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Tipan v. Tipan

Court of Appeals of Kentucky

July 26, 2019



          BRIEF FOR APPELLANT: Megan Metcalf Louisville, Kentucky

          BRIEF FOR APPELLEE: Bryan Gowin Louisville, Kentucky



          NICKELL, JUDGE.

         Sarai Tipan has appealed from dismissal of her petition seeking a domestic violence order (DVO) against her father, Juan Tipan, by the Jefferson Circuit Court, Family Division Five. Following a careful review, we reverse and remand for further proceedings.

         Sarai, her mother, and two minor siblings fled their home country of Ecuador in 2016, ostensibly to escape severe abuse perpetrated by Juan. They settled in Jefferson County, Kentucky. On September 4, 2018, Sarai filed a motion seeking a DVO against her father, wherein she alleged Juan had recently traveled from Ecuador to Jefferson County and began to harass, threaten, and stalk her and her minor siblings. Sarai averred her younger siblings had been placed in her care while their mother was in Texas pursuing a claim of asylum. The petition detailed the threats and abuse she and her siblings had suffered at the hands of their father. An emergency protective order was granted, and a hearing was scheduled on the petition for a DVO.

         Juan moved to dismiss the petition, requested an expedited hearing date, and filed a notice to register a foreign order regarding an agreement between himself and his ex-wife regarding custody of the minor children. A combined hearing was convened on September 11, 2018, lasting approximately fifty-three minutes.[1] The first twenty-four minutes were consumed by preliminary discussions and arguments related to the contents and registration of the foreign order. The trial court then turned its attention to the DVO petition. Sarai was the only witness sworn. Approximately fourteen minutes into her direct testimony, the trial court stopped the proof and indicated its belief it had serious jurisdiction issues. The trial court stated it would have been more appropriate to determine custody issues in the mother's asylum action rather than in a DVO proceeding, indicated immigration issues should be handled in a different forum, and, believed even had domestic violence occurred, it was "not sure this is the appropriate venue for any kind of asylum to be protected from what would occur in Ecuador, purportedly. I-I'm not sure that a domestic violence order is appropriate." Counsel indicated the DVO petition was regarding acts of violence which had occurred in Kentucky since August and she had not been able to complete her proof. The trial court orally dismissed the petition, stating protection for the children and temporary custody issues should be handled in a different manner. Sarai objected, stating the purpose of the petition was to seek protection from domestic violence, not seek custody or asylum, and asked to continue putting on proof of the domestic violence which had occurred in Jefferson County and the risk of violence for the minor children. The trial court overruled the objection and again pronounced it was dismissing the petition. Although no written order was entered, a handwritten docket notation states:[2]

Proof heard: R has hit her when she tried to break up fights btwn her mother him. Mother was detained in assylum shelter - she is going through the process to seek assylum. since Feb. 24, 2018.
mother of children has purportedly been seeking assylum since February, 2018. Ct. does not believe DV proceeding is appropriate way to proceed.
Petition Dismissed.

         This appeal followed.

         Our review of a trial court's decision on entry of an order of protection is limited to "whether the findings of the trial judge were clearly erroneous or that he abused his discretion." Caudill v. Caudill, 318 S.W.3d 112, 115 (Ky. App. 2010) (citation omitted). We review conclusions of law de novo. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008).

         Sarai presents three allegations of error in seeking reversal. First, she contends the trial court's refusal to permit a full evidentiary hearing was improper. Second, she asserts the trial court erred in failing to issue written findings of fact and conclusions of law justifying its dismissal of her petition. Finally, Sarai argues the trial court improperly based its decision on her perceived immigration status. This last assertion appears to graft a bias or discrimination claim based on immigration status onto her ...

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