RENDERED: JANUARY 7, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1422-ME
JOSEPH MATTHEW BYRDWELL APPELLANT
APPEAL FROM HENRY CIRCUIT COURT
v. FAMILY COURT DIVISION
HONORABLE S. MARIE HELLARD, SPECIAL JUDGE
ACTION NOS. 16-D-00043 AND 16-D-00043-003
CHANTELE C.A. BYRDWELL APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Joseph Matthew Byrdwell, pro se, brings this appeal from an
October 19, 2020, order of the Henry Circuit Court, Family Court Division,
denying his petition for an order of protection against Chantele C.A. Byrdwell.
We affirm.
Joseph and Chantele were married May 17, 2008. Two children were
born of the marriage. Chantele subsequently filed a petition for a decree of
dissolution of marriage on June 9, 2016. The parties were divorced by limited
decree of dissolution of marriage on July 19, 2019.
On August 26, 2020, Joseph filed a petition for an order of protection
(Action No. 16-D-00043-002)1 in the Henry District Court. The petition was
denied by order entered August 26, 2020, and signed by District Court Judge Diana
Wheeler. Joseph subsequently filed a motion to alter, amend, or vacate the August
26, 2020, order, which was set for a hearing on September 9, 2020. A hearing on
the motion to alter, amend, or vacate was conducted on September 9, 2020, by
District Court Judge Jerry D. Crosby, II.
On September 9, 2020, while the petition for an order of protection
was pending in the district court (Action No. 16-D-00043-002), Joseph filed a new
petition for an order of protection (Action No. 16-D-00043-003) in the Henry
Circuit Court, Family Court Division (family court). In the petition, Joseph
requested, inter alia, a hearing upon his petition for a domestic violence order
(DVO) and entry of an emergency protective order (EPO).
1
Although not part of the record in this appeal, we take judicial notice that on May 24, 2016,
Chantele C.A. Byrdwell filed a petition for an order of protection against Joseph Matthew
Byrdwell (Action No. 16-D-00043-001) in the Henry District Court. Chantele was granted an
emergency protective order and a hearing was set on the petition for domestic violence order
(DVO). Following the hearing, and by order entered May 27, 2016, Chantele was granted a
DVO against Joseph. The DVO was reissued on May 2, 2017, and May 15, 2018, and it was
amended June 14, 2018. Joseph pursued two appeals to this Court (Appeal Nos. 2018-CA-
000628-ME and 2018-CA-001150-ME) related to entry of the DVOs. By opinion rendered July
5, 2019, this Court vacated the May 15, 2018, and June 14, 2018, DVOs for lack of notice to
Joseph and lack of jurisdiction, respectively.
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In the district court action (Action No. 16-D-00043-002), Judge
Crosby denied the motion to alter, amend, or vacate the August 26, 2020, order by
docket order signed September 9, 2020, and entered September 16, 2020. The
September 16, 2020, order provides:
1) Court denies the motion to alter, amend or vacate the
order entered on August 26, 2020. The court
reaffirms the ruling that there is no imminent threat
and doesn’t meet the statutory requirements for
issuance.
2) Court transfers the new petition for protection [Action
No. 16-D-00043-003] dated 9-9-20 for Special Judge,
Marie Hellard, Shelby County to review. Special
Judge Hellard has been appointed as a special family
court judge on the matters of the parties and the court
transfers . . . for her review.
September 16, 2020, order.
Thereafter, on October 7, 2020, Joseph filed a motion in the family
court (Action No. 16-D-00043-003) requesting a ruling on his petition for an order
of protection. By docket order entered October 19, 2020, the family court stated
that Joseph’s petition had been transferred to Special Judge S. Marie Hellard and
“was taken under submission and denied.” Thereafter, Joseph filed a motion to
alter, amend, or vacate the October 19, 2020, order, which the family court also
denied. Joseph filed the instant appeal from the October 19, 2020, order denying a
hearing upon his petition for DVO and denying his petition for an EPO.
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Joseph contends that the family court erred by denying him an
evidentiary hearing upon his petition for a DVO. In particular, Joseph claims his
allegations of domestic violence and abuse were supported by substantial evidence,
and as such, a hearing should have been granted. Joseph also contends the family
court erred by denying his petition for an EPO. More specifically, Joseph asserts
that the family court failed to make the required findings of fact upon the denial of
the EPO.
Kentucky Revised Statutes (KRS) 403.715 to 403.785 were enacted
by the General Assembly to provide domestic violence and abuse victims an
avenue for obtaining protection from further violence. Tipan v. Tipan, 582 S.W.3d
70, 72 (Ky. App. 2019). Particularly relevant herein, KRS 403.730 provides, in
pertinent part:
(1) (a) The court shall review a petition for an order of
protection immediately upon its filing. If the review
indicates that domestic violence and abuse exists, the
court shall summons the parties to an evidentiary hearing
not more than fourteen (14) days in the future. If the
review indicates that such a basis does not exist, the court
may consider an amended petition or dismiss the petition
without prejudice.
