KENNETH SPENCER DIVISION III, FAMILY v. AVA SPENCER
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RENDERED:
APRIL 14, 2006; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001419-ME
KENNETH SPENCER
v.
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
DIVISION III, FAMILY
HONORABLE CATHERINE R. HOLDERFIELD, JUDGE
CIVIL ACTION NOS. 05-D-00162 AND 05-D-00162-001
AVA SPENCER
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI AND JOHNSON, JUDGES; HUDDLESTON, SENIOR JUDGE.1
HUDDLESTON, SENIOR JUDGE:
Kenneth Spencer appeals from a
domestic violence order issued by Warren Circuit Court.
We are
asked to decide whether under Kentucky Revised Statutes (KRS)
403.725(1), a provision of Kentucky’s domestic violence statute,
a Kentucky court may issue a protective order against an
individual over whom the court does not have personal
jurisdiction.
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
This case concerns a married couple, Ava and Ken
Spencer, who resided in Oklahoma until shortly before the
commencement of this action.
Ken allegedly subjected Ava and
their seven-year-old son, Morgan, to intimidation and physical
abuse.
On May 21, 2005, Ken flew to Las Vegas.
He testified
that the family had been planning to move there, and his trip
was intended as an opportunity for him to find employment and a
residence before Ava and Morgan joined him.
According to Ava,
she saw Ken’s trip to Las Vegas as an opportunity to escape from
the domestic abuse.
She and Morgan traveled to Kentucky on May
22, 2005, to stay with a close friend.
On May 23, 2005, Ava
filed a domestic violence petition in Warren Circuit Court.
The
court issued on Emergency Protective Order on the same day,
granting immediate relief, including restraining Ken from any
contact or communication with Ava, and granting her temporary
custody of Morgan.
The court also summoned Ken to appear in
Warren Circuit Court and assigned the Clark County, Nevada,
Sheriff’s Department as the agency for service of process.
Ken
was accordingly served in Nevada.
On June 6, 2005, Ken, through counsel, filed a Special
Entry of Appearance and Motion to Dismiss for Lack of
Jurisdiction, arguing that a Kentucky court could not
constitutionally exercise personal jurisdiction over him because
he had no contact with the state.
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After the hearing, at which
Ava testified and Ken testified via telephone, the court
announced that it would enter an Order of Protection.
When
Ken’s counsel asked the court to explain what minimum contacts
Ken had with the Commonwealth of Kentucky, the judge explained
that she was basing her decision on KRS 403.725(1), which
permits entry of such an order if “she [Ava] has fled to this
state for protection.”
This appeal followed.
Ken argues that the court did not have personal
jurisdiction over him.
At the time of the proceedings, the
parties were Oklahoma residents, and the alleged abuse took
place in Oklahoma.
Ken was served with the emergency order of
protection and summons in Nevada and testified that he intends
to remain there.
1980s.
Ken has not visited Kentucky since the mid-
Although Ava was born in Kentucky, she left when she was
a child and had not returned for thirty-five years before her
arrival on May 22, 2005.
Our first step must be to determine whether Warren
Circuit Court had personal jurisdiction over Ken.
Kentucky has
adopted a three-pronged test to determine personal jurisdiction.2
The first prong of the test asks whether the defendant
purposefully availed himself of the privilege of acting within
the forum state or causing a consequence in the forum state. The
second prong considers whether the cause of action arose from
2
See Wilson v. Case, 85 S.W.3d 589 (Ky. 2002).
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the alleged in-state activities. The final prong requires such
connections to the state as to make jurisdiction reasonable.3
“Each of these three criteria represents a separate requirement,
and jurisdiction will lie only where all three are satisfied.”4
When this three-pronged test is applied to the
circumstances of this case, we can only conclude that Warren
Circuit Court did not have personal jurisdiction over Ken.
Ken
did not purposely avail himself of the opportunity of acting
within Kentucky, or causing consequences within Kentucky; the
cause of action did not arise from activities in Kentucky; and
Ken does not have any connections to this state that would make
jurisdiction reasonable.
Yet the language of KRS 403.725 clearly envisions a
court granting a protective order when a victim of domestic
abuse has fled to this state.
According to the relevant
statutory provision,
[a]ny family member or member of an unmarried
couple who is a resident of this state or
has fled to this state to escape domestic
violence and abuse may file a verified
petition in the District Court of the county
in which he resides. If the petitioner has
left his usual place of residence within
this state in order to avoid domestic
violence and abuse, the petition may be
filed and proceedings held in the District
3
Id. at 593, citing Tube Turns Div. of Chemetron Corp. v. Patterson Co.,
Inc., 562 S.W.2d 99, 100 (Ky. App. 1978).
4
Id., citing LAK, Inc. v. Deer Creek Enterprises, 885 F.2d 1293, 1303 (6th
Cir. 1989).
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Court in the county of his usual residence
or in the District Court in the county of
current residence. Any family member or
member of an unmarried couple who files a
petition for an emergency protective order
in District or Circuit Court shall make
known to the court any custody or divorce
actions, involving both the petitioner and
the respondent, that are pending in any
Circuit Court in the Commonwealth. The
petition shall also include the name of the
court where filed.5
Commentators have recently observed that
KRS 403.725(1) permits Kentucky residents to
file for domestic violence protection, and
it also expressly allows similar filings by
persons who have fled to this state to
escape domestic violence and abuse. The
statute has no durational residency
requirement comparable to the one-hundred
eighty day residency requirement of the
divorce statute.[6] The lack of a residency
requirement, when added to the specific
language relating to persons fleeing to
Kentucky, creates a “safe harbor” statute,
namely one that is intended to protect any
victim who is physically present in Kentucky
and threatened with harm.7
The conflict arises when such an order is issued
against a defendant like Ken who has no minimum contacts with
Kentucky.
