Family Law: SPENCER V. SPENCER (COA; 4/14/2006)

FAMILY LAW –  Domestic Violence (jurisdiction)
DATE: Apr. 14, 2006

The issue before the COA was whether under Kentucky Revised Statutes (KRS) 403.725(1), a provision of Kentucky’s domestic violence statute, a Kentucky court may issue a protective order against an individual over whom the court does not have personal jurisdiction. 

Husband, wife, and child were Oklahoma residents when husband went to visit Las Vegas looking for employment.  While husband was away, the wife viewed this as an opportunity to escape domestic violence.  Wife and son traveled to Kentucky to stay with a close friend whereupon wife filed a domestic violence petition in Warren Circuit Court.

The court issued on Emergency Protective Order on the same day, granting immediate relief, including restraining husband from any contact or communication with wife, and granting her temporary custody of child.

Husband obtained counsel and filed a Special Entry of Appearance and Motion to Dismiss for Lack of
Jurisdiction, arguing that a Kentucky court could not constitutionally exercise personal jurisdiction over him because he had no contact with the state.

Kentucky has adopted a three-pronged test to determine personal jurisdiction.

The first prong of the test asks whether the defendant purposefully availed himself of the privilege of acting within the forum state or causing a consequence in the forum state.

The second prong considers whether the cause of action arose from the alleged in-state activities. 

The third and final prong requires such connections to the state as to make jurisdiction reasonable.

“Each of these three criteria represents a separate requirement, and jurisdiction will lie only where all three are satisfied.”  Applying this three-pronged test, COA concluded that Warren Circuit Court did not have personal jurisdiction over husband.  He had not purposely availed himself of the opportunity of acting within Kentucky, or causing consequences within Kentucky; the cause of action did not arise from activities in Kentucky; and he did not have any connections to this state that would make jurisdiction reasonable.

Yet the language of KRS 403.725 clearly envisions a court granting a protective order when a victim of domestic abuse has fled to this state.   COA held it must balance the due process rights of the defendant against the interest of the Commonwealth in protecting the victims of domestic violence.
The scope of jurisdiction of a court issuing protective orders under these circumstances is an issue of first impression in Kentucky.  In COA’s view, the distinction made by New Jersey’s highest court between prohibitory and affirmative orders represents the fairest balance between protecting the due  process rights of the nonresident defendant and the state’s clearly-articulated interest in protecting the plaintiff and her child against domestic violence.

Insofar as the order prohibits dad from breaking the law in Kentucky by approaching his wife or child, it comports with due process. In all other respects, it goes beyond the permissible limits of Kentucky courts’ jurisdiction.

Digested by Michael Stevens

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