Guenther v. Guenther
2012 Ky. App. LEXIS 174
| Ky. Ct. App. | 2012Background
- Keith Guenther appeals a Kenton County Family Court DV0 for Rachelle Guenther.
- He challenges (1) jurisdiction to enter a DVO after a continued EPO/DVO hearing beyond fourteen days and (2) the sufficiency of the factual basis to show domestic violence may occur again.
- The court held it had jurisdiction to enter the DVO but erred by entering a DVO not supported by a preponderance of the evidence that violence may recur; case reversed and remanded.
- Factual timeline: May 2011 EPO issued after May altercation; hearing originally set, then continued by agreement for two weeks; June 8, 2011 hearing held; testimony described alleged incident; court found act of domestic violence occurred and entered a DVO stating violence may occur again.
- Keith argues statutory fourteen-day limit repealed by amendment and continuance is improper; the State argues continuance is permissible under KRS 403.740. The court ultimately remands to vacate the DVO and proceed consistent with the opinion.
- Concurring opinions note disposition on jurisdiction and evidentiary sufficiency; majority reverses only as to evidentiary basis for DVO.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether continuance beyond fourteen days deprived the court of jurisdiction | Guenther argues 14-day window mandatory | Court held continuance permitted under KRS 403.740/403.7405 | Jurisdiction to continue exists; no loss of jurisdiction |
| Whether there was a sufficient factual basis to issue a DVO | Record shows acts of violence and risk of recurrence | Record insufficient to prove recurrence by preponderance | DVO entered without sufficient basis; reversed and remanded for vacatur and possible EPO proceedings |
Key Cases Cited
- Daugherty v. Telek, 366 S.W.3d 463 (Ky.2012) (statutory interpretation of KRS 403.740 continued hearings allowed)
- Rankin v. Criswell, 277 S.W.3d 621 (Ky.App.2008) (relevance of timely DV proceedings and protections)
- Wright v. Wright, 181 S.W.3d 49 (Ky.App.2005) (impact of EPO/DVO on rights and need for timely resolution)
- Caudill v. Caudill, 318 S.W.3d 112 (Ky.App.2010) (preponderance standard for DVO findings)
- Bissell v. Baumgardner, 236 S.W.3d 24 (Ky.App.2007) (definition of domestic violence and evidentiary standard)
- Cherry v. Cherry, 634 S.W.2d 423 (Ky.1982) (standard for reviewing trial court findings; credibility considerations)