Written Findings of Fact Required for Dismissal of DVO Petition – Published Opinion from Kentucky Court of Appeals

Journal Categories

Hall v. Smith

 

Hall petitioned for a protective order on behalf of herself and Hall and Smith’s two minor children, alleging that Hall was once married to Smith; that they have two children in common; that Smith is controlling and manipulative; that Smith has been stalking Hall; that there was physical abuse at the end of their marriage and mental abuse before that; that the Children are being mentally abused by Smith; that Smith pulled a gun on an ex-girlfriend and her boyfriend; that Smith was violating a restriction not to go within 1,000 feet of Hall’s home; that Smith newly acquired a gun; and that she believed Smith would hurt her and the children.

 

The reviewing judge declined to enter an emergency protective order, finding no imminent threat, but issued a summons for Smith. Family Court held a hearing, wherein Hall gave testimony. Family Court inquired as to what actions of Smith would be relevant to a determination of imminent danger or acts of domestic violence. Hall provided no testimony which supported entry of a domestic violence order. Family Court disallowed the testimony of the children, but allowed Hall to place the testimony in the record by avowal. On appeal, Hall argues that (1) Family Court erred by not entering a domestic violence order in response to her petition and testimony; (2) Family Court erred by not hearing the children’s testimony; and (3) Family Court erred by not entering adequate findings.

 

The Court of Appeals held that Family Court did not err by not entering a domestic violence order in response to Hall’s petition and testimony, because there were no allegations or testimony of physical abuse or injury, threats of physical abuse, or imminent danger of domestic violence. The Court of Appeals held that Family Court did not err in not allowing the children’s testimony, because the avowal testimony showed no evidence of domestic violence occurring or likely to occur. Finally, the Court of Appeals held that Family Court erred by making insufficient written finding to show the basis of the dismissal of the petition. Although it reasoned that “[i]t would seem unduly burdensome and unnecessary for a court to make findings of fact that establish a non-finding of necessary facts,” it held that checking the box on the Kentucky Court standardized form showing that there were not sufficient findings of fact to support the entry of a domestic violence order would satisfy the written findings requirement.

 

Digested by Nathan R. Hardymon