Baird v. Baird, 2007-CA-000259-ME.

• Decision Date: 07 September 2007
• Docket Number: No. 2007-CA-000259-ME.,2007-CA-000259-ME.
• Citation: 234 S.W.3d 385
• Parties: Norman Lee BAIRD, Appellant v. Shirley D. BAIRD, Appellee.
• Court: Kentucky Court of Appeals

234 S.W.3d 385

Norman Lee BAIRD, Appellant v. Shirley D. BAIRD, Appellee.

No. 2007-CA-000259-ME.

Court of Appeals of Kentucky.

September 7, 2007.

Norman Lee Baird, Sturgis, KY, pro se.

Shirley Baird, Morganfield, KY, pro se.

Before DIXON and VANMETER, Judges; GRAVES,¹ Senior Judge.

OPINION

DIXON, Judge.

Appellant, Norman Baird, appeals pro se from an order of the Union Family Court reissuing a Domestic Violence Order ("DVO") against him. Finding no error, we affirm.

Norman and Shirley Baird were married and lived together for 34 years until they separated in April 1997, following an incident during which Norman threw Shirley against a shower wall and held a gun to her head. Shirley moved out of the marital residence and into an apartment in Morgantown, Kentucky. The parties thereafter divorced.

In April 1998, a DVO was issued against Norman after he threatened to kill Shirley and all of her fellow employees at the Union County Courthouse, where she is employed as a deputy circuit court clerk. After the DVO expired in April 2001, Norman again engaged in threatening behavior against Shirley, including following her to work, driving around her residence and following her when she went to visit her mother in a nursing home. In December 2002, Shirley filed a petition for a second DVO. The family court entered a DVO against Norman on February 18, 2003, to remain in effect until February 17, 2006.

On February 1, 2006, Shirley filed a motion to extend the DVO for an additional three years. After a brief hearing, the family court extended the DVO until February 17, 2009. Norman thereafter appealed to this Court.

In an unpublished opinion rendered December 1, 2006, a panel of this Court vacated the DVO and remanded the case for further proceedings. Without making any conclusions as to whether the evidence would ultimately support the reissuance of the DVO, the majority noted,

[W]e are somewhat troubled by the brevity of the reissuance hearing conducted by the family court. From our review of that hearing, it appears that the only ground given by Shirley for the reissuance of the DVO was that her life had been "much more peaceful" over the past three years. While this is undoubtedly true and an important consideration in the family court's determination, we are hesitant to conclude that this ground — standing alone — is sufficient to support the renewal of a DVO.

. . .

We have recently emphasized the "enormous significance" of DVO petitions [Wright v. Wright, 181 S.W.3d 49, 52 (Ky.App.2005)], and we reiterate that significance here. We are simply not convinced that the family court gave proper consideration to the restrictiveness of a DVO or all of the facts and circumstances surrounding this case before rendering its decision. Accordingly, we are compelled to vacate the reissued DVO and remand this case for a new hearing taking into full account the [Kingrey v. Whitlow, 150 S.W.3d 67 (Ky. App.2004)] and Wright opinions . . . .

Judge Wine dissented, opining that the family court acted within its discretion in reissuing the DVO pursuant to KRS 403.750(2).

On remand, the family court held a second hearing on January 8, 2007, after which it reissued the DVO to remain in effect until 2009. Norman again appeals to this Court arguing that there is no evidence to support the DVO.

A DVO may be entered by a court after a full evidentiary hearing "if it finds from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred or may again occur . . . ." KRS 403.750(1). The preponderance of the evidence standard is met when sufficient evidence establishes that the alleged victim "was more likely than not to have been a victim of domestic violence." Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky.1996). Subsection (2) of KRS 403.750 authorizes the reissuance of a DVO, and provides:

Any order entered pursuant to this section shall be effective for a period of time, fixed by the court, not to exceed three (3) years and may be reissued upon expiration for an additional period of up to three (3) years. The number of times an order may be reissued shall not be limited. With respect to whether an order should be reissued, any party may present to the court testimony relating to the importance of the fact that acts of domestic violence or abuse have not occurred during the pendency of the order.

In Kingrey v. Whitlow, 150 S.W.3d 67, 70 (Ky.App.2004), a panel of this Court interpreted KRS 403.750(2) as granting courts the "authority to reissue DVOs even in the absence of additional acts of domestic violence and abuse during the prior period." We further noted,

Contrary to the circuit court's interpretation, we do not read the statute as requiring proof of additional acts of domestic violence or abuse during the prior period before a DVO may be reissued. Rather, the statute makes it clear that testimony that such acts did not occur may be presented for the court's consideration in determining whether or not to reissue the order.

. . .

In addition to the language in the statute itself, we conclude it is logical to believe that the legislature intended to give the district courts authority to reissue DVOs even in the absence of additional acts of domestic violence and abuse during the prior period. The domestic violence and abuse statutes are to be interpreted by the courts to allow victims to obtain protection against further violence and abuse. See KRS 403.715(1). If a DVO has been effective in giving protection to a victim of domestic violence and abuse, then the district court should not be required to reject a request to extend the effective period of the DVO simply...