FROM JEFFERSON FAMILY COURT HONORABLE TARA HAGERTY, JUDGE
ACTION NO. 18-D-502641-001
FOR APPELLANT: Megan Metcalf Louisville, Kentucky
FOR APPELLEE: Bryan Gowin Louisville, Kentucky
BEFORE: KRAMER, NICKELL AND L. THOMPSON, JUDGES.
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
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.
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. 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
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.
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).
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 ...