FAMILY LAW:  Domestic violence order (sua sponte from bench, mutual protection order)
DATE RENDERED: 4/20/2007

District court issued a sua sponte mutual domestic violence order against both parties which was affirmed on appeal by the circuit court.  COA granted discretionary review.

COA held the domestic violence statutes do not provide for mutual domestic violence orders under the facts of this case and vacated and remanded for dismissal.

When the police arrived at the scene, Charles threatened to shoot them and to “whip their ass.” The police arrested Charles for violation of the DVO and for terroristic threatening.  For some unexplained reason, the police also arrested Kimberly and charged her with violating the DVO which she had obtained.  Kimberly spent the night in jail and was then released on bond with the condition that she have no contact with Charles.

When Kimberly’s case was called, the court dismissed the criminal charges there was no DVO in effect and she could not have been charged with violating one, the district court then issued sua sponte a domestic violence order for Kimberly to stay away from him so that if there was a next time she would go to jail.  The court then entered a DVO for Charles against Kimberly finding an act(s) of domestic violence or abuse has occurred and may again occur.

KRS 403.735(2) specifically states that a court may issue mutual protective orders only if a separate petition is filed by the respondent. That did not occur in this case, and the district court erred by entering a sua sponte mutual protection order against Kimberly.

While COA said it could understand the trial court’s belief that its order might assist in preventing the two parties from having further contact, there is simply no provision in the law that permits the court to enter a mutual protective order under these circumstances.

The COA added their opinion was based upon the fact that the court erred in granting a mutual DVO in contravention of the clear meaning and intent of the law, but further noted that the court also entered the order without providing Kimberly with a hearing.  See, Wright v. Wright, 181 S.W.3d 49 (Ky. App. 2005)(held that a trial court was mandated to hold a full hearing as required by statute. When a trial court does not provide a hearing, an individual’s due process rights are violated.)

Digested by Michael Stevens

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