Family Law – Extending DVO: Kessler v. Switzer (COA 6/5/2009)

Kessler v. Switzer
2008-CA-002083 06/05/2009 2009 WL 1562837

Opinion by Judge Lambert; Judge Keller concurred; Judge Caperton dissented by separate opinion. The Court affirmed an order of the circuit court extending a domestic violence order. The Court first held that appellant’s due process rights were not violated by the trial court’s failure to hold a hearing requiring appellee to testify and subjecting her to cross-examination before extending the DVO. KRS 403.750(2) does not require proof of additional acts of violence and therefore, a hearing is not required before an extension of a DVO is ordered. The Court then held that because appellant failed to notify the Attorney General during the pendency of the case before the trial court, as required by KRS 418.075, his constitutional challenge to the statute was not preserved for review. The Court finally held that the trial court properly determined the facts and circumstances established a continuing need for extending the DVO. The trial court was familiar with the details of the case, it considered dismissed criminal charges against appellant, appellee’s affidavit, appellee’s request for a one-year extension, the circumstances surrounding the original issuance of the DVO, and the effectiveness of the DVO in preventing violence between the parties thus, fully satisfying the purpose of Kentucky’s Domestic Violence and Abuse policy.

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