Carpenter v. Schlomann
2011 Ky. App. LEXIS 48
| Ky. Ct. App. | 2011Background
- Carpenter and Schlomann are married with two children and separated around Nov 14, 2009.
- Schlomann filed an Emergency Protective Order petition in Shelby County Family Court on Nov 16, 2009, while Carpenter resided in Ohio with the children.
- A Nov 17, 2009 hearing featured Schlomann's sworn testimony about past injuries; Carpenter testified but was not sworn.
- The court extended the EPO to Nov 25, 2009 and referred the matter to the Cabinet for Health and Family Services.
- On Dec 16, 2009, the court acknowledged the EPO omission and granted a Domestic Violence Order (DVO) against Carpenter based on the proceedings.
- Carpenter appealed, challenging the lack of a full evidentiary hearing and the use of extrajudicial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a full evidentiary hearing was required for the DVO | Carpenter asserts no sworn testimony and no full hearing were conducted. | Schlomann contends the proceedings were proper under protective-order statutes. | DVO reversal due to lack of full evidentiary hearing. |
| Whether the DVO was supported without relying on extrajudicial evidence | Extrajudicial evidence formed the basis of the DVO. | Court relied on record evidence within the hearing. | Erroneous to rely on extrajudicial evidence; vacate DVO. |
Key Cases Cited
- Wright v. Wright, 181 S.W.3d 49 (Ky.App.2005) (full hearing required; EPOs and DVOs deserving due process)
- Lynch v. Lynch, 737 S.W.2d 184 (Ky.App.1987) (extrajudicial evidence cannot form basis of a decision)
- Wells v. Wells, 406 S.W.2d 157 (Ky.1966) (extrajudicial evidence cannot form basis of decision)
- Bissell v. Baumgardner, 236 S.W.3d 24 (Ky.App.2007) (review standard for DVOs; deference to trial court on findings)