Scott Family Court
Decided by Thompson, Chief Judge; Cetrulo and Combs, Judges
Opinion by Cetrulo, Judge
Date Rendered: September 22, 2023
Issue: Whether the Family Court erred in entering DVO on behalf of Mother and child.
Neither Appellant, nor Appellee followed the Rules of Appellate Procedure. As Appellant did not follow the rules, the Court of Appeals notes its ability to “(1) ‘ignore the deficiency and proceed with the review;’ (2) strike the brief; or (3) review the matter for manifest injustice only.” As Appellee filed no brief at all the Court of Appeals may “(a) accept the appellant’s statement of the facts and issues as correct; (b) reverse the judgment if appellant’s brief reasonably appears to sustain such action; or (c) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case.” The Court proceeds with review for clear error without electing any specific options.
Mother relocated to Kentucky from Ohio with child. Father began harassing and threatening Mother via text message and calling around to try to find child’s school. After a hearing, Mother and child obtained a Domestic Violence Order (“DVO”) for one year. Father appealed.
The Court of Appeals affirmed the Family Court’s entry of the DVO as to Mother holding that the “threat or infliction of fear of physical injury was sufficient to support the grant of a DVO of protection.”
Turning to the child, The Court of Appeals looks to the resent Smith case stating “Our Supreme Court, in Smith v. Doe, 627 S.W.3d 903, 913 (Ky. 2021), recently held that the family court was required to appoint a GAL for unrepresented minor petitioners and respondents to an Interpersonal Protective Order (“IPO”).” The Court of Appeals remands the matter for additional proceedings as to the child holding that in DVO matters Smith “requires that a minor child who is listed as a party on the petition for protection is in need of an appointed guardian.”
Digested by Elizabeth M. Howell