factual
statement, which reads as follows: 5
[Teresa] advised that [Troy] has physically
abused her in the past and that she fears it
will occur again. Advised that he verbally
abused her in the presence of her son
stating “He would be able to get to her
before anyone else could, and that he was
going to put her out of her misery.” “He
would kill her.” Stating several ways in
which he would kill her. Approx 8 years
[Troy] caused physical injury to [Teresa] to
the extent in which medical treatment was
required. She was treated at KRMC, all
records of this can be obtained there.
Requests that [Troy] have no contact with
her at all. Advised that the verbal and
mental abuse occurred daily and that she has
recieved medical treatment from JB Noble a
dr in Lee Co. in reference to this.
The district court entered an Emergency Order of Protection and
Summons, transferred the matter to the Lee Circuit Court in
contemplation of the to-be-filed dissolution action, and
scheduled a hearing for February 18.
At the hearing, the circuit court examined Teresa as
follows:
5
Spelling and grammatical errors have not been corrected.
-5-
Q.
Tell me what happened.
A.
The night I left?
Q.
Yes.
A.
This has been an ongoing situation.
MS. MEAGHER: I’d like for her to identify
herself for the record.
Q.
State your name for the record.
A.
Teresa Fraley.
Q.
Tell me what happened.
A.
The night I went in we had words, and I
just felt it was the right thing to do.
It was getting very dangerous. I
decided I was going to leave.
Q.
You’ll have to tell me more than that.
Were you threatened in any way?
A.
No, he did not threaten me.
Q.
Did he touch you that night?
A.
No, he did not touch me. It has
happened in the past. Since I just felt
like he was dangerous –
Q.
He didn’t threaten you that night?
A.
No.
THE COURT:
The EPO is dismissed.
MS. MEAGHER: Your Honor, I’d like to ask
some questions.
THE COURT:
she says –
You can ask them, but from what
EXAMINATION
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BY MS. MEAGHER:
Q.
Has he been violent with you before?
A.
Yes.
Q.
When was he violent?
A.
Eight years ago.
hospital.
Q.
Did you tell the doctor what happened?
A.
Yes.
Q.
What had –
I had to go to the
THE COURT: I’m not going back eight years
for the record. It’s dismissed.
The circuit court entered a bench order that day dismissing the
EPO, finding that no violence had been alleged.
It is from this
order that Teresa has taken her appeal.
In her brief, Teresa argues that she was denied a full
hearing on her petition, in violation of KRS 403.740, and was
thereby deprived of her due process rights.
In response, Troy
argues that Teresa in fact received a full hearing, but failed
to prove that any domestic violence or abuse occurred.
DISCUSSION
The General Assembly enacted KRS 403.715 to 403.785 as
a means to allow victims of domestic violence and abuse “to
obtain effective, short-term protection against further violence
and abuse in order that their lives will be as secure and as
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uninterrupted as possible[,]” 6 among other reasons.
KRS
403.720(1) defines “domestic violence and abuse” as “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[.]”
Upon review of a petition
filed pursuant to KRS 403.725 and 403.730, the court may enter
an EPO if it determines that the allegations “indicate the
presence of an immediate and present danger of domestic violence
and abuse[.]” 7
An EPO can be effective for no more than fourteen
days, and “[u]pon the issuance of an [EPO], a date for a full
hearing, as provided for in KRS 403.745, shall be fixed not
later than the expiration date of the [EPO].”
KRS 403.745
provides for the issuance of a summons to the adverse for a
hearing.
Finally, KRS 403.750(1) permits a court to enter a DVO
if, following the hearing, the court “finds from a preponderance
of the evidence that an act or acts of domestic violence and
abuse have occurred and may again occur . . . .”
In
Commonwealth v. Anderson, 8 the Supreme Court of Kentucky defined
the preponderance standard as requiring that the evidence be
sufficient to establish that the alleged victim “was more likely
than not to have been a victim of domestic violence.”
6
7
8
KRS 403.715(1).
