Rupp v. Rupp

357 S.W.3d 207, 2011 Ky. App. LEXIS 144, 2011 WL 3760043
CourtCourt of Appeals of Kentucky
DecidedAugust 26, 2011
DocketNo. 2011-CA-000143-ME
StatusPublished
Cited by11 cases

This text of 357 S.W.3d 207 (Rupp v. Rupp) 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
Rupp v. Rupp, 357 S.W.3d 207, 2011 Ky. App. LEXIS 144, 2011 WL 3760043 (Ky. Ct. App. 2011).

Opinion

OPINION

VANMETER, Judge:

Daniel Rupp appeals from an order of the Jefferson Circuit Court reissuing a [208]*208domestic violence order (“DVO”) against him. For the following reasons, we affirm.

The fourteen-year marriage between Daniel Rupp and Teresa Rupp (now Tweed) was dissolved by court order in 2003. In November 2004, upon petition by Teresa, the Jefferson Circuit Court issued a DVO against Daniel. The DVO was amended in 2005, reissued in October 2007, amended in July 2010 and August 2010, and extended in October 2010 through December 2010 pending a full hearing on the matter. Following the two-day hearing on October 27 and December 15, 2010, by order entered December 20, 2010, the family court reissued the DVO against Daniel to be effective through December 19, 2013. This appeal followed.

On appeal, Daniel argues that the family court erred by reissuing the DVO since the evidence was insufficient to support its continuation. We disagree.

A trial court’s findings of fact will not be set aside unless clearly erroneous, and due regard shall be given for the trial judge to assess the credibility of witnesses. CR1 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 or, in other words, evidence that when taken alone or in light of all the evidence has sufficient probative value to support the trial court’s conclusion. Moore v. Asente, 110 S.W.3d 336, 354 (Ky.2003).

The domestic violence statutes in KRS2 403.715 to 403.785 were enacted as a means to allow “victims of domestic violence and abuse to obtain effective, short-term protection against further violence and abuse in order that their lives will be as secure and as uninterrupted as possible!.]” KRS 403.715. KRS 403.720(1) defines “domestic violence and abuse” as “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[.]”

Following a full evidentiary hearing, a DVO may be entered by a court “if it finds from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur[.]” KRS 403.750(1). The preponderance of the evidence standard requires sufficient evidence to establish “that the alleged victim ‘was more likely than not to have been a victim of domestic violence.’ ” Wright v. Wright, 181 S.W.3d 49, 52 (Ky.App.2005) (quoting Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky.1996)). KRS 403.750(2) authorizes the reissuance of a DVO and provides:

Any order entered pursuant to this section shall be effective for a period of time, fixed by the court, not to exceed three (3) years and may be reissued upon expiration for an additional period of up to three (3) 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.

This court has interpreted the aforementioned statute as granting courts the “authority to reissue DVOs even in the absence of additional acts of domestic violence and abuse during the prior period.” Kingrey v. Whitlow, 150 S.W.3d 67, 70 (Ky.App.2004). In Kingrey, we noted,

[209]*209If 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. In other words, the fact that a DVO has been effective in preventing acts of domestic violence and abuse is not a reason to require the court to remove the protection that had previously been afforded to the victim. Rather, it is merely a factor for the court to consider when faced with a request to reissue the DVO.

Id.

Though KRS 403.750(2) does not expressly require proof of additional acts of domestic violence to warrant the reissuance of a DVO, courts are tasked with a great responsibility in determining whether reissuance is warranted due to the significant consequences facing the parties upon the reissuance of a DVO. As explained in Wright,

[i]f granted, it may afford the victim protection from physical, emotional, and psychological injury, as well as from sexual abuse or even death. It may further provide the victim an opportunity to move forward in establishing a new life away from an abusive relationship. In many cases, it provides a victim with a court order determining custody, visitation and child support, which he or she might not otherwise be able to obtain. The full impact of EPOs and DVOs are not always immediately seen, but the protection and hope they provide can have lasting effects on the victim and his or her family.
On the other hand, the impact of having an EPO or DVO entered improperly, hastily, or without a valid basis can have a devastating effect on the alleged perpetrator. To have the legal system manipulated in order to “win” the first battle of a divorce, custody, or criminal proceeding, or in order to get “one-up” on the other party is just as offensive as domestic violence itself. From the prospect of an individual improperly accused of such behavior, the fairness, justice, impartiality, and equality promised by our judicial system is destroyed. In addition, there are severe consequences, such as the immediate loss of one’s children, home, financial resources, employment, and dignity. Further, one becomes subject to immediate arrest, imprisonment, and incarceration for up to one year for the violation of a court order, no matter what the situation or circumstances might be.

181 S.W.3d at 52. Thus, we understand the law to require some showing of a continued need for the DVO to be presented to the court, although additional acts of domestic violence need not be proven. Baird v. Baird, 234 S.W.3d 385, 388 (Ky.App.2007).

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Bluebook (online)
357 S.W.3d 207, 2011 Ky. App. LEXIS 144, 2011 WL 3760043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rupp-v-rupp-kyctapp-2011.