Nicole Renee Zoglmann v. Gabriel Joseph Weber ( 2023 )

RENDERED: JUNE 23, 2023; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1435-ME
NICOLE RENEE ZOGLMANN APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE LAUREN ADAMS OGDEN, JUDGE
ACTION NO. 22-D-503111
GABRIEL JOSEPH WEBER APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND CETRULO, JUDGES.
CALDWELL, JUDGE: This is an appeal from a family court’s refusal to dismiss a
domestic violence order (DVO) upon the parties’ filing a purported Joint
Stipulation of Dismissal. We affirm.
FACTS
On September 11, 2022, Nicole Renee Zoglmann (Zoglmann) filed a
petition for an order of protection against Gabriel Joseph Weber (Weber) in
Jefferson Family Court. Zoglmann and Weber were never married to one another.
They had previously lived together but had recently ended their relationship.
Zoglmann has two minor children with her husband, from whom she was
separated.
According to the petition, physical aggression from Weber resulted in
bruising to Zoglmann and property damage. The petition specifically stated Weber
had fired a gunshot through the range hood in Zoglmann’s home. The petition also
alleged that Weber had been stalking Zoglmann and sending menacing texts, and
he had apparently tried to break into her home. The petition also noted that
neighbors had called the police on three occasions before the couple’s breakup.
On September 12, 2022, the family court entered an emergency
protection order and a protective order summons. On September 20, 2022,
following a hearing,1 the family court entered a DVO, finding that domestic
violence had occurred and was likely to occur again. The DVO was to be effective
for three years, expiring in September 2025.
The DVO restrained Weber from having any contact or
communication with Zoglmann and her children. It also restrained Weber from
going within a specified distance of Zoglmann’s home or workplace. The DVO
1
No recording of this hearing (which occurred prior to entry of the DVO) was provided in the
record on appeal.
-2-
further stated Weber was not allowed to possess, purchase, or obtain any firearm
during the DVO’s duration. The family court also entered a contemporaneous
order requiring Weber to surrender his firearm to the sheriff’s office.
In addition, the family court entered an order that same day requiring
Weber to enroll in and complete domestic violence offender treatment;
specifically, the Batterer Intervention Program or BIP. It also entered a
Compliance Show Cause Order requiring Weber to appear on November 8th to
show proof of compliance with the order requiring domestic violence offender
treatment.
Several days after the DVO and associated orders were entered,
Zoglmann filed a pro se Motion to Amend Prior Order of Protection. Zoglmann
stated in her written motion that she would like for Weber to not be required to
attend classes, to have the “restraining order” removed and taken off the record,
and to allow him to have his concealed carry rights back and to get his gun back.
She also stated: “It was all done because of a misunderstanding and
miscommunication.” The motion was set for a hearing on October 11th.
At the October 11th hearing, the family court heard Zoglmann’s
testimony about why she wanted to remove the domestic violence offender
treatment requirement and the gun restrictions. Zoglmann indicated that her
parents had pushed her to pursue the DVO because they wanted to protect her. But
-3-
she stated she was not afraid of Weber and felt bad about the restrictions imposed
on him. She also stated she felt guilty about some of her own actions and that she
had not talked with Weber but had filed the motion to amend of her own volition.
The family court encouraged Zoglmann to take the Choices program
classes for domestic violence survivors. But noting its findings in the DVO just a
month beforehand, the family court denied Zoglmann’s motion. Despite
Zoglmann’s interjecting to say that allegations in the petition were out of context
and that the DVO had unfairly and adversely affected Weber’s employment, the
court repeated that the motion would not be granted in the interest of protecting
Zoglmann’s safety.
The family court stated it found Zoglmann’s previous testimony prior
to entry of the DVO credible. The court also indicated it would consider some
amendments to the DVO (such as changing no contact requirements to no unlawful
conduct requirements) later if Weber obtained the ordered treatment – which
typically took several months to complete. However, the court stated the gun
restrictions were required by federal law and could not be changed. The family
court noted the upcoming November 8th hearing on treatment compliance.
