Hohman v. Dery
371 S.W.3d 780
| Ky. Ct. App. | 2012Background
- Jennifer Dery filed a domestic violence petition against Joseph Hohman on August 2, 2010 in Jefferson Family Court; they were involved in a concurrent paternity action over custody, visitation, and child support.
- Petition alleged Joseph followed Jennifer’s boyfriend Andrew Young, drove by his street, contacted Jennifer repeatedly by phone/text with derogatory language, and threatened suicide.
- Jennifer testified at the hearing that Joseph’s fists clenched and he yelled, causing her fear of escalation; she described Joseph as “scary” and lacking self-control.
- Andrew testified Joseph routinely drive-by and sat in an alley near his home, expressing concern for Jennifer’s safety.
- Joseph denied the allegations; he claimed his presence near Andrew’s neighborhood was for convenience and that the easement incident involved a park excursion.
- The court issued a one-year Domestic Violence Order (DVO) restraining Joseph from contacting Jennifer; later, the DVO was vacated in February 2011 by an agreed order in the paternity case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was sufficient evidence of domestic violence | Hohman argues the evidence failed to show fear of imminent physical injury | Dery contends Jennifer’s testimony and surrounding conduct show fear and likelihood of recurrence | Evidence supported fear of imminent injury; DVO affirmed |
| Whether due process was violated by denial of a continuance to depose Jennifer | Hohman asserts CR 80.01 and CR 30.01 required a deposition before the hearing | Dery argues timely hearing aligns with statute’s purpose; denial preserves speedy resolution | No abuse of discretion; due process satisfied; continuance denial did not prejudice defense |
| Whether the appeal was moot or could be decided on merits despite DVO dismissal | Appellant argues dismissal moot the appeal | Respondent maintains ongoing consequences of DVO on record warrant merits review | Appeal not moot; merits reviewed and affirmed on substantial-evidence grounds |
Key Cases Cited
- Caudill v. Caudill, 318 S.W.3d 112 (Ky.App.2010) (expiration of a DVO does not moot the appeal due to continuing consequences)
- Commonwealth v. Anderson, 934 S.W.2d 276 (Ky.1996) (preponderance standard; credibility of witnesses favored to sustain DV finding)
- Buddenberg v. Buddenberg, 304 S.W.3d 717 (Ky.App.2010) (appellate review of DV findings; deference to trial court credibility)
- Rankin v. Criswell, 277 S.W.3d 621 (Ky.App.2008) (full evidentiary hearing required under DV statutes)
- Guffey v. Guffey, 323 S.W.3d 369 (Ky.App.2010) (trial court discretion on continuances; abuse of discretion standard)
- Naive v. Jones, 353 S.W.2d 365 (Ky. 1961) (trial court discretion in enforcing civil rules)
- Lynch v. Lynch, 737 S.W.2d 184 (Ky.App.1987) (due process requires meaningful opportunity to be heard)