KRS 403.740(1).
934 S.W.2d 276, 278 (Ky. 1996).
-8-
The filing of a DVO petition has enormous significance
to the parties involved.
If granted, it may afford the victim
protection from physical, emotional, and psychological injury,
as well as from sexual abuse or even death.
It may further
provide the victim an opportunity to move forward in
establishing a new life away from an abusive relationship.
In
many cases, it provides a victim with a court order determining
custody, visitation and child support, which he or she might not
otherwise be able to obtain.
The full impact of EPOs and DVOs
are not always immediately seen, but the protection and hope
they provide can have lasting effects on the victim and his or
her family.
On the other hand, the impact of having an EPO or DVO
entered improperly, hastily, or without a valid basis can have a
devastating effect on the alleged perpetrator.
To have the
legal system manipulated in order to “win” the first battle of a
divorce, custody, or criminal proceeding, or in order to get
“one-up” on the other party is just as offensive as domestic
violence itself.
From the prospect of an individual improperly
accused of such behavior, the fairness, justice, impartiality,
and equality promised by our judicial system is destroyed.
In
addition, there are severe consequences, such as the immediate
loss of one’s children, home, financial resources, employment,
and dignity.
Further, one becomes subject to immediate arrest,
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imprisonment, and incarceration for up to one year for the
violation of a court order, no matter what the situation or
circumstances might be.
Balancing these conflicting interests is an awesome
responsibility.
Trial courts are often overwhelmed with such
cases along with numerous other cases and duties that must be
attended to in order to keep the dockets moving and up to date.
Yet because of the immense impact EPOs and DVOs have on
individuals and family life, the court is mandated to provide a
full hearing to each party.
To do otherwise is a disservice to
the law, the individuals before the court, and the community the
judges are entrusted to protect.
While we realize the
tremendous responsibility entrusted to the trial judges in these
cases, we also realize the awesome impact each case has and, as
such, must insist that a full evidentiary hearing be afforded to
the parties as provided for by the statutes and court rules.
In the present cases, the appellants have argued that
the respective courts did not hold a full hearing as required by
the statute.
We agree.
In Lynch v. Lynch, 9 the Kentucky Court
of Appeals made it clear that “[d]ue process requires, at the
minimum, that each party be given a meaningful opportunity to be
heard.”
In Nathan’s case, the family court asked no questions
of either party, and impermissibly relied upon extrajudicial
9
737 S.W.2d 184, 186 (Ky.App. 1987).
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evidence in entering the DVO. 10
In Teresa’s case, the circuit
court conducted what can best be described as a minimal hearing,
essentially asking Teresa two questions before dismissing the
EPO.
We have no way to determine what Teresa’s counsel was
seeking to elicit regarding the past incident and how that
impacted upon her present situation because the court would not
allow any more questions.
Clearly, in neither case may we hold
that the court held a “full hearing” as contemplated by the
statute, as there was no testimony, sworn or otherwise, allowed
in one, while in the other case counsel was not permitted to
complete Teresa’s direct examination before the court announced
its decision.
As such, neither court could have made a finding
based upon a preponderance of the evidence.
Because there was either no evidence or insufficient
evidence presented to meet the applicable standard or proof, we
must vacate both rulings before us and remand the matters for a
“full hearing” as contemplated by the statute, comprised of the
full testimony of any appropriate witnesses sought to be
presented.
For the foregoing reasons, the DVO entered by the
Floyd Family Court in appeal No. 2005-CA-000540-ME and the order
dismissing the EPO entered by the Lee Circuit Court in appeal
No. 2005-CA-000657-ME are both vacated, and the matters are
10
See Id.
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remanded to their respective courts for further proceedings in
accordance with this opinion.
ALL CONCUR.
APPEAL NO. 2005-CA-000540-ME:
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE.
Vicki L. Ridgway
Pikeville, KY
APPEAL NO. 2005-CA-000657-ME:
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Virginia Meagher
Jackson, KY
Jason S. Wilson
Richmond, KY
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