GOMEZ (CHRISTOPHER ROBERT) VS. GOMEZ (AMY L.)
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RENDERED: MAY 9, 2008; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001919-ME
CHRISTOPHER ROBERT GOMEZ
v.
APPELLANT
APPEAL FROM BULLITT FAMILY COURT
HONORABLE ELISE GIVHAN SPAINHOUR, JUDGE
ACTION NO. 05-D-00262-002
AMY LYNN GOMEZ
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND NICKELL, JUDGES; KNOPF,1 SENIOR JUDGE.
DIXON, JUDGE: Appellant, Christopher Robert Gomez, appeals from a domestic
violence order (DVO) entered by the Bullitt Family Court. Finding no error, we affirm.
On August 23, 2007, Appellee, Amy Lynn Gomez, filed a domestic
violence petition in the Bullitt District Court seeking an emergency protective order
(EPO) against Appellant. The district court denied the request for an EPO on the
grounds that there was no immediate and present danger of domestic violence. See
Kentucky Revised Statutes (KRS) 403.740. However, pursuant to KRS 403.745, the
court caused a summons to be issued to Appellant and set the matter for a hearing.
Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
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On September 4, 2007, a hearing was conducted in the Bullitt Family
Court. After hearing testimony from Appellee, Appellant and Appellant’s girlfriend, the
family court entered a DVO against Appellant. This appeal followed.
Appellant first argues that under the statutory framework establishing the
domestic violence process, KRS 403.715 through KRS 403.785, the family court lacked
the jurisdictional authority to either hold the hearing or enter the DVO in question.
In 2002, an amendment to Section 112 of the Kentucky Constitution
authorized the creation of a family court division within the circuit court:
(6) The Supreme Court may designate one or more divisions
of Circuit Court within a judicial circuit as a family court
division. A Circuit Court division so designated shall retain
the general jurisdiction of the Circuit Court and shall have
additional jurisdiction as may be provided by the General
Assembly.
The jurisdiction of a family court is defined in KRS 23A.100:
(1) As a division of Circuit Court with general jurisdiction
pursuant to Section 112(6) of the Constitution of Kentucky, a
family court division of Circuit Court shall retain jurisdiction in
the following cases:
(a) Dissolution of marriage;
(b) Child custody;
(c) Visitation;
(d) Maintenance and support;
(e) Equitable distribution of property in dissolution
cases;
(f) Adoption; and
(g) Termination of parental rights.
(2) In addition to general jurisdiction of Circuit Court, a family
court division of Circuit Court shall have the following
additional jurisdiction:
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(a) Domestic violence and abuse proceedings under
KRS Chapter 403 subsequent to the issuance of an
emergency protective order in accord with local
protocols under KRS 403.735;
(b) Proceedings under the Uniform Act on Paternity,
KRS Chapter 406, and the Uniform Interstate Family
Support Act, KRS 407.5101 to 407.5902;
(c) Dependency, neglect, and abuse proceedings
under KRS Chapter 620; and
(d) Juvenile status offenses under KRS Chapter 630,
except where proceedings under KRS Chapter 635 or
640 are pending.
(3) Family court divisions of Circuit Court shall be the
primary forum for cases in this section, except that nothing in
this section shall be construed to limit the concurrent
jurisdiction of District Court.
Appellant argues that the language of KRS 23.100(2)(a) vests jurisdiction
over domestic violence proceedings exclusively in the district court until and unless that
court issues an emergency protective order. Thus, under Appellant’s interpretation, the
Bullitt Family Court did not obtain jurisdiction because the district court declined to issue
an EPO. We disagree.
The district court is a court of limited jurisdiction. KRS 24A.010. The
district court retains exclusive jurisdiction to make final disposition over criminal
misdemeanors; civil cases in which the amount in controversy does not exceed $4,000,
exclusive of interests and costs; matters of probate, except matters contested in an
adversary proceeding; matters not provided for by statute to be commenced in circuit
court and thus deemed non-adversarial; and juvenile matters in which jurisdiction is not
vested in another court. KRS 24A.110 - 24A.130. Clearly, nothing within the language
of KRS Chapter 24A grants district courts exclusive jurisdiction in domestic violence
proceedings.
