JIMMY RANDALL v. JERI STEWART
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RENDERED: MARCH 2, 2007; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001254-ME
JIMMY RANDALL
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE ELEANORE GARBER, JUDGE
ACTION NO. 06-D-501394
v.
JERI STEWART
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE: TAYLOR AND WINE, JUDGES; PAISLEY,1 SENIOR JUDGE.
PAISLEY, SENIOR JUDGE: Jimmy Randall appeals from a domestic violence order
(DVO) entered against him by the Jefferson Family Court on May 30, 2006. On appeal,
Randall argues that the petitioner, Jeri Stewart, lacked standing to seek a DVO. Finding
that the family court erred, we reverse and remand.
According to the record, Randall and Stewart dated for approximately 1½
years. Since they were experiencing difficulties in their relationship, on the evening of
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Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the Chief Justice pursuant to
Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
May 17, 2006, Stewart went to Randall's apartment to talk to him. While there, Stewart
told Randall that she did not want to see him anymore. As she tried to leave, Randall
attacked Stewart. He grabbed her, pinned her down on his sofa, and tried to suffocate her
by placing his hand over her mouth. As the parties struggled, Randall pushed Stewart
onto the floor and hit her in the face. He attempted to force his fingers into Stewart's
mouth in another apparent attempt to suffocate her. She bit Randall's hand, and, in
response, he produced a balled-up sock which he shoved into Stewart's mouth. He then
placed his hand over her nose in yet another attempt to suffocate her, but Stewart
continued to struggle and managed to break free. After escaping Randall's clutches,
Stewart talked to Randall, calming him. But when Stewart opened the door to leave,
Randall attacked Stewart once again. Randall's neighbors heard Stewart's screams and
summoned the police. By the time the police had arrived, a neighbor had subdued
Randall. Although the police investigated the incident, they neither made a report nor
arrested Randall. However, they advised Stewart to seek an emergency protective order
(EPO). Later that evening, Stewart filed a domestic violence petition and obtained an
EPO.
On May 30, 2006, the Jefferson Family Court held a hearing regarding
Stewart's domestic violence petition. Randall moved for dismissal arguing that Stewart
lacked standing to file a domestic violence petition. In response to the family court's
questioning, Stewart testified that she and Randall had dated for approximately 1½ years.
Furthermore, she testified that she and Randall had never been married and that they did
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not have a child in common. In addition, Stewart stated that she and Randall had never
lived together. She did testify that Randall kept a toothbrush and other small personal
items at her residence, but did not keep clothing there. Stewart explained that Randall
usually stayed a minimum of one to two nights per week at her residence but he did not
adhere to a set schedule. Based on Stewart's testimony, the family court determined that
the parties' relationship was sufficient to give Stewart standing to seek a DVO.
After the family court made this determination, it allowed Randall's counsel
to question Stewart. In response to those questions, Stewart reiterated her prior testimony
and repeated that she and Randall had never lived together. She also testified that neither
party was on the other party's lease, deed or mortgage and that Randall had never
received mail at her residence nor did she receive mail at his residence. Stewart then
detailed the events that had allegedly occurred on the evening of May 17th. After hearing
the testimony, the family court found that acts of domestic violence had occurred and
were likely to reoccur; thus, the court issued a domestic violence order against Randall.
Now, Randall appeals to this Court.
On appeal, Randall reiterates that, according to Stewart's own testimony,
they never lived together. Also, citing Barnett v. Wiley, 103 S.W.3d 17 (Ky. 2003),
Randall argues that the Supreme Court of Kentucky has set forth a six-prong test to
determine whether two people are “living together” within the meaning of KRS
403.720(3). Based on the evidence adduced at the trial, Randall reasons that Stewart
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lacked standing to seek a DVO since their relationship did not meet the criteria set forth
in Barnett v. Wiley, supra.
When reviewing actions tried before the bench, we will give due deference
to the trial court's opportunity to judge the credibility of the witnesses and will not disturb
its findings of fact unless they are clearly erroneous, that is, not supported by substantial
evidence. Kentucky Rules of Civil Procedure (CR) 52.01; Black Motor Co. v. Greene,
385 S.W.2d 954, 956 (Ky. 1965). According to the Supreme Court of Kentucky,
substantial evidence consists of “evidence of substance and relevant consequence, having
the fitness to induce conviction in the minds of reasonable people.” Smyzer v. B.F.
Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971). In other words, it is that
“evidence which would permit a fact-finder to reasonably find as it did.” Special Fund v.
Francis, 708 S.W.2d 641, 643 (Ky. 1986).
