GREGORY W. AYLOR v. JILL M. STULTZ AYLOR

Frankfort, KY - Divorce lawyer represented appellant with appealing from the issuance of a Domestic Violence Order ("DVO”).

Gregory and Jill M. Schultz Aylor were married at the time of the

incident at issue in this case. Beginning on the morning of May 19, 2018, the

couple engaged in a series of arguments based primarily on the fact that Jill had

spent time with co-workers the previous night. Throughout that day, Gregory also

texted with his best friend, Jason Whaley, regarding such altercations. Later that

evening, Jason testified that Gregory called him and told him he had his gun in his

hand and that he was trying to get his children out of the house so that he could

shoot Jill. Jason contacted the police, who eventually arrived at the Aylor

residence to assess the situation.

Jill subsequently filed a petition for an order of protection against

Gregory. The family court issued an emergency protective order in favor of Jill

and held a hearing on May 30, 2018, as to whether the family court should issue a

DVO. After conducting the hearing, the Boone Family Court entered a DVO on a

Form AOC–275.3, which restrained Gregory from committing further acts of

abuse or threats of abuse, stalking, or sexual assault, required Gregory to stay 500

feet away from Jill, and provided for supervised visitation with the couples' two

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minor children. Gregory was also required to turn over all firearms. The order

was to remain in effect until May 30, 2021.

Under the order's heading, "ADDITIONAL FINDINGS” (emphasis

original), at the top of page two, the court found:

☑ For the Petitioner against the Respondent in that it was

established, by a preponderance of the evidence, that an

act(s) of domestic violence and abuse, dating

violence and abuse, stalking, sexual assault has

occurred and may again occur[.]

While the first box was checked, the remaining boxes were left blank.

Additionally, the family court made handwritten notations on the docket sheet

order entered May 30, 2018, which, while summarizing the testimony of Jason and

Jill, indicated nothing regarding the family court's findings or conclusions.

Further, at the closing of the evidence at the hearing, the family court simply

stated, "I'm going to make a finding that there was an act of domestic violence,

just on behalf of petitioner.” The family court did not discuss any further findings

or conclusions. Gregory thereafter filed this appeal, arguing that the

preponderance of the evidence failed to establish that an act of domestic violence

or abuse occurred or may occur again.

ANALYSIS

Pursuant to Kentucky Revised Statutes (KRS) 403.740(1), following a

hearing, "if a court finds by a preponderance of the evidence that domestic

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violence and abuse has occurred and may again occur, the court may issue a

domestic violence order[.]” (Emphasis added). Therefore, pursuant to the statutory

language, a family court must make two separate findings – that domestic violence

and abuse occurred as well as the likelihood of future domestic violence. See

Guenther v. Guenther, 379 S.W.3d 796, 802 (Ky. App. 2012) (for the proper entry

of a DVO, a trial court must determine by a preponderance of the evidence that

domestic violence may occur again in addition to determining that domestic

violence has already occurred).

In this case, the family court made no finding that domestic violence

"may again occur.” The family court's oral findings make no mention of whether

the domestic violence and abuse may occur again, and the family court failed to

make such a finding on the form Order of Protection. As previously discussed, it is

incumbent upon the trial judge to make the required findings under KRS

403.740(1). "This court has cautioned that DVO proceedings must be complete

and thorough due to their serious impact on families.” Boone v. Boone, 463

S.W.3d 767, 769 (Ky. App. 2015) (citing Rankin v. Criswell, 277 S.W.3d 621, 626

(Ky. App. 2008)).

Consequently, we are obliged to vacate the DVO and remand for

additional specific factual findings pursuant to KRS 403.740(1) as to whether

domestic violence and abuse may again occur. Recognizing the unique nature of

DVOs and the significant purposes they serve, however, it is hereby ordered that

the family court's May 30, 2018 Order of Protection shall remain effective for

thirty (30) days after this opinion becomes final. The family court shall hold an

evidentiary hearing in conformity with this opinion within that time.