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In fact, KRS 23A.100(3) specifically dictates that family courts “shall be the
primary forum for cases in this section, except that nothing in this section shall be
construed to limit the concurrent jurisdiction of District Court.” We are of the opinion
that such language is clear – while family court is the primary forum for matters
concerning domestic violence and abuse, the district court has concurrent jurisdiction to
enter protective orders under KRS 403.725. Use of the term "primary forum" clearly
indicates that the General Assembly did not intend for the statute to affect a
jurisdictional limitation, but rather to emphasize that the purposes underlying the
creation of family courts as set out in KRS 23A.110 are best fulfilled when domestic
cases proceed in family court.
Nor do we find any language in the domestic violence and abuse statutes,
KRS 403.710 et seq., to support Appellant’s position that district courts retain exclusive
jurisdiction over domestic violence matters unless an EPO is issued. KRS 403.725
refers to domestic violence petitions filed in both district and circuit courts. See
generally Graham & Keller, Kentucky Practice-Domestic Relations, §5:9 (2008). Of
significance to this case is the fact that at the time of the hearing, a petition for
dissolution was pending in the circuit court. Under KRS 403.725(4), “If a family member
files an action for dissolution of marriage or child custody in Circuit Court, the Circuit
Court shall have jurisdiction to issue a protective order upon the filing of a verified
motion therein either at the commencement or during the pendency of the action in
Circuit Court . . . .”
We are of the opinion that while the General Assembly intended to grant
district courts the concurrent authority to issue EPOs, such authority is not exclusive
and does not impinge on the family court’s jurisdiction over domestic violence and
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abuse proceedings. To interpret the statutes otherwise would directly contravene the
purpose of the family court as enunciated in KRS 23A.110:
The additional jurisdiction of a family court division of Circuit
Court shall be liberally construed and applied to promote
its underlying purposes, which are as follows:
....
(2) To protect children and adult family members from
domestic violence and abuse. (Emphasis added.)
As our Supreme Court noted in Barnett v. Wiley, 103 S.W.3d 17, 19 (Ky.
2003), “domestic violence statutes should be construed liberally in favor of protecting
victims from domestic violence and preventing future acts of domestic violence.” See
also KRS 500.030 (“All provisions of this code shall be liberally construed according to
the fair import of their terms, to promote justice, and to effect the objects of the law.”).
Having determined that the family court did, in fact, have jurisdiction to
issue the DVO herein, we next turn to the question of whether the evidence supported
such. We conclude that it did.
Before issuing a domestic violence order, the trial court must first conduct a
hearing and find by a preponderance of the evidence “that an act or acts of domestic
violence and abuse have occurred and may again occur . . . .” KRS 403.750(1). The
preponderance of the evidence standard is met when sufficient evidence establishes
that the alleged victim “was more likely than not to have been a victim of domestic
violence.” Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996). KRS
403.720(1)defines “[d]omestic violence and abuse” as “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[.]”.
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Kentucky Rules of Civil Procedure (CR) 52.01 provides that a trial court’s
findings of fact may be set aside if clearly erroneous. However, we are mindful that in
reviewing the decision of a trial court the test is not whether we would have decided it
differently, but whether the court’s findings were clearly erroneous or that it abused its
discretion. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982). Abuse of discretion
occurs when a court's decision is unreasonable or unfair. Kuprion v. Fitzgerald, 888
S.W.2d 679, 684 (Ky. 1994). (citations omitted).
Under this standard, we cannot conclude that the family court's decision to
enter the DVO against Appellant was clearly erroneous, or an abuse of discretion. As
the family court noted during the hearing, its decision hinged on an assessment of the
credibility of the witnesses.
[T]he trier of fact has the right to believe the evidence
presented by one litigant in preference to another. The trier
of fact may believe any witness in whole or in part. The trier
of fact may take into consideration all the circumstances of
the case, including the credibility of the witness.
Anderson, supra, at 278 (internal citations omitted).
After hearing the testimony from Appellant, Appellee, and Appellant’s
girlfriend, the family court chose to believe Appellee’s version of events, concluding that
an act of domestic violence had occurred and Appellee was the victim. Further, the
court heard testimony from Appellee that Appellant had threatened her in the past and
that she was fearful of him. Thus, we are of the opinion that Appellee established by a
preponderance of the evidence “that an act or acts of domestic violence and abuse
have occurred and may again occur.” KRS 403.750(1). Thus, the family court’s
issuance of the DVO was not clearly erroneous.
We affirm the Bullitt Family Court’s issuance of a DVO against Appellant,
Christopher Robert Gomez.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David B. Mour
Louisville, Kentucky
Amy L. Gomez, Pro Se
Louisville, Kentucky
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