Daugherty v. TELEK

SCOTT, J.,

concurring in part and dissenting in part:

I agree with the majority that the Kenton Family Court unquestionably had subject matter jurisdiction over Bucher’s domestic violence petition. However, I do not believe that the family court had the legal authority to continue reissuing the EPO and postponing the DVO hearing after September 23, 2009. Therefore, I must dissent from the portion of the majority opinion which approves of the family court’s actions after that date.

An EPO provides extraordinary relief under the law.12 It permits a trial court to impose severe restrictions on a respondent based solely upon the ex parte assertions of a petitioner. See KRS 403.740(1). Specifically, on the basis of a petitioner’s unchallenged statements, the trial court may deprive a respondent of his13 children, his financial resources, his home, and his Second Amendment rights. KRS 403.740(l)(c)-(f). See U.S. v. Calor, 172 F.Supp.2d 900, 906-07 (E.D.Ky.2001) (holding that an EPO provision requiring a respondent to surrender his firearms without a hearing does not violate due process).

Because the consequences of an EPO can be devastating and the proof upon which it is based can be completely one-sided, KRS 403.740(4) limits the lifespan of an EPO. In restricting the duration of EPOs, the General Assembly sought to strike a balance between two competing interests — protecting victims of domestic violence and preserving the rights of accused perpetrators. Under the law as it existed in 2009, an EPO could be made effective for no more than fourteen days. KRS 403.740(4). Prior to the expiration of the EPO, the trial court was required to conduct a full hearing on the domestic violence petition, at which both parties must be permitted to present evidence. Id. See also Wright v. Wright, 181 S.W.3d 49, 53 (Ky.App.2005) (vacating entry of a domestic violence order where the trial court did not give both parties a meaningful opportunity to be heard). The court could delay a full hearing and reissue the EPO — again to be effective for no more than fourteen days — only under limited circumstances. See KRS 403.740(4).

Under KRS 403.740(4), the trial court was permitted to reissue an EPO if one of two requirements was met: (1) the respondent had not been served; or (2) the court determined that reissuance was necessary to protect the petitioner. Id. (emphasis added). Outside of KRS 403.740(4), there was one additional basis upon which the *471trial court could reissue an EPO and delay the full evidentiary hearing: waiver of the time limitation by the respondent. Because the fourteen-day requirement was intended to protect the rights of the respondent by guaranteeing him a speedy opportunity to challenge the petitioner’s ex parte assertions, a respondent could validly waive this statutory protection. See Commonwealth v. Townsend, 87 S.W.3d 12, 15 (Ky.2002) (noting that a statutory provision which “inures to the benefit of a defendant ... can be the subject of a valid waiver.”).

In the instant case, it is undisputed that Telek was properly served. Therefore, under KRS 403.740(4), the trial court could validly reissue the EPO only if reissuance was necessary to protect Bucher until a full hearing could be conducted. Additionally, the court could validly reissue the EPO if Telek waived'his right to a timely hearing. After reviewing the record, I cannot conclude that either of these conditions existed after September 23, 2009.

As the majority correctly notes, the family court intended to reschedule the DVO hearing from August 26, 2009 to November 13, 2009 by reissuing the EPO every fourteen days in serial fashion. The purpose of this delay was to allow the guardian ad litem (GAL) to interview the child, who was present during the alleged incident, and to be present for the hearing to report the child’s version of the events to the court.14 Thus, under KRS 403.740(4), the court found it necessary to reissue the EPO to protect Bucher until it could obtain evidence from a key witness, the parties’ child. Additionally, Telek did not initially object to the extended postponement of the DVO hearing; therefore, he waived his right to a timely hearing. See New York v. Hill, 528 U.S. 110, 115, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000) (holding that defense counsel can validly waive a defendant’s right to be tried within a statutory time period by accepting a trial date beyond the statutory time period); Parks v. Commonwealth, 89 S.W.3d 395, 398 (Ky.2002) (“Pursuant to Hill, the agreement by [the defendant] to a trial date beyond the limits of the [statute] constituted a waiver of his speedy trial rights.”).

However, on September 22, 2009, Telek filed a motion requesting that the court dismiss Bucher’s domestic violence petition. At the hearing on this motion, which was held on September 23, 2009, Telek informed the court that he objected to continued reissuance of the EPO. At that time, the GAL also informed the court that he had spoken with the child and was prepared to relay the child’s version of the events to the court. It was at this point, in my opinion, that the family court lost the legal authority to continue reissuing Bucher’s EPO.

By objecting to the family court’s continued reissuance of Bucher’s EPO, Telek terminated his continuing waiver of the fourteen-day time limitation. Thus, the family court could no longer reissue on the basis of waiver. Furthermore, based on the GAL’s statements, it was no longer necessary to postpone the hearing to obtain evidence from the parties’ child.15 The GAL was present and prepared to report the child’s version of the incident to *472the court. As a result the family court lacked the authority to continue reissuing the EPO under KRS 403.740(4). Despite this lack of authority, the family court reissued the EPO two additional times.

Based on the foregoing, I would hold that the family court lacked the authority to reissue Bucher’s EPO after September 23, 2009. Thus, the two reissuances which occurred on and after that date were invalid. Therefore, I would remand this case to the family court for dismissal of Bucher’s domestic violence petition without prejudice.16

CUNNINGHAM, J. joins.

. As the majority notes, the Commonwealth's domestic violence statutes were revised extensively in 2010. My analysis is based on the law as it existed prior to the 2010 amendments.

. For the sake of understandability, I use male pronouns to refer to respondents in general. However, I am mindful that petitioners and respondents may be either gender and my disagreement with the majority's conclusion on this issue applies with equal force irrespective of the parties’ sexes.

. The court was also attempting to conserve judicial resources by consolidating the DVO hearing with pending matters in the parties’ custody case.

. I would not find that the court’s desire to consolidate the DVO and custody proceedings rendered reissuance of the EPO necessary. While I acknowledge the value of judicial economy, I do not believe it is so important as to necessitate reissuance of an EPO where there is no other justification for the reissuance.

. I believe that dismissal without prejudice is appropriate because Bucher’s petition was not validly adjudicated.