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
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.
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
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.
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.
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 ...