Dunn v. Thacker

546 S.W.3d 576
CourtCourt of Appeals of Kentucky
DecidedApril 13, 2018
DocketNO. 2017-CA-000129-ME
StatusPublished
Cited by20 cases

This text of 546 S.W.3d 576 (Dunn v. Thacker) 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
Dunn v. Thacker, 546 S.W.3d 576 (Ky. Ct. App. 2018).

Opinion

JOHNSON, JUDGE:

Marissa Kaylene Dunn ("Dunn"), brings this appeal of an order of the Powell Circuit Court, Family Division, granting Ryan Chase Thacker's ("Thacker") petition for a Domestic Violence Order ("DVO") against her on behalf of their minor child. After reviewing the record in conjunction with the applicable legal authorities, we AFFIRM the Powell Circuit Court.

BACKGROUND

Thacker is the father and Dunn is the mother of the parties' minor child ("Child"). This matter involves Thacker alleging domestic violence by Dunn's boyfriend ("Boyfriend"), who allegedly cohabitates with Dunn and Child. On December 12, 2016, the court conducted a hearing on the DVO petition filed by Thacker against Dunn on behalf of Child, who lived in Dunn's residence.

In his Petition for Order of Protection, Thacker expressed concern for the well-being of his daughter because of the alleged abusive behavior toward Child by Boyfriend. Thacker quotes from text messages sent to him by Dunn detailing the alleged abusive behavior by Boyfriend. Those text messages state, in part, "[Boyfriend] treats [Child] horrible, he spanks her way too hard, [Boyfriend] jerks [Child] up by her arms so hard [Dunn] is afraid he will pop her shoulders out of socket." During the hearing, Thacker read these texts to the court and showed them on his phone to the court. Dunn did not dispute that she expressed these sentiments to Thacker, but instead contended that she had alleged abuse by Boyfriend to Thacker in an attempt to force a reconciliation between herself and Thacker.

The court was apparently unswayed by Dunn's explanation and granted Thacker's petition for a DVO against Dunn, stating "[Dunn] knew or should have known or allowed or permitted [Boyfriend] to be a threat of physical injury to [Child] as evidenced by the texts she sent to [Thacker]." While being questioned by Thacker, Dunn admitted that she planned to marry Boyfriend. The court ordered Dunn to remain 500 feet away from Thacker, Thacker's residence, and Child except for periods of *578supervised visitation to be overseen by Dunn's grandparents. The court also awarded temporary custody of Child to Thacker, pursuant to Kentucky Revised Statutes ("KRS") 403.270, 403.320, 403.822, the Uniform Child Custody Jurisdiction and Enforcement Act, and 28 U.S.C.A. Section 1738A. Finally, the court referred the matter to the Kentucky Cabinet for Health and Family Services for investigation.

Dunn contends in her appeal that since the DVO petition and order were against her and not Boyfriend, who committed the alleged domestic violence against Child, the DVO cannot stand. She states, "The filing of this petition does not name a proper defendant leading to an absence of substantial evidence as to this respondent." Dunn argues that if the DVO is valid on those grounds, then it should be dismissed because of insufficient evidence against her.

STANDARD OF REVIEW

The standard of review for Dunn's first contention, that the DVO petition cannot stand because she is improperly named as the individual responsible for the abuse, is reviewed de novo as it is a question of law. Karem v. Bryant , 370 S.W.3d 867, 869 (Ky. 2012).

As to Dunn's second contention, the standard of review for factual determinations is whether the family court's finding of domestic violence was clearly erroneous. Kentucky Rules of Civil Procedure ("CR") 52.01 ; Reichle v. Reichle , 719 S.W.2d 442, 444 (Ky. 1986). Findings are not clearly erroneous if they are supported by substantial evidence. Moore v. Asente , 110 S.W.3d 336, 354 (Ky. 2003). "[I]n 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 judge were clearly erroneous or that he abused his discretion." Cherry v. Cherry , 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted). Abuse of discretion occurs when a court's decision is unreasonable, unfair, arbitrary or capricious. Kuprion v. Fitzgerald , 888 S.W.2d 679, 684 (Ky. 1994) (citations omitted).

ANALYSIS

Dunn asserts that Thacker's petition must fail due to improperly naming her instead of Boyfriend, leading to an absence of substantial evidence against her. We disagree. Dunn's very inaction in the face of harm inflicted on her child-or upon any child under her care-is tantamount to abuse. KRS 620.010 states, "Children have certain fundamental rights which must be protected and preserved, including ... the right to be free from physical ... injury ... and the right to a secure, stable family."

In Lane v. Commonwealth , 956 S.W.2d 874 (Ky. 1997), the Kentucky Supreme Court established a new interpretation of parental responsibility and accountability for children. Prior to Lane , Knox v. Commonwealth , 735 S.W.2d 711 (Ky. 1987), had been the law, holding that a mother had no duty to prevent the rape of her daughter by her husband and thus that the mother could not be convicted of complicity in the crime itself. In his powerful and persuasive dissent in Knox , Justice Wintersheimer traced the evolution of the pertinent statutes and reasoned as follows:

KRS 199.335 has been repealed by 1986 c 423, § 198, eff. July 1, 1987. The new section on dependency, neglect and abuse provides in the legislative purpose of Chapter 620, as set out in KRS 620.101, in part, that children have certain fundamental rights which must be protected to be free from sexual and physical injury or exploitation. It is absolutely illogical to legislate a duty to report and prevent child abuse for many *579other named professions who are in "loco parentis" and hold in this opinion that the parent has no duty whatsoever to prevent abuse. It defies common sense.

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Bluebook (online)
546 S.W.3d 576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-thacker-kyctapp-2018.