Clark v. Parrett
559 S.W.3d 872
| Ky. Ct. App. | 2018Background
- Clark and Parrett were former intimate partners who lived together; they broke up in late 2016 and had no contact until January 6, 2018.
- Parrett filed an emergency protective order (EPO) after Clark was observed near her apartment and allegedly banged on her door asking to be let in; she reported fear and mentioned Clark owned guns.
- Parrett received an EPO the day of the incident and sought a three‑year domestic violence order (DVO).
- At the January 17, 2018 DVO hearing both parties appeared pro se, neither was sworn, the hearing lasted ~1.5 minutes, and Clark verbally agreed to Parrett’s request.
- The family court entered a three‑year DVO prohibiting contact and firearm possession; Clark later obtained counsel and moved to alter/ vacate, arguing lack of a full evidentiary hearing and insufficient evidence.
- The motion hearings were renoticed multiple times; service on Parrett for the motion hearings was attempted but not completed; the trial court denied Clark’s motion without reviewing the original hearing transcript/video and declined to vacate without Parrett’s presence.
Issues
| Issue | Parrett's Argument | Clark's Argument | Held |
|---|---|---|---|
| Whether a DVO may be entered without a full evidentiary hearing | DVO should be entered based on her petition and her request for no contact | Entry was improper because no sworn testimony, no evidence introduced, and Clark did not knowingly waive right to full hearing | Court vacated DVO for lack of full hearing and insufficient evidence; remanded for full evidentiary hearing |
| Whether Clark validly consented to the DVO at the hearing | Parrett relied on Clark’s oral agreement at hearing | Clark said his assent meant he would stay away, not that he knowingly waived rights or understood consequences | Court found no clear, knowing waiver of due process; consent insufficient to support DVO entry |
| Whether the petition and brief hearing provided sufficient evidence of "domestic violence and abuse" | Petition alleged fear based on past breakup, banging on door, and guns | Clark argued petition and hearing lacked allegations/evidence showing infliction of fear or other statutory grounds | Court held petition and hearing lacked factual basis to find domestic violence by preponderance of evidence |
| Whether the family court properly handled service and subsequent motion hearings | Implicit: protecting petitioner by ensuring her presence | Clark argued procedural errors and urged relief despite service issues | Court criticized service handling, recommended renewed service by protective order summons before new hearing; vacated DVO but left it effective for 30 days for petitioner’s protection |
Key Cases Cited
- Gibson v. Campbell-Marletta, 503 S.W.3d 186 (Ky. App. 2016) (appellate review standard for family court findings)
- Carpenter v. Schlomann, 336 S.W.3d 129 (Ky. App. 2011) (DVO proceedings entitled to full courtroom dignity and process)
- Rankin v. Criswell, 277 S.W.3d 621 (Ky. App. 2008) (DVO cannot be based solely on petition contents)
- Wright v. Wright, 181 S.W.3d 49 (Ky. App. 2005) (vacating DVO where no evidence met required standard; full hearing required)
- Holt v. Holt, 458 S.W.3d 806 (Ky. App. 2015) (meaningful opportunity to be heard requires sworn testimony and evidence)