RANKIN (MICHAEL WAYNE) VS. CRISWELL (PENNY), ET AL.
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RENDERED: DECEMBER 31, 2008; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-002486-ME
MICHAEL WAYNE RANKIN, SR.
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JOAN L. BYER, JUDGE
ACTION NO. 05-D-501056
PENNY CRISWELL, INDIVIDUALLY;
AND PENNY CRISWELL, ON BEHALF OF
ANGELICA JESSIE AND MICHAEL RANKINS, JR.
APPELLEE
OPINION AND ORDER
** ** ** ** **
BEFORE: LAMBERT, STUMBO, AND THOMPSON, JUDGES.
THOMPSON, JUDGE: Michael Rankin, Sr. appeals from a domestic violence
order (DVO) entered against him by the Jefferson Family Court which precludes
him from having any contact with his former wife, Penny Criswell, and their two
minor children. We agree with his claim that the family court failed to conduct a
full evidentiary hearing as required by our domestic violence statutes and,
therefore, remand the case for a hearing.
The record before this court includes thirty pages of court documents
and a tape of the approximately seven minute DVO hearing. From the record, we
recite the facts.
In April 2005, Penny filed a domestic violence petition against
Michael alleging that Michael had physically threatened the children. According
to Penny’s affidavit filed with the petition, the children resided with Michael from
August 2004 until March 2005. The court’s notations on the DVO entered in 2005
indicate that the petition was dismissed based on the condition that the “parties
cooperate.”
On October 19, 2007, Penny filed a second domestic violence petition
wherein she alleged the following:
THE RSP IS PETR’S EX HUSBAND PTYS HAVE
BEEN DIVORCED 6 YRS. PTYS HAVE 2 CHILDREN
IN COMMON 13, 10 YRS. OLD. ON 10/19/07 THE
PTR’S MOTHER INFORMED THE PTR THAT THE
PTYS 13 YEAR OLD DAUGHTER WAS MOLESTED
BY THE RSP THE MNR’S FATHER WHEN THE
MNR WAS APROX. 5-6 YRS OF AGE. THE MNR
TOLD A FRIEND AND WORD GOT BACK TO THE
PTR’S MOTHER. THE PTR TALKED W/ THE
COUNSEL AT THE SCHOOL WHERE THE MNR’S
FRIEND ATTENDS. COUNSELOR TALKED
SEPARTLEY W/ THE PTR AND THE MNR’S
FRIEND. THE PTR WENT TO THE MNR’S SCHOOL
AND TOOK THE MNR OUT OF SCHOOL AND
LUNCH TO TALK W/ THE MNR. THE MNR
OPENED UP ENOUGH TO INFORM THE PTR
WHAT TOOK PLACE. THE PTR WAS INFORMED
BY CRIMES AGAINST CHILDREN TO FILE AN
EPO. THE PTR WANTS THE RSP TO HAVE NO
CONTACT W/PTYS CHILDREN.
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An emergency protective order (EPO) was entered, and a hearing was scheduled
for October 29, 2007.
Both parties appeared at the hearing without legal representation. The
family court placed each party under oath and then addressed Penny. The
allegations in the petition were read aloud by the court; the court, however, did not
admit the petition as evidence nor did the court question Penny as to whether the
allegations were true.
Following its brief colloquy with Penny, the court silently read two
separate dependency case files pending in the family court. Because the court did
not read any portion of the files aloud and the files were not included in the DVO
file, this court is not aware of their content. However, after perusing the files, the
court inquired whether Michael desired to make any statement, to which he
responded with a denial of having engaged in any harmful conduct toward his
children. The court then asked if Michael recalled that in 1998 he pled guilty to a
misdemeanor for the sexual abuse of his daughter. Michael responded that he had
entered an Alford plea.
The court then directed a final question to Penny; specifically, it
inquired as to why the facts alleged in the petition were “new news.” Penny began
to explain that her daughter repressed the alleged sexual abuse but, before she
completed her sentence, the court interrupted and no further details were revealed.
The court then stated: “Here’s the deal Mr. Rankin. I don’t know whether or not
you did it or not but you already pled guilty to sexual abuse of this child.” After
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again making reference to the dependency files, the court stated that an order
would be entered prohibiting contact with the children “until the criminal matter is
resolved or until the order expires.”
A DVO was entered on October 27, 2007. Consistent with the court’s
oral pronouncement, it prohibited any contact between the children and Michael
and further extended the no contact provision to Penny. Unlike the court’s verbal
reference to resolution of the criminal matter, the DVO states it is effective for a
period of three years.
Michael argues that the court did not conduct a full evidentiary
hearing on the merits of the DVO petition and, as a result, there was insufficient
evidence upon which to enter the DVO. Penny did not file a responsive brief.
