JAVIER ARCE v. MARIA C. ARCE
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RENDERED:
SEPTEMBER 29, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-000376-ME
JAVIER ARCE
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JOAN L. BYER, JUDGE
ACTION NO. 06-D-500189-001
v.
MARIA C. ARCE
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
JOHNSON AND WINE, JUDGES; MILLER,1 SPECIAL JUDGE.
WINE, JUDGE:
Javier Arce appeals from a domestic violence order
(DVO) entered by the Jefferson Family Court restraining him from
contact with or acts of domestic violence against his wife,
Maria Arce.
He argues that Maria failed to establish either
that her usual or her current residence was located in Jefferson
County, and therefore venue was improper.
We agree with Javier
that the evidence did not support a finding of venue.
vacate the DVO.
1
Hence, we
We further remand this matter for additional
Retired Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
findings to determine whether this action should be transferred
to Hardin County.
For purposes of this appeal, the underlying facts of
this action are not in dispute.
At the time of the filing of
the petition, Maria and Javier Arce had been married for
approximately twenty-seven years.
They had three children.
Two
of the children were over the age of majority and lived in
Jefferson County.
The youngest child, then age ten, resided
with the parties at their marital residence in Elizabethtown,
Hardin County, Kentucky.
Maria alleges that Javier was physically abusive to
her on the evening of January 16, 2006.
Maria testified that
she drove to Louisville each day after the incident to avoid
Javier.
However, she returned to Elizabethtown each night to
pick up the child from school and to stay at the marital
residence.
During the afternoon of January 20, Maria filed a
domestic violence petition with the Jefferson Family Court,
seeking an emergency protective order (EPO) against Javier.
In
the petition, Maria detailed the January 16 incident and she
also alleged that Javier had been violent toward her in the
past.
She listed a Louisville address as her current residence.
The family court granted the EPO, restraining Javier from
further acts of domestic violence and abuse, from any contact
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with Maria, and from damaging or disposing of any property.
The
order further ordered Javier to vacate the marital residence and
granted Maria temporary custody of their child.
Maria returned to the marital residence in
Elizabethtown that evening.
Javier stayed at the house that
night and left on a trip to Florida the next day.
Javier
returned to the marital residence on January 23 and he was
served with the EPO on January 24.
Pursuant to the EPO, he
vacated the marital residence, but he apparently returned to the
house for a short period on January 25.
Maria remained in the
marital residence until January 29, when she left to stay at a
hotel in Louisville.
On the morning of January 30, both parties appeared
for the scheduled domestic violence hearing.
Javier filed a
motion to dismiss based on lack of subject-matter jurisdiction
and improper venue.
After hearing evidence, the trial court
determined that jurisdiction and venue was proper in Jefferson
County.
Turning to the merits of the petition, the trial court
granted the DVO, extending the terms of the EPO for three years.
KRS 403.750(2).
On appeal, Javier concedes that the Jefferson Family
Court had subject-matter jurisdiction, but he again argues that
venue was improper in Jefferson County.
He points to KRS
403.725(1), which provides that “[a]ny family member or member
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of an unmarried couple who is a resident of this state or has
fled to this state to escape domestic violence and abuse may
file a verified petition in the District Court of the county in
which he resides.”
That section further provides that “[i]f the
petitioner has left his usual place of residence within this
state in order to avoid domestic violence and abuse, the
petition may be filed and proceedings held in the District Court
in the county of his usual residence or in the District Court in
the county of current residence.”
The trial court found that Maria had fled to Jefferson
County to escape domestic violence, and therefore venue was
proper there.
erroneous.
Javier contends that this finding was clearly
We agree.
KRS 403.725(1) does not set out any minimum residency
requirement necessary to invoke venue in a particular county.
Rather, the statute is intended to provide a “safe harbor” for
victims who have fled acts of domestic violence.
Spencer v.
Spencer, 191 S.W.3d 14, 17 (Ky. App. 2006), citing L. Graham and
J. Keller, 15 Kentucky Practice Series, Domestic Relations Law,
§ 5.2 (1997 & 2006 Supp.).
But while KRS 403.725(1) envisions
relaxed standards for venue, the statute still requires the
petitioner to file either in the county of her usual residence
or in the county of her current residence.
To determine
residency, the court must evaluate Maria’s actions and intent.
