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Lazar v. Lazar

NO. 2023-CA-0145-ME

Floyd Circuit Court

Decided by Easton, Jones, and Lambert, Judges

Opinion by Jones, Judge

Date Rendered: August 25, 2023

Issue: Whether res judicata applies when a no contact order has been entered prior to a Petition for a DVO.

In March of 2022, Husband grabbed Wife by the neck and threatened to break it and kill her. In April of 2022 the parties signed an agreed mutual restraining order and no contact order (“MRO”). Continuing thereafter, Wife spotted Husband driving past her residence. Husband was known to have guns in his vehicle. In October of 2022, Wife petitioned for a DVO. The Family Court entered a DVO following a hearing. Husband appealed.

Husband first argues that the DVO was based upon insufficient evidence. The Court of Appeals disagrees, holding that despite minor factual discrepancies, the Family Court committed no error in finding Wife credible. There was substantial evidence supporting that domestic violence occurred and that Wife had reason to fear that it may again occur.

Husband also argues that the DVO petition was barred by latches because it was filed eight months after the alleged domestic violence incident. The Court of Appeals disagrees holding that if latches is applicable, Wife did not reasonably delay seeking relief as Husband continued to drive by or near Wife’s home and she felt threatened just a week prior to the evidentiary hearing.

Finally, Husband argues that the MRO precluded the Family Court from entering the DVO. The Court of Appeals again disagrees reaffirming its holding in Walker that “proof sufficient for the issuance of one DVO can be considered as proof for a subsequent DVO.” The doctrine of res judicata does not apply when a no contact order is entered in another matter by agreement of the parties not pursuant to DVO statute especially given Husband’s acts after entry of the MRO.

Digested by Elizabeth M. Howell