In early November, an affidavit of a court monitoring official was
filed stating that Weber had been ordered to undergo counseling at that office but
Weber had failed to keep his appointment for assessment or testing. Also, in early
-4-
November prior to the scheduled November 8th hearing, Zoglmann filed a Motion
to Dismiss by counsel. This motion to dismiss asserted DVO proceedings are civil
matters, subject to the Kentucky Rules of Civil Procedure. The motion noted
authority indicating there was no separate rule for voluntary dismissal in DVO
proceedings. See Erwin v. Cruz, 423 S.W.3d 234, 236 (Ky. App. 2014).
The motion also cited CR2 41.01 governing voluntary dismissal of
actions and asserted:
CR 41.01(1) allows a petition to move for dismissal even
after service on the adverse party when there is a joint
stipulation of dismissal [by those parties] who have
appeared in the action. Dismissal under this rule is
“automatic, leaving no discretion to the trial court as to
whether it should be granted[.]” Whaley v. Whitaker
Bank, Inc., 254 S.W.3d 825, 829 (Ky. Ct. App. 2008).
Petitioner understands the special considerations
that must be considered by the Court in these types of
actions. Petitioner [Zoglmann] respectfully requests
dismissal herein.
(Record, pp. 49-50).
A few days after filing her motion to dismiss by counsel, the parties
and Zoglmann’s counsel signed a notarized document entitled Joint Stipulation of
Dismissal, which cited CR 41. The notary’s certificate indicates the document was
subscribed, sworn, and acknowledged on November 7, 2022. According to the
2
Kentucky Rules of Civil Procedure.
-5-
court clerk’s records, this Joint Stipulation of Dismissal was filed on November
8th.
The family court conducted a hearing at which both parties testified
on November 8th. The family court noted that Zoglmann had filed a motion to
dismiss, which it described as similar to an earlier motion which it denied. The
family court also noted its prior recommendation that Zoglmann attend Choices
and asked what had changed.
Zoglmann’s counsel stated the parties had submitted a joint stipulation
of dismissal. The family court expressed its concern that Weber had not kept his
BIP/domestic violence offender treatment appointment. It noted the parties’
request for dismissal. But the court indicated it was not inclined to disturb the
DVO since Weber had not complied with its orders.
Zoglmann’s counsel stated that Weber had been unable to attend
classes due to a knee injury. The court noted classes were offered online, so it did
not find the knee injury to be a valid excuse. The court then heard the parties’
testimony.
The court asked Weber why he had not started the domestic violence
offender treatment process. He replied his knee was in bad shape. The court asked
if he was hospitalized and he replied he had gone to a hospital. The court also
-6-
asked Weber if he had turned in his firearm. He replied the gun belonged to his
wife and stated they no longer lived together.
Zoglmann testified to hearing from friends about the severity of
Weber’s injury and his difficulties in getting treatment.
The family court stated it would not grant the request to dismiss the
DVO since Weber was not getting treatment. The family court declined to hold
Weber in contempt for not obeying its orders since he had been ill. But it
explained it was not comfortable with lifting any restrictions until he had complied
with ordered treatment requirements. It stated it would leave in place the DVO
protecting Zoglmann and prohibiting Weber from coming near Zoglmann or her
children. It directed Weber to make arrangements to obtain treatment with a
reminder that a status hearing was set for a few weeks later.
Zoglmann filed a notice of appeal in early December 2022. And
Zoglmann has filed an appellant brief. Weber has not filed a brief with this Court.
Zoglmann argues on appeal that the family court erred in refusing to
dismiss the domestic violence action upon the parties’ joint stipulation.
ANALYSIS
Limitations Posed by the Lack of an Appellee Brief
RAP3 31(H)(3) states:
3
Kentucky Rules of Appellate Procedure.
-7-
If the appellee’s brief has not been filed within the time
allowed, the court may: (a) accept the appellant’s
statement of the facts and issues as correct; (b) reverse
the judgment if appellant’s brief reasonably appears to
sustain such action; or (c) regard the appellee’s failure as
a confession of error and reverse the judgment without
considering the merits of the case.
