26 Jan Let’s Go Cite Seeing: Jan 16 Round Up

Although there are no published cases from the week of January 16, this Round Up is definitely worth a read. DVOs, IPOs, and many more acronyms, oh my. We’ve linked all of the Round Up cases and many of the cited cases for everyone’s further perusal and even put in some practice pointers for our fellow attorneys to look out for. Read on!

Andrew Timberlake v. Mindy Natona Wilson, 2024-CA-0330

Andrew Timberlake and Mindy Wilson were never married but lived together in Mindy’s home for several years with their son, J.T. In April 2023, Mindy decided the living arrangement should end. Andrew’s response to this eviction notice? Domestic violence. While their 3-year-old was in the home. Not a great idea, Andrew.

Following the incident, an Emergency Protective Order was entered on April 18, 2023, followed by a three-year DVO ten days later. Among other restrictions, the DVO required Andrew’s visitation with J.T. to be supervised. Spoiler alert: Andrew struggled with this concept.

Supervised Visitation Goes Sideways

At a June 2023 exchange, things went so poorly that Mindy needed law enforcement to physically retrieve J.T. Andrew was held in contempt, and his court-approved supervisor (his own mother!) was removed from the role. Andrew then failed to identify an alternative supervisor despite the court’s directive. The trial court awarded Mindy sole custody in January 2024. Andrew appealed.

Here’s where things get procedurally interesting. Andrew explicitly appealed only the custody determination (Case No. 23-CI-00332), but spent much of his brief challenging the DVO itself (Case No. 23-D-00117—a completely different case).

The Court of Appeals was not amused: “We decline to address any of the testimony and evidence presented at the DVO hearing because that case is final and unappealable and, therefore, not properly before us.” Translation: Wrong case, wrong appeal, nice try.

The Best Interests Analysis from the KY Court of Appeals

Under KRS 403.315, when a DVO has been entered against a party, the presumption favoring joint custody doesn’t apply. The trial court therefore analyzed the KRS 403.270 factors. The DVO created what the court called a “near insurmountable barrier for communication between the parties.” Hard to co-parent when you can’t communicate.

Andrew also argued that J.T. needed a relationship with his half-siblings—Andrew’s other children who live in California and receive monthly child support but apparently not much else. Andrew testified he makes “bi-annual visits to San Diego” and claimed the relationship with the half-siblings was “in the beginning of being established.”

The Court of Appeals wasn’t buying it: “This alone does not a meaningful relationship make:” The trial court properly found no basis to consider a relationship between children who had never communicated until the litigation started.

The CHFS Investigation: A Red Herring

Andrew complained that the trial court unfairly discounted a Cabinet for Health and Family Services investigation report that didn’t find concerns beyond those in Mindy’s petition.

The appellate court clarified that the CHFS investigation in the DVO case was ordered to create a Prevention Plan, not to confirm or deny allegations or to determine custody. Just because it didn’t find new problems doesn’t mean the court had to overlook the substantial evidence of existing problems.

The trial court declined to set a visitation schedule but gave Andrew a roadmap: complete a protective parenting course, submit proof of completion with credentials and a syllabus, then file a motion to reconsider visitation.

When Andrew asked for “clarification” on which classes would satisfy the court, the court got specific: Court-Ordered Programs, Inc., plus two additional courses (High-Conflict Parenting/Divorce and Parenting/Co-Parenting).

On appeal, Andrew claimed he “complied with all court-ordered requirements” and was just waiting for “official certification”—an “administrative” delay. The Court of Appeals called his bluff: “This claim is unsupported. No proof of enrollment, much less completion, has been provided to either the family court or this Court.”

Affirmed. The Court of Appeals found substantial evidence supporting the trial court’s findings and proper application of the law. The trial court had the discretion to weigh all evidence, observed both parties in person, and properly considered the DVO’s impact on J.T.’s best interests.

Unreported, as expected. http://opinions.kycourts.net/COA/2024-CA-000330.PDF

William Dale Tucker v. Candace Lea Tucker, 2024-CA-0997

William (“Billy”) and Candace (“Candy”) Tucker’s 2024 divorce centered on two houses once owned by Billy’s late father, Lloyd. One house was located on Breckinridge Street and the other on Liberty Street. The trial court ruled that the Breckinridge Street property—transferred to Billy in 2014 during the marriage—was marital property, awarding Candy half the equity ($34,450) while giving Billy the house. The Liberty Street property, still owned by Lloyd’s estate, wasn’t marital property, but Candy received $4,800 for remodeling work she’d done when they planned to move in. Simple enough, right? Not when both parties decided to raise their main arguments for the first time on appeal.