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Mobley v. Armstrong, 978 S.W.2d 307, 310 (Ky. 1998).
Maria’s
actions and her testimony at the DVO hearing do not support the
trial court’s conclusion that Maria had come to Jefferson County
to escape from acts of domestic violence in Hardin County.
Maria’s four-day delay in leaving the marital
residence to obtain the EPO is not controlling.
We recognize
that a victim of domestic violence cannot always leave an
abusive relationship immediately to seek help.
However, her
conduct during this period does not demonstrate any intent to
flee acts of domestic violence in Hardin County.
On each of
these days, Maria left the marital residence, dropped the child
off at school, and drove to Louisville.
Later in the day, she
would return to Elizabethtown, pick up the child, and take her
to after-school activities.
Maria and the child would then
return to the marital residence to spend the night.
Maria followed this pattern on January 20 when she
obtained the EPO.
And after the EPO had been entered, Maria
again returned to the marital residence in Elizabethtown, even
though Javier had not been served with the order.
Javier stayed
at the marital residence with Maria on the night of January 20
and when he returned on January 23.
There is no evidence that
Javier was even aware of the EPO until he was served with it on
January 24.
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Of course, this Court must defer to the trial court’s
factual findings, giving due regard to the trial court’s
superior position to judge the credibility of witnesses.
52.01.
CR
In this case, however, there is no substantial evidence
to support venue in Jefferson County.
Maria never stated any
intent to establish a residence in Jefferson County even for the
temporary purpose of obtaining an EPO.
And her conduct during
her short daily visits to Louisville did not demonstrate any
intent to flee acts of domestic violence in Hardin County.
Indeed, she did not testify even that she spent any time at the
Louisville address listed on her EPO petition.
We conclude,
therefore, that the trial court clearly erred in finding that
venue was appropriate in Jefferson County.
Improper venue is grounds for the trial court to
dismiss under CR 12.02(c), and the required observance of proper
venue is deeply imbedded in Kentucky law.
146 S.W.3d 926, 927 (Ky. 2004).
Fritsch v. Caudill,
But, the concept of venue does
not reach the fundamental level of jurisdiction, a concept
whereby the authority of the court to act is at issue.
Id.
Furthermore, KRS 452.105 permits a trial court to transfer venue
from one court to another when it determines that the venue of
the selected forum is improper.
Since a DVO proceeding is a
civil action, see Gutierrez v. Commonwealth, 163 S.W.3d 439, 442
(Ky. 2005), the transfer provision of KRS 452.105 is applicable.
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Therefore, we remand this matter back to the Jefferson Family
Court to determine whether transfer would be appropriate.
Finally, we will briefly address the remaining issue
raised in Javier’s brief.
During the DVO hearing, Maria
testified that Javier had returned to the marital residence on
January 25 after he had been served with the EPO.
court asked Javier if this was true.
The trial
Initially, Javier declined
to answer, citing his Fifth Amendment privilege against selfincrimination.
However, the trial court required Javier to
testify, and Javier answered that he did return to the marital
residence on January 25.
We agree with Javier that the trial court erred when
it required him to testify after he had invoked his right
against self-incrimination.
The right to remain silent applies
not only to criminal proceedings, but also in civil proceedings
and where one is merely a witness.
Akers v. Fuller, 228 S.W.2d
29, 31 (1950); Kindt v. Murphy, 227 S.W.2d 895, 898 (1950).
A
witness may invoke the privilege when answering the question
could subject him to criminal prosecution.
31.
Akers, 228 S.W.2d at
In this case, there is no indication that Javier had waived
the privilege.
Consequently, the trial court should not have
compelled Javier to answer the question.
Because we are vacating the DVO, the admissibility of
Javier’s statements does not directly affect the outcome of this
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appeal.
Nevertheless, we would note that Javier’s testimony may
be inadmissible at any subsequent proceedings to the extent that
the statements were involuntary.
S.W.2d 219, 221 (Ky. 1994).
Canler v. Commonwealth, 870
However, the admissibility of the
statements in any future proceedings is not yet ripe for
adjudication.
Accordingly, the domestic violence order entered by
the Jefferson Family Court on January 30, 2006, is vacated, and
this matter is remanded for additional proceedings as set forth
in this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Briana Geissler Abbott
Louisville, Kentucky
William L. Hoge, III
Louisville, Kentucky
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