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Erwin v. Cruz

Court of Appeals of Kentucky

January 31, 2014

KENNETH R. ERWIN, JR., APPELLANT
v.
SANDRA A. CRUZ (NOW BULLINGTON), APPELLEE

APPEAL FROM ALLEN CIRCUIT COURT. HONORABLE G. SIDNOR BRODERSON, JUDGE. ACTION NO. 11-D-00033.

BRIEF FOR APPELLANT: Kenneth R. Erwin, Jr., Pro se, Louisville, Kentucky.

NO BRIEF FOR APPELLEE.

BEFORE: COMBS, DIXON, AND VANMETER, JUDGES. ALL CONCUR.

OPINION AND ORDER

Laurance B. VanMeter, J.

Kenneth R. Erwin, Jr. appeals from the Allen Circuit Court order denying his motion

Page 235

to vacate the Domestic Violence Order (" DVO" ) entered against him. For the following reasons, we dismiss this appeal as untimely filed.

Sandra Cruz, now Sandra Bullington, filed for an Emergency Protective Order (" EPO" ) on October 2, 2011, requesting that the court restrain Erwin from any further contact with her. The petition for EPO stated that Bullington no longer wished to have contact with Erwin, but she feared Erwin would turn violent if she asked him to leave. Bullington also noted in the petition that she was expecting Erwin's child.

The court issued an EPO the same day, and also issued a summons ordering Erwin to appear at a hearing on October 4, 2011. At that hearing, Bullington testified that on October 2, 2011, she was fearful of Erwin. Bullington stated that Erwin had been violent toward her in the past, once biting her along her jaw line and once pressing his arm to her neck. Bullington claimed that Erwin had also threatened the lives of her and her family. At the time of the hearing, Bullington was pregnant, and she testified that Erwin was the father of her unborn child. As permitted by KRS 403.741[1], the trial court considered Erwin's criminal history in making its decision, which included a history of violent crimes. The trial court concluded that issuing a DVO against Erwin was proper and entered the DVO on October 4. Under its terms, Erwin was restrained from committing any further acts of violence or abuse, prohibited from any future contact or communication with Bullington, and ordered to stay at least 300 feet from Bullington at all times, except for court appearances.

On October 10, Bullington filed a motion to vacate the DVO, which was noticed to be heard on October 18. During the interim, Bullington and Erwin's child was born on October 14, 2011.[2] Unfortunately, Erwin was incarcerated for violating the DVO by visiting Bullington in the hospital after the birth of the child. This violation of law also resulted in a parole violation, and the parole board ordered Erwin to serve out the full term of his sentence.[3] Upon hearing the motion to vacate the DVO, on November 1, 2011, the trial court granted in part only to amend the order to allow Erwin to have supervised visitation with his child. Erwin did not appeal the entry of the original DVO or this amendment.[4] We note that Erwin was present at both the October 4 and November 1 hearings.

On May 2, 2013, Erwin filed a motion to vacate the DVO pursuant to KRS 403.750. After a hearing on May 14, at which Erwin apparently participated by telephone, the trial court denied the motion by entering on its docket sheet, " Respondent's motion to 'vacate' the domestic violence order

Page 236

herein pursuant to KRS 403.750 is denied." Erwin now ...


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