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Tracy Wolfe Appellant v. William Wolfe Appellee

February 15, 2013

TRACY WOLFE APPELLANT
v.
WILLIAM WOLFE APPELLEE



APPEAL FROM LAUREL CIRCUIT COURT HONORABLE DURENDA LUNDY LAWSON, JUDGE ACTION NO. 10-D-00063

The opinion of the court was delivered by: Stumbo, Judge:

RENDERED: FEBRUARY 15, 2013; 10:00 A.M.

TO BE PUBLISHED

OPINION

AFFIRMING

BEFORE: ACREE, CHIEF JUDGE; COMBS AND STUMBO, JUDGES.

Tracy Wolfe appeals from the denial of a domestic violence order which she sought on behalf of her child. Her claims on appeal are that the Kentucky Rules of Civil Procedure do not apply in domestic violence proceedings and that she was denied the opportunity to offer certain proof during the domestic violence hearing. We find no error and affirm.

On October 28, 2011, Ms. Wolfe filed a petition for an emergency protective order (EPO) on behalf of her daughter. The EPO was issued and Mr. Wolfe was ordered to appear for a hearing on November 7, 2011. On that date, the hearing was continued for lack of service on Mr. Wolfe. A new hearing was set for November 21. On that date, both parties appeared, along with an agent for the Cabinet for Health and Family Services (hereinafter referred to as the Cabinet). This agent said the investigation into the allegations against Mr. Wolfe had not been completed. The court continued the case until December 5 in order for the Cabinet to complete its investigation. The hearing was continued three more times due to the Cabinet's incomplete investigation. A hearing was finally held on February 23, 2012.

On February 23, both parties appeared in court with counsel. At this time, Ms. Wolfe moved for a continuance in order to obtain certified medical records from the University of Kentucky Healthcare. Ms. Wolfe, through counsel, had previously filed a notice of intent to introduce these records, but the University had refused to honor a subpoena. The University would not produce certified records without a court order. Mr. Wolfe's counsel objected to the continuance and argued that Ms. Wolfe had not obtained the certified medical records in accordance with the rules of civil procedure; i.e., that she had sought to subpoena the records without notice to Mr. Wolfe and that the certified records were not available to Mr. Wolfe to review prior to the hearing. The motion to continue was denied and the hearing began. At the close of evidence, the court dismissed the petition and this appeal followed. Further facts will be discussed as they become relevant to our analysis.

Ms. Wolfe's first argument is that the denial of a continuance to obtain medical records on the grounds she had not complied with the rules of discovery was in error. Ms. Wolfe claims that domestic violence proceedings are summary statutory proceedings to which the ordinary rules of discovery do not apply. She argues that domestic violence proceedings are designed to be quick, expeditious proceedings with a specific timeline prescribed by statute.*fn1 Because of this expedited process, she claims there would not be enough time to adhere to the rules of civil procedure.

The rules of civil procedure "govern procedure and practice in all actions of a civil nature in the Court of Justice except for special statutory proceedings, in which the procedural requirements of the statute shall prevail over any inconsistent procedures set forth in the Rules." CR 1(2).

Essentially, this makes the Civil Rules applicable to all civil actions . . . while also recognizing that those rules may not be the best approach to some types of cases, namely, "special statutory proceedings." Under CR 1, the Civil Rules still apply to such proceedings, but any procedures that the General Assembly prescribes control where they conflict with the Civil Rules.

C.C. v. Cabinet for Health and Family Services, 330 S.W.3d 83, 86 (Ky. 2011) (emphasis in original).

In C.C. v. Cabinet for Health and Family Services, supra, the Kentucky Supreme Court determined that the civil rules applied to juvenile dependency, neglect, and ...


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