Clark v. Parrett

559 S.W.3d 872
CourtCourt of Appeals of Kentucky
DecidedSeptember 21, 2018
DocketNO. 2018-CA-000507-ME
StatusPublished
Cited by10 cases

This text of 559 S.W.3d 872 (Clark v. Parrett) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Parrett, 559 S.W.3d 872 (Ky. Ct. App. 2018).

Opinion

THOMPSON, JUDGE:

Bradley Clark appeals from the Fayette Family Court's Domestic Violence Order (DVO) prohibiting him from having contact with Tonya Parrett. Clark argues that the family court erred in entering a DVO against him where he was not afforded a full evidentiary hearing and there was not sufficient evidence introduced to support the entry of the DVO.

Clark and Parrett formerly dated and lived together in Clark's home. When they broke up sometime around November 2016, Parrett left the home.

They did not have any further contact until January 6, 2018, when Clark went to see Parrett at her new home. According to Parrett's petition for an emergency protective order (EPO) and DVO, when she arrived home she noticed Clark parked in a parking lot beside her apartment. She parked her car and went into her apartment. After about twenty minutes, she called the police because Clark was hanging around. She called the police a second time after Clark began "banging on my door stating, 'let me the f* * * in, I want to talk to you.[']" The police arrived and talked with both of them and Parrett was advised to file an EPO.

In the petition, Parrett reported she was afraid of Clark for the following reasons:

I fear him after 14 months of no contact; after he throwed my daughter and I out of his home placing my personal items that he chose to give back onto his front and back porch. Bradley has multiple guns and as soon as I see him I start shaking all over becoming very anxious.... Before being kicked out of Bradley's home he was very angry acting making me fear him then. I have not had any communication in anyway from Bradley since December 2016.

In indicating she wanted him to stay away from her place of employment, she stated she was "unsure to be honest what he is capable of." Parrett received an EPO that day.

On January 17, 2018, at the DVO hearing, Clark and Parrett appeared pro se.1 Neither party was sworn with the entire hearing lasting one minute and thirty-three seconds and consisting of the following exchange:

Judge: Ok, are you Tonya Parrett?
Parrett: Yes sir, I am.
*874Judge: All right, you are Bradley Clark?
Clark: Yes sir.
Judge: What do you want to do today Ms. Parrett?
Parrett: I want an order put in place to where he can't come back around me.
Judge: Okay, you want a no contact order?
Parrett: Yes sir.
Judge: Ok, and how are you all related?
Parrett: He's an ex-boyfriend?
Judge: Ex-boyfriend? Did you all live together?
Parrett: We did fourteen months ago.
Judge: Ok, so this is fairly simple from your perspective, just no contact?
Parrett: Very simple.
Judge: No kids?
Parrett: That's correct sir.
Judge: You all don't have any kids together?
Parrett: No sir.
Judge: So Bradley, are you in agreement with her request? Yes?
Clark: Yes sir.
Judge: Ok, I know there is talk about the police in here. Were there any criminal charges filed because of this incident? Ok. All right then we will keep it simple. A domestic violence order, no contact, this will be good for three years. All right, anything else?
Parrett: No sir.
Judge: I think it's that simple, I hope. Ok, well hang around for a few minutes and you will get a copy of the order. Ok, thank you all.
Parrett: Thank you sir.

The DVO was entered that day prohibiting Clark from having any contact with Parrett for three years and from possessing any firearms during this period.

Clark obtained counsel who filed a motion to alter, amend or vacate. Clark argued he stopped by Parrett's home to see how she was doing and was leaving when the police arrived. He denied using an obscenity when asking her to answer the door. He denied committing any acts of domestic violence.

Clark argued the hearing was improper because neither party was sworn, there was no evidence of domestic violence shown during the hearing and there was no allegation of past domestic violence in Parrett's petition. Clark explained that when he stated he agreed with Parrett's request at the hearing, he was agreeing he would stay away from her rather than consenting to the entry of a DVO. He did not understand the accompanying consequences of a DVO beyond that it would mean he would have no contact with Parrett. Clark stated he had no criminal history and used firearms on his farm and hunted with his son and was concerned about the negative consequences the DVO would have on his employment in the cable business.

The hearing on the motion to alter, amend or vacate was heard by a different judge than who issued the DVO. The hearing was noticed three times, on January 31, 2018, February 14, 2018, and February 28, 2018, because there was trouble obtaining service on Parrett at her home address listed and Parrett never appeared.

At each hearing, the court indicated Parrett needed to be served for it to hold a full hearing on the matter. At the January 31, 2018 hearing, the court indicated that perhaps Parrett had moved and not informed the court. At the February 14, 2018 hearing, the family court ordered Parrett be served through a protective order summons by the sheriff.

*875At the final hearing on the motion held on February 28, 2018, counsel for Clark indicated that Parrett was served at her residence by first class mail three times, once for each hearing date and it was counsel's position that this was all that was required. The family court noted that although a final attempt had been made by the sheriff to serve Parrett on February 26, 2018, it was not successful. The family court ruled it would not be proper to dismiss a DVO without Parrett being present and proof being presented that she was actually served, the motion did not meet the very high standard needed to alter, amend or vacate the DVO and, without Parrett's agreement, the DVO would not be dismissed. The family court indicated it did not review the video of the hearing.

While someone may consent to entry of a DVO, under these circumstances, there was no clear and knowing waiver of Clark's due process right to a full evidentiary hearing and to have sufficient evidence introduced to support the entry of the DVO. We agree with Clark that the family court erred in entering a DVO against him in the absence of a full hearing and sufficient evidence for a finding of domestic violence and abuse.

"Domestic violence and abuse" is defined as "physical injury, serious physical injury, stalking, 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[.]" Kentucky Revised Statutes (KRS) 403.720(1).

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Cite This Page — Counsel Stack

Bluebook (online)
559 S.W.3d 872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-parrett-kyctapp-2018.