WOOLDRIDGE (JOHN MATTHEW) VS. ZIMMERER (KATHRYN L.)
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RENDERED: APRIL 23, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001786-ME
JOHN MATTHEW WOOLDRIDGE
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DOLLY W. BERRY, JUDGE
ACTION NO. 06-D-502461
KATHRYN L. ZIMMERER
APPELLEE
OPINION
VACATING AND REMANDING
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BEFORE: CLAYTON, TAYLOR, AND THOMPSON, JUDGES.
CLAYTON, JUDGE: John Matthew Wooldridge appeals from the September 8,
2009 order of the Jefferson Family Court extending a domestic violence order
(DVO) for an additional three years. We vacate and remand for additional
proceedings consistent with this opinion.
On August 17, 2006, Kathryn Zimmerer filed a domestic violence
petition against John M. Wooldridge. Following a hearing, the court entered a
DVO, which was effective until August 28, 2009. Almost three years later on
August 27, 2009, Zimmerer filed another domestic violence petition against
Wooldridge. An emergency protective order (EPO) was entered, which was
effective until September 8, 2009. At the resulting hearing held on September 8,
2009, after both parties testified, the family court judge concluded that Zimmerer’s
new allegations were insufficient for the entry of a second domestic violence order.
The family court judge, however, while denying the motion for a new DVO,
ordered that the original DVO was to be extended for another three years from the
date the original order expired, thereby making the original DVO effective until
August 28, 2012. The family court judge held that, since Zimmerer had filed a
new petition for another DVO prior to the expiration of the original DVO, the
family court still had jurisdiction. The family court judge opined that the filing of
a “petition” rather than a motion to amend the DVO was merely a technicality and
that it could be viewed as a motion to extend the current DVO. This appeal
followed.
The sole basis for Wooldridge’s appeal is his contention that the
family court lacked jurisdiction to extend the original 2006 DVO. He reasons that
at the September 8, 2009 hearing on the new petition, the original DVO had
expired and, therefore, could not be extended. Wooldridge bolsters this contention
by noting that Zimmerer filed a petition for a new DVO and did not file a motion
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to amend the original DVO. In sum, the issue on appeal is whether the family
court had jurisdiction on September 8, 2009, to extend the August 29, 2006 DVO
against Wooldridge for an additional three-year period.
The trial judge’s handwritten notation on the court’s docket sheet
says:
While this is not a motion per se (but a new EPO)
all allegations in petition refer to old DVO and
continuing its protection. P[etitioner] is clearly afraid of
R[espondent] and she believes DVO has kept him away
from her. P[etitioner] testified to believing R[espondent]
will resume trying to contact her – she said he called her
a month ago.
Extend DVO – (new case states “Motion” to
Extend is okay as long as filed before DVO expires).
New “petition” was filed on 8/27 and DVO did not
expire until 8/28.
DVO extended for 3 years.
According to Kentucky Revised Statutes (KRS) 403.750(1), a court
may enter a DVO “if it finds from a preponderance of the evidence that an act or
acts of domestic violence and abuse have occurred and may again occur [.]” The
next section of the statute, KRS 403.750(2), instructs as to the reissuance of a
DVO. Specifically, this section provides that
Any order entered pursuant to this section shall be
effective for a period of time, fixed by the court, not to
exceed three (3) years and may be reissued upon
expiration for an additional period of up to three (3)
years. The number of times an order may be reissued
shall not be limited. With respect to whether an order
should be reissued, any party may present to the court
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testimony relating to the importance of the fact that acts
of domestic violence or abuse have not occurred during
the pendency of the order.
Although, as argued by Zimmerer in her brief, this Court in Kingrey v. Whitlow,
150 S.W.3d 67 (Ky. App. 2004), held that a DVO could be reissued even where no
additional violence or abuse had occurred during the pendency of the DVO, that is
not the issue presented to us. Indeed, the issue here is not evidentiary but
jurisdictional.
In that vein, we observe that Kingrey has been distinguished by
Fedders v. Vogt-Kilmer, 292 S.W.3d 905 (Ky. App. 2009). Fedders clarifies that,
even though proof is presented to a court that a DVO could be reissued, the court
must still have jurisdiction to extend an order.
In fact, our specific issue is not addressed in Fedders. In that case, the
parties filed a motion to extend the DVO and not a petition for another DVO. We
observed in that opinion:
On September 1, 2006, Vogt-Kilmer moved to amend the
prior order to extend it for three years. . . .
