EPO, DVO Jurisdiction: BISSELL V. BAUMGARDNER (COA 8/24/2007)

BISSELL V. BAUMGARDNER
FAMILY LAW:  EPO AND DVO JURISDICTION
TRIAL:  RECUSAL OF JUDGE
2006-CA-002574
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
PANEL: WINE PRESIDING; THOMPSON AND HENRY CONCUR
COUNTY: FAYETTE
DATE RENDERED: 08/24/2007

Richard D. Bissell appealed family court’s order granting a Domestic Violence Order (DVO) to Lori Baumgardner and also awarding temporary custody of the parties’ child to her. Bissell contends that the trial judge should have recused himself due to bias, that the court’s findings that domestic violence had occurred were not supported by substantial evidence.

Baumgardner had filed a domestic violence petition on behalf of herself and the two children. Based on the allegations in the ex parte petition, the circuit court issued an emergency protective order (EPO) restraining Bissell from further acts of domestic violence, from further contact with Baumgardner or the children, and from disposing of or damaging any property of the parties. The EPO also granted Baumgardner temporary custody of the children and directed Bissell to pay temporary child support.

Prior to the hearing, Bissell filed a motion to dismiss, asserting that Kentucky lacked jurisdiction over him and the subject matter. The parties appeared for the hearing before Judge Kim Bunnell. Judge Bunnell noted that Baumgardner was accompanied by her stepfather, former Fayette Circuit Judge Charles Tackett. Judge Bunnell stated on the record that,while she did not know Baumgardner, she knew and respected Judge Tackett. Based on this information, Bissell asked Judge Bunnell to recuse herself and requested appointment of a special judge. Judge Bunnell granted the motion to recuse. By agreement of the parties, the court extended the EPO to allow appointment of a special judge. 

In addressing issues raised by the recusal of the judge the COA noted that “The mere belief that the judge will not afford a fair and  impartial trial is not sufficient grounds for recusal.”  Likewise, the mere fact that Baumgardner is related by marriage to a long-retired Fayette Circuit Court judge is not a sufficient basis to require recusal of all Fayette County judges.  Furthermore, a judge is not required to disqualify himself or herself based solely on an allegation that a litigant or counsel for a litigant has made a legal campaign contribution to the political campaign of
the trial judge. Dean v. Bondurant, 193 S.W.3d 744, 748 (Ky. 2006).

The trial court’s adverse ruling, even if erroneous, does not provide a basis for finding bias. Although, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs jurisdiction in determinations involving custody of a child, a Kentucky court has jurisdiction to enter an EPO or DVO to “[a]ny family member or member of an unmarried couple who is a resident of this state or has fled to this state to escape domestic violence and abuse . . . .” 

Unlike the residency requirements to establish home-state jurisdiction under the UCCJEA, there  is no minimum time period to establish residency for a protective order. Spencer v. Spencer, 191 S.W.3d 14, 17 (Ky.App. 2006). Since Baumgardne r had clearly reestablished her residency in Kentucky, the trial court had subject-matter jurisdiction to enter the DVO.

Since the court found that Bissell’s allegations of threats of domestic violence were substantiated, the court properly exercised temporary emergency jurisdiction to award temporary custody of R.L.B. to Baumgardner. Furthermore, the court’s exercise of temporary emergency jurisdiction does not impinge upon the superior jurisdiction of the Utah courts to make the final custody jurisdiction.

But to avoid any possible confusion, the DVO should be amended to reflect that the Fayette Circuit Court made the temporary custody award pursuant to its temporary emergency jurisdiction.

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