According to KRS 403.725(1), any “member of an unmarried couple” may
file a petition for a domestic violence order. For the purposes of KRS Chapter 403, the
phrase “member of an unmarried couple” has been defined as “each member of an
unmarried couple which allegedly has a child in common, any children of that couple, or
a member of an unmarried couple who are living together or have formerly lived
together.” KRS 403.720(3). Obviously, in the present case, we are concerned only with
the last clause of this definition, “a member of an unmarried couple who are living
together or have formerly lived together.” KRS Chapter 403 does not provide a
definition for the phrase “living together”.
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As appellant points out, the Supreme Court of Kentucky addressed this
issue in Barnett v. Wiley, supra. In Barnett, the petitioner alleged, in a petition to obtain
a DVO, that the respondent approached her car, hit the window, threatened to kill her,
and followed her vehicle as she drove away. Id. at 18. At a subsequent hearing, the
petitioner testified that she and the respondent were not related, had no children in
common, and had never lived together. Id. Despite this evidence, or lack thereof, the trial
court granted the petition. Id. The respondent moved to dismiss the petition arguing that
the petitioner lacked standing to seek a DVO since they did not qualify as an “unmarried
couple” as defined by KRS 403.720(3). Id. The trial court denied the respondent's
motion, and he appealed to this Court, which affirmed the trial court's order. Id.
The Supreme Court granted discretionary review and acknowledged that
Kentucky case law had yet to define the phrase “living together”. However, noting that
Black's Law Dictionary (7th ed. 1999) had defined “cohabitation” as the “fact or state of
living together, especially as partners in life, usually with the suggestion of sexual
relations[,]” the Supreme Court opined that “living together” implied “some sort of
cohabitation.” Id. at 19. Turning to the case law of other states for guidance, the Supreme
Court relied on State v. Kellogg, 542 N.W.2d 514 (Iowa 1996) in which the Iowa
Supreme Court set forth a non-exclusive list of six factors that a trial court should
consider in determining whether a couple are cohabiting:
1. Sexual relations between the parties while sharing the same
living quarters.
2. Sharing of income or expenses.
3. Joint use or ownership of property.
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4. Whether the parties hold themselves out as husband and
wife.
5. The continuity of the relationship.
6. The length of the relationship.
Id. Regarding these factors, our Supreme Court stated:
[W]e believe that the six factors discussed in Kellogg are
relevant in determining whether two people are “living
together” within the meaning of KRS 403.720. But under the
plain language of the statute, there must be, at a minimum,
proof that the petitioner seeking a DVO shares or has shared
living quarters with the respondent before a finding can be
made that the two are an “unmarried couple” under KRS
403.725.
Id. The Supreme Court then concluded that the trial court had erred in issuing the DVO
since the record lacked any evidence that the petitioner and the respondent had ever
shared living quarters, either permanently, temporarily, or on a part-time basis. Id. at 21.
Finding the holding in Barnett v. Wiley to be controlling, we turn to the
factors set forth in that case. Although the record contains no evidence regarding the
continuity of Randall's and Stewart's relationship, Stewart testified that she and Randall
had dated for approximately eighteen months. Regarding whether the parties were
having sexual relations while sharing the same living quarters, there is no evidence that
Randall and Stewart had ever shared living quarters. Furthermore, Stewart testified that
Randall would spend one or two nights per week at her residence, and, while this
testimony may imply that the parties had sexual relations, the evidence in the record
simply did not address this factor. There is no evidence that the parties shared income or
expenses. The record indicates that the parties neither jointly owned nor jointly used any
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property. There is absolutely no evidence that the parties presented themselves as
husband and wife. Considering the factors set forth in Barnett v. Wiley, the family court's
finding that the parties' relationship qualified as an “unmarried couple” as defined by
KRS 403.720 was not supported by substantial evidence. Thus, the family court clearly
erred when it granted the DVO against Randall since, under these facts, Stewart lacked
the standing to seek such a protective order.
While we are compelled to reverse the family court's decision, we
sympathize with its desire to issue a DVO in this case. Given the explosive and vicious
nature of Randall's attack, it was only by happenstance or providence that Stewart
managed to escape Randall's apartment with only minor physical injuries. Moreover,
while we lack the authority to expand the scope of KRS 403.725 to cover dating
relationships, this case illustrates the compelling need for the General Assembly to
consider such an expansion.2
The domestic violence order entered against Randall is reversed, and this
matter is remanded to the family court with instructions to dismiss Stewart's petition with
prejudice.
ALL CONCUR.
2
“Over the past two decades states have become more inclusive with respect to eligibility requirements in
protective orders statutes. Today, 21 states specifically provide statutory eligibility for dating couples to seek orders
of protection.” H. Eigenberg, K. McGuffee, P. Berry, and W.H. Hall, Protective Order Legislation: Trends in State
Statutes, 31 Journal of Criminal Justice 411 (2003).
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BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Brian R. Good
Louisville, Kentucky
Jennifer G. Sacharnoski
Louisville, Kentucky
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