See also former CR 76.12(8)(c) (substantially similar to RAP 31(H)(3), which
recently took effect on January 1, 2023).
Nonetheless, we have discretion to decline to exercise any of the
options listed in RAP 31(H)(3). See Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky.
App. 2007) (declining options in then-effective CR 76.12(8)(c) given presentation
of issues of first impression meriting substantive consideration). Even when we do
not opt to exercise any of the options listed in our appellate rules, however, our
review is somewhat constrained when an appellee does not respond to legal
arguments or the appellant’s statement of the facts through filing an appellee brief.
We do not specifically elect any of the options provided in our
appellate rules for dealing with the lack of an appellee brief here. Instead, we have
carefully reviewed the record on appeal as well as the appellant brief and
applicable law. Nonetheless, the appellee (Weber) has missed his opportunity to
advise us of any disagreements he might have with the appellant’s factual
statements and legal arguments. And despite the arguments in Zoglmann’s brief,
we discern no reversible error in the family court’s refusal to dismiss the DVO –
-8-
which was entered after an evidentiary hearing and prior to the filing of the parties’
purported joint stipulation of dismissal – under the facts and circumstances of this
case.
Unpublished Case Cited in Appellant Brief is Factually Distinguishable
Zoglmann cites for our consideration our unpublished opinion in
Williamson v. Ballard, No. 2007-CA-001345-ME, 2008 WL 2941123 (Ky. App.
Aug. 1, 2008). Zoglmann admits this unpublished opinion is not binding authority.
See RAP 41(A). But she urges this Court to reverse the family court’s refusal to
dismiss the DVO based on the following discussion in Williamson:
The filing of a domestic violence petition is a civil
matter. See 16 Louise E. Graham & James E. Keller,
Kentucky Practice–Domestic Relations Law § 5.13 (2d.
ed. West Group 2003 Pocket Part) (“domestic violence
proceeding is not a criminal action.”). Therefore, CR 41,
pertaining to dismissal of actions, applies. Pursuant to
CR 41.01(1), Ballard and Williamson could have signed
and filed “a stipulation of dismissal” and the matter could
have been voluntarily dismissed. Or, under CR 41.01(2),
the parties could have asked the court to dismiss the
action under any terms it deemed appropriate. Finally,
under CR 41.02(1), if Ballard chose not to prosecute the
petition, Williamson could have moved for dismissal of
the action and it would have been involuntarily
dismissed. While CR 41 could have been invoked, it was
not.
Williamson, 2008 WL 2941123, at *3.
Zoglmann fails to note, however, a key factual distinction between
this case and Williamson. In Williamson, both parties made statements indicating
-9-
some desire to voluntarily dismiss the proceedings and/or not to pursue obtaining a
DVO before the DVO was entered by the family court. See id. at *2-4 (noting that
respondent told the court the parties had “resolved their differences,” family court
failed to ask petitioner if parties reconciled or if she still wished to go forward with
allegations, and petitioner initially told family court she was not requesting a no
contact order and that she was not seeking any protection from the court in
response to questions – all at a hearing before the DVO was entered).
In contrast, in the present case, the parties filed their purported joint
stipulation of dismissal several weeks after the family court entered a DVO – a
final judgment4 according to our precedent. See Bucci, 218 S.W.3d at 397 (holding
that a DVO which adjudicates all the rights of the parties in the proceeding is a
final judgment under CR 54.01 and thus a party may seek relief from a DVO under
CR 60.02).
CR 41.01(1) Does Not Apply Post-Judgment
We cannot disagree with Zoglmann’s assertions that DVO
proceedings are civil in nature, see Rankin v. Criswell, 277 S.W.3d 621, 624 (Ky.
