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Thurman v. Thurman

Court of Appeals of Kentucky

October 12, 2018

DUSTIN THURMAN APPELLANT
v.
JENNIFER THURMAN APPELLEE

          APPEAL FROM CAMPBELL CIRCUIT COURT FAMILY COURT DIVISION HONORABLE RICHARD A. WOESTE, JUDGE ACTION NO. 17-D-00113-003

          BRIEFS FOR APPELLANT: Dustin Thurman, Pro Se Highland Heights, Kentucky

          BRIEF FOR APPELLEE: Cynthia A. Millay Covington, Kentucky

          BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES.

          OPINION

          TAYLOR, JUDGE

         Dustin Thurman, pro se, appeals from a November 22, 2017, domestic violence order issued by the Campbell Circuit Court, Family Court Division. We vacate and remand because the record does not reflect that Dustin was properly served with a summons and notice of the November 22, 2017, hearing date.

         On October 30, 2017, Jennifer Thurman filed a petition for a domestic violence order (DVO) alleging Dustin pushed her to the ground while she held their minor child. That same date, the family court found that Jennifer's petition "[f]ails to state an act or threat of domestic violence" and, in lieu of issuing an emergency protective order, issued a summons for Dustin to appear at a domestic violence hearing on November 9, 2017.[1] Dustin was not present at the November 9 hearing. At the hearing, Jennifer's counsel and the court readily agreed that Dustin had not been properly served with a summons to appear. Jennifer's counsel asked the court for a copy of "something" to serve on Dustin later that evening when the parties would exchange their child for parenting time, to which the court agreed. The matter was re-set for a hearing on November 22, 2017.

         Dustin did not appear on November 22. Immediately after the case was called, Jennifer's counsel stated on the record that Dustin had been served, though she offered no documentary evidence to support that assertion. The court noted on the record there was no proof of service in the court's file for the November 22 hearing. Indeed, the only successful return of service in the record shows Dustin was belatedly served with a summons to appear for the November 9 hearing after that hearing was continued to November 22.

         Despite the lack of proof of service in the record, the court proceeded to conduct an evidentiary hearing on Jennifer's petition for a DVO on November 22 in Dustin's absence. Jennifer first testified that Dustin had recently told her he was aware of the rescheduled hearing but did not plan to attend. She then related the factual allegations underlying her DVO petition, along with additional allegations not contained therein. After Jennifer testified, the court summarily stated that Dustin properly had been served (without explaining how it reached that conclusion) and issued the DVO, which bars Dustin from having contact with Jennifer, except as necessary to exchange their child, for three years. The court made no substantive written findings to support its conclusion that Dustin had committed domestic violence upon Jennifer and/or their child. This appeal followed.

         Kentucky Revised Statutes (KRS) 403.730 outlines the procedures which occur when a petition for an order of protection is filed. In relevant part, the statute provides as follows:

(1) (a) The court shall review a petition for an order of protection immediately upon its filing. If the review indicates that domestic violence and abuse exists, the court shall summons the parties to an evidentiary hearing not more than fourteen (14) days in the future. If the review indicates that such a basis does not exist, the court may consider an amended petition or dismiss the petition without prejudice.
(b) Service of the summons and hearing order under this subsection shall be made upon the adverse party personally and may be made in the manner and by the persons authorized to serve subpoenas under Rule 45.03 of the Rules of Civil Procedure. A summons may be reissued if service has not been made on the adverse party by the fixed court date and time.

         Kentucky Rules of Civil Procedure (CR) 45.03(1) provides, in relevant part, that "[p]roof of service shall be made by filing with the issuing court a statement showing the date and manner of service and the names of the persons served. The statement must be certified by the server."

         Based upon our review of the record on appeal, there is nothing in the record showing that Dustin was properly served with a summons to appear at the November 22 hearing. The record contains a summons that was issued, directing Dustin to appear on November 22, but there is no return or proof that Dustin was ever served with it. To the contrary, the summons contains a written ...


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