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Ashley v. Ashley

Court of Appeals of Kentucky

May 5, 2017



          BRIEF FOR APPELLANT: Adam Cart Elizabethtown, Kentucky.

          BRIEF FOR APPELLEE: Barry Birdwhistell Elizabethtown, Kentucky.



          LAMBERT, J., JUDGE.

         Michael Ashley has appealed from the Hardin Family Court's domestic violence order (DVO) and the order denying his motion to reconsider the entry of the DVO. Because we hold that the family court did not abuse its discretion in entering the DVO, we affirm the orders on appeal.

         This matter began with the filing of a petition for an order of protection on August 31, 2016, by Michael's wife, Ashley Ashley, on her and their three minor children's behalf. In the petition, Ashley stated that two days before, on August 29, 2016,

My husband & I got into an argument. He threatened to have the kids taken away from me since the house was a wreck. He picked up the phone & said "911." Then he continued to yell at me, threw the phone at me but it missed & hit the pantry, & then he came in the kitchen & hit my wrist as I was fixing supper, causing my fingers to hit the bowl. I told him not to touch me & he started screaming more & I thought he was going to hit me but then 911 called back. He had been drinking and left before the cops showed up. All three of our children were in the house & witnessed all of this & were hysterical. He has access to the house & came back twice the next day & made me very uncomfortable. His behavior through texts & phone calls since has been very unpredictable, including threatening to end his own life.

         The court entered an emergency protective order (EPO) the same day, granted temporary custody of the children to Ashley, and notified Michael of the scheduled DVO hearing through service of the EPO.

         The court held the DVO hearing on September 12, 2016. At the start of the hearing, Ashley's counsel indicated that a dissolution petition had been filed and that she was seeking a six-month order with exceptions fashioned to permit Michael to see the children's sporting events. Ashley testified about the events of August 29, 2016, when she and Michael got into an argument that escalated. He screamed at her and threatened to call CPS to take the children away from her because the house was a mess. He called and hung up on 911. The children were upset, and Ashley went into the kitchen to remove herself from and de-escalate the situation. Michael followed her into the kitchen, where she was trying to make supper, and hit her across the arm, causing her hand to hit a bowl. She thought he was going to hit her again when 911 called back. Michael had been drinking, and he left the house at that time. She was concerned for her safety.

         Michael was not represented by an attorney and asked for legal representation. The court did not have any statutory authority to appoint an attorney for him in this action. Rather, Michael would have to hire an attorney. Michael opted to tell his side of the story rather than having the matter passed for a week to allow him to hire an attorney. Michael testified that he and Ashley had not been getting along for three or four months. The day of the incident, Ashley was mad at him because he did not help get the football helmets at football practice. She told him she wanted him to leave. He admitted to having been drinking, and he followed Ashley into the kitchen to ask her why she wanted him to leave. A piece of a tortilla chip came out of his mouth and landed on her arm, and he smacked it off of her arm. Michael had never laid a hand on her the whole time they had been together. He said he was going to call 911 to have CPS take the children because the house was a mess, but he changed his mind when his son came into the kitchen. He admitted that he used too much force to knock the chip from Ashley's arm and apologized for doing that. Michael was going to start anger management classes in October. Ashley said she was scared when he hit the chip off of her arm and that she did not know what would have happened if 911 had not called back. She said he sent her a text message that night stating he was going to kill himself.

         At the conclusion of the hearing, the court entered a six-month DVO, effective until March 12, 2017, finding that by a preponderance of the evidence, Michael had committed an act of domestic violence and that it may again occur. Michael was restrained from committing further acts of abuse or threats of abuse, stalking, or sexual assault; from any unauthorized contact or communication with Ashley and the children; to remain 500 feet away from Ashley and the children; from being within 500 feet of the marital residence; and from disposing of or damaging any of the parties' property. Michael was permitted to attend all of the children's games and practices, but was not permitted to have any interaction with Ashley. Ashley was given temporary custody of the children, and Michael was permitted to visit with the children from 2:00 p.m. to 5:00 p.m. on Sundays, supervised by the maternal grandmother. The court ordered Michael to participate in counseling services, including Certified Domestic Violence Batterer Intervention, to obtain mental health and drug/alcohol evaluations and to follow the recommendations, and to take age appropriate parenting classes. The court scheduled a show cause hearing for October to make sure Michael was complying with its orders.

         Michael, through an attorney, moved the family court to reconsider or vacate the DVO because the court held the DVO hearing while Michael was without counsel despite his concern that he might need an attorney to protect his interests. He stated that he had never performed any criminal acts related to violence or threatened violence, and he had never been accused of being a threat to his wife during their 18-year marriage. Ashley waited two days before filing her petition, after he had texted her to say that he was obtaining his own residence and wanted to have shared custody of the children. Finally, he argued that the evidence did not support the entry of the DVO. The only physical contact he had with Ashley was when he smacked a tortilla chip from her arm, which did not amount to a physical injury or inflict the fear of imminent injury on her. There was no evidence of threats of harm to the children.

         The court held a hearing on the motion, where Michael argued that the evidence did not support the entry of the DVO. Ashley objected to the motion, stating that Michael admitted on the record to striking her when the children were present and that he had been drinking. She said she filed the original petition two days later after Michael returned to the house unannounced and she was afraid for her and the children's safety. The court stated that based upon the testimony that Michael was intoxicated and inferences that more was going on, Ashley had a legitimate reason for being ...

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