RENDERED: FEBRUARY 24, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0376-ME
JESSICA ALLGEIER APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
v. HONORABLE LAUREN ADAMS OGDEN, JUDGE
ACTION NO. 14-D-502538-003
JEFFREY WAGNER APPELLEE
AND
NO. 2022-CA-0377-ME
JESSICA ALLGEIER APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
v. HONORABLE LAUREN ADAMS OGDEN, JUDGE
ACTION NO. 22-D-500481-001
JEFFREY WAGNER APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: CETRULO, DIXON, AND EASTON, JUDGES.
DIXON, JUDGE: Jessica Allgeier appeals the orders of the Jefferson Family
Court, entered March 1, 2022, dismissing her petition for a domestic violence order
(DVO) against Jeffrey Wagner and granting a DVO against her on behalf of their
two minor children. After careful review of Jessica’s brief, the record, and the law,
we affirm in part, reverse in part, and remand.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Jessica and Jeffrey were previously married and have two children in
common, of whom Jeffrey presently has custody. The parties have a lengthy
history with the Jefferson Family Court, including an ongoing custody action and
multiple prior DVO and dependency, neglect, and abuse (DNA) cases.
Following an incident during her visitation with the children on
February 16, 2022, Jessica filed a petition for a DVO against Jeffrey for herself
and indicated “TBD” regarding whether protection was similarly requested for the
children. Jefferson Family Court Action Number 22-D-500481-001. Jeffrey
subsequently filed a DVO petition to protect the children from Jessica. Jefferson
Family Court Action Number 14-D-502538-003. On March 1, 2022, after a
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consolidated hearing, the court dismissed Jessica’s petition and entered a DVO
restraining Jessica from having unlawful contact with the children. This
consolidated appeal timely followed. We will introduce additional facts as they
become relevant.
LEGAL ANALYSIS
Jessica first argues that the court violated her right to a full evidentiary
hearing when, in the middle of her direct examination, the court opined that her
complaint was custodial in nature, immediately directed its attention to Jeffrey’s
petition, and then denied her subsequent request to present additional evidence.
Upon the filing of a DVO petition, due process requires that the court
provide a full hearing to each party. Wright v. Wright, 181 S.W.3d 49, 53 (Ky.
App. 2005). At minimum, this requires “‘that each party be given a meaningful
opportunity to be heard.’” Id. (quoting Lynch v. Lynch, 737 S.W.2d 184, 186 (Ky.
App. 1987)). Accordingly, we must review the events of the hearing.
Jessica’s recounting of the proceeding, while not inaccurate, is
incomplete. Both parties were present and represented by counsel. At the start of
the one-hour consolidated hearing, the court read Jessica’s petition into the record
and she adopted its contents. Per the petition, after encouraging their 12-year-old
daughter to run away from Jessica’s home, Jeffrey drove onto her property, picked
up their daughter in an unknown vehicle, and left without notifying Jessica.
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Fearing the child had been abducted, Jessica pursued in her own vehicle while
calling 911. Jessica characterized the event as a high-speed chase which ended
only after six police cars blocked the road.
Jessica’s petition additionally detailed the family’s tumultuous
history, which included specific allegations that Jeffrey: abducted their son in
2013; was the subject of a prior EPO in 2014, which was reduced to a no contact
order; and threatened her in 2017 by saying “watch your chops, someone wants a
piece of your ass in the parking lot.” Jessica also claimed that since 2013, Jeffrey
has repeatedly disparaged her, encouraged the children to run away from her, and
made false accusations against her. As a result, the children have been removed
from her care multiple times, even though there was no injury or imminent danger.
There have been more than 30 calls to Child Protective Services (CPS).
After adopting her petition, Jessica testified that the February 16
incident was extremely scary and threatening to herself and her family. Despite
instructions from the court to focus on the events of February 16, Jessica’s
remaining testimony was that she is a victim of domestic violence, she has
participated in therapy for seven years, and she has been diagnosed with situational
post-traumatic stress disorder. In support, Jessica introduced two letters from her
therapist, the most recent of which was dated February 2020, and attempted to
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enter into evidence the narrative from police reports concerning prior incidents;
Jeffrey objected on the basis of hearsay.
