(502) 589-4215 | 500 West Jefferson Street, Suite 2100, Louisville KY 40202

Zoglmann v. Weber

Case No. 2022-CA-1435-ME

Jefferson Family Court

Decided by Acree, Caldwell, and Cetrulo

Opinion by Caldwell

Date Rendered: June 23, 2023

Issue: Whether a petition for order of protection can be dismissed post-judgment by operation of CR 41.01.

Issue: Whether a petition for order of protection can be dismiss post-judgment by operation of CR 60.02.

Girlfriend petitioned Family Court for an order of protection against former Boyfriend, and Family Court entered a domestic violence order and ordered former Boyfriend to attend the batterer’s intervention program. After entry of the domestic violence Girlfriend moved Family Court to remove the domestic violence order, which Family Court denied. Subsequently, the Parties filed a Joint Stipulation of Dismissal, and Girlfriend filed a motion to dismiss. The Family Court denied the motion. Girlfriend appealed.

Girlfriend argued that the Family Court should have dismissed the matter pursuant to CR 41.01(1) or (2), which states:

(1) Subject to the provisions of Rule 23.05, of Rule 66, and of any statute, an action, or any claim therein, may be dismissed by the plaintiff without order of court, by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of this state, of the United States or of any state an action based on or including the same claim.

(2) Except as provided in paragraph (1) of this rule, an action, or any claim therein, shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this section is without prejudice.

However, the Court of Appeals held that CR 41.01 implicitly only applies to matters prior to a final judgment, noting that the rule allowing for a party to enter a notice of dismissal operating as an adjudication of the merits under some circumstances does not apply where the court has already adjudicated the merits of a case itself and entered judgment. The domestic violence order, had been entered prior to Girlfriend’s request for it be removed. Thus, the Family Court did not err in not dismissing the petition for order of protection under CR 41.01.

The Court of Appeals next took up the issue of CR 60.02 and whether the Family Court should have vacated the domestic violence order thereunder. The Court noted that CR 60.02 relief may be available if one can show extraordinary reasons for meriting relief. The Court noted that the Family Court correctly found that because the Family Court itself had recently entered the domestic violence order, it was appropriate for the Family Court to exercise caution and not dissolve the domestic violence order in the absence of extraordinary reasons or a clear legal necessity, which Family Court did not find. Thus, the Family Court did not abuse its discretion.

Digested by Nathan R. Hardymon