Cottrell v. Cottrell
571 S.W.3d 590
Ky. Ct. App.2019Background
- In December 2014 Justin Cottrell drove his truck into the marital home, injuring/ nearly killing his wife Kathrine and their child; he was arrested and charged with multiple felonies.
- Kathrine obtained an emergency protective order and the family court later entered a three-year domestic violence order (DVO) requiring Justin to stay 500 feet away from Kathrine and their child.
- Justin pled guilty to multiple counts (wanton endangerment, criminal mischief, etc.) and is serving a 20-year sentence in prison.
- In February 2018 Kathrine moved to extend the DVO for another three years; the family court extended the DVO and later denied Justin’s motion to vacate.
- Justin appealed, arguing (1) he was denied due process because he was incarcerated and unable to attend/contest the extension hearing, and (2) extension was unnecessary given his incarceration and lack of subsequent violations.
- The appeals court affirmed: an evidentiary hearing is not required for reissuance, an incarcerated person has no automatic right to attend civil hearings absent a request for transportation, and substantial evidence supported extension given the severity of the original conduct and Kathrine’s continued fear.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an evidentiary hearing is required before reissuance of a DVO | Kathrine: reissuance may occur without a full evidentiary hearing under statute | Justin: due process requires an evidentiary hearing before extension | Court: No evidentiary hearing required for extension (Kessler cited) |
| Whether an incarcerated respondent has a right to attend the extension hearing | Kathrine: no absolute right; Justin did not request transport | Justin: incarceration denied him meaningful opportunity to be heard | Court: Incarcerated party has no automatic right to attend; Justin did not request transport, so no unfair prejudice |
| Whether absence of intervening violations or incarceration bars extension | Kathrine: reissuance may be granted without new acts; absence of violations is only a factor | Justin: no violations and continued incarceration make extension unnecessary | Court: Absence of new acts and incarceration weigh against extension but do not require denial; court may consider original severity and ongoing fear |
| Whether evidence supported extension of the DVO | Kathrine: severity of original act and her continuing reasonable fear justify extension | Justin: rehabilitation, program enrollment, and prison custody undermine need for protection | Court: Substantial evidence supported extension given deliberate, severe prior conduct and Kathrine’s reasonable fear; extension not clearly erroneous |
Key Cases Cited
- Hawkins v. Jones, 555 S.W.3d 459 (Ky. App. 2018) (DVOs require due process but not necessarily an evidentiary hearing in all contexts)
- Kessler v. Switzer, 289 S.W.3d 228 (Ky. App. 2009) (statute does not mandate an evidentiary hearing before reissuance of a DVO)
- Alexander v. Alexander, 900 S.W.2d 615 (Ky. App. 1995) (incarcerated parties do not have an automatic right to attend every civil hearing)
- Baird v. Baird, 234 S.W.3d 385 (Ky. App. 2007) (court may consider all facts, including nature and severity of original abuse, when deciding reissuance)
- Kingrey v. Whitlow, 150 S.W.3d 67 (Ky. App. 2004) (scope of relevant factors for continuing need of protective orders)