Summary
dismissing an unpreserved constitutional challenge to renewal of the DVO order
Summary of this case from Pettingill v. PettingillOpinion
NO. 2016-CA-000589-ME
02-17-2017
JEFFREY L. PETTINGILL APPELLANT v. SARA Y. PETTINGILL APPELLEE
BRIEF FOR APPELLANT: William D. Tingley Louisville, Kentucky BRIEF FOR APPELLEE: Bryan D. Gatewood Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A. CHRISTINE WARD, JUDGE
ACTION NO. 13-D-501731-001 OPINION AND ORDER
DISMISSING APPEAL
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BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND NICKELL, JUDGES. NICKELL, JUDGE: On July 11, 2013, the Jefferson Circuit Court entered a domestic violence order (DVO) against Jeffrey L. Pettingill for the protection of his then-wife, Sara Y. Pettingill, and the couple's young daughter. That DVO expired July 10, 2016. Prior to its expiration, Sara moved for renewal of the original order pursuant to KRS 403.740(4). Following a hearing, at which both Jeff and Sara testified, on April 11, 2016, the trial court extended the DVO for three years, until April 10, 2019. Jeff now challenges the constitutionality of KRS 403.740(4), alleging it fails to specify the type of conduct supporting renewal of a DVO; does not require an evidentiary hearing; and, states no guidelines for the permissible length of renewal. Without reaching the merits of the claim, we dismiss the appeal.
The couple separated in mid-2013, and ultimately divorced in late 2014. Jeff is contesting the validity of the dissolution decree in two consolidated cases currently before this Court. Pettingill v. Pettingill, File Nos. 2015-CA-001000-MR and 2015-CA-001702-MR.
Jeff appealed propriety of the original DVO to this Court, arguing no physical abuse supported its issuance and the trial court based its decision on "domestic violence lethality factors" of which it had erroneously taken judicial notice. Rejecting Jeff's arguments, this Court affirmed issuance of the DVO, as did the Supreme Court of Kentucky on discretionary review. Pettingill v. Pettingill, 480 S.W.3d 920, 922 (Ky. 2015).
Kentucky Revised Statutes.
First, Jeff has failed to comply with CR 76.12(4)(c)(v). That rule requires the brief for appellant to:
Kentucky Rules of Civil Procedure. --------
contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review, and, if so, in what manner.The Argument portion of Jeff's brief contains no statement of preservation and, furthermore, does not cite the record at all.
Second, the only document cited in the Argument portion of the appellant's brief is an exhibit attached to Jeff's brief—a letter dated April 28, 2016, advising the Attorney General of his intention to appeal to this Court. Merely placing a document in an Appendix is forbidden; only items in the record below may be included in the Appendix. CR 76.12(4)(d)(v).
We have various options when a party fails to comply with CR 76.12. We may ignore the flaws and proceed with review; strike the brief or its offending portion(s), CR 76.12(8)(a); or, review the issues for manifest injustice only. Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990); Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). Because of more significant missteps, we choose to ignore the two deficiencies identified.
Third, KRS 418.075(1) reads as follows:
[i]n any proceeding which involves the validity of a statute, the Attorney General of the state shall, before judgment is entered, be served with a copy of the petition, and shall be entitled to be heard, and if the ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the petition and be entitled to be heard.(Emphasis added). The order being challenged—on constitutional grounds—was entered April 11, 2016. The letter Jeff included in his Appendix—presumably to establish preservation without alleging as much—was filed more than two weeks later. Clearly, the Attorney General had no opportunity to enter an appearance and argue in favor of the constitutionality of KRS 403.740(4).
Fourth, no one—certainly not Jeff or his attorney—mentioned any statutory flaw to the trial court. We are a court of review. As such, we are authorized to consider only issues first argued to the trial court. Fischer v. Fischer, 348 S.W.3d 582, 586-588 (Ky. 2011). Constitutionality not having been argued to the trial court, it cannot be raised for the first time on appeal.
For the foregoing reasons, we affirm entry of the DVO which shall remain in effect until April 10, 2019, or until further orders of the Jefferson Circuit Court.
ORDER
Due to lack of notice to the Attorney General and non-preservation of the constitutional challenge in the trial court, this appeal is hereby dismissed.
ALL CONCUR. ENTERED: February 17, 2017
/s/ C. Shea Nickell
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: William D. Tingley
Louisville, Kentucky BRIEF FOR APPELLEE: Bryan D. Gatewood
Louisville, Kentucky