Boone v. Boone

501 S.W.3d 434, 2016 Ky. App. LEXIS 178, 2016 WL 5956988
CourtKentucky Supreme Court
DecidedOctober 14, 2016
DocketNO. 2015-CA-001456-ME
StatusPublished
Cited by7 cases

This text of 501 S.W.3d 434 (Boone v. Boone) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boone v. Boone, 501 S.W.3d 434, 2016 Ky. App. LEXIS 178, 2016 WL 5956988 (Ky. 2016).

Opinion

OPINION

COMBS, JUDGE:'

Appellant, Megan Conway Boone, appeals from orders of the Jefferson Family Court dismissing her Petition for a Domestic Violence Order against Appellee, Hezekiah L. Boone, and denying her Motion to Disqualify. After our review, we vacate and remand.

The parties were married on September 17, 2004. Three children were born of the marriage. In October 2014, Megan filed a Petition for Dissolution, No. 14-CI-503202, in Jefferson Circuit Court, Family Division, which was assigned to Division One. At that time, the children were ages 7, 5 and 2.

On .November 21,..2014, Megan filed a Petition for a Domestic Violence Order (DVO), No. 14-D-502984-001, alleging that on November 20, 2014, she and Hezekiah had been arguing over the divorce. He became angry, said that he would ruin her family, and refused to leave when she asked him to do so. Megan alleged that Hezekiah followed her through the house, screaming and cursing; that he bumped her with his shoulder and .gave her a frightening look. Megan alleged that he is very aggressive when angry. She stated that he left the children alone in the tub and came downstairs to scream at her. The two year old climbed out of the tub and fell. Because of Hezekiah’s increasingly aggressive behavior, Megan had become very fearful.

On November 21, 2014, the court entered an Emergency Ordér of Protection (EPO). It directed that Hezekiah be restrained from any communication with Megan; that he vacate the parties’ residence; and that he remain at least 500 feet from her, the children, and Megan’s family or household. The EPO applied to the parties’ residence as well as to the homes of Megan’s parents and sister, to her workplace, and to the children’s schools. Hezekiah was served with the EPO on November 21, 2014. A hearing was scheduled for December 1, 2014. The court extended the EPO and passed the hearing to December 11, 2014.

On December 11, 2014, Hezekiah was arrested for violating the EPO. The warrant reflects that he went to the younger children’s preschool on December 10,. 2014, “and was entering code to gain entry to the school. [He] was seen by school staff and fled the scene.”. The December 11, 2014, hearing was continued to January 21, 2015, and the EPO was reissued. .

On January 21, 2015, following mediation, the parties filed an Agreed Order in the divorce action dismissing the DVO proceeding without prejudice. The court entered an Agreed Restraining Order that Hezekiah remain at least 500 feet from Megan’s residence, from her place of employment, from the children’s schools,, and [436]*436from Megan’s family. Fewer than five months later, on May 3, 2015, Megan filed another Domestic Violence Petition, No. 14-D-502984-002. She- alleged that on February 18, 2015, about one month after the parties had been in court, Hezekiah started to follow her to her car. On April 12 and 13, 2015, he came within less than 500 feet of her sister’s home. On April 25, 2015, he texted Megan a link for a GPS tracking service. Megan also alleged that on May 2, 2015, while she was attending the Kentucky Derby, Hezekiah came within less than 500 feet of her, stared at her and her friends, and at one point was “cussing and mumbling under his breath.” A state trooper checked Hezekiah’s ticket, which was for a section different from Megan’s. He was told to leave and to stay away. Megan alleged that Hezekiah’s be.-havior continued to escalate and that she was afraid of what he might do.

A docket sheet order of May 11, 2015, reflects that the court (Hon. Angela Johnson, Division One) recused in the DVO proceeding, after having recused in the divorce action. On May 13, 2015, the Chief Judge assigned the case to Division Seven, Hon. Denise Brown.

On May 20, 2015, the court conducted a hearing and dismissed the second Domestic Violence Petition. The docket sheet order for that date recites:

Proof heard; Ct finds by a preponderance of evidence that no act of domestic violence occurred. Petitioner] has alleged violations of restraining order issued in circuit divorce action. Motion should be filed in that court. Petitioner’s testimony does not allege threats or acts of domestic violence.

After the1 hearing on May '20, 2015, at which the second DVO was dismissed, Megan took out a third Domestic Violence Petition, No. 14-D-502984-003, which is the subject of this appeal. A hearing on the third DVO was conducted on July 8, 2015. Megan alleged many of the same incidents outlined in the prior Petitions as well as events that had occurred after she had filed the second Petition as follows:

Yesterday, I had to view videos confiscated from [Hezekiah’s] phone by police of [Hezekiah] recording my mother in the bathroom, videos of me ... exposed, and videos of my mother sleeping and many other women he is videotaping or taking pictures of without consent (including my sister). [Hezekiah] was arrested on two charges of Stalking I and Failure to Comply as well as an EPO Violation (with other aspects of the case under investigation) and police had a warrant to go into his phone and revealed this information to me. On May 8th [2015] he was witnessed prying open a window to my home while I was asleep (I later verified that the screen had been bent). He was also recorded on camera walking around in my backyard. On May 8th, May 9th and May 10th there are pictures of him looking through my windows and going around in my báekyard for several hours in the middle of the night (I already had a restraining order, he knew he was being investigated by the police, and he still insisted on stalking me).

Megan testified at the hearing on May 27, 2015. She had installed motion-activated cameras outside her home on May 7, 2015. She reviewed images taken on May 8, 9, and 10, 2015. Megan identified various photographs taken outside her residence in the middle of the night, and she identified the person in the photographs as Hezekiah. Megan testified that she recognized his clothing, shoes, build, his bald head and goatee, and the “way he walks, he was pacing around.” Megan explained that after she discovered that Hezekiah had been at the residence, she contacted the police. [437]*437Hezekiah was arrested and his phone was confiscated. The trial court granted Megan leave to subpoena the officer regarding videos obtained- from Hezekiah’s phone.

Detective Tillman testified at the next DVO hearing on July 8, 2015. He works for Louisville Metro Police in the domestic violence unit. On November 21, 2014, he first met with Megan and her sister’at their mother’s house. An incident of domestic violence had occurred the night before, and there was an ongoing issue of stalking behavior with respect to Megan’s sister. Detective Tillman explained that during the course of Hezekiah’s arrest on May 13, 2015, for stalking, Hezekiah asked that they bring his cell phone. Detective Tillman testified that a search warrant was obtained for the cell phone. The phone was taken to the computer forensics lab for download. Tillman also testified that the Jefferson County Grand Jury indicted Hezekiah on July 7, 2015, on numerous charges, including: Burglary, 2nd Degree; two counts of Stalking, 1st Degree; multiple counts of Voyeurism, Harassment with Physical Contact, Menacing and Harassment with no Physical Contact; and violation of the EPO arising from Hezekiah’s visit to the children’s preschool.

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Cite This Page — Counsel Stack

Bluebook (online)
501 S.W.3d 434, 2016 Ky. App. LEXIS 178, 2016 WL 5956988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boone-v-boone-ky-2016.