Dunn v. Thacker
546 S.W.3d 576
| Ky. Ct. App. | 2018Background
- Father (Thacker) filed a Domestic Violence Order (DVO) on behalf of the minor child against the mother (Dunn) after texts from Dunn alleged physical abuse of the child by Dunn's boyfriend who lived with them.
- At the DVO hearing, Thacker presented Dunn's text messages describing the boyfriend spanking and yanking the child; Dunn admitted she sent the texts but later testified she had lied to induce reconciliation with Thacker.
- The trial court found Dunn "knew or should have known or allowed or permitted" the boyfriend to be a threat to the child, concluded the preponderance standard for domestic violence was met, and entered a DVO against Dunn.
- The court ordered 500-foot restraints from Thacker, his residence, and the child (except supervised visitation), awarded temporary custody to Thacker, and referred the matter to Child Protective Services.
- Dunn appealed, arguing (1) she was improperly named as the respondent instead of the boyfriend and (2) there was insufficient evidence against her to support the DVO.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a DVO can properly issue against a parent who did not directly commit the abuse | Thacker: DVO may be entered against a parent who knew of or permitted abuse to protect the child | Dunn: DVO invalid because the boyfriend, not Dunn, was the abuser and she was an improper respondent | Court: Affirmed — parental inaction or permitting abuse can ground a DVO; naming Dunn was proper |
| Whether the evidence met the preponderance standard for a DVO | Thacker: Dunn's texts and circumstances show child likely victim of domestic violence | Dunn: She recanted and said she lied; insufficient corroboration | Court: Affirmed — texts and Dunn’s conduct satisfied preponderance; trial court’s finding not clearly erroneous |
Key Cases Cited
- Karem v. Bryant, 370 S.W.3d 867 (Ky. 2012) (standard of review for legal questions in family court decisions)
- Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986) (CR 52.01 clear-error standard for factual findings)
- Moore v. Asente, 110 S.W.3d 336 (Ky. 2003) (substantial evidence supports findings against clear-error)
- Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982) (appellate review tests for clear error versus reweighing evidence)
- Kuprion v. Fitzgerald, 888 S.W.2d 679 (Ky. 1994) (definition of abuse of discretion)
- Lane v. Commonwealth, 956 S.W.2d 874 (Ky. 1997) (parental duty to prevent physical injury to child; overruling Knox)
- Knox v. Commonwealth, 735 S.W.2d 711 (Ky. 1987) (prior holding that parent had no duty to prevent spousal sexual assault on child; later overruled)
- A.A. By & Through Lewis v. Shutts, 516 S.W.3d 343 (Ky. App. 2017) (failure to report suspected abuse can expose professionals to liability)
- Baird v. Baird, 234 S.W.3d 385 (Ky. App. 2007) (preponderance standard for DVOs)