At this point in the proceedings, the court stated, “I’m trying to give
some leeway here. I really don’t think this is a domestic violence case. I really
think this is a custody issue once again.” The court further noted that Jessica’s
recounting was inconsistent with prior orders and findings of the court and that the
court would take judicial notice of those historical records. In response, Jessica
argued that she was the victim of emotional and litigation abuse and that Jeffrey
should not be permitted to enter her property uninvited and in contravention of an
agreed no contact order without repercussions. After vigorous debate about these
claims, counsel asserted that Jessica had been placed at gunpoint and requested that
the court read Jeffrey’s petition. The court did as entreated,1 and then, without
objection, Jeffrey was questioned by his and Jessica’s counsel for approximately
27 minutes.
Jeffrey testified that their daughter called him, hysterical and afraid,
so he contacted 911, had his father drive him (in the vehicle routinely used during
custody exchanges) to the street fronting Jessica’s house, and retrieved the child.
Jeffrey did not notify Jessica of these events, but he did update 911 that he had the
1
We note that the petitions were silent as to firearms, and the only evidence introduced on the
subject was Jeffrey’s testimony that he did not see any firearms during the police stop.
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child and reported that they were being followed by Jessica. After initiating a
traffic stop, officers spoke with the parties, their daughter, and the children’s
guardian ad litem (GAL) before permitting Jeffrey to take the child home. Jeffrey
denied entering Jessica’s property, encouraging the child to run away, or driving in
an unsafe manner, though he admits he was not the driver and did not look at the
speedometer. Beyond the events of February 16, Jeffrey informed the court that a
report was made to CPS on January 1, 2022, regarding a bruise and scratches on
the face and neck of the parties’ son.
On cross-examination, Jeffrey admitted that during a conversation
regarding the extent of their son’s injuries, he told Jessica, “That is the [expletive]
attorney exaggerating, that is what he gets paid to [expletive] do[;]” though he
denied ever lying to the court or bribing his attorney. Jeffrey also admitted that
five years prior, after Jessica “stole” their daughter, he essentially advised her that
she should not attend an upcoming event because his family was angry, but he
denied saying someone would be waiting for Jessica in the parking lot.
At the conclusion of Jeffrey’s testimony, Jessica reiterated that she
needed assurance that he could not come onto her property or within 500 feet of
her. After soliciting an opinion from the GAL, the court announced Jessica had
failed to meet her burden of proof, and her petition was dismissed. Only then did
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Jessica request the opportunity to present additional testimony. The court denied
her request and granted Jeffrey’s petition.
Considering these events, we cannot say that Jessica was deprived of a
meaningful opportunity to be heard. While it may be true her direct examination
was curtailed, the shift in focus was the direct result of Jessica imploring the court
to consider Jeffrey’s petition, instead of Jessica merely testifying to the facts she
wished to introduce. Further, at no point before the court announced its
determination did Jessica attempt to introduce additional testimony. She raised no
objection to the immediate commencement of Jeffrey’s direct examination, and
again, failed to object when the court signaled the close of evidence. Under these
facts, we find no error.
Next, Jessica contends the court erred by dismissing her petition. A
court may grant a DVO if, following a hearing, it “finds by a preponderance of the
evidence that domestic violence and abuse has occurred and may again occur[.]”
KRS2 403.740(1). Domestic violence and abuse is defined as “[p]hysical injury,
serious physical injury, stalking, sexual abuse, strangulation, assault, or the
infliction of fear of imminent physical injury, serious physical injury, sexual abuse,
2
Kentucky Revised Statutes.
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strangulation, or assault between family members[.]” KRS 403.720(1).3 The
preponderance standard is satisfied if the evidence establishes that the person to be
protected “was more likely than not to have been a victim of domestic violence.”
Hall v. Smith, 599 S.W.3d 451, 454 (Ky. App. 2020). On appeal, we accept the
trial court’s factual findings, unless clearly erroneous, and we review the court’s
determination to grant or deny the DVO for an abuse of discretion. Id.; Holt v.
