Family Law

Hunter v. Mena, 2009-CA-000494-ME

Issue: Domestic Violence Order

Published: Affirming in part, Reversing in part, Remanding

County: Jefferson

Hunter appealed a Domestic Violence Order (DVO), which prohibited contact with his former girlfriend, Mena, and his nephew. 

FACTS:

Mena lived with Hunter and his nephew, Christopher.  Hunter discovered that Mena and Christopher had become romantically involved.  Hunter stole Mena?s purse, had his niece physically attack her, and committed other acts of harassment.  Mena moved out and briefly stayed with Christopher?s mother, at a shelter, and then went to stay with her mother in Indiana.  Mena filed an EPO, and a DVO was issued after a hearing.  The DVO was amended following a rehearing approximately a month later.  Hunter appealed. 

ANALYSIS:

Hunter asserted three claims on appeal: 1)DVO improperly prohibited contact with Christopher, a non-party, 2) family court lacked subject matter jurisdiction to enter DVO since Mena was not a Kentucky resident at the time, and 3) the evidence contradicted court?s finding that he committed acts of domestic violence against Mena. 

First, COA found that Christopher was a minor.  At the time that Mena filed her EPO, Mena?s mother filed an EPO on Christopher?s behalf as his next friend.  The EPO was entered, but later rescinded at the rehearing since Mena?s mother was not a Kentucky resident.  To qualify as a ?next friend? the individual must reside in Kentucky.  However, in order to protect Christopher the court entered a requirement on Mena?s DVO that Hunter have no contact with Christopher.  This was error.  Christopher is entitled to the protection of the domestic violence statutes, but since he is a minor Mena should have filed a petition on his behalf.  She did not. Therefore, the no contact requirement in Mena?s DVO regarding Christopher must be stricken.

        Second, COA found that Mena did not abandon Kentucky as her legal residence when she went to stay with her mother in Indiana.  She made every effort to stay in Kentucky and only went to Indiana after Hunter refused to leave her alone.  There was no evidence that Mena intended to establish permanent residency in Indiana.  The Kentucky court had subject matter jurisdiction. 

    Finally, COA found that the testimony and evidence presented at the hearing was conflicting and the COA would not substitute its judgment for that of the trial court.  The evidence was legally sufficient to support the family court?s decision. 

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates