JOHN EDWARD COTTRELL v. ETHEL LYNN COTTRELL, Real Party In Interest; and JUDGE MARGARET HUDDLESTON
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RENDERED:
JULY 12, 2002; 2:00 p.m.
ORDERED PUBLISHED BY THE KENTUCKY SUPREME COURT:
September 10, 2003 (2002-SC-0649-D)
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000791-MR
JOHN EDWARD COTTRELL
v.
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN D. MINTON, JR., JUDGE
ACTION NO. 01-CI-00313
ETHEL LYNN COTTRELL, Real
Party In Interest; and
JUDGE MARGARET HUDDLESTON
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: EMBERTON, CHIEF JUDGE; DYCHE AND MILLER, JUDGES.
EMBERTON, CHIEF JUDGE: This is an appeal from the denial of
appellant=s petition for injunctive relief in which he sought an
order prohibiting the Warren Family Court from enforcing its
domestic violence order entered February 26, 2001.
Appellant
contends that the trial court erred in refusing to follow
precedent he cited in support of his petition and
mischaracterized the nature of matters pending in the Bullitt
Circuit Court.
We disagree and affirm.
The trial court made the following findings which
appellant does not dispute.
On December 6, 2000, the Bullitt
Circuit Court entered a decree dissolving the marriage of John
Edward and Ethel Lynn Cottrell.
Incorporated into that decree
was an agreed order dated February 10, 2000, making the parties
joint custodians of their two young children, as well as
providing that appellee would be the primary residential
custodian.
Property division issues were reserved for later
determination.
Prior to the filing of the dissolution action,
appellee and the children had returned in January 2000, to her
parents= home in Warren County where they have continued to
reside since that date.
With respect to the proceedings that precipitated this
appeal, the trial court noted that a pretrial conference was
scheduled in the Bullitt Circuit Court on February 21, 2001, to
resolve the remaining issues in the dissolution action.
Prior to
the scheduled conference, the Cabinet for Families and Children
commenced an investigation into whether appellant had physically
abused the children.
After being notified that the investigation
would not be completed prior to appellant=s next scheduled
visitation, appellee=s counsel filed a motion to suspend
visitation to be heard at the February 21 pretrial conference.
However, the domestic relations commissioner refused to consider
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the motion because the investigation into the abuse allegations
had not been completed.
Appellee=s counsel then filed a petition for an
emergency protective order in Warren County which was granted on
February 22, 2001, and a hearing on the matter was set for
February 26, 2001, in the Warren Family Court.
At 11:59 a.m., on
February 22, 2001, Judge Waller of the Bullitt Circuit Court
granted appellant=s motion for an order restraining appellee from
filing a petition for domestic violence in any forum other than
the Bullitt Circuit Court and suspended visitation until there
could be a hearing before the domestic relations commissioner.
Subsequently, on February 26, 2001, appellant sought and obtained
a second order enjoining and restraining the appellee and the
Warren Family Court from proceeding with the domestic violence
action other than to dismiss the action.
That same day, Judge Margaret Huddleston of the Warren
Family Court proceeded with the scheduled hearing on the
previously entered DVO.
At that time, Judge Huddleston was
informed by appellant=s counsel of the restraining order which
had been issued by the Bullitt Circuit Court.
Nevertheless,
after hearing testimony from the Cabinet for Families and
Children and from a social worker for LifeSkills who had
interviewed the children, Judge Huddleston, ignoring the attempt
of the Bullitt Circuit Court to restrain her from proceeding,
concluded that there was sufficient evidence to warrant the
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issuance of a domestic violence order and directed appellant to
stay 2,500 feet away from appellee and the children.
Appellant=s counsel again appeared before Judge
Huddleston on March 5, 2001, requesting dismissal of the DVO.
After she denied his request, appellant filed a petition in the
Warren Circuit Court to prohibit Judge Huddleston from further
proceedings in the matter and to require her to hold the domestic
violence action in abeyance pending conclusion of the proceedings
in the Bullitt Circuit Court.
The circuit court concluded that
Judge Huddleston was not bound by the restraining order issued by
the Bullitt Circuit Court and that she did not exceed her
authority in issuing a DVO against appellant.
We find no error
in the trial court=s analysis of the facts or the law.
Appellant first argues in this appeal that the trial
court erred in refusing to follow a line of cases holding that a
court maintaining a senior action and concurrent jurisdiction may
enter any necessary orders to enjoin the parties and other courts
from conducting further proceedings in a junior action.1
In
rejecting appellant=s contention that these cases required
dismissal of the domestic violence action in Warren County, the
trial court noted that these cases are essentially intended as
Atraffic control@ among competing venues in which the same relief
is sought.
What is important, none of the cited cases involved
1
See Delaney v. Alcorn, 301 Ky. 802, 193 S.W.2d 404
(1946); Blanton v. Sparks, Ky., 507 S.W.2d 156 (1974); and Martin
v. Fuqua, Ky., 539 S.W.2d 314 (1976).
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petitions for DVOs.
The Warren Circuit Court specifically
concluded that the relief provided by the legislature in KRS2
403.715, et seq., is not identical to the matter that was pending
in the Bullitt Circuit court; thus, appellee had a right to seek
the protection of that statute in Warren County.
We are in complete agreement with the decision of the
Warren Circuit Court.
The plain language of KRS 403.725(1),
which provides for the filing of a petition for a DVO in the
county of the petitioner=s residence, also supports the trial
court=s decision in that it requires a petitioner to make known
to the court Aany custody or divorce actions, involving both the
petitioner and the respondent, that are pending in any Circuit
Court in the Commonwealth.@
(Emphasis added).
It thus appears
that the legislature did not consider domestic violence
protection to be the same relief provided by custody or divorce
proceedings.
The action appellant labels Aforum shopping@ was
nothing more than an attempt by a mother to obtain protection for
her children in a forum provided by the legislature.
In our
opinion, the relief appellant seeks in this appeal would render
ineffectual the very protections our domestic violence statutes
were enacted to provide.
2
Kentucky Revised Statutes.
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Finally, we find no merit to appellant=s complaint that
the Warren Circuit Court mischaracterized the proceedings in the
Bullitt Circuit Court.
The judgment of the Warren Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William R. Wilson
BURRESS & WILSON
Shepherdsville, Kentucky
William S. Haynes
HODGES & HAYNES
Bowling Green, Kentucky
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