Collett v. Dailey

TAYLOR, Chief Judge,

Dissenting:

Respectfully, I dissent. While the evidence below established that James interfered with the caregivers’ attempts to provide care to Hazel, it failed to prove that James perpetrated any act of physical abuse, serious physical injury, sexual abuse or assault upon Hazel or that James inflicted an imminent fear of physical abuse, serious physical injury, sexual abuse or assault upon Hazel. These are necessary components of domestic violence as defined in KRS 403.720(1). Rather, the evidence demonstrated that James harassed Hazel’s caregivers and directly interfered with their care of Hazel. Such interference and harassment by James does not rise to the level of domestic abuse or violence directed toward Hazel as mandated by the statute, in my opinion. The legal guardian for Hazel, James’s sister, could arguably have pursued a tempo*780rary or permanent injunction against James under CR 65.01 for interference in the performance of her statutory duties. However, given the definition of domestic violence and abuse as set forth in KRS 403.720(1) and the evidence introduced at the evidentiary hearing, I believe the family court’s finding of domestic abuse and violence was clearly erroneous because it was not supported by substantial evidence, in my opinion. I can find no authority under Kentucky law that would impute the acts of harassment by James toward the caregivers as domestic violence against Hazel, regardless of how deplorable James’s conduct may have been.

Accordingly, there being no domestic violence against Hazel as defined by applicable law, I would reverse the DVO entered against James by the family court in this action.