FROM HARDIN FAMILY COURT HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 16-D-00363-001.
FOR APPELLANT: Adam Cart Elizabethtown, Kentucky.
FOR APPELLEE: Barry Birdwhistell Elizabethtown, Kentucky.
BEFORE: JONES, J. LAMBERT, AND MAZE, JUDGES.
LAMBERT, J., JUDGE.
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.
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.
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.
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.
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
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.
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
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 ...