FROM OLDHAM CIRCUIT COURT HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 17-D-00005-001
FOR APPELLANT: Andrew Howell LaGrange, Kentucky.
FOR APPELLEE: None filed.
BEFORE: KRAMER, CHIEF JUDGE; JOHNSON AND JONES, JUDGES.
OPINION VACATING AND REMANDING
Allen ("Tyler"), appeals from the January 13, 2017
Order of the Oldham Circuit Court granting a Domestic
Violence Order ("DVO") against him. After reviewing
the record in conjunction with the applicable legal
authorities we VACATE the DVO of the Oldham Circuit Court,
Family Division, and REMAND the matter to the court for a
full evidentiary hearing.
Allen ("Kelly") and Robert Gueltzow
("Robert") were married and had two children born
during the marriage. Kelly and Robert were eventually
divorced and Kelly married Tyler Allen ("Tyler").
On December 9, 2016, the police were dispatched to the home
of Kelly and Tyler, as a result of a 911 call placed by one
of Kelly's children. Based upon the incidents, an arrest
warrant was issued for Tyler. He was arrested on December 28,
January 9, 2017, an Emergency Protective Order was issued
against Tyler on behalf of Robert and his two minor children,
and on January 13, 2017, a hearing was conducted on
Robert's Petition for a DVO. The only witness at the
hearing was Robert, who testified what his daughter had told
him concerning the events of December 9th. Tyler
invoked his Fifth Amendment Right not to testify since he was
facing criminal charges as a result of his arrest. Kelly was
present at the DVO hearing but did not testify. The court
issued the DVO against Tyler on January 13, 2017.
reviewing a trial court's issuance of a DVO we review the
trial court's findings for clear error. Carpenter v.
Scholmann, 336 S.W.3d 129, 130 (Ky. App. 2011).
standard for granting a DVO is based upon a preponderance of
the evidence that an act or acts of domestic violence and
abuse have occurred and may again occur. Kentucky Revised
Statutes ("KRS") 403.750. Under the preponderance
standard, the evidence must establish that the alleged victim
was more likely than not to have been a victim of domestic
violence. Wright v. Wright, 181 S.W.3d 49, 52 (Ky.
App. 2005). In reviewing the hearing and the Order of the
court entered on March 28, 2017, we find that the court made
its decision based upon inadmissible hearsay and evidence
outside of the record.
allowing Robert to testify about statements made to him by
his then six-year-old daughter, over Tyler's objection,
the court allowed testimony in the record that constitutes
hearsay. A DVO petition is subject to the same evidentiary
standards as other forms of evidence. Rankin v.
Criswell, 277 S.W.3d 621, 625 (Ky. App. 2008).
Therefore, unless an exception applies, hearsay cannot be
considered as evidence. While we respect the court's
concern about having a six-year-old testify in court, there
are numerous ways in which to protect children when they need
to testify in court. Robert testified that he had no direct
knowledge of the facts concerning the event of December 9,
2016, but only knew what his daughter told him. The court
attempted to supplement Robert's testimony by relying on
the police report that indicated that the children were
present when everything happened. Pursuant to the Kentucky
Rules of Evidence ("KRE") ...