4
Zoglmann failed to appeal from the issuance of the DVO within 30 days of its entry or the
family court’s denial of her initial motion to amend the DVO. So, she failed to timely appeal
from the DVO and the merits of the DVO itself are not before us. See Erwin, 423 S.W.3d at 237(“If Erwin had wished to challenge the issuance of the original DVO entered October 4, 2011, as
amended November 1, 2011, he should have done so within 30 days of entry of those orders, by
December 1, 2011.”).
-10-
App. 2008), or generally subject to the Rules of Civil Procedure in the absence of
conflicting provisions in statutes or other court rules. And as Zoglmann points out,
there appears to be no specific court rule or statutory provision governing
voluntary dismissals in DVO proceedings.
So, CR 41.01 is not necessarily inapplicable to domestic violence
proceedings. However, CR 41.01(1) did not apply to allow the parties’ post-
judgment request to dismiss the DVO here. Though CR 41.01(1) allows parties to
jointly stipulate to dismiss an action filed by a party, it cannot allow parties to
jointly dismiss or vacate a court order or judgment without court approval.
CR 41.01(1) states:
Subject to the provisions of Rule 23.05, of Rule 66, and
of any statute, an action, or any claim therein, may be
dismissed by the plaintiff without order of court, by filing
a notice of dismissal at any time before service by the
adverse party of an answer or of a motion for summary
judgment, whichever first occurs, or by filing a
stipulation of dismissal signed by all parties who have
appeared in the action. Unless otherwise stated in the
notice of dismissal or stipulation, the dismissal is without
prejudice, except that a notice of dismissal operates as an
adjudication upon the merits when filed by a plaintiff
who has once dismissed in any court of this state, of the
United States or of any state an action based on or
including the same claim.
As Zoglmann points out, a joint stipulation of dismissal does not
depend upon the adverse party not having filed an answer or motion for summary
judgment – in contrast to a unilateral dismissal by a plaintiff under CR 41.01(1).
-11-
And regardless of CR 41.01(1)’s statement that it applies subject to governing
statutes, there are no specific family court rules, other court rules, or statutes about
voluntary dismissal of domestic violence proceedings – despite the existence of
specific statutes and family court rules about other matters in domestic violence
proceedings. See, e.g., KRS5 403.715 et seq.; FCRPP6 10-12. Compare KRS
403.745(5) (explicitly providing either party may file a motion to amend an order
of protection). But CR 41.01(1) implicitly applies pre-judgment, not post-
judgment.
Zoglmann cites Whaley, 254 S.W.3d at 829, for the proposition that
dismissal under CR 41.01(1) “is automatic, leaving no discretion to the trial court
as to whether it should be granted[.]” Whaley did not concern a voluntary
stipulation of dismissal by multiple parties but rather the plaintiff’s unilateral filing
of a notice of dismissal. See id. at 826. More significantly, the filing of a
document aimed at dismissing the action occurred prior to the trial court issuing
judgment in Whaley. See id. at 826-27 (plaintiff filed notice of dismissal after
defendant filed a motion to dismiss but prior to the filing of any answer or
summary judgment motion; the trial court regarded the motion to dismiss as a
summary judgment motion and erroneously dismissed the action with prejudice).
5
Kentucky Revised Statutes.
6
Family Court Rules of Procedure and Practice.
-12-
Though CR 41.01(1) does not explicitly state that it applies only pre-
judgment, it implicitly only allows the parties to jointly stipulate to dismissal of the
action prior to the entry of judgment.7 CR 41.01 states the dismissal is without
prejudice unless the notice or stipulation of dismissal states otherwise and it
explicitly provides that a plaintiff’s notice of dismissal operates as an adjudication
of the merits if the plaintiff has previously dismissed a court case based on the
same claim. Surely such a rule allowing for a party to enter a notice of dismissal
operating as an adjudication of the merits under some circumstances does not
apply where the court has already adjudicated the merits of a case itself and
entered judgment.
