NORMAN LEE BAIRD v. SHIRLEY D. BAIRD
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RENDERED:
DECEMBER 1, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-000520-ME
NORMAN LEE BAIRD
APPELLANT
APPEAL FROM UNION CIRCUIT COURT
HONORABLE SHELIA NUNLEY-FARRIS, JUDGE
ACTION NO. 98-D-00028
v.
SHIRLEY D. BAIRD
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
HENRY AND WINE, JUDGES; BUCKINGHAM,1 SENIOR JUDGE.
HENRY, JUDGE:
Norman Lee Baird appeals, pro se, from a decision
of the Union Circuit Court re-issuing a Domestic Violence Order
(“DVO”) against him.
Upon review, we vacate and remand for a
new hearing.
Norman and Shirley Baird were married and lived
together for 34 years until they separated on April 29, 1997
after Norman allegedly threw Shirley against a shower wall and
held a gun to her head with the threat that he would “blow her
1
Senior Judge David C. Buckingham, sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
brains out.”
Shirley subsequently left the parties’ home and
moved in with her mother for two months before finding an
apartment in Morgantown, Kentucky.
The record reflects that on
April 9, 1998, a DVO was entered against Norman after he
threatened to kill Shirley and all of her fellow employees at
the Union County Courthouse, where she worked as a deputy
circuit court clerk.
The DVO expired on April 8, 2001.
Following the expiration of the DVO, Norman
purportedly engaged in threatening behavior towards Shirley,
including following her to work, driving around her residence,
and following her when she went to visit her mother at the
hospital or nursing home.
Shirley also alleged that Norman flew
his airplane over her residence, although she could not verify
this belief.
Eventually Shirley filed a petition for another
DVO on December 29, 2002.
Following a hearing, the Union Family
Court granted Shirley’s petition and entered a DVO against
Norman on February 18, 2003 to remain in effect until February
17, 2006.
On February 1, 2006, Shirley filed a motion to extend
the DVO for another three years.
After a brief hearing
conducted on February 14, 2006, the family court extended the
DVO to remain in effect against Norman until February 17, 2009.
This appeal followed.
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On appeal, Norman raises a number of complaints
relating to the issuance of the February 18, 2003 DVO.
However,
as he neglected to appeal from that DVO when it was originally
issued, it consequently shall not be a subject of our review.
Instead, we focus our attention solely upon the family court’s
decision to extend the application of the DVO until 2009.
“The General Assembly enacted KRS2 403.715 to 403.785
as a means to allow victims of domestic violence and abuse ‘to
obtain effective, short-term protection against further violence
and abuse in order that their lives will be as secure and as
uninterrupted as possible[.]’”
Wright v. Wright, 181 S.W.3d 49,
52 (Ky.App. 2005), citing KRS 403.715(1).
KRS 403.750(1)
provides that 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[.]”
“Domestic violence and abuse” is defined to include “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 or
members of an unmarried couple[.]”
KRS 403.720(1).
“A DVO may
restrain the adverse party from certain conduct, including
contacting or communicating with the victim, committing further
acts of domestic violence and abuse, and disposing of or
2
Kentucky Revised Statutes.
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damaging any of the parties’ property.”
Kingrey v. Whitlow, 150
S.W.3d 67, 69 (Ky.App. 2004), citing KRS 403.750(1)(a)-(c).
KRS 403.750(2) specifically allows for the reissuance
of a DVO.
It reads as follows:
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 testimony
relating to the importance of the fact that
acts of domestic violence or abuse have not
occurred during the pendency of the order.
KRS 403.270(2).
We have interpreted KRS 403.750(2) as giving
courts the “authority to reissue DVOs even in the absence of
additional acts of domestic violence and abuse during the prior
period.”
Kingrey, 150 S.W.3d at 70.
As we further held in Kingrey, supra: “If a DVO has
been effective in giving protection to a victim of domestic
violence and abuse, then the district court should not be
required to reject a request to extend the effective period of
the DVO simply because no additional acts have occurred.”
Id.
“In other words, the fact that a DVO has been effective in
preventing acts of domestic violence and abuse is not a reason
to require the court to remove the protection that had
previously been afforded to the victim.
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Rather, it is merely a
factor for the court to consider when faced with a request to
reissue the DVO.”
