FAMILY LAW – DVO: RUBY V. RUBY (COA 1/23/2009)

Ruby v. Ruby
2008-CA-000122
01/23/2009
2009 WL 153185
Opinion by Thompson; Judge Moore concurred; Senior Judge Henry dissented by separate opinion.

The Court vacated and remanded an order of the family court denying the parties’ motion to vacate a domestic violence order. The Court held that, while KRS 403.750 allowed for the parties to seek the amendment of a DVO, consistent with public policy, an agreed order vacating a DVO could not be approved unless a hearing was conducted to determine whether the victim made the request free from intimidation and coercion by the abuser. The Court also held that 1) absent a showing of bias or prejudice, the family court judge was not required to recuse merely because appellant was a practicing attorney in the court; 2) the family court did not abuse its discretion in denying a motion to continue the hearing on the DVO in light of the time prescription in KRS 403.740 and the fact that a previous continuance had been granted; 3) the family court did err in limiting an additional hearing only to appellant’s testimony; 4) appellant was not denied assistance of counsel and the right to confront appellee, as substitute counsel cross-examined appellee on appellant’s behalf; and 5) appellant was not denied the right to compel witnesses when the family court refused to hold witnesses in contempt for failure to appear and denied a motion to obtain appellee’s mental health and prescription drug records, as the relevance of the testimony was questionable and to do so would have resulted in further delay.

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