COOREMAN (CHAD ALAN) VS. COOREMAN (KATIE RENEE)
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RENDERED: JANUARY 14, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000974-ME
CHAD ALAN COOREMAN
v.
APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE SHEILA N. FARRIS, JUDGE
ACTION NOS. 2010-D-00026 & 2010-D-00026-001
KATIE RENEE COOREMAN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: NICKELL AND VANMETER, JUDGES; SHAKE,1 SENIOR JUDGE.
VANMETER, JUDGE: Chad Alan Cooreman appeals from a Domestic Violence
Order (“DVO”) issued against him by the Henderson Family Court. For the
following reasons, we affirm.
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Senior Judge Ann O’Malley Shake sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS)
21.580.
Chad and Katie Cooreman were married in Kentucky on August 1, 2009,
and thereafter moved to Minnesota, where they were living when the events
occurred which gave rise to this action. On March 9, 2010, Katie filed a domestic
violence petition in Henderson County, Kentucky, alleging that on February 11,
2010, Chad threatened to cut her with a piece of glass and, on the following day,
pushed her down and would not allow her to leave the house. Katie claimed that
when she escaped from the house early the next morning, Chad chased her down
the street. Kate had a friend pick her up and she remained in Minnesota for a
week, when her parents picked her up and brought her back to Kentucky. Katie
further claimed that she was afraid of Chad and what he might do.
At a hearing on the matter, Chad, through counsel, made a special
appearance to argue that the Henderson Family Court lacked personal jurisdiction
over Chad since he lived in Minnesota and the alleged events occurred in
Minnesota. Ultimately, the court issued a DVO against Chad. This appeal
followed.
Chad argues the trial court erred by issuing the DVO because (1) it lacked
personal jurisdiction over him and (2) the “safe harbor” provision of KRS 403.725
does not apply. We agree that the trial court lacked personal jurisdiction over
Chad, but affirm the issuance of the DVO under KRS 403.725.
In Kentucky, a three-pronged test is employed to determine personal
jurisdiction. Spencer v. Spencer, 191 S.W.3d 14 (Ky.App. 2006). First, we must
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determine whether the defendant purposefully availed himself of the privilege of
acting within, or causing a consequence, in Kentucky. Id. at 16. Second, we
consider whether the cause of action arose from activities that occurred in
Kentucky. Id. Third, connections to the state must exist so as to make jurisdiction
reasonable. Id. In summary, jurisdiction will only lie where all three prongs are
satisfied. Id. at 16-17.
Applying the three-prong test to the present case, we conclude that the trial
court lacked personal jurisdiction over Chad. Chad did not purposefully avail
himself of acting within, or causing a consequence, in Kentucky; the cause of
action did not arise from activities that occurred in Kentucky; and Chad does not
have any connections to Kentucky that would make jurisdiction reasonable.
However, under 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. Spencer, 191
S.W.3d at 19. KRS 403.725(1) provides that “[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.” (emphasis added).
In Spencer, this court applied KRS 403.725 to uphold a protective order in a
factual situation similar to that presented herein. In that instance, a wife residing in
Oklahoma with her husband moved to Kentucky the day after her husband traveled
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to Las Vegas on a trip. Upon moving to Kentucky, the wife filed a domestic
violence petition in Kentucky and the circuit court issued a protective order.
On appeal, this court noted that when the respondent has no minimum
contacts in Kentucky, the court must balance the due process rights of the
nonresident respondent against the Commonwealth’s interest in protecting victims
of domestic violence. Id. at 17 (citing 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”)). In reaching the proper balance, this court distinguished between a
prohibitory order that serves to protect the victim of domestic violence and an
affirmative order that requires a respondent to undertake action. Spencer, 191
S.W.3d at 17 (citing Shah v. Shah, 184 N.J. 125, 875 A.2d 931 (2005) (an order
that only prohibits acts of domestic violence by a respondent over whom no
personal jurisdiction exists is permissible)). This court held that to the extent the
trial court’s order prohibited the husband from breaking the law in Kentucky by
approaching the wife, it comported with due process. Spencer, 191 S.W.3d at 19.
In the present case, Chad attempts to distinguish Spencer on the basis that in
that case, the wife’s leaving Oklahoma at the first opportunity to do so, and filing a
domestic violence petition within one day of arriving in Kentucky, demonstrates
that she “fled” domestic abuse, whereas Katie’s actions do not. He emphasizes
that Katie waited a week to leave Minnesota after the alleged abuse occurred and
waited approximately one month before filing the domestic violence petition in
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Kentucky. He argues that Katie’s delayed action does not support a finding that
she “fled” Minnesota so as to justify issuance of the DVO under KRS 403.725;
rather, the evidence shows that she left Minnesota to return to her parents’ home
and then decided to seek a DVO.
However, the determination as to whether Katie “fled” Minnesota under
these circumstances is a factual finding to be made by the trial court and its
findings “shall not be set aside unless clearly erroneous.” Gosney v. Glenn, 163
S.W.3d 894, 898 (Ky.App. 2005). A factual finding is not clearly erroneous if
supported by substantial evidence. Id. (citations omitted). Furthermore, “due
regard shall be given to the opportunity of the trial court to judge the credibility of
the witnesses as fact-finder, the trial court is in the best position to determine the
credibility of witnesses.” CR2 52.01. See also Uninsured Employers’ Fund v.
Garland, 805 S.W.2d 116, 118 (Ky. 1991) (“It is within the province of the factfinder to determine the credibility of witnesses and the weight to be given the
evidence.”) (citation omitted).
Here, we are unable to say that the evidence did not support a finding that
Katie “fled” Minnesota to escape from domestic violence and abuse. Furthermore,
Chad has provided no authority establishing that the timeframe in which Katie left
Minnesota and filed the DVO is controlling on the issue of whether she “fled”
Minnesota. Thus, despite the fact that the trial court lacked personal jurisdiction
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Kentucky Rules of Civil Procedure.
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over Chad, the court’s issuance of the DVO was proper under KRS 403.725(1) and
comported with due process under Spencer.
The order of the Henderson Family Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory D. Simms
Louisville, Kentucky
No appellee brief
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