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Cottrell v. Cottrell

Court of Appeals of Kentucky

March 8, 2019

JUSTIN DAVID COTTRELL APPELLANT
v.
KATHRINE MARIE COTTRELL APPELLEE

          APPEAL FROM SHELBY FAMILY COURT HONORABLE S. MARIE HELLARD, JUDGE ACTION NO. 15-D-00017-001

          BRIEF FOR APPELLANT: Justin David Cottrell, pro se Northport Training Center Burgin, Kentucky

          BRIEF FOR APPELLEE: Kathrine Marie Cottrell (now Horn), pro se Address Under Seal

          BEFORE: ACREE, COMBS, AND MAZE, JUDGES.

          OPINION

          MAZE, JUDGE.

         Justin David Cottrell (Justin) appeals from an order of the Shelby Circuit Court granting a motion by Kathrine Marie Cottrell (Kathrine) to extend a domestic violence order (DVO) against him for an additional three-year period. We find that Justin was not entitled to attend the hearing while incarcerated and that there was sufficient evidence to warrant extension of the DVO. Hence, we affirm.

         During the early morning hours of December 9, 2014, Justin drove his truck into a house occupied by his wife, Kathrine, and three other people. He was immediately apprehended by police and charged with several counts of attempted murder with domestic violence, first-degree criminal mischief, driving under the influence, fleeing and evading police, and numerous other traffic charges. He was held in the Shelby County Detention Center for sixty days, and thereafter was released on bond.

         Following his release, Kathrine filed a domestic violence petition based on the December 9 incident. She sought protection on behalf of herself and their child, G.C., who was present during the altercation. The family court granted an emergency protective order (EPO) and scheduled the matter for a hearing on March 4, 2015. At the conclusion of the hearing, the family court entered the DVO, requiring Justin to remain at least 500 feet away from Kathrine and G.C. at all times. The DVO further specified that it would remain in effect for three years from the date of issue.

         Subsequently, Justin entered a guilty plea to four counts of first-degree wanton endangerment, four counts of first-degree criminal mischief, and other misdemeanor counts. He received a sentence totaling twenty years' imprisonment. Justin remains incarcerated on that sentence.

         On February 23, 2018, Kathrine filed a motion to extend the DVO for an additional three-year period. In her motion, Kathrine stated that "[w]e wish to continue to not have contact with Respondant [sic] and consider him dangerous no matter where he is." On February 28, the family court entered an order extending the DVO for an additional three years.

         Shortly thereafter, Justin filed a motion to vacate, arguing that Kathrine's motion had not been properly served on him, and he was denied an opportunity to respond to the motion. He also argued that extension of the DVO was unnecessary because he remains incarcerated. On March 26, 2018, the family court denied the motion to vacate. The court found that all parties were now properly before the court. The court further found that Kathrine was not required to show additional acts of domestic violence to warrant extension of the DVO. Justin now appeals from this order.[1]

         KRS[2] 403.740(1) provides that the district court may enter a domestic violence order if it finds from "a preponderance of the evidence that domestic violence and abuse has occurred and may again occur[.]" KRS 403.740(4)[3] further provides for the reissuance of a DVO as follows:

A domestic violence order shall be effective for a period of time fixed by the court, not to exceed three (3) years, and may be reissued upon expiration for subsequent periods of up to three (3) years each. The fact that an order has not been violated since its issuance may be considered by a court in hearing a request for a reissuance of the order.

         As an initial matter, Justin argues that the family court was required to conduct a hearing prior to reissuance of the DVO. He further argues that he was denied a meaningful opportunity to appear to contest Kathrine's motion to extend the DVO. Due process requires an evidentiary hearing and a meaningful opportunity to be heard prior to the entry of a DVO. Hawkins v. Jones, 555 S.W.3d 459, 462 (Ky. App. 2018). However, neither the statute nor due process requires an evidentiary hearing prior to the extension of a DVO. Kessler v.Switzer, 289 S.W.3d 228, 230-31 (Ky. App. 2009). Furthermore, an incarcerated party does not have an automatic right to attend every civil hearing. See Alexanderv. Alexander, 900 S.W.2d 615, 617 (Ky. App. 1995) ...


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