Furthermore, attempts to seek relief from a court’s judgment are
governed by CR 60 – specifically, CR 60.02 in circumstances such as here where a
party asks for relief from a final judgment based on mistake, inequity in
prospective application or other extraordinary reasons.8 So, despite the parties’
7
Other than Zoglmann’s counsel mentioning the parties’ having submitted the purported
stipulation of dismissal (filed the same day as the hearing), there was no discussion of whether
parties could validly stipulate to a dismissal of a DVO at the November 8, 2022 family court
hearing based on our review of the recording. Instead, the family court explicitly discussed why
it declined to grant the motion to dismiss and/or amend the DVO.
8
CR 60.02 provides:
On motion a court may, upon such terms as are just, relieve a party or his legal
representative from its final judgment, order, or proceeding upon the following
grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly
discovered evidence which by due diligence could not have been discovered in
time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence;
-13-
attempt to invoke CR 41 to try to dismiss the DVO without court approval, the
family court instead exercised its discretion to determine if it was appropriate to
amend, dismiss, or otherwise disturb the DVO.
No Reversible Error in Family Court Not Dismissing or Otherwise Disturbing
DVO Under Facts Here
“Our standard of review of a trial court’s denial of a CR 60.02 motion
is whether the trial court abused its discretion.” Age v. Age, 340 S.W.3d 88, 94
(Ky. App. 2011) (citing Richardson v. Brunner, 327 S.W.2d 572, 574 (Ky. 1959)).
CR 60.02 relief may be available in cases involving DVOs if one can
show extraordinary reasons meriting relief from the judgment. Bucci, 218 S.W.3d
at 397-98. This can be a difficult standard to meet in domestic violence cases
given the statutory objectives of protecting victims in the most expeditious manner
possible and allowing victims to remain safe and secure from future violence. Id.at 398 (citing KRS 403.715(1)). “[W]hether CR 60.02 relief is justified in a case
involving a DVO is a consideration not to be taken lightly in light of the clear
(d) fraud affecting the proceedings, other than perjury or falsified evidence; (e)
the judgment is void, or has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated, or it is
no longer equitable that the judgment should have prospective application; or (f)
any other reason of an extraordinary nature justifying relief. The motion shall be
made within a reasonable time, and on grounds (a), (b), and (c) not more than one
year after the judgment, order, or proceeding was entered or taken. A motion
under this rule does not affect the finality of a judgment or suspend its operation.
Other specific provisions of CR 60 do not appear applicable here such as CR 60.01 (clerical
mistakes) or CR 60.03 (independent actions).
-14-
purpose of the General Assembly’s domestic violence legislation” and it is
appropriate for family courts to take caution and refrain from dissolving DVOs
unless it is clearly legally necessary. Bucci, 218 S.W.3d at 398.
Even if we leniently construe Zoglmann’s motion to dismiss or the
parties’ purported stipulation of dismissal as a CR 60.02 motion seeking relief
from a final judgment, we discern no reversible error in the family court’s refusal
to disturb the DVO under the facts and circumstances then presented. As the
family court had adjudicated the case and issued a DVO – finding that domestic
violence had occurred and would likely occur again – which was not timely
appealed, it was appropriate for the family court to exercise caution and not
dissolve the DVO in the absence of extraordinary reasons or a clear legal necessity
to do so. See Bucci, 218 S.W.3d at 398.
We discern no abuse of discretion in the family court’s refusal to
disturb the DVO under the facts and circumstances here. The family court noted
its recall of the reasons leading to the recent issuance of the DVO and its concern
for protecting Zoglmann’s safety.9 It also expressed concern about lifting
restrictions before Weber had even begun court-ordered treatment. Especially as
9
Though not explicitly mentioned by the family court, the safety of Zoglmann’s children might
also be affected if the DVO were disturbed. Though the proceedings were not formally brought
on behalf of the children, the DVO restrained Weber from contacting or coming near
Zoglmann’s children.
-15-
the court indicated it would consider some amendments to the DVO later if Weber
completed treatment, its decision was not “arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” See Age, 340 S.W.3d at 94 (quoting
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (defining abuse of
discretion)).
CONCLUSION
For the foregoing reasons, we affirm the Jefferson Family Court’s
judgment.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
Justin R. Key
Jeffersonville, Indiana
-16-