CHRISTOPHER TODD STOKES APPELLANT v. CHRISTEN MARIE GATTON STOKES APPELLEE

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Court of Appeals of Kentucky.

CHRISTOPHER TODD STOKES APPELLANT v. CHRISTEN MARIE GATTON–STOKES APPELLEE

NO. 2011–CA–001272–ME

Decided: March 09, 2012

BEFORE:  ACREE, MOORE, AND VANMETER, JUDGES. BRIEF FOR APPELLANT:  Michael P. Rowland Lexington, Kentucky BRIEF FOR APPELLEE:  Martha A. Rosenberg Lexington, Kentucky

NOT TO BE PUBLISHED

OPINIONREVERSING

Christopher Todd Stokes appeals the Fayette Family Court's entry of a domestic violence order (DVO) prohibiting him from coming within five hundred feet of Christen Marie Gatton–Stokes, her residence, and the school of the parties' minor child.   After reviewing the record, we reverse.

I. FACTS AND PROCEDURAL BACKGROUND

Christopher and Christen were married and have one minor child.   The parties' divorce action was pending before the Fayette Family Court during the time in which the occurrences giving rise to this action took place.   The parties' divorce decree was entered May 31, 2011.   The family court entered an EPO, and subsequent DVO, based upon events occurring on the evening of May 24, 2011.   For reasons that will become evident below, we will accept Christen's version of the events that took place on that date.

On the evening of May 24, 2011, Christopher called to speak with the parties' five-year-old child, pursuant to his telephonic visitation schedule.   Christen maintained that she was concerned because Christopher had been arrested earlier that week and listened to the conversation in order to monitor what Christopher was saying.   Christen thought it was suspicious that Christopher asked the child if she had been at school the past two days.   Thereafter, Christen told the child that it was time to say goodnight.   Christen contended that Christopher had been pressuring her to sign a $1.3 million loan and that he typically exercised telephonic visitation with the child only when he wished to speak to her regarding the loan.   Christen wished to avoid having him ask the child to speak to her about the loan.

After the conversation ended, Christopher texted Christen asking if everything was all right because he heard a disturbance in the background while on the telephone.   He indicated that he would call the police if Christen did not call him.   Christopher concedes that in addition to texting several times he called Christen approximately thirty-one times over the next two-and-a-half hours.

In one of his text messages, Christopher indicated that he was concerned for Christen and their child's safety.   According to Christopher, he heard a man in the background while he was speaking to the child.   He indicated that he would call Christen's mother if she did not call him back.   Christen spoke with Christopher several times that evening in an attempt to “see where he was” and to “calm him down.”   Despite Christopher's persistence, she also refused to speak with him regarding the loan.   After Christopher persisted with numerous calls and messages, Christen sent him a text informing him that their child was sleeping and assured him that everything was all right. Double Christopher told Christen that he had already called the police, the police were on their way, and that she needed to “call [him] now.”   Upon arriving at Christen's residence, the police informed her that Christopher had said that the parties' child had called him and told him they were being “smacked by a man.”

Christen indicated that she was fearful in light of the fact that Christopher had been contacting her regarding the $1.3 million loan.   He had also been arrested earlier that week for terroristic threatening and fourth-degree assault against his former wife and paramour,Double and had two DVO's entered against him in Laurel County which were in part a result of the acts giving rise to his arrest.

Christen feared that Christopher would attempt to contact her or her child.   She described Christopher's telephone calls as “harassing” and “desperate.”   She testified that police informed her that Christopher said that he was coming to get the child, although Christopher never came to her home.   She was also informed by family members that Christopher was coming to Lexington and that he was going to go take a photograph of himself in front of the courthouse to prove that he would file charges against her if she did not sign the loan. Double Christen also indicated that Christopher had a history of “fear and intimidation with women.”

After seeing that she was fearful, the police recommended that Christen file for an EPO and escorted her to the Fayette District Court.   The district court granted the EPO, a summons was issued for Christopher to appear in court on June 2, 2011, and this action was transferred to Fayette Family Court.   At the June 2, 2011 hearing, the family court noted that Christopher had not been served and re-issued a summons for June 16, 2011.

Christopher appeared before the family court on June 16, 2011.   He argued that the family court no longer had jurisdiction to issue a DVO because he was served on June 1, 2011, and was entitled to a hearing within fourteen days of being served.   The family court indicated that the requirement that a hearing be held within fourteen days was no longer in effect since the amendment of the statute.   Christopher also argued that the family court did not have jurisdiction to re-issue the summons on June 2, 2011, because he had been served prior to that date.   The family court further noted that it was unaware that Christopher had been served as of the June 2, 2011 hearing;  that the summons had not been returned until June 7, 2011;  and that, even if the court had been aware that Christopher had been served, the family court would have been required to continue the hearing due to the fact that Christopher had not been served at least seventy-two hours prior to the hearing.   Accordingly, the family court concluded that it had complied with the statutory requirements and thus was within its jurisdiction when re-issuing the summons.

