Scott Dunbar v. Odelin Vidal ( 2022 )

RENDERED: AUGUST 19, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1343-ME
SCOTT DUNBAR APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
v. HONORABLE LAUREN ADAMS OGDEN, JUDGE
ACTION NO. 21-D-503425-001
ODELIN VIDAL APPELLEE
OPINION
AFFIRMING
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BEFORE: DIXON, JONES, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Scott Dunbar appeals from the Jefferson Family
Court’s order maintaining the imposition of an emergency protection order (EPO)
in favor of Odelin Vidal for sixth months; Dunbar argues the EPO should have
been dismissed for lack of personal jurisdiction over him.
On October 2, 2021, Vidal filed a petition for an order of protection
based upon allegations of domestic violence that took place in Indianapolis,
Indiana, on September 30, 2021. Later that day, the Jefferson District Court
granted a temporary interpersonal protective order (TIPO) and scheduled a virtual
hearing to consider whether an interpersonal protective order should be granted.
On October 14, 2021, only Vidal appeared as Dunbar had not yet been
served. Based on Vidal’s representation that she and Dunbar had previously lived
together, the district court transferred the matter to family court for consideration
as to whether a domestic violence order (DVO) was warranted.
At the next scheduled hearing, on October 26, 2021, Dunbar appeared
virtually with counsel before the family court, but Vidal did not appear. The
docket order indicated Vidal was told she did not have to appear because Dunbar
had not yet been served. Dunbar immediately raised an objection to the family
court’s having jurisdiction over him, but the family court determined this should be
heard at the next hearing.
At the November 9, 2021 virtual hearing, finally both parties
appeared. Dunbar again raised his jurisdictional objections, stating that all of the
alleged acts of domestic violence occurred in Indiana and he had no minimal
contacts with Kentucky as he did not live in Kentucky or transact any business in
Kentucky. Dunbar argued the family court did not have personal jurisdiction over
him based upon International Shoe Company v. State of Washington, Office of
Unemployment Compensation and Placement, 326 U.S. 310, 66 S.Ct. 154, 90
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L.Ed. 95 (1945), and that bringing him before a Kentucky court offended his due
process rights.
The family court stated that pursuant to Kentucky Revised Statutes
(KRS) 403.725, it could appropriately act where the victim of domestic violence
either resided within or fled to the state of Kentucky. Dunbar argued this was
incorrect, as that statute only dealt with venue.
The family court responded: “Well, I certainly appreciate the
arguments and you can perhaps take it up with the Court of Appeals after we’re
done, but we’re going to go ahead and proceed with this hearing.” The family
court then heard testimony from the parties and exhibits were admitted into
evidence.
At the conclusion of the evidence, the family court made findings that
domestic violence had occurred and may occur again based on specific incidents
Vidal testified occurred and the threats Dunbar made to her. The family court
explained it believed that the relationship between the parties was over and they
should stay away from each other, but that it preferred to try to avoid issuing a
DVO unnecessarily. The family court therefore ruled that the EPO would continue
until it expired on April 2, 2022, which was appropriate to address the aftermath of
this short-term relationship, “let the dust settle,” and keep everyone safe.
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The family court via a docket order summarized its findings and
decision. It denied Dunbar’s “ongoing personal j’n concerns/objections” on the
basis that Vidal “fled to KY from IN to escape domestic violence[.]” It stated:
“EPO remains in place until its expiration 4-2-2022, given the need for short-term
protection. Ct adopts its oral findings put on the record as though fully set forth
herein.”
Dunbar argues on appeal that the family court’s maintenance of the
EPO should be reversed, with the case dismissed for lack of personal jurisdiction.
He argues it is undisputed that based on his and Vidal’s testimony that Dunbar had
no contacts with Kentucky and there was no nexus between Kentucky and the facts
underlying the domestic violence petition other than the fact that afterward Vidal
came to Kentucky for safety. He argues that venue cannot be bootstrapped into
providing personal jurisdiction and states that the question on appeal is whether the
due process required for personal jurisdiction can be usurped by the domestic
violence venue statute. Dunbar notes that the EPO would likely expire before this
matter is reviewed on appeal but asks that it still not be dismissed as moot because
it is capable of repetition and evading review. Vidal did not file a responsive brief.
We will address Dunbar’s appeal on the merits as we agree that the
issuance and expiration of an EPO against him before it can be heard on appeal is
capable of repetition and evading review. See generally Morgan v. Getter, 441
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S.W.3d 94, 100 (Ky. 2014). We disagree, however, that Dunbar is entitled to
relief.
While we acknowledge the import of International Shoe Company
and Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 56 (Ky. 2011), and
the limited reach of our long-arm statute, KRS 454.210, domestic violence orders
are different from the typical case in that they are meant to prevent future violence
against victims rather than to punish or provide compensation for past actions. Our
Courts are allowed to govern behavior within our borders to prevent harm to
victims of out-of-state domestic violence.
