Stinson v. Stinson

381 S.W.3d 333, 2012 WL 4748155, 2012 Ky. App. LEXIS 202
CourtCourt of Appeals of Kentucky
DecidedOctober 5, 2012
DocketNo. 2011-CA-001312-MR
StatusPublished
Cited by4 cases

This text of 381 S.W.3d 333 (Stinson v. Stinson) 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
Stinson v. Stinson, 381 S.W.3d 333, 2012 WL 4748155, 2012 Ky. App. LEXIS 202 (Ky. Ct. App. 2012).

Opinion

OPINION

LAMBERT, Judge:

Stephen Ray Stinson appeals from the order of the Barren Family Court holding him in contempt of an amended domestic violence order (DVO) for violating the no contact or communication provision. He contends that the family court erred in entering the original DVO in 2009 and that he could not be found in contempt of the amended DVO because he had never been served with it. Because we agree that a party may not be held in contempt for violating an order with which he was not served, we must reverse the contempt order.

Stephen and Tracy Lynn Stinson were formerly married and are the parents of two children. A dissolution action was filed in Barren County in 2009, and a decree dissolving the marriage was entered in November 2009. In September 2009, Tracy filed a petition seeking a domestic violence order, citing Stephen’s telephone calls and text messages as well as his threats to come to her home and take the love out of her life. She related Stephen’s attempt the prior month to run her off of the Cumberland Parkway, which ended in Stephen wrecking his automobile following a police chase. Tracy also stated that she feared for her children’s safety and that she was concerned about what Stephen was capable of doing to her or their children. The court entered an emergency protection order (EPO) restraining Stephen from committing further acts of domestic violence or from any contact with Tracy, and scheduled a hearing for the following month.

Following a hearing on October 5, 2009, the court entered a DVO restraining Stephen from having any contact with Tracy, with the exception of judicial proceedings, visitation, or court orders. The DVO was to remain effective until October 5, 2010. In addition, the court required Stephen to complete domestic violence counseling through Turning Point as well as an alcohol and drug education program by July 1, 2010, and to provide the court with certificates of completion. By separate rule entered the same day, the court ordered Stephen to appear before it on August 17, 2010, if he had not yet filed the certificates of completion as ordered in the DVO. Stephen did not need to appear if he had filed the certificates by July 1, 2010. Stephen did not file the required certificates of completion.

The matter came before the court for review on August 17, 2010, pursuant to the order entered October 5, 2009. Neither Stephen nor Tracy appeared in court that day. Because Stephen failed to comply with the terms of the DVO, the court held him in contempt and sentenced him to ten days in jail, which was suspended on the condition that Stephen file the required certifications of completion by April 1, 2011. The court set the matter for review on May 10, 2011, for imposition of the sentence if the certificates had not been filed. By separate order, the court entered an amended DVO to provide for the new date for completion of the pro[335]*335grams. The court also extended the effectiveness of the amended DVO for two more years until October 5, 2012. Both of these orders were signed on August 17, 2010, and were entered the following day. On August 19, 2010, the court entered an amended DVO form incorporating its prior orders. The record reflects that two attempts to serve Stephen at his usual address were returned as undeliverable.

On February 25, 2011, Tracy filed a domestic violence show cause order after she had received a letter from Stephen earlier that month which he had mailed to her parents’ house. She stated that the letter contained threats of harassment and of Stephen breaking the existing DVO. Tracy also stated that she had been receiving calls from him while he was in jail and that she had subsequently blocked his telephone calls. The court issued a summons, and both parties appeared, without counsel, before the court on March 18, 2011. At that time, Tracy stated that she just wanted Stephen to understand that he needed to stop the harassment and move on with his life. She did not want him to go to jail because that would not be good for their children. Stephen stated that he had been released from jail on March 1, 2011, where he was awaiting trial on fleeing and evading charges. Tracy admitted that Stephen had not tried to contact her since being released. Because a contempt finding might result in a jail sentence, the court permitted Stephen to file an affidavit of indigency to determine whether he could afford to hire an attorney. The court found Stephen to be indigent and appointed the DPA to represent him. The court then rescheduled the show cause hearing for a later date.

The court held a show cause hearing on June 24, 2011. Stephen appeared with his appointed counsel. Initially, Stephen argued that because he had not been served with the amended DVO, he could not be found in contempt for violating its terms, specifically arguing that the allegedly contemptuous behavior occurred after the expiration date of the original DVO. Stephen cited to Kentucky Revised Statutes (KRS) 408.785(6), which provides that an order of protection does not become effective or binding until it is served on the respondent or the respondent is notified of its existence and terms. The court denied Stephen’s oral motions to vacate the amended DVO or dismiss the domestic violence show cause order, reasoning that the cited statute applied only to the entry of the original DVO. The court then heard testimony from the parties. Stephen admitted to writing and mailing the letter, but stated that he did not intend to harass Tracy and that he did not know the amended DVO was in effect. And as before, Tracy indicated that she did not want Stephen to go to jail.

At the conclusion of the hearing, the court entered a handwritten order. In the order, the court set forth several findings of fact related to the procedural history of the case, including the entry of the original DVO, Stephen’s failure to comply with the counseling requirements, the entry of the amended DVO, and the show cause proceedings. The court then found Stephen in contempt of court for violating the terms of the amended DVO and sentenced him to serve ten days in jail, which was suspended on the condition that he purge himself of contempt by complying with the terms of the amended DVO. This appeal follows.1

On appeal, Stephen presents two arguments. First, he contends that there was insufficient evidence to support the entry of the original DVO, seeking review under [336]*336the palpable error rule as set forth in Kentucky Rules of Criminal Procedure (RCr) 10.26. Second, he argues that he could not be held in contempt because he was never served with the amended DVO and therefore could not be bound by its terms.2

For his first argument, Stephen contests the entry of the original DVO in October 2009, arguing that Tracy failed to establish that an act of domestic violence had occurred and may occur again by a preponderance of the evidence. Stephen seeks review of this issue pursuant to the palpable error rule as set forth in RCr 10.26, which provides:

A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

However, this is not an issue of failing to preserve an issue in an otherwise proper appeal.

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Cite This Page — Counsel Stack

Bluebook (online)
381 S.W.3d 333, 2012 WL 4748155, 2012 Ky. App. LEXIS 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stinson-v-stinson-kyctapp-2012.