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Walker v. Walker

Court of Appeals of Kentucky

May 5, 2017

JEREMY WALKER APPELLANT
v.
NANCY WALKER APPELLEE

         APPEAL FROM HARRISON CIRCUIT COURT HONORABLE HEATHER FRYMAN, JUDGE ACTION NO. 12-D-00077-002

          BRIEF FOR APPELLANT: Edward L. Cooley Lexington, Kentucky Michael Robey Lexington, Kentucky.

          BRIEF FOR APPELLEE: Nancy Walker, pro se Cynthiana, Kentucky.

          BEFORE: COMBS, D. LAMBERT AND THOMPSON, JUDGES.

          OPINION

          LAMBERT, D., JUDGE.

         Jeremy Walker appeals the decision of the Harrison Family Court to issue a domestic violence order ("DVO") against him. In his appeal he asks this Court to determine whether the doctrine of res judicata precludes the issuance of a second DVO against an individual in a situation where no new incidents of domestic violence have occurred, and a secondary issue relating to whether the trial court abused its discretion in issuing the order based on the evidence of record. We hold the answer to both of these questions, in this situation, is "no, " and, consequently, we affirm.

         I. FACTUAL AND PROCEDURAL HISTORY

         Jeremy Walker served as a law enforcement officer from 1993 until 2006, when he suffered a traumatic brain injury in the line of duty that forced his retirement. According to medical evidence in the record, he suffered damage to his frontal lobe, leaving him with a significant cognitive deficit in impulse control, severely impaired ability to adapt and respond to stress, severe depression, and chronic paranoid ideation.

         After an incident in late 2012, Nancy Walker, Jeremy's wife, sought and obtained an emergency protective order ("EPO"). Following a hearing, a DVO was issued by the trial court "by agreement of the parties." This order forbade contact between the parties for a two-year period, but was amended, at Nancy's request, on February 6, 2013, to allow "non-violent contact" during that period. The two eventually divorced.

         On November 17, 2014, as the expiration date of the DVO loomed, Nancy moved the trial court to amend the order to extend its duration for three more years. The trial court denied this request, allowing the DVO to expire on its own terms on December 17, 2014. However, on that date, the trial court entered a sua sponte order adopting the same terms as the DVO and directing that Jeremy not own or possess a firearm for a period of one year beginning on December 3, 2014. During this time, Nancy retained possession of Jeremy's two service weapons, which had been gifted to him by the Boone County Sheriff's Department upon his retirement.

         When the December 17th order expired, Jeremy requested the return of the guns. Without an EPO or DVO in effect to prevent it, Jeremy obtained an order directing Nancy to return the guns on June 15, 2016. On that same day, Nancy filed the petition, which ultimately led to this appeal, seeking new protective orders. Therein, Nancy argued that newly discovered evidence, in the form of a psychological evaluation performed in April of 2016, justified a new protective order.

         The trial court, with a new judge presiding, issued an EPO on June 15, 2016, and after a hearing, a new DVO on June 23, 2016. The trial court followed that ruling with written findings and conclusions on June 27, 2016. The court's findings included the following: Jeremy had stopped his psychological treatment (which resulted in the suspension of his disability benefits), Jeremy self-reported losing his tempter and becoming agitated easily, Jeremy blamed Nancy for the divorce, Jeremy "struggles with severe depression, chronic paranoid ideation, and . . . myriad . . . neurological concerns, " as well as impulse control problems. While the report also notes that Jeremy denied having suicidal or homicidal ideation, the trial court noted its "serious concerns about Nancy's safety-especially in the event that Jeremy were in possession of firearms." Based on the prior DVO and the concerns noted herein, the trial court concluded that the evidence established by preponderance of the evidence that an act of violence had occurred in the past, and may occur again.

         Jeremy moved to alter, amend, or vacate the second DVO on the basis of res judicata and the sufficiency of the evidence, the same arguments he advances in the instant appeal. The trial court denied his motion, and this appeal followed.

         II. ANALYSIS A. ...


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