By LawReader Senior Editor Stan Billingsley – Nov. 23, 2010
We have learned that trial courts are still struggling with the definition of “living together” which is the jurisdictional requirement of the Domestic Violence act. The appellate courts have settled this issue and standards for determining if a couple is “living together” are discussed in a 2007 case.
If a couple are merely dating, even having sex, this does not permit the court to issue a DV restraining order. See the following case to review the six point standard for a court to determine if a couple are subject to the DV act.
Of course, if a party seeks a Restraining order on traditional grounds, they can apply to the Circuit Court for relief.
KRS 403.720 (3)
Randall v. Stewart, 223 S.W.3d 121 (Ky. App., 2007)
According to KRS 403.725(1), any “member of an unmarried couple” may file a petition for a domestic violence order. For the purposes of KRS Chapter 403, the phrase “member of an unmarried couple” has been defined as “each member of an unmarried couple which allegedly has a child in common, any children of that couple, or a member of an unmarried couple who are living together or have formerly lived together.” KRS 403.720(3). Obviously, in the present case, we are concerned only with the last clause of this definition, “a member of an unmarried couple who are living together or have formerly lived together.” KRS Chapter 403 does not provide a definition for the phrase “living together”.
As appellant points out, the Supreme Court of Kentucky addressed this issue in Barnett v. Wiley, supra. In Barnett, the petitioner alleged, in a petition to obtain a DVO, that the respondent approached her car, hit the window, threatened to kill her, and followed her vehicle as she drove away. Id. at 18. At a subsequent hearing, the petitioner testified that she and the respondent were not related, had no children in common, and had never lived together. Id. Despite this evidence, or lack thereof, the trial court granted the petition. Id. The respondent moved to dismiss the petition arguing that the petitioner lacked standing to seek a DVO since they did not qualify as an “unmarried couple”
[223 S.W.3d 124]
as defined by KRS 403.720(3). Id. The trial court denied the respondent’s motion, and he appealed to this Court, which affirmed the trial court’s order. Id.
The Supreme Court granted discretionary review and acknowledged that Kentucky case law had yet to define the phrase “living together”. However, noting that Black’s Law Dictionary (7th ed.1999) had defined “cohabitation” as the “fact or state of living together, especially as partners in life, usually with the suggestion of sexual relations[,]” the Supreme Court opined that “living together” implied “some sort of cohabitation.” Id. at 19. Turning to the case law of other states for guidance, the Supreme Court relied on State v. Kellogg, 542 N.W.2d 514 (Iowa 1996) in which the Iowa Supreme Court set forth a non-exclusive list of six factors that a trial court should consider in determining whether a couple are cohabiting:
1. Sexual relations between the parties while sharing the same living quarters.
2. Sharing of income or expenses.
3. Joint use or ownership of property.
4. Whether the parties hold themselves out as husband and wife.
5. The continuity of the relationship.
6. The length of the relationship.
Id. Regarding these factors, our Supreme Court stated:
[W]e believe that the six factors discussed in Kellogg are relevant in determining whether two people are “living together” within the meaning of KRS 403.720. But under the plain language of the statute, there must be, at a minimum, proof that the petitioner seeking a DVO shares or has shared living quarters with the respondent before a finding can be made that the two are an “unmarried couple” under KRS 403.725.
Id. The Supreme Court then concluded that the trial court had erred in issuing the DVO since the record lacked any evidence that the petitioner and the respondent had ever shared living quarters, either permanently, temporarily, or on a part-time basis. Id. at 21.
Finding the holding in Barnett v. Wiley to be controlling, we turn to the factors set forth in that case. Although the record contains no evidence regarding the continuity of Randall’s and Stewart’s relationship, Stewart testified that she and Randall had dated for approximately eighteen months. Regarding whether the parties were having sexual relations while sharing the same living quarters, there is no evidence that Randall and Stewart had ever shared living quarters. Furthermore, Stewart testified that Randall would spend one or two nights per week at her residence, and, while this testimony may imply that the parties had sexual relations, the evidence in the record simply did not address this factor. There is no evidence that the parties shared income or expenses. The record indicates that the parties neither jointly owned nor jointly used any property. There is absolutely no evidence that the parties presented themselves as husband and wife. Considering the factors set forth in Barnett v. Wiley, the family court’s finding that the parties’ relationship qualified as an “unmarried couple” as defined by KRS 403.720 was not supported by substantial evidence. Thus, the family court clearly erred when it granted the DVO against Randall since, under these facts, Stewart lacked the standing to seek such a protective order.
While we are compelled to reverse the family court’s decision, we sympathize with its desire to issue a DVO in this case. Given the explosive and vicious nature of Randall’s attack, it was only by happenstance or providence that Stewart managed to escape Randall’s apartment with
[223 S.W.3d 125]
only minor physical injuries. Moreover, while we lack the authority to expand the scope of KRS 403.725 to cover dating relationships, this case illustrates the compelling need for the General Assembly to consider such an expansion.2
The domestic violence order entered against Randall is reversed, and this matter is remanded to the family court with instructions to dismiss Stewart’s petition with prejudice.