FROM SHELBY FAMILY COURT HONORABLE S. MARIE HELLARD, JUDGE
ACTION NO. 15-D-00017-001
FOR APPELLANT: Justin David Cottrell, pro se Northport
Training Center Burgin, Kentucky
FOR APPELLEE: Kathrine Marie Cottrell (now Horn), pro se
Address Under Seal
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
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.
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.
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.
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.
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
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.
KRS 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) 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.
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) ...