The case of Spencer v. Spencer, 191 S.W.3d 14, 18-19 (Ky. App.
2006), which Dunbar did not address, controls. In Spencer, our Court was tasked
with deciding whether under KRS 403.725(1) “a Kentucky court may issue a
protective order against an individual over whom the court does not have personal
jurisdiction.” Spencer, 191 S.W.3d at 16. The Court had no trouble in concluding
that Kentucky courts did not have personal jurisdiction over the husband where the
alleged abuse took place in Oklahoma between Oklahoma residents and the
husband was now a Nevada resident but noted that “the language of KRS 403.725
clearly envisions a court granting a protective order when a victim of domestic
abuse has fled to this state.” Id. at 17.
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The Spencer Court explained “[w]e must balance the due process
rights of the defendant against the interest of the Commonwealth in protecting the
victims of domestic violence” and it reviewed this issue of first impression by
considering the case law of other jurisdictions before adopting the reasoning of
New Jersey in Shah v. Shah, 875 A.2d 931 (N.J. 2005). Spencer, 191 S.W.3d at
17-19 (footnote omitted). The Court recounted that in Shah:
In its opinion, the court drew a distinction between a
prohibitory order that serves to protect the victim of
domestic violence, and an affirmative order that requires
that a defendant undertake an action.
The former, which allows the entry of an order
prohibiting acts of domestic violence against a
defendant over whom no personal jurisdiction
exists, is addressed not to the defendant but to the
victim; it provides the victim the very protection
the law specifically allows, and it prohibits the
defendant from engaging in behavior already
specifically outlawed. Because the issuance of a
prohibitory order does not implicate any of
defendant’s substantive rights, the trial court had
jurisdiction to enter a temporary restraining order
to the extent it prohibited certain actions by
defendant in New Jersey.
An affirmative order, on the other hand, involves the
court attempting to exercise its coercive power to compel
action by a defendant over whom the court lacks personal
jurisdiction.
The court held that minimum contacts considerations
forbid the entry of a final restraining order because by
statutory definition it had to include affirmative relief,
such as the surrender of firearms and firearm permits, the
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payment of a civil penalty, and surcharge, and collateral
consequences such as enrollment in a central offenders
registry.
In our view, the distinction made by New Jersey’s
highest court between prohibitory and affirmative orders
represents the fairest balance between protecting the due
process rights of the nonresident defendant and the
state’s clearly-articulated interest in protecting the
plaintiff and her child against domestic violence.
Spencer, 191 S.W.3d at 18-19 (footnotes omitted).
While the language of KRS 403.725 was amended after Spencer, it
still provides in KRS 403.725(2) that “[t]he petition may be filed in . . . a county
where the victim has fled to escape domestic violence and abuse.”1 We interpret
this language broadly to fulfill the purposes of our domestic violence statutes in
allowing victims to obtain “short-term protection against further wrongful conduct
in order that their lives may be as secure and as uninterrupted as possible;” and
1
We agree with the reasoning in Vernooy v. Sullivan, No. 2016-CA-000446-ME, 2017 WL
3446977, at *2 (Ky.App. Aug. 11, 2017) (unpublished), but do not cite it as authoritative, that in
amending this statute and moving the relevant language from KRS 403.725(1) to KRS
403.725(2), there is
no indication that the General Assembly intended to alter the prior
law or to limit the entry of a DVO to only when the acts of
domestic violence occurred in Kentucky and involved Kentucky
residents. Considering the current language of KRS 403.725(2),
and in the absence of a clearer statement from the legislature, we
conclude that a Kentucky court retains jurisdiction to enter a DVO
for the protection of a person who has fled to this state to escape
domestic violence.
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also providing law enforcement officers with the means to protect victims. KRS
403.715(1), (2), and (3).
The EPO prohibited Dunbar from having any communication with
Vidal, ordered him to remain 500 feet away from her, and prohibited Dunbar from
engaging in any third-party contact, social media contact, or text messaging with
Vidal for a period of six months.2 “Insofar as the order prohibits [Dunbar] from
breaking the law in Kentucky by approaching [Vidal], it comports with due
process.” Spencer, 191 S.W.3d at 19.
Had Dunbar violated the EPO by approaching Vidal in Kentucky or
committing further acts of domestic violence against her here, he would have
freely subjected himself to the authority of Kentucky and the possible
consequences of such actions. Apparently, Dunbar did not violate the EPO as
Vidal failed to file for a DVO before the EPO expired and did not file an appellate
brief. Therefore, it appears that the EPO properly served its purpose.
Accordingly, we affirm the Jefferson Family Court’s imposition of the
limited EPO protecting Vidal as not violating Dunbar’s due process rights.
ALL CONCUR.
2
The order also restrained Dunbar from disposing of or damaging any property of the parties,
but as there was no allegation that Dunbar had any property of Vidal’s or joint property of theirs
in his possession, that provision is a nullity.
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BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
J. Bart McMahon
Louisville, Kentucky
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