At the conclusion of the hearing, the family court found that, based upon the totality of the evidence in this case, along with the court having taken judicial notice of the two existing DVO's in Laurel County, Christopher had committed an act of domestic violence and entered a DVO prohibiting Christopher from coming 500 feet of Christen, her residence, or their child's school for a period of three years.   This appeal followed.

II. ANALYSIS

Christopher raises two assignments of error:  1) whether the trial court had jurisdiction to conduct a hearing and subsequently enter a DVO, and 2) whether the family court correctly found that an act of domestic violence had occurred.   Although we conclude that the family court did have jurisdiction to enter the DVO, we reverse the entry of the DVO because the findings of the family court were clearly erroneous.

a. Jurisdiction

Whether a trial court acted within its jurisdiction is a question of law, which we review de novo.  Biggs v. Biggs, 301 S.W.3d 32, 33 (Ky.App.2009).   Christopher first argues that the family court lacked jurisdiction to re-issue a summons on June 2, 2011, because he had been served on June 1, 2011.   Therefore, the family court lacked jurisdiction to enter the DVO.Double

Kentucky Revised Statute (KRS) 403.745(2) states that, following the issuance of an emergency protective order, a hearing “shall be fixed not later than fourteen (14) days following the issuance of the summons.”  (Emphasis added).   A court is permitted to re-issue the summons “[i]f, at the hearing, the adverse party is not present and has not been served․”  KRS 403.740(4).   Here, the summons that was signed by Christopher and returned to the family court clearly denotes that it was issued by the court clerk on June 2, 2011, and requires that Christopher appear on June 16, 2011.   As such, the hearing was, in accordance with KRS 403.745(2), set within fourteen days of the issuance of that summons.

Admittedly, the serving officer dated the summons that Christopher was served on as June 1, 2011.   However, the summons denotes not once, but twice, that it was not issued until June 2, 2011, and was returned to the clerk's office on June 7, 2011.   Likewise, Christen's summons indicates that it was issued on June 2, 2011.   Therefore, we can come to no other conclusion but that the serving officer's notation of the service date was a scrivener's error.   Otherwise, it would have been served before it was even issued.   Consequently, we conclude that the family court acted within its jurisdiction when proceeding with the hearing.

b. Finding that Act of Domestic Violence Occurred

Christopher next argues that the family court erred when it determined that an act of domestic violence had occurred.   We agree.

In order to enter a DVO, a court must find by “a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur[.]”  KRS 403.750(1).   Domestic violence is defined as “physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members․”  KRS 403.720(1).   Further, a spouse, or former spouse, is included in the definition of the term “family member.”   KRS 403.720(2).  “Under the preponderance standard, the evidence must establish that the alleged victim was more likely than not to have been a victim of domestic violence.”  Rankin v. Criswell, 277 S.W.3d 621, 624 (Ky.App.2008) (citing Wright v. Wright, 181 S.W.3d 49, 52 (Ky.App.2005)).

Here, Christen did not identify any threat made by Christopher indicating that he intended to inflict any type of physical injury to her or the child.   Likewise, she did not indicate that she was fearful that Christopher would inflict any type of physical injury on her.   Rather, Christen indicated that she was fearful that he might try to contact her or the child and that her fear was based upon the fact he had been arrested earlier that week for acts that occurred in another county but did not involve her or the child.

The family court placed much emphasis on the fact that Christopher indicated that Christen “need[ed] to call [him] now.”   We fail to see how requesting or even demanding that Christen return his telephone call, absent any indication of an intention to harm her, is a sufficient basis for a finding of fear of imminent physical injury.   We likewise fail to see how threatening to press charges for failure to co-sign a loan can be construed as placing Christen in any type of physical danger.

Moreover, we conclude that the family court placed too much weight upon the prior entry of DVO's against Christopher in Laurel County.   We recognize that a court may consider past acts of domestic violence or criminal acts against others when entering a DVO. See KRS 403.741.   However, the mere fact that Christopher perpetrated acts of domestic violence against other individuals, absent any other action or threat against Christen, is insufficient to establish that an act of domestic violence had occurred against Christen.

Finally, we are cognizant that the domestic violence statutes must be broadly construed to favor protection of victims of domestic violence and in order to prevent future acts of domestic violence.  Barnett v. Wiley, 103 S.W.3d 17, 19 (Ky.2003).   However, we are not permitted to “add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used.”  Beckham v. Bd. of Education of Jefferson Co., 873 S.W.2d 575, 577 (Ky.1994).   Moreover, we are mindful of the devastating effect that having a DVO entered without sufficient factual basis can have against the alleged perpetrator.   Thus, we decline to uphold the entry of a DVO absent any evidence that the alleged victim was in imminent physical danger, as required by statute.

Here, the facts simply do not support the family court's finding that an act of domestic violence occurred or was even likely to occur absent the entry of a DVO. Accordingly, we conclude that the trial court abused its discretion.

For the aforementioned reasons, we reverse.

ALL CONCUR.

MOORE, JUDGE: