Kessler v. Switzer

289 S.W.3d 228, 2009 Ky. App. LEXIS 76, 2009 WL 1562837
CourtCourt of Appeals of Kentucky
DecidedJune 5, 2009
Docket2008-CA-002083-ME
StatusPublished
Cited by9 cases

This text of 289 S.W.3d 228 (Kessler v. Switzer) 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
Kessler v. Switzer, 289 S.W.3d 228, 2009 Ky. App. LEXIS 76, 2009 WL 1562837 (Ky. Ct. App. 2009).

Opinions

OPINION

LAMBERT, Judge.

John Kessler appeals an extension of a domestic violence order entered by the Jefferson Circuit Court. After careful review, we affirm.

Rebecca Switzer and John Kessler were married on January 8, 2005, and began experiencing marital difficulties in July 2005. On August 2, 2005, Kessler was arrested due to an altercation between the parties, and on November 14, 2005, Swit-zer filed for a domestic violence order (hereinafter "DVO"). Following a full evi-dentiary hearing, a DVO was entered on November 28, 2005, and was effective for three years, expiring on November 28, 2008. While the DVO was in effect, the parties continued to experience difficulties, and Switzer initiated eriminal charges against Kessler, which were later dismissed after six months of no contact between the parties.

On October 10, 2008, Switzer filed a motion to extend the DVO and attached an affidavit stating that she had filed charges against Kessler for allegedly violating the DVO and that she was still in fear of Kessler. The matter came before the Jefferson Cireuit Court on October 20, 2008, and Switzer's counsel admitted that the charges against Kessler for allegedly violating the DVO had been dismissed. Kes-sler objected to extending the DVO without having a hearing whereby Switzer could testify and be cross-examined, but the court overruled that objection. Kes-sler also objected to extending the DVO because there was no standard for extending it. After overruling that objection, the trial court amended the DVO, extending it for one year. This appeal followed.

KRS 403.750(1) provides that the district court may enter a domestic violence order "if it finds from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again oceur[.]" "Domestic violence and abuse," as defined in the statutes, includes "physical injury, serious physical injury, 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[.]" KRS 403.720(1). A DVO may restrain the adverse party from certain conduct, including contacting or communicating with the victim, committing further acts of domestic violence and abuse, and disposing of or damaging any of the parties' property. KRS 403.750(1)(a)-(e).

KRS 403.750(2) provides for the reissuance of a DVO. It states as follows:

Any order entered pursuant to this seetion shall be effective for a period of time, fixed by the court, not to exceed three (8) years and may be reissued upon expiration for an additional period of up to three (8) years. The number of times an order may be reissued shall not be limited. With respect to whether an order should be reissued, any party may present to the court testimony relating to the importance of the fact that acts of domestic violence or abuse have not occurred during the pendency of the order.

Kessler argues on appeal that his right to due process was violated because the court did not have a hearing where Switzer could testify and be subjected to cross-examination before extending the DVO. Kessler argues that the significant restrictions on a person's liberty interests inherent in a DVO require that a hearing should be held before an extension of a DVO is entered. Further, Kessler relies [231]*231on this Court's analysis in Baird v. Baird, 234 S.W.3d 385 (Ky.App.2007), to support his argument that a hearing is necessary in this context. In Baird, this Court stated: "[dJuring the 2007 hearing, the family court in this case heard testimony from several witnesses, including both Norman and Shirley. At the conclusion of the evidence, the court found from a preponderance of the evidence that there was a continuing need for the DVO." Id. at 388. Further, the Court stated:

[clearly, the family court was familiar with the history of the parties, and was within its authority to weigh the testimony, make credibility judgments, and conclude that the evidence supported the reissuance of the DVO. We are of the opinion that the evidence presented during the hearing established sufficient grounds, other than simply Shirley's peace of mind, to reissue the DVO. Since the court's finding is supported by sufficient evidence and is not clearly erroneous, we affirm its decision.

(citation omitted). Thus, Kessler argues that because the trial court in Baird conducted a hearing before extending the DVO, and because we found sufficient evidence from the hearing to affirm the extension, a hearing is required in all cases where an extension of a DVO is sought.

We disagree. First, the statute does not unequivocally require such a hearing and instead states that a party may present testimony relating to the fact that acts of domestic violence have not occurred during the pendency of the DVO. Thus, Kessler was free to present evidence and testimony that domestic violence had not occurred during the three year DVO, which he chose not to do. Nothing in the statute requires Switzer to have presented proof of continuing violence or violations of the DVO. Further, in Kingrey v. Whitlow, 150 S.W.3d 67 (Ky.App.2004) (Judge Knopf, concurring), this Court held that the absence of any violence committed during the pendency of the DVO did not prevent a trial court from extending the order. Writing for the Court, Judge Buckingham stated:

we do not read the statute as requiring proof of additional acts of domestic violence or abuse during the prior period before a DVO may be reissued. Rather, the statute makes it clear that testimony that such acts did not occur may be presented for the court's consideration in determining whether or not to reissue the order.

Id. at 69. Further, the court noted that "(alll statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature[.]' KRS 446.080(1). Finally, the court stated:

[iJn addition to the language in the statute itself, we conclude it is logical to believe that the legislature intended to give the district courts authority to reissue DVOs even in the absence of additional acts of domestic violence and abuse during the prior period. The domestic violence and abuse statutes are to be interpreted by the courts to allow victims to obtain protection against further violence and abuse. See KRS 403.715(1). If a DVO has been effective in giving protection to a victim of domestic violence and abuse, then the district court should not be required to reject a request to extend the effective period of the DVO simply because no additional acts have occurred.

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Kessler v. Switzer
289 S.W.3d 228 (Court of Appeals of Kentucky, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
289 S.W.3d 228, 2009 Ky. App. LEXIS 76, 2009 WL 1562837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kessler-v-switzer-kyctapp-2009.