On January 16, 2008, Vogt-Kilmer filed a motion
to amend the prior DVO.
Id. at 906.
So, therein, motions were filed asking the court to extend the existent DVO. The
significant factor was that the January 16, 2008 motion was filed some time after
the expiration of the pertinent DVO, which had only been extended to December
12, 2007. Clearly, the second motion in Fedders was made after the expiration of
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the DVO’s effective date. Notwithstanding the motion occurring after the
expiration of the DVO, the family court in Fedders extended the DVO. On appeal,
we held that
There are no published cases addressing this issue.
This may well be because it seems so obvious that once a
DVO has expired, then the petitioner would not seek an
extension but rather simply file for a new DVO. Even in
this case, Vogt-Kilmer filed two new petitions for DVOs
once the previous DVO had expired or was about to
expire. Vogt-Kilmer did not file for extensions as she did
in January 2008. While neither party addressed this issue
to the court, we believe that once the DVO expired on
December 12, 2007, that case was concluded and no
further action could be based upon a DVO that had
expired. By waiting until January 16, 2008 (some 35
days later), Vogt-Kilmer lost the ability to file to amend
the order and should have filed a new domestic violence
petition.
Id. at 908. Thus, in the above-discussed case, the family court lost its jurisdiction
over the DVO because it had expired.
Here, the issue is somewhat different because Zimmerer filed another
action, a petition for a DVO, the day before her original DVO expired. But
because she filed a petition for another DVO, Zimmerer’s original DVO still
expired on August 28, 2009. On that date, she no longer was protected by the
DVO but was now under the protection of a newly issued EPO. Indeed, the entire
procedural actions attendant upon the filing of a petition for a DVO followed her
filing of the petition. Zimmerer was granted an EPO and a hearing on the
allegations in the EPO. Inopportunely for Zimmerer, however, at the hearing the
family court judge held that the allegations in the EPO were not sufficient for the
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granting of another DVO. Given the level of discretion that is afforded a trial court
on its evidentiary conclusions, we are unable to hold that the trial court abused its
discretion in its conclusion about the entry of another DVO.
In retrospect, Zimmerer makes a case that the filed petition was
intended as a motion to extend the 2006 order. A reading, however, of the actual
petition does not use the words “motion” or “extend.” Moreover, the 2009 petition
is numbered differently than the original 2006 petition and DVO. And finally, the
family court judge starts the hearing for the purposes of determining whether a new
DVO should be issued and not to ascertain whether the original DVO should be
extended. The family court judge only extends the original DVO after determining
that there is insufficient evidence for another DVO.
Further, we are not persuaded by Zimmerer’s other arguments. Her
discussion of “notice pleading” is inapposite here. In addition, Zimmerer’s
argument regarding the lack of Administrative Office of the Courts (AOC) forms is
also incorrect. In other cases regarding extensions of existing DVOs, our Court
has referred to the motion to amend as an appropriate form to use. For example, in
our unpublished case, Rogers v. Rogers, 2007 WL 2332561 (Ky. App. 2007), in
dicta is stated “[t]he Petitioner has filed a motion to amend the Domestic Violence
Order dated 4-21-04[.]” Id. at 2. And in Fedders, we say that “Vogt-Kilmer filed
a motion to extend the prior DVO.” Fedders, 292 S.W.3d at 906. In fact, there is
no case where a petition for an EPO/DVO is used as a motion to extend a DVO.
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We recognize the family court’s concern for Zimmerer and its
recognition that Zimmerer is still in fear of Wooldridge. And we acknowledge that
the legislative policy behind the domestic violence statutes is to protect victims of
domestic violence. Nonetheless, the DVO statutes establish the jurisdictional
prerequisites for extending a DVO and we must maintain these jurisdictional
parameters to maintain the efficacy of these statutes. And, even though caselaw
has held that an extension of a DVO has a different evidentiary standard than the
entry of a DVO, the issue here is not evidentiary but jurisdictional. It is a
consequential precept that courts cannot alter or contradict the plain meaning of
statutes. Hence, the trial judge, while well-meaning, does not have the authority to
re-characterize a “petition” for a DVO as a motion for an extension of a DVO.
Legally, they are not the same thing.
For the foregoing reason, we vacate the amended DVO entered by the
Jefferson Family Court and remand this matter for dismissal.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Larry D. Simon
Louisville, Kentucky
Kathryn L. Zimmerer, pro se
Louisville, Kentucky
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