We must balance the due process rights of the
defendant against the interest of the Commonwealth in protecting
5
KRS 403.725 (1).
6
KRS 403.140.
7
LOUISE E. GRAHAM AND HON. JAMES E. KELLER, 15 KENTUCKY PRACTICE SERIES, DOMESTIC RELATIONS
LAW, § 5.2 (2006).
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the victims of domestic violence.8
The scope of jurisdiction of
a court issuing protective orders under these circumstances is
an issue of first impression in Kentucky.
We have turned
therefore to the case law of other jurisdictions.
In Delaware, where the domestic abuse statute does not
contain a “safe harbor” provision, the Family Court confronted a
factual scenario similar to that before us, where the wife was
not a bona fide resident of Delaware and the husband against
whom the order was issued had no contact with Delaware whatever.9
The court observed that the issue of personal jurisdiction
“becomes more clouded when we discuss marriage, and marriagerelated issues of custody, child support, property division, and
alimony, where it is not uncommon for parties to separate and
move to different states.”10
The court further acknowledged
that Delaware’s divorce statutes permit a bona fide resident of
the state to obtain a divorce without personal jurisdiction over
the respondent, on the grounds that a state has the right to
regulate and control the marital status of its residents.
Significantly, however, the state may not make awards affecting
property division, alimony, or child support that would
8
See Barnett v. Wiley, 103 S.W.3d 17, 19 (Ky. 2003) (“the domestic violence
statutes should be construed liberally in favor of protecting victims from
domestic violence and preventing future acts of domestic violence”).
9
10
See T.L. v. W.L., 820 A.2d 506 (Del.Fam.Ct. 2003).
Id. at 512.
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specifically place a burden and obligation on the non-resident
party.
The court concluded that
[a]lthough the State of Delaware clearly has
an important interest in fostering the
protection against domestic abuse, its power
to do so should be tempered to be sure that
it is serving bona fide residents and not
extending protective Orders against persons
lacking requisite minimum contacts with the
state.11
By contrast, the Iowa Supreme Court in Bartsch v.
Bartsch12 held that personal jurisdiction over a nonresident
husband was not required for the entry of a protective order,
likening it to a child custody determination.
Significantly,
however, the wife in Bartsch was an Iowa resident.
Finally, in Shah v. Shah,13 the Supreme Court of New
Jersey addressed a situation where a wife had sought refuge in
New Jersey, filing a complaint under New Jersey’s Prevention of
Domestic Violence Act against her husband who resided in
Illinois.
The relevant provision of the New Jersey Act is
similar to KRS 403.725(1) in that it specifically provides that
a domestic violence complaint can be brought “in a court having
11
Id. at 516.
12
636 N.W.2d 3 (Iowa 2001).
13
875 A.2d 931 (N.J. 2005).
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jurisdiction over the place . . . where the plaintiff resides or
is sheltered.”14
In its opinion, the court drew a distinction between a
prohibitory order that serves to protect the victim of domestic
violence, and an affirmative order that requires that a
defendant undertake an action.
The former, which allows the entry of an
order prohibiting acts of domestic violence
against a defendant over whom no personal
jurisdiction exists, is addressed not to the
defendant but to the victim; it provides the
victim the very protection the law
specifically allows, and it prohibits the
defendant from engaging in behavior already
specifically outlawed. Because the issuance
of a prohibitory order does not implicate
any of defendant’s substantive rights, the
trial court had jurisdiction to enter a
temporary restraining order to the extent it
prohibited certain actions by defendant in
New Jersey.15
An affirmative order, on the other hand, involves the
court attempting to exercise its coercive power to compel action
by a defendant over whom the court lacks personal jurisdiction.16
The court held that minimum contacts considerations
forbid the entry of a final restraining order because by
statutory definition it had to include affirmative relief, such
as the surrender of firearms and firearm permits, the payment of
14
Id. at 937, citing N.J. STAT. ANN. 2C:25-28a (1991).
15
Id. at 939.
16
Id.
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a civil penalty, and surcharge, and collateral consequences such
as enrollment in a central offenders registry.
In our view, the distinction made by New Jersey’s
highest court between prohibitory and affirmative orders
represents the fairest balance between protecting the due
process rights of the nonresident defendant and the state’s
clearly-articulated interest in protecting the plaintiff and her
child against domestic violence.
The order entered by Warren Circuit Court in this case
stated that “Respondent is restrained from any contact or
communication with the above-named Petitioner” and that
“Respondent shall remain at all times and places at least 1,000
feet away from Petitioner and members of Petitioner’s family or
household.”
Respondent was “restrained from disposing of, or
damaging, any property of the parties.”
The order also included
provisions forbidding the possession, transportation, shipping
and receiving of any firearm or ammunition.
A copy of the order
was forwarded to the law enforcement agency/dispatch center
responsible for entry into LINK, the computerized law
enforcement system.
Ava was awarded temporary custody of
Morgan, and Ken was ordered to attend domestic violence
counseling.
The court also verbally ordered Ken to pay child
support in the amount of $60.00 per month.
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Insofar as the order prohibits Ken from breaking the
law in Kentucky by approaching Ava or Morgan, it comports with
due process.
In all other respects, it goes beyond the
permissible limits of Kentucky courts’ jurisdiction.
We
recognize that the passage of time since the entry of the order
may well mean that the circuit court now has jurisdiction to
make custody and status determinations if Ava has continued to
reside in Kentucky.
The order from which this appeal is taken is vacated,
and the case is remanded to Warren Circuit Court for further
proceedings in accordance with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FILED FOR APPELLEE
David A. Lamphear
Bowling Green, Kentucky
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