Holt, 458 S.W.3d 806, 812 (Ky. App. 2015).
The essence of Jessica’s claim is encapsulated by her misstatement of
the applicable standard where she asserts that “merely being in fear of injury and
harassment is sufficient for a finding of domestic violence.” Though Jessica
testified generally that the events of February 16 were scary and threatening given
the parties’ history, her claims of emotional or litigation abuse and trespass do not
support a finding that she or the children suffered an enumerated injury or the
necessary imminent fear of such a harm. Under these facts, we conclude the court
did not abuse its discretion in dismissing the petition.
We turn now to whether the court abused its discretion in granting
Jeffrey’s DVO petition, as Jessica argues there was no evidence that he or the
3
Our citation is to the version of KRS 403.720 in effect during the underlying proceedings. See
2021 Ky. Acts ch. 175, § 4 (eff. Apr. 1, 2021). The statute was later amended to expand the
definition of domestic violence and abuse; however, the cited portion remains unchanged. See
2022 Ky. Acts ch. 158, § 1 (eff. Jul. 14, 2022).
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children were victims of domestic violence or abuse. As an initial matter, the order
on appeal clearly establishes that the only parties protected therein are the children,
not Jeffrey. Accordingly, any argument pertaining to him is moot. As to the
children, in granting the DVO the court found: (1) in January 2022, CPS was
actively involved due to bruises and scratches on the parties’ son, (2) their
daughter was hysterical after running away from Jessica’s home on February 16,
2022, and (3) Jessica had previously been found to have abused the children in
prior DNA actions.
Again, domestic violence and abuse is defined as “[p]hysical 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[.]” KRS 403.720(1). Here,
though the evidence demonstrates that the parties’ son incurred a physical injury –
satisfying the initial requirement of this definition – the record is devoid of any
evidence, competent or otherwise, as to the cause of the harm or even whether
Jessica had access to the child since she is restricted to limited visitation.
Similarly, while the daughter’s agitated demeanor and flight from Jessica’s home
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is certainly a cause for concern, there was no competent evidence that she incurred
the requisite harm or that she was in fear thereof.4
Accordingly, the court had to infer the missing elements solely from
the fact Jessica was found to have abused the children previously. However, this
runs afoul of the general rule that “[e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show action in
conformity therewith.” KRE5 404(b). While KRE 404(b)(1) does recognize an
exception for proving identity, there is no evidence that the prior abuse and the
current injury are “simultaneously similar and so peculiar or distinct . . . that they
almost assuredly were committed by the same person.” Woodlee v.
Commonwealth, 306 S.W.3d 461, 464 (Ky. 2010) (citations and emphasis
omitted). As there is insufficient evidence that either child was the victim of
domestic violence or abuse, the court abused its discretion in granting the DVO.
4
We acknowledge that Jeffrey’s petition and testimony did contain hearsay statements, to which
there was no objection, that may support a finding of domestic violence; however, the court
properly disregarded this incompetent evidence. Likewise, we do not consider it on appeal.
G.E.Y. v. Cabinet for Human Res., 701 S.W.2d 713, 715 (Ky. App. 1985) (“We agree when a
judge acts as a fact finder it is presumed that he will be able to disregard hearsay statements.
However, where . . . it is apparent that he relied on the hearsay in making his decision, the error
in the admission of the unreliable evidence cannot be deemed harmless or nonprejudicial.”); see
also Allen v. Gueltzow, 535 S.W.3d 333, 335 (Ky. App. 2017).
5
Kentucky Rules of Evidence.
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Finally, given the preceding holdings, we need not reach the merits of
Jessica’s remaining arguments that the court erred in taking judicial notice of its
prior findings and orders and rendering insufficient findings of fact.
CONCLUSION
Therefore, and for the foregoing reasons, the judgment of the
Jefferson Family Court in No. 2022-CA-0376-ME is REVERSED and
REMANDED for dismissal of the DVO and the judgment in No. 2022-CA-0377-
ME is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
Kaitlin Smith Dean
Louisville, Kentucky
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