Daugherty v. TELEK
2012 Ky. LEXIS 73
| Ky. | 2012Background
- Samantha Daugherty petitioned for a domestic violence order (DVO) against John Telek; DVO sought under KRS Chapter 403.
- A temporary emergency protective order (EPO) was issued Aug 18, 2009, to remain until the full DVO hearing set for Aug 26, 2009.
- Hearing postponed to Nov 13, 2009 to consolidate with a child custody matter; the judge agreed to reissue the EPO every fourteen days until the combined hearing date.
- Telek attended Sept 9 docket; no objection to the EPO reissuance at that time; court reissued the EPO for another 14 days.
- Telek filed a motion to dismiss the EPO on Sept 22, 2009; the court continued reissuances until Oct 21, 2009, when the full DVO hearing occurred and the DVO was entered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a statutory time limit affect subject matter jurisdiction? | Telek contends failure to hold a DVO hearing within 14 days deprived the court of jurisdiction. | Daugherty argues jurisdiction is not lost by procedural noncompliance and DVO could still be issued after proper process. | Time limits do not deprive subject matter jurisdiction. |
| Was serial EPO reissuance permissible under KRS 403.740(4)? | Telek asserts reissuance beyond 14 days violated the statute and tainted the DVO. | Daugherty argues the hearing could be postponed and EPOs serially reissued to secure the hearing. | The court may reissue EPOs in serial fashion within the statute’s framework. |
| Is Telek entitled to appellate review of the sufficiency of the evidence for the DVO? | Telek preserved the sufficiency challenge, despite the appellate court's focus on jurisdiction. | Daugherty maintained sufficiency would be reviewed on remand if appropriate. | Appellate review of sufficiency is preserved and remanded for that issue. |
Key Cases Cited
- Duncan v. O'Nan, 451 S.W.2d 626 (Ky. 1970) (subject matter jurisdiction cannot be waived; focus on 'this kind of case')
- Hisle v. Lexington-Fayette Urban County Gov't, 258 S.W.3d 422 (Ky. Ct. App. 2008) (subject matter vs. procedural challenges; challenges to rulings rise from exercise of jurisdiction)
- Gordon v. NKC Hospitals, Inc., 887 S.W.2d 360 (Ky. 1994) (distinguishes subject matter jurisdiction from improper exercise of power)
- Wright v. Wright, 181 S.W.3d 49 (Ky. Ct. App. 2005) (vacating DVO for lack of meaningful hearing when both sides not heard)
- Petzold v. Kessler Homes, Inc., 303 S.W.3d 467 (Ky. 2010) (remand when appellate decision eliminates need to review other grounds)