Desha Chenault v. Ray Washington

• Court: Court of Appeals of Kentucky
• Decided: July 13, 2023
• Docket: 2022 CA 000688
• Status: Unknown

Opinion

RENDERED: JULY 14, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-0688-ME

DESHA CHENAULT APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE LUCINDA CRONIN MASTERTON, JUDGE ACTION NO. 22-D-00096-001

RAY WASHINGTON APPELLEE

OPINION REVERSING

** ** ** ** **

BEFORE: ACREE, EASTON, AND JONES, JUDGES.

ACREE, JUDGE: Appellant, Desha Chenault, appeals the Fayette Family Court

order granting Appellee, Ray Washington, a domestic violence order against her.

After careful review, we reverse.

On January 24, 2022, Appellee filed a petition for the issuance both of

an Emergency Protective Order (EPO) and a Domestic Violence Order (DVO) against Appellant.1 On March 18, 2022, the Fayette Family Court held a hearing

on that petition and three others involving the parties and Camisha Young, the

mother of Appellee’s child.2 Appellant and Appellee are not married, nor have

they been married but were at one time in an on-again off-again sexual

relationship. Prior to filing his petition, Appellee stopped seeing Appellant so he

could rekindle his relationship with Young. At the March hearing, Appellee

claimed Appellant verbally threatened him during their relationship. All parties

proceeded pro se during the March hearing.

The family court granted Appellee’s petition. Appellant retained

counsel who filed a CR3 59.05 motion to alter, amend, or vacate alleging the

1 Appellee used Form AOC 275.1 to petition the court. On his initial petition, Appellee checked the box for pursuing an Interpersonal Protective Order (IPO); i.e., for relief available to “[a] victim of dating violence . . . .” Kentucky Revised Statute (KRS) 456.030(1); (Record (R.) 1-4). For reasons unknown, on the same day, a copy of the first and third pages of the petition were combined with a new second page that checked the box for pursuing a DVO; i.e., for relief available to “any member of an unmarried couple . . . [for] protection under this chapter from domestic violence and abuse . . . .” KRS 403.750(1); (R. 5-8). From that point forward, the parties and the family court treated the petition as seeking the latter, including issuance of an EPO after finding the “allegations indicate an immediate and present . . . danger of domestic violence and abuse . . . .” (R. 12). The subsequent hearing was conducted based on the same allegations.

2 During this hearing, the family court heard petitions Appellant and Appellee filed against each other, as well as petitions Appellant and Young filed against each other. The family court granted the relief sought in Appellee’s and Young’s petitions against Appellant. The court denied both of Appellant’s petitions. Appellant appeals only the DVO entered against her based on the allegations in Appellee’s petition. 3 Kentucky Rules of Civil Procedure.

-2- parties were not “[m]ember[s] of an unmarried couple” per KRS 403.720(6) and

arguing, therefore, that the court improperly granted Appellee’s petition. The

Family Court denied this motion and Appellant appeals the final judgment granting

Appellee’s petition. Appellant advances the same argument pressed in the motion.

Before reaching the merits of this appeal, we must note Appellee did

not file a brief in response to this appeal. Pursuant to RAP4 31(H)(3): “If the

appellee’s brief has not been filed within the time allowed, the court may: (a)

accept the appellant’s statement of the facts and issues as correct; (b) reverse the

judgment if appellant’s brief reasonably appears to sustain such action; or (c)

regard the appellee’s failure as a confession of error and reverse the judgment

without considering the merits of the case.” RAP 31(H)(3). In this case, we

choose to accept Appellant’s statement of facts and issues as correct. We now turn

to the merits.

This Court is authorized to reverse the family court’s decision to issue

a DVO if its decision is clearly erroneous or constitutes an abuse of discretion.

Guenther v. Guenther, 379 S.W.3d 796, 802 (Ky. App. 2012) (“We bear in mind

that in reviewing the decision of a trial court the test is not whether we would have

decided it differently, but whether the findings of the trial court were clearly

erroneous or that it abused its discretion.”) (citing Cherry v. Cherry, 634 S.W.2d

4 Kentucky Rules of Appellate Procedure.

-3- 423, 425 (Ky. 1982); CR 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky.

1986)).

Pursuant to KRS 403.750: “[a]ny family member or any member of

an unmarried couple may file for and receive protection under this chapter from

domestic violence and abuse . . . .” KRS 403.750(1). In the context of the case

under review, “domestic violence and abuse” is “the infliction of fear of imminent

physical injury, serious physical injury, sexual abuse, strangulation, or assault

between . . . members of an unmarried couple[.]” KRS 403.720(2)(a) (emphasis

added). When no children are involved, as in this case, the family court can apply

the statutes to protect “a member of an unmarried couple” from another such

member if there is proof they “are living together or have formerly lived

together[.]” KRS 403.720(6). The parties have no children in common.

Therefore, Appellee needed to show he and Appellant were living together at the

time of the petition’s filing or that they had previously lived together.

The Kentucky Supreme Court, in Barnett v. Wiley, adopted a six-

factor test to determine whether parties are cohabitating for purposes of seeking a

DVO. 103 S.W.3d 17 (Ky. 2003); see Iowa v. Kellogg, 542 N.W.2d 514 (Iowa

1996). The factors are: “1. Sexual relations between the parties while sharing the

same living quarters. 2. Sharing of income or expenses. 3. Joint use or ownership

of property. 4. Whether the parties hold themselves out as husband and wife. 5.

-4- The continuity of the relationship. 6. The length of the relationship.” Barnett, 103

S.W.3d at 20 (citing Kellogg, 542 N.W.2d at 518 (internal citations omitted)).

None of these factors are present in this case. The definition of an

unmarried couple under KRS 403.720(6) is not met.

There is no evidence the parties ever lived together or had done so in

the past, nor is there any evidence the parties shared any form of expenses. The

record shows Appellee did not consider himself to be in a relationship with the

Appellant. Appellee swore as part of his petition that the parties “do NOT do . . .

couple things,” like “hold hands, kiss, hug, go out anywhere.” Curiously, during

the March hearing, Appellee said he had not even “take[n] her to Rally’s [fast-food

restaurant], so what do we got?” Although Appellee’s subjective measure of a

relationship here is not one this Court would adopt, it appears to have significance

to Appellee and reinforces our conclusion that he did not consider his relationship

with Appellant as that of an unmarried couple.

Finally, although we are unsure of the duration of the parties’ sexual

relationship, the record shows it was not one defined by its continuity, but what

Appellee called “on-again off-again.” The lack of continuity in their relationship,

the failure to merely hold themselves out as a couple, and the absence of evidence

showing the parties lived together all indicate Appellee cannot meet the definition

of an unmarried couple pursuant to KRS 403.720(6).

-5- For the foregoing reasons, we reverse the Domestic Violence Order

entered by the Fayette Family Court in this case on March 18, 2022.

ALL CONCUR.

BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.

Corey M. Nichols Lexington, Kentucky

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