The domestic violence statutes are contained in KRS 403.715 to
403.785. They were enacted for the purpose of permitting victims of 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[.]” KRS
403.715. Domestic violence is defined 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[.]” KRS 403.720(1).
A DVO proceeding is a civil matter that requires that the court find
from “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). Under the
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preponderance standard, the evidence must establish that the alleged victim was
more likely than not to have been a victim of domestic violence. Wright v. Wright,
181 S.W.3d 49, 52 (Ky.App. 2005).
Although domestic violence proceedings are not criminal matters, the
significant consequence for both parties was artfully explained in Wright and is
worthy of repeating:
If granted, it may afford the victim protection from
physical, emotional, and psychological injury, as well as
from sexual abuse or even death. It may further provide
the victim an opportunity to move forward in establishing
a new life away from an abusive relationship. In many
cases, it provides a victim with a court order determining
custody, visitation and child support, which he or she
might not otherwise be able to obtain. The full impact of
EPOs and DVOs are not always immediately seen, but
the protection and hope they provide can have lasting
effects on the victim and his or her family.
On the other hand, the impact of having an EPO or DVO
entered improperly, hastily, or without a valid basis can
have a devastating effect on the alleged perpetrator. To
have the legal system manipulated in order to “win” the
first battle of a divorce, custody, or criminal proceeding,
or in order to get “one-up” on the other party is just as
offensive as domestic violence itself. From the prospect
of an individual improperly accused of such behavior, the
fairness, justice, impartiality, and equality promised by
our judicial system is destroyed. In addition, there are
severe consequences, such as the immediate loss of one's
children, home, financial resources, employment, and
dignity. Further, one becomes subject to immediate
arrest, imprisonment, and incarceration for up to one year
for the violation of a court order, no matter what the
situation or circumstances might be.
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Id. at 52. The court sympathized with the family courts and the heavy dockets
under which they must perform their duties and the need to operate with speed and
efficiency. Nevertheless, it cautioned, the courts are required to provide each party
with a full evidentiary hearing. Id. at 53.
This case presents a fact situation strikingly similar to that in Wright.1
Nathan Wright’s wife, Jamie, filed a DVO petition. The court granted an EPO and
scheduled a hearing. However, on the hearing date, the court only heard
arguments from counsel and, in reliance on its extraneous knowledge that a 911
call had been made to the residence and that a neighboring county had removed the
parties’ children from the parties’ custody, granted the DVO. The appellate court
held that the trial court’s failure to question the parties and its reliance on
extrajudicial evidence necessitated reversal.
We likewise hold that Michael was not afforded a full evidentiary
hearing. There was absolutely no testimony or other evidence in support of the
petition, and none was solicited by the court. Instead, the court relied solely on the
contents of the petition and the records in the dependency cases referred to during
the hearing.
A petition may support an EPO; however, a DVO has significant
long-term consequences for both parties and cannot be granted solely on the basis
of the contents of the petition. Penny was not asked whether the statements
1
Wright involved two separate appeals that presented identical issues of law. The fact situation
presented by appeal 2005-CA-000540-ME, filed by Nathan J. Wright, is similar to the present
case.
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contained in the petition were accurate, nor did she testify in regard to the alleged
sexual abuse. Moreover, the allegations in the petition are vague as to when the
alleged abuse occurred, the nature of the abuse, and whether it is the same conduct
that led to Michael’s prior conviction.
Finally, we emphasize that a DVO petition is subject to the same
evidentiary standards as other forms of evidence. See Dawson v. Commonwealth,
867 S.W.2d 493, 496-497 (Ky.App. 1993). Unless an exception applies, hearsay
contained in the petition cannot be considered as evidence. The court erroneously
relied on Penny’s petition, which contains hearsay statements allegedly made by
the child that were repeated to Penny by a third-party.
Absent the contents of the petition, the only knowledge the court had
regarding the parties was gained from the dependency files. The files were read
silently by the court without admitting them as evidence and without informing the
parties as to their contents. The court erred when it considered the files which
were not evidence and to which Michael had no opportunity to examine or refute.
We are cognizant of the family court’s onerous docket and the
dilemma when the parties are unrepresented by counsel. However, because of the
impact of a DVO on the family, the court must provide a full evidentiary hearing
conducted in compliance with statutory and court rules.
The hearing conducted in this case was woefully inadequate to meet
the full evidentiary hearing required; therefore, we must remand the case for
further proceedings. On remand, the court shall question the petitioner under oath
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as to the allegations in the petition and shall give Michael the opportunity to
respond. Because a DVO can be entered only after the court finds that there is an
immediate and present danger of domestic violence, at a minimum, the statute
requires the following: (a) specific evidence of the nature of the abuse; (b)
evidence of the approximate date of the respondent’s conduct; and (c) evidence of
the circumstances under which the alleged abuse occurred. After conducting the
evidentiary hearing, the court must then decide whether, under the preponderance
of the evidence standard, domestic violence has occurred and may occur again. As
to the duration of the order, it is not dependent on the result of the criminal matter.
The standard of persuasion in a DVO is not the heightened criminal standard of
beyond a reasonable doubt. As a result, acquittal on a criminal charge arising from
domestic violence does not preclude the effectiveness of a DVO.
Based on the foregoing, the DVO is remanded for a hearing consistent
with this opinion. However, because the DVO serves a significant purpose and for
the protection of the children and the petitioner, IT IS HEREBY ORDERED that
the DVO shall not be vacated until forty-five (45) days following the issuance of
this Opinion in order to allow the family court time to conduct necessary
proceedings.
ALL CONCUR.
/s/ Kelly Thompson
JUDGE, COURT OF APPEALS
ENTERED: December 31, 2008
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark Hyatt Gaston
Louisville, Kentucky
No brief filed
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