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Marchese v. Aebersold

Supreme Court of Kentucky

September 28, 2017

STEPHEN MARCHESE APPELLANT
v.
ALLISON AEBERSOLD APPELLEE

         ON REVIEW FROM COURT OF APPEALS CASE NO. 2016-CA-000262-MR JEFFERSON CIRCUIT COURT NOS. 16-D-500129 AND 16-D-500129-001

          COUNSEL FOR APPELLANT: Ryan C. Vantrease.

          COUNSEL FOR APPELLEE: Courtney Kellner

          OPINION OF THE COURT BY JUSTICE VENTERS

         REVERSING

         Appellant, Stephen Marchese, appeals from a decision of the Court of Appeals which affirmed the Jefferson Family Court's issuance of a Domestic Violence Order (DVO) upon a petition filed by Appellee Allison Aebersold. As grounds for relief, Marchese presents three arguments: (1) the trial court improperly considered and relied upon extrajudicial evidence; (2) the extrajudicial evidence, even if properly received, was inadmissible hearsay; and (3) the DVO was issued against Marchese in violation of his due process rights.

         Upon discretionary review, we conclude that the trial court committed structural error and that its use of extrajudicial evidence from an undisclosed source was improper. Accordingly, we reverse the Court of Appeals' opinion, vacate the DVO, and remand for additional proceedings consistent with this opinion.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Marchese and Aebersold had a romantic relationship. The couple broke up in January of 2016. A few days later Aebersold petitioned the Jefferson Family Court for an emergency protective order (EPO) and the corresponding domestic violence order (DVO). Her petition alleged that she and Marchese "have been apart for a few days now and [Marchese] will not leave me alone, he is stalking me showing up in my driveway at night. . . ." The court entered an EPO and set a hearing date for the statutorily-mandated DVO hearing.

         At the DVO hearing, both parties appeared pro se. Aebersold testified that Marchese had never hit her, but that he had shoved her when he was drunk. She also testified that after the issuance of the EPO, he parked in his car in her driveway, he asked third parties to contact her on his behalf, he sent text messages to her mother threatening to post sexually explicit photographs of Aebersold on the internet, and he repeatedly contacted her through social media. Aebersold testified that Marchese was very controlling and manipulative; that he would not leave her alone; and that he had shown up in her driveway at night on an unspecified number of occasions.

         Aebersold's mother, Whitney Aebersold, testified that while the couple was together Marchese tried to prevent her from talking on the phone to her daughter. Whitney said that she had urged Marchese to leave her daughter alone. She also confirmed that Marchese threatened to post on the internet sexually explicit photographs of himself and Aebersold.

         Marchese admitted that he had threatened to post the embarrassing photographs. He admitted that he repeatedly tried to contact Aebersold . because they had "made a pact to not give up on each other." He denied obstructing Whitney's efforts to contact Aebersold. He also denied that he tried to contact her through a third party, stating that he had only asked friends about her, but had never asked them to contact her. Marchese also testified that he would soon relocate in New Hampshire and no longer had any desire to contact Aebersold.

         Marchese's brother, Paul, testified that Marchese did not have a violent history. He said he had never seen any domestic violence occur between Aebersold and Marchese. Paul also testified that Marchese's work schedule would not have allowed him to stalk Aebersold. Amy Green, a woman who had formerly lived with Marchese, testified that she had never seen him engaged in domestic violence. She also said that his work schedule would not have allowed him to stalk Aebersold.

         After hearing the testimony, the trial judge called for a brief recess and asked Marchese for his social security number. He complied, but apparently did so with some hesitation. When the hearing reconvened, the trial judge began with a review of the evidence that had been presented; she described what she perceived as Marchese's reluctance to give his social security number as a "red flag." The judge then said: "we have [Marchese's social security number]" and Ve also have [Marchese's] record from other states:" The judge then announced: "You have an assault and battery from Virginia Beach, " to which Marchese responded, "It should have been dropped." The trial judge replied: "Well, it wasn't. . . Your brother testified that you have never been violent." The trial judge then stated to Marchese that he had "engaged in every manipulative behavior that she had ever seen." Marchese attempted to respond but the trial court commanded him to stop, and then finished her recitation of the evidence. The trial court then announced from the bench that the DVO would be granted. The judge next instructed Marchese to wait outside the courtroom for his copy of the order. At no time did the trial judge disclose the source of her knowledge of the alleged Virginia Beach assault conviction or describe the legal grounds upon which that information was interjected into the DVO hearing; nor did the judge give Marchese an opportunity to address the issue.

         The judge wrote the following findings on the docket sheet:

1) [Marchese] has exerted controlling behavior oyer Petitioner, limiting her contact w/ family and friends;
2) [Marchese] uses humiliation tactics to control Petitioner;
3) [Marchese] stalked Petitioner, parking in her driveway at night & inquiring of her through 3rd parties after ...

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