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Benson v. Lively

Court of Appeals of Kentucky

February 2, 2018



          Louis P. Winner Sarah M. Tate Kristin M. Birkhold Louisville, Kentucky BRIEF FOR APPELLANT

          Louis P. Winner Louisville, Kentucky ORAL ARGUMENT FOR APPELLANT

          J. Gregory Joyner Louisville, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEE



          JONES, JUDGE

         James Benson appeals from the amended domestic violence order ("DVO") the Jefferson Circuit Court entered against him in June of 2016. Specifically, Benson challenges the trial court's addition of language prohibiting him from possessing any firearms during the pendency of the amended DVO.

         Benson claims that the trial court lacked jurisdiction to add the firearms language because the amended DVO was entered more than ten days after the original order. Having carefully reviewed the record in conjunction with the applicable legal authority, we disagree. The trial court retained jurisdiction to correct its own clerical mistake even though more than ten days passed between entry of the original order and entry of the amended order. Accordingly, we AFFIRM.

         I. Factual and Procedural Background

         James Benson ("James") and Janet Lively ("Janet") were involved in a romantic relationship over the course of six years. During this time, James was also married to another woman. While the parties disagree on the extent that they resided with each other during their relationship, both James and Janet provided testimony that near the end of their relationship the parties rented an apartment together in which they both resided for at least six to seven weeks prior to their break up in March of 2016.

         On March 12, 2016, Janet sought her first emergency protective order ("EPO") against James. In her petition, Janet described an incident that occurred between the parties on March 10, 2016. According to Janet, on this date, James confronted her while she was trying to leave lunch to return to work. She described that James banged on her window, forcefully opened her car door, and placed himself between the door and the car so that Janet could not close the door and leave. Later that same evening, James forced his way into Janet's garage, pulled Janet out of her car, and took her cellular phone away from her. There was a brief scuffle during which Janet was hit in the eye. After Janet started screaming, James left the scene. Janet further described that James sat outside her workplace and sent her numerous threatening messages. She stated that James had guns and she was fearful for her safety.

         An emergency order was issued prohibiting James from having any contact with Janet, and a hearing was set to determine whether Janet was entitled to a domestic violence order.[2] Before the matter proceeded to a hearing, the parties, through counsel, came to an agreement that restricted James from having any contact with Janet through any form of communication or third party. Pursuant to the agreement, the parties entered an agreed order dismissing Janet's request for the entry of a DVO.

         Following entry of the agreed order, James's behavior continued, leading Janet to request a second EPO on May 3, 2016. Therein, Janet claimed that:

I Janet (pet) and James (resp) formerly lived together as a couple. We currently had a DVO but me and my lawyer agreed to dismiss it and made a contract for him to abide by and he and his lawyer signed saying so. The only reason the DVO was dismissed and the contract was brought in place was due to the fact that we worked at the same industry and our 2 company's work together. I was told and it is also on the calendar from the law court date that if that contract was violated that I had the right to refile. It took him 11 days before he violated it, he has texted me through fake numbers to try and talk to me, he has told me where I am and who I am with, he has now even emailed my lawyer asking him to get us back together. I am very fearful of what he may do he is not in a stable place right now, he has even text me from a fake number pretending to be a friend and was telling me that he is inconsolable and did have the friend follow up and text to try and protect himself. He has also created a fake profile to try and talk to me. He has physically assaulted in the past jerking me out of a car after he broke into my garage. He carries a gun in his truck and carries a knife on his person. He also owns a lot of other firearms. I am terrified that he is going to hurt me or pay someone to do it because he has the money to do so. I am just asking that he stay as far away from me as possible and have absolutely no contact with me what so ever.

         On May 3, 2016, Judge McDonald in Jefferson Circuit Court issued an EPO against James which restricted him from being within 500 feet of Janet, restricted him from three locations, and ordered James to surrender any firearms in his possession to the Jefferson County Sheriff's Office. The following day, May 4, 2016, James surrendered four firearms to the sheriff's office.

         Next, the matter came for a hearing before Judge Bartholomew. James and Janet both testified. Janet testified about an incident where James stood outside her car window and would not let her leave, followed her to her home, entered into her garage, pulled her out of the car, and threw her phone. Further, Janet testified about James's attempts to contact her via various messaging platforms and an email to her attorney. Janet testified that James is unstable and she is fearful of what he will do to her in the future. James testified that the parties lived together for seven weeks prior to their break up. At the conclusion of the hearing, the court stated that it believed James violated the parties' agreement and declared that it was going to enter a DVO and order the confiscation of James's firearms. Counsel for James indicated that the order should be entered as an interpersonal protective order ("IPO") and argued that confiscation of firearms could not be ordered under an IPO.

         Following the hearing, the court filled out and signed a pre-printed Order of Protection form. The top right-hand corner of the form contains five options: domestic violence order, amended domestic violence order, interpersonal protective order, and amended interpersonal protective order. The court checked the box labeled "Domestic Violence Order." On the second page of the form, the court checked a box indicating that James was to be restrained from any contact or communication with Janet. On the next line the court handwrote the number "500" in the blank indicating that James should stay at least 500 feet away from Janet at all times. However, the court failed to check the box indicating that this section was applicable. On the section of the form stating "in order to assist in the eliminating future acts of domestic violence and abuse, dating violence and abuse, stalking or sexual assault" the court stamped the following in black ink: "RESPONDENT IS FURTHER ...

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