....
(2) (a) If the review under this section also indicates the
presence of an immediate and present danger of domestic
violence and abuse, the court shall, upon proper motion,
issue ex parte an emergency protective order . . . .
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....
(b) If an order is not issued under this subsection, the
court shall note on the petition, for the record, any action
taken or denied and the reason for it.
As set forth above, the criteria for granting an evidentiary hearing
upon a petition for a DVO and for issuing an EPO are set forth in KRS 403.730.
Pursuant to Subsection (1) of KRS 403.730, the court shall review the petition for a
DVO and, if such “review indicates that domestic violence and abuse exists, the
court shall summons the parties to an evidentiary hearing not more than fourteen
(14) days in the future.” KRS 403.730(1)(a). Without question, a DVO may not
be granted without an evidentiary hearing. However, to be entitled to an
evidentiary hearing upon a petition for a DVO, the court’s review must indicate
that domestic violence and abuse exists. In other words, the court is the gatekeeper
to determine if domestic violence and abuse exists.
Domestic violence is defined by KRS 403.720(1) as “physical
injury, serious physical injury, stalking, sexual abuse, strangulation, assault, or the
infliction of fear of imminent physical injury, serious physical injury, sexual abuse,
strangulation, or assault between family members or members of an unmarried
couple[.]” KRS 403.720(1). And, Subsection (2) of KRS 403.730 sets forth the
standard for issuing an EPO. KRS 403.730(2) provides that “the court shall, upon
proper motion, issue ex parte” an EPO if there exists “the presence of an
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immediate and present danger of domestic violence and abuse[.]” KRS
403.730(2)(a).
Based upon the affidavit attached to Joseph’s petition, Joseph failed to
allege sufficient facts to establish that domestic violence and abuse existed.
Logically, if a basis for domestic violence does not exist, then there is no
immediate and present danger for domestic violence. In his petition, Joseph
alleged that in 2018, and prior to that time, Chantele had posted social media
messages directed at Joseph such as “Keep it up, pal! You’re heading for a
starring role in an episode of ‘Snapped.’” Joseph further alleged that Chantele told
him that standing up to her was like “bringing a knife to a gun fight.” Joseph also
asserted that Chantele suffered from untreated bipolar disorder. Finally, Joseph
claimed there had been instances in 2019-2020 where Chantele had chased him
around their child’s softball field, had placed herself within ten feet of him, had
looked through his backpack at the softball field, had parked where he had to walk
past her vehicle to leave the softball field, and had made him feel uncomfortable by
attempting to incite conflict. Then, without any supporting facts, other than her
bipolar diagnosis, Joseph stated that he believed Chantele would “murder” him
and/or their children.
Joseph’s petition does not contain sufficient allegations to indicate
that domestic violence and abuse existed under the statute. More particularly,
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Joseph’s allegations did not indicate there had been any “physical injury, serious
physical injury, stalking, sexual abuse, strangulation, assault, or the infliction of
fear of imminent physical injury, serious physical injury, sexual abuse,
strangulation, or assault.” See KRS 403.720(1). As Joseph failed to set forth
sufficient allegations to demonstrate the presence of domestic violence and abuse,
he likewise failed to demonstrate the presence of an immediate and present danger
of domestic violence and abuse. Simply stated, Joseph’s petition also failed to
meet the requirement of KRS 403.730(2) for the issuance of an EPO.
As to Joseph’s contention that the family court erred by failing to set
forth its reasons for dismissing the petition for an EPO, we view this argument to
be meritless. KRS 403.730(1)(a) does not require the court to set forth reasons for
dismissing the petition. Failure to comply with KRS 403.730(1)(a) is a sufficient
ground for dismissal. We note that under the statute, the dismissal is without
prejudice. Nothing precludes Joseph from refiling a petition setting out additional
alleged acts of violence and abuse. Joseph was not entitled to a hearing on his
petition for a DVO or an EPO as he failed to set out sufficient allegations as
required by KRS 403.730.
In sum, we conclude that the family court properly dismissed Joseph’s
petition for a hearing upon his DVO and his petition for an EPO. We deem any
remaining contentions to be moot or without merit.
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For the foregoing reasons, the October 19, 2020, order of the Henry
Circuit Court, Family Court Division, denying Joseph’s petition for a DVO and
EPO is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Joseph Matthew Byrdwell, Pro Se Jonathan O. Wells
Eminence, Kentucky LaGrange, Kentucky
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