Guenther v. Guenther

379 S.W.3d 796, 2012 WL 4038422, 2012 Ky. App. LEXIS 174
CourtCourt of Appeals of Kentucky
DecidedSeptember 14, 2012
DocketNo. 2011-CA-001165-ME
StatusPublished
Cited by9 cases

This text of 379 S.W.3d 796 (Guenther v. Guenther) 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
Guenther v. Guenther, 379 S.W.3d 796, 2012 WL 4038422, 2012 Ky. App. LEXIS 174 (Ky. Ct. App. 2012).

Opinions

OPINION

CAPERTON, Judge:

Keith Gregory Guenther appeals from the entry of a Domestic Violence Order (“DVO”) entered by the Kenton County Family Court for the protection of Rachelle Marie Guenther. On appeal, Keith argues that the trial court lost jurisdiction by continuing the EPO/DVO hearing per the parties’ agreement to continue for more than fourteen days after the filing of the Emergency Protective Order (“EPO”) and that the trial court erred in entering the DVO without sufficient factual basis to establish that acts of domestic violence and abuse did occur and may occur again. Upon a thorough review of the parties’ arguments, the record, and the applicable law, we conclude that the trial court did have jurisdiction to enter the DVO but erred in entering the DVO sub judice, as the record does not support by a preponderance of the evidence that domestic violence may occur again. Accordingly, we reverse the entry of the DVO and remand this matter for further proceedings.

The parties were divorced in 2007 and have two children. Keith and Rachelle rekindled their relationship in 2009 and Keith moved in with Rachelle at her residence. In May 2011, the parties had an altercation and Rachelle obtained an EPO against Keith on May 16, 2011. Keith was served with the EPO on the same day and a hearing was scheduled nine days later on May 25, 2011. At the hearing on May 25, 2011, both parties appeared with counsel and informed the court that they were attempting to reach an agreement on the DVO, with the possibility that the DVO be dismissed entirely. Rachelle requested that the court continue the EPO/DVO hearing for two weeks. Keith either agreed or acquiesced to the continuance of the hearing for two weeks. The court then served both parties with a summons for a hearing on June 8, 2011, based on the originally entered EPO.

At the hearing on June 8, 2011, both parties were present with counsel. Rachelle testified that the basis for the EPO was an argument between the parties in May 2011 which ultimately resulted in Rachelle telling Keith to leave her house. The children were not at the residence at the time of the argument. Keith was packing up his personal effects, when Rachelle found what she believed to be her picture in Keith’s box and took it out. Keith cursed at her, placed his hand on her wrist, and jerked the picture out of her hand; Rachelle heard her back pop, and was thrown to the ground. Rachelle called the police. The police arrived and supervised the removal of Keith’s belongings.

Rachelle did not obtain medical treatment at that time. Rachelle testified that she suffered substantial pain and eventually went to a doctor, although no records were submitted to substantiate the visit. We note that during this testimony, Rachelle’s counsel primarily asked leading questions often resulting in terse replies. Counsel asked if Keith had been verbally abusive to Rachelle to which she replied “yes.” Counsel asked if she was afraid something like this would happen again1 and she replied “yes.”

Keith testified that the parties had been having disagreements resulting in Rachelle yelling profanities at him and asking him to leave the residence. Rachelle found a picture that she thought was hers in the. items Keith had packed. He grabbed the picture and she lost her balance and fell. After Keith testified, the court announced from the bench that it found that an act of [798]*798domestic violence had occurred and that Keith would be restrained from further acts of domestic violence. Thereafter, the court entered a DVO finding that an act of domestic violence had occurred and may occur again. It is from this order that Keith now appeals.

On appeal, Keith presents two arguments,2 namely, (1) the trial court was without jurisdiction to enter a DVO more than fourteen days after the issuance of an EPO when Keith was properly served with the EPO; and (2) the trial court erred in entering the DVO without a sufficient factual basis to establish that acts of domestic violence and abuse did occur and may occur again as required by KRS 403.720 and 408.750. With these arguments in mind we turn to Keith’s first argument, that the trial court was without jurisdiction to enter the DVO.

Keith argues that KRS 403.740 imposes a strict fourteen-day window during which a trial court must conduct an EPO hearing or lose its jurisdiction to enter a DVO thereafter. We disagree with his interpretation of the statute.

Of import, KRS 403.740(4)3 states “An emergency protective order issued in ac[799]*799cordance with this section shall be effective until the full hearing provided for in this subsection or in KRS 403.745, or until withdrawn by the court.” KRS 403.740(4).

In interpreting a statute we adhere to the general and oft-repeated maxim that, “Our main objective is to construe the statute in accordance with its plain language and in order to effectuate the legislative intent.” Cromwell Louisville Associates v. Commonwealth, 323 S.W.3d 1, 4 (Ky.2010), citing Cabinet for Families and Children v. Cummings, 163 S.W.3d 425, 430 (Ky.2005). Thus, we look to the language of the statute to “ascertain the intention of the legislature from the words used in enacting the statute rather than surmising what may have been intended but was not expressed.” Metzinger v. Kentucky Retirement Systems, 299 S.W.3d 541, 546 (Ky.2009)(internal citations omitted). Accordingly, this Court will not supply additional words or make additions to intelligible statutes. Metzinger at 546.

Now we analyze the language of KRS 403.740. KRS 403.740 sets forth the procedures for the issuance and resultant hearing to be held on a petition for an EPO/DVO. Certainly, the statute states that a trial court must set a date and time for the conduct of a hearing upon issuance of an EPO, specifically within fourteen days. It also sets forth a meticulous procedure for the continuation of an EPO when service has not been made on the respondent. This is for the benefit of the parties. This limitation on the time period for the setting of a date and time for the [800]*800hearing brings the parties before the court and envisions the petitioner having a quick resolution of the issues as well as protects the respondent from being deprived of rights he or she might otherwise have but for the EPO.

In the case sub judice,

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Cite This Page — Counsel Stack

Bluebook (online)
379 S.W.3d 796, 2012 WL 4038422, 2012 Ky. App. LEXIS 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guenther-v-guenther-kyctapp-2012.