Family Law

Fraley v. Fraley, 2009-CA-002167-ME  

Issue:  Domestic Violence Order, abuse of discretion

Published:   Reversing

County: Bourbon

Husband appealed DVO entered by FC, arguing that FC applied wrong definition of ?domestic violence? and abused its discretion by allowing an unsworn, unidentified person to interject at the DVO hearing, by allowing the admission of hearsay statements set forth in the domestic violence petition, and by considering the impact of alleged hearsay statements on Wife; and that FC clearly erred when it found that an act of domestic violence occurred.

FACTS:

Alleging that her marriage counselor told her in an individual session that Husband was a dangerous person, that he was a man with no conscience, and that she needed to run from him, Wife sought the protection of an EPO and DVO.  At the DVO hearing, Wife stated that she was generally fearful of Husband, but did not relay any particular instance that made her feel fearful, only that she was uncertain as to how far would go due to his jealousy and unreasonableness.  She stated that she came to believe that Husband was a sociopath after meeting with the marriage counselor.  FC denied Husband?s request to have the marriage counselor identified.  FC indicated that it could not consider what the counselor said, only how it impacted Wife?s thinking.  During the court hearing, a woman in the back of the courtroom informed the court that Wife had contacted the Bluegrass Domestic Violence Program regarding the same issues before the court.  This woman was not identified or sworn in. FC concluded that domestic violence had occurred because it includes conduct that causes someone to fear for their safety, so it could take the form of words, driving by someone?s house, etc.

ANALYSIS:

Definition of ?domestic violence? and Claim that FC clearly erred when it found that an act of domestic violence occurred:

CA found that circumstances of the case did not meet definition of domestic violence because there was no evidence that Husband inflicted the fear of imminent physical injury on Wife; thus FC abused its discretion in entering the DVO.

Claim regarding unsworn, unidentified person:

Because Husband did not object at the hearing, CA?s standard of review was palpable error.  Although action was improper and court should have admonished the woman and stated that her statement would not be considered in its decision-making, it did not result in manifest injustice to Husband so no palpable error.

Claim regarding admission of hearsay statements:

FC stated that it would not consider the marriage counselor?s statements, which remedied the situation, so there was no error.

Claim regarding FC?s consideration of impact of hearsay statements on Wife:

FC erred in considering these statements as it was the counselor?s statements, not Husband?s, that caused Wife?s fear.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates