JEFFERY JOHNSON v. BRANDY GOODRICH
NO. 2020-CA-0163-ME
Commonwealth of Kentucky Court of Appeals
AUGUST 6, 2021
RENDERED: AUGUST 6, 2021; 10:00 A.M. NOT TO BE PUBLISHED
HONORABLE DEANNA WISE HENSCHEL, JUDGE
ACTION NO. 16-D-00132-001
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON AND L. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Jеffery Johnson appeals from the McCracken Family Court‘s November 14, 2019 order denying his motion for relief under
This appeal arises from the family court‘s denial of Johnson‘s
On July 13, 2016, the hearing was continued a third time, to July 27, 2016, as Johnson had once again not been served. Johnson was finally served with a summons on July 14, 2016. The summons аdvised him of the date of the hearing and gave notice of the nature of the proceedings. Johnson was served at the Lee County Jail, where he was incarcerated at the time.
The family court conducted a hearing on July 27, 2016, as scheduled. Goodrich was present and was the only person who testified at the hearing. Johnson was not present, either physically or through counsel. At the end of the hearing, the family court issued a DVO against Johnson which provided protection to Goodrich and her child for three years, with it set to expire on July 27, 2019, unless extended by the family court before that time.
Goodrich filed a mоtion to extend the DVO on June 18, 2019, a few weeks before its expiration. On June 26, 2019, the family court held a hearing on this matter. Goodrich testified that Johnson continued to contact hеr and her son despite the protective order and, in fact, had been convicted of violating the DVO pursuant to a guilty plea in 2017. The family court extended the DVO for three years, until June 26, 2022.
On September 23, 2019, Johnson, now acting through counsel, filed a
Our standard of review of a trial court‘s denial of a
We note that while
Although not explicitly stated in his motion in the family court, the only possible grounds for Johnson‘s
Johnson argues that he did not have a fair opportunity to present his claim on the merits as he was incarcerated at the time he was served with notice of the domestic violence hearing. Although Johnson cites applicable law for the general proposition that the issuance of a DVO requires a full hearing and an opportunity to be heard, he cites no legal precedent for his assertion that an incarcerated person does not have an “оpportunity to be heard” by virtue of being incarcerated. However, in Cottrell v. Cottrell, 571 S.W.3d 590, 592 (Ky.App. 2019), an extension of a DVO case, the Court observed that, “an incarcerated party does not hаve an automatic right to attend every civil hearing.” It determined that because the respondent “did not request transportation to attend the hearing, we cannot find that he was unfairly prejudiced by the family court‘s failure to provide for his attendance.” Id.
In coming to this conclusion, the Court cited with approval the concurrence in Alexander v. Alexander, 900 S.W.2d 615 (Ky. App. 1995), wherеin an incarcerated father filed a motion for visitation which was denied without a hearing. The majority opinion reversed on that basis and declined to address whether the father had a right to be transported for the hearing. Judge Howerton in addressing that issue observed:
It is simply not essential that a party be present at every civil hearing. There arе times when, for economic, distance, time, logistical, or psychological reasons, etc., a party may be “present” by deposition or counsel, or not at all. [The father] has a right to notice of the proceeding, but he has no right to be taken from the prison and transported under guard at the expense and inconveniencе of the State.
Id. at 617 (Howerton, J. concurring).
In contrast, when a party has made efforts to appear at a domestic violence hearing, more may be required to proceed where the party is unavoidably absent. In Hawkins v. Jones, 555 S.W.3d 459 (Ky.App. 2018), a case in which a DVO was vacated on multiple grounds, the Court briefly considered whether the respondent‘s absence was an additional ground for vacating the order. It noted that respondent had been present at the first hearing which was continued over her objection so the petitioner could obtain сounsel, but no counsel appeared for the petitioner at the next hearing. The Court resolved the issue as follows:
Here, since [respondent] was not at the second hearing, we do not believe the trial court was able to make a finding of domestic violence based upon a preponderance of the evidence. The trial court was aware that her absence was due to incarceration and [respondent] should have been given notice to appear at a future dаte.
Id. at 462 (citation omitted).
We disagree that Johnson is entitled to any relief, especially at this juncture. Johnson does not deny he was served with process on July 14, 2016,
Johnson also failed to take any action after the DVO was entered against him. He did not appeal the DVO or immediately file any motion with the family court to complain about his lack of participation. Instead, he attemрted to use the domestic violence case to further his interest in establishing paternity and visitation.
As there is no due process right that was violated when the domestic violence hearing proceeded in Johnson‘s absence, there is no extraordinary reason to void the DVO pursuant to
For the reasons set forth above, we affirm the McCracken Family Court‘s denial of Johnson‘s motion for relief under
ALL CONCUR.
BRIEFS FOR APPELLANT:
Karen Shuff Maurer
Frankfort, Kentucky
BRIEF FOR APPELLEE:
Angela Troutman
Paducah, Kentucky