Id.
With this said, however, we are somewhat troubled by
the brevity of the reissuance hearing conducted by the family
court.
From our review of that hearing, it appears that the
only ground given by Shirley for the reissuance of the DVO was
that her life had been “much more peaceful” over the past three
years.
While this was undoubtedly true and an important
consideration in the family court’s determination, we are
hesitant to conclude that this ground – standing alone – is
sufficient to support renewal of a DVO.
In reaching this decision, we are particularly
persuaded by Judge Knopf’s concurring opinion in Kingrey, supra.
As noted by Judge Knopf: “It is important to remember that a
person subject to a DVO is placed under significant
restrictions.
Consequently, a DVO should not be renewed merely
at the request of the petitioning party.
Rather, there must be
some showing of a continuing need for the DVO.”
concurring).
Id. (Knopf, J.,
As further noted by Judge Knopf: “In making the
decision to renew a DVO, ‘the fact that acts of domestic
violence or abuse have not occurred during the pendency of the
order’ ... is a relevant, but not a controlling factor in making
such a determination.”
403.750(2).
Id. (Knopf, J., concurring), citing KRS
Instead:
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[t]he critical issue is whether the court
finds that future acts of domestic violence
remain a reasonable probability. There may
be other conduct or circumstances, not
amounting to a violation of the prior DVO,
which may nonetheless be relevant to
considering the continuing need for the DVO.
The trial court may also consider the
nature, extent and severity of the original
acts of domestic violence. In short, a
court considering a motion to renew a DVO
may consider the totality of the facts and
circumstances in finding that acts of
domestic violence and abuse may again occur
if the DVO is allowed to expire.
Id. at 70-71 (Knopf, J., concurring).
We have recently emphasized the “enormous
significance” of DVO petitions, Wright, 181 S.W.3d at 52, and we
reiterate that significance here.
We are simply not convinced
that the family court gave proper consideration to the
restrictiveness of a DVO or all of the facts and circumstances
surrounding this case before rendering its decision.
Accordingly, we are compelled to vacate the reissued DVO and
remand this case for a new hearing taking into full account the
Kingrey and Wright opinions, including Judge Knopf’s concurrence
in Kingrey.
In reaching this decision, we make no conclusions as
to whether the evidence will ultimately support the reissuance
of a DVO.
Instead, we merely wish to ensure that proper
consideration is given to the matter in light of the “immense
impact” DVOs ultimately have on all involved parties.
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We also
reiterate that, in reconsidering this matter, the family court
should keep in mind that “the domestic violence statutes should
be construed liberally in favor of protecting victims from
domestic violence and preventing future acts of domestic
violence.”
Barnett v. Wiley, 103 S.W.3d 17, 19 (Ky. 2003),
citing KRS 500.030; see also Kingrey, 150 S.W.3d at 70, citing
KRS 403.715(1).
Accordingly, the judgment of the Union Family Court is
vacated, and this matter is remanded for further proceedings
consistent with this opinion.
BUCKINGHAM, SENIOR JUDGE, CONCURS.
WINE, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
WINE, JUDGE, DISSENTING:
Respectfully, I dissent and
would affirm the decision of the trial court to extend the
Domestic Violence Order (DVO) until February 2009.
As already
cited by the parties and the majority, KRS 403.750(2) allows for
the reissuance of a DVO for an unlimited number of times.
A
trial judge is in the unique position to see and hear the
witnesses and judge their credibility and consider the entire
history of the parties.
Reichle v. Reichle, 719 S.W.2d 442 (Ky.
1986).
The Appellant’s own brief should give pause for
concern, particularly in the section labeled “CONCLUSION.”
He
denies past abuse even though he pled guilty to two courts of
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terroristic threatening.
He accuses his wife of abusing the
legal system and he minimizes the value of a DVO.
The trial
court had the opportunity to weigh these sentiments as well as
the Appellee’s concerns.
There is nothing in the record to suggest that her
findings were clearly erroneous, or that the trial judge abused
her discretion by deciding the DVO should be extended an
additional three years.
I would respect the decision of the
trial court based upon her observations.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Norman Lee Baird, Pro Se
Sturgis, Kentucky
Shirley D. Baird, Pro Se
Morganfield, Kentucky
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