FROM HARRISON CIRCUIT COURT HONORABLE HEATHER FRYMAN, JUDGE
ACTION NO. 12-D-00077-002
FOR APPELLANT: Edward L. Cooley Lexington, Kentucky Michael
Robey Lexington, Kentucky.
FOR APPELLEE: Nancy Walker, pro se Cynthiana, Kentucky.
BEFORE: COMBS, D. LAMBERT AND THOMPSON, JUDGES.
LAMBERT, D., JUDGE.
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
FACTUAL AND PROCEDURAL HISTORY
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
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.
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
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.
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.
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.
ANALYSIS A. ...