Walker v. Walker

520 S.W.3d 390, 2017 WL 1788087, 2017 Ky. App. LEXIS 131, 2017 Ky. App. Unpub. LEXIS 331
CourtCourt of Appeals of Kentucky
DecidedMay 5, 2017
DocketNO. 2016-CA-001191-ME
StatusPublished
Cited by8 cases

This text of 520 S.W.3d 390 (Walker v. Walker) 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
Walker v. Walker, 520 S.W.3d 390, 2017 WL 1788087, 2017 Ky. App. LEXIS 131, 2017 Ky. App. Unpub. LEXIS 331 (Ky. Ct. App. 2017).

Opinion

OPINION

LAMBERT, D., JUDGE:

Jeremy Walker appeals the decision of the Harrison Family Court to issue a domestic violence order (“DVO”) against him. In his appeal he asks this Court to determine whether the doctrine of res judicata precludes the issuance of a second DVO against an individual in a situation where no new incidents of domestic violence have occurred, and a secondary issue relating to whether the trial court abused its discretion in issuing the order based on the evidence of record. We hold the answer to both of these questions, in this situation, is “no,” and, consequently, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

Jeremy Walker served as a law enforcement officer from 1993 until 2006, when he suffered a traumatic brain injury in the line of duty that forced his retirement. According to medical evidence in the record, he suffered damage to his frontal lobe, leaving him with a significant cognitive deficit in impulse control, severely impaired ability to adapt and respond to stress, severe depression, and chronic paranoid ideation.

After an incident in late 2012, Nancy Walker, Jeremy’s wife, sought and obtained an emergency protective order (“EPO”). Following a hearing, a DVO was issued by the trial court “by agreement of the parties.” This order forbade contact between the parties for a two-year period, but was amended, at Nancy’s request, on February 6, 2013, to allow “non-violent contact” during that period. The two eventually divorced.

On November 17, 2014, as the expiration date of the DVO loomed, Nancy moved the trial court to amend the order to extend its duration for three more years. The trial court denied this request, allowing the DVO to expire on its own terms on December 17, 2014. However, on that date, the trial court entered a sua sponte order adopting the same terms as the DVO and directing that Jeremy not own or possess a firearm for a period of one year beginning on December 3, 2014. During this time, Nancy retained possession of Jeremy’s two service weapons, which had been gifted to him by the Boone County Sheriffs Departs ment upon his retirement.

When the December 17th order expired, Jeremy requested the return of the guns. Without an EPO or DVO in effect to prevent it, Jeremy obtained an order directing Nancy to return the guns on June 15, 2016. On that same day, Nancy filed the petition, which ultimately led to this appeal, seeking new protective orders. Therein, Nancy argued that newly discovered evidence, in the form of a psychological evaluation performed in April of 2016, justified a new protective order.

The trial court, with a new judge presiding, issued an EPO on June 15, 2016, and after a hearing, a new DVO on June 23, 2016. The trial court followed that ruling with written findings and conclusions on June 27, 2016. The court’s findings included the following: Jeremy had stopped his psychological treatment (which resulted in the suspension of his disability benefits), Jeremy self-reported losing his temper and becoming agitated easily, Jeremy blamed Nancy for the divorce, Jeremy “struggles with severe depression, chronic [392]*392paranoid ideation, and ... myriad ... neurological concerns,” as well as impulse control problems. While the report also notes that Jeremy denied having suicidal or homicidal ideation, the trial court noted its “serious concerns about Nancy’s safety— especially in the event that Jeremy were in possession of firearms.” Based on the prior DVO and the concerns noted herein, the trial court concluded that the evidence established by preponderance of the evidence that an act of violence had occurred in the past, and may occur again.

Jeremy moved to alter, amend, or vacate the second DVO on the basis of res judica-ta and the sufficiency of the evidence, the same arguments he advances in the instant appeal. The trial court denied his motion, and this appeal followed.

II. ANALYSIS

A. STANDARD OF REVIEW

Domestic violence orders are a statutory creation, their issuance governed by Kentucky Revised Statute (KRS) 403.740. That provision, in relevant part, reads: “Following a hearing ordered under KRS 403.730, if a court finds by a preponderance of the evidence that domestic violence and abuse has occurred and may again occur, the court may issue a domestic violence order!.]” KRS 403.740(1). On appeal, we review the trial court’s factual findings for clear error, and legal conclusions for abuse of discretion. Caudill v. Caudill, 318 S.W.3d 112, 114-15 (Ky. App. 2010).

B. THE DOCTRINE OF RES JUDICA-TA DID NOT OPERATE TO PRECLUDE THE TRIAL COURT FROM ISSUING THE SECOND DVO

The statute unquestionably requires proof of an act of domestic violence as a prerequisite to the issuance of a DVO. KRS 403.740(1). The operative question for this case is whether the proof sufficient for the issuance of one DVO can be considered as proof for a subsequent DVO.

Jeremy argues that the sole act of domestic violence, which occurred in November of 2012, because it was addressed in the first DVO, as a matter of law, cannot be considered in determining whether to issue the second DVO. He argues that it meets all of the elements of issue preclusion under Coomer v. CSX Transp., Inc., 319 S.W.3d 366, 374 (Ky. 2010).

However, KRS 403.735 expressly allows courts to look back and consider prior protective orders. It authorizes courts to “obtain the respondent’s Kentucky criminal and protective order history and utilize that information to assess what relief and which sanctions may protect against danger to the petitioner ..,. ” KRS 403.735(l)(a). While that provision concerns what relief is appropriate rather than the entitlement to relief itself, the fact that the provision allows for prior orders to be considered is illustrative. Further, the illustrative nature of KRS 403.735(l)(a) becomes all the more persuasive when examining KRS 403.740, which does not exclude prior orders from consideration. In fact, on this issue KRS 403.740 only requires a court determine whether domestic violence has occurred at some point in the past. KRS 403.740(1).

Nancy points to two cases where appellate courts permitted the reissuance of DVOs even in the absence of new domestic violence incidents. The Court held in Kessler v. Switzer, 289 S.W.3d 228

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Cite This Page — Counsel Stack

Bluebook (online)
520 S.W.3d 390, 2017 WL 1788087, 2017 Ky. App. LEXIS 131, 2017 Ky. App. Unpub. LEXIS 331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-walker-kyctapp-2017.