Billy claimed Breckinridge was a non-marital gift from his father. Small problem: he never argued this below, provided no preservation of error statement per RAP 32(A)(4), and didn’t even request palpable error review (which the Shepherd case says is required absent extreme circumstances). The Court of Appeals reviewed it anyway “out of an abundance of caution” and found no palpable error. Property acquired during marriage is presumed marital, and under Sexton v. Sexton, the burden is on the spouse claiming it’s a gift to prove donor intent. Meanwhile, Candy argued the trial court lacked subject-matter jurisdiction over Liberty because it belonged to the estate. While jurisdiction issues can be raised at any time, the court found jurisdiction proper because it had awarded her only compensation for labor, not a property interest. Affirmed on both counts.

Practice Pointer: Preserve your issues at trial or forever hold your peace. While subject-matter jurisdiction is an exception that can be raised at any time, everything else requires preservation. If you blow it, you’re limited to palpable error review under CR 61.02. And you’d better actually request it in your brief and explain why manifest injustice has resulted. The Court of Appeals isn’t required to bail you out, even if they sometimes do. Include your RAP 32(A)(4) preservation statement, make your arguments below, and don’t count on judicial generosity to save an unpreserved issue.

Unreported. http://opinions.kycourts.net/COA/2024-CA-000997.PDF

Erin D. Thorpe v. Aaron Thorpe; Cynthia Thorpe; and Dylan Thorpe, 2025-CA-0227

Erin “Desiree” Thorpe’s parents, Aaron and Cynthia, filed a petition seeking custody of her minor child, M.T. But first, they had to clear a threshold hurdle: proving they qualified as de facto custodians under KRS 403.270. After a three-day hearing, the Domestic Relations Commissioner made clear he was only deciding the de facto custodian issue—not custody itself. On December 16, 2024, the circuit court adopted the DRC’s findings and ruled that Aaron and Cynthia did qualify as de facto custodians. M.T. remained with Desiree. The order included magic words: CR 54.02 language declaring it “final and appealable, with no just cause for delay.” Desiree appealed, arguing the court erred in finding her parents were de facto custodians and that she’d abdicated her parental role. Aaron and Cynthia responded that the findings were supported by substantial evidence, but also that the order wasn’t actually final and appealable since it didn’t determine custody or visitation.

The Court of Appeals never reached the merits. Dismissed. Why? Because determining someone qualifies as a de facto custodian, without actually awarding custody or timesharing, is an interlocutory order—even when the trial court sprinkles CR 54.02 finality language on top like magic fairy dust.

The court relied heavily on Cherry v. Carroll, 507 S.W.3d 23 (Ky. App. 2016), which held that a de facto custodian determination that doesn’t award final custody is interlocutory. As Druen v. Miller explained, “an interlocutory order is not appealable unless it divests a party of a right in such a manner as to remove from the court the power to return the parties to their original condition.” Here, the circuit court only determined that Aaron and Cynthia could proceed with their custody claim. It didn’t actually grant them custody. M.T. stayed with Desiree. No rights were finally adjudicated.

Under CR 54.01, a final judgment must adjudicate “all the rights of all the parties.” The de facto determination was just step one. The real issues—custody and timesharing—remained unresolved. And as the Court noted, “if an order is interlocutory by its very nature, the recital of the CR 54.02 finality language will not make it appealable.” (Druen, citing Hook v. Hook). The Court explained the asymmetry: if the circuit court had denied de facto status, Aaron and Cynthia could have appealed because that would have ended their claim. But granting it while reserving custody questions? Still interlocutory.

The Court also cited the unpublished but persuasive Reed v. Tinsley, which involved a bifurcated process where de facto status was determined first. That court held the de facto determination was “an intermediate issue” that “cannot be made final by the inclusion of CR 54.02 language” when custody hasn’t been decided.

Practice Pointer: Don’t fall for the CR 54.02 trap. Just because a trial court declares something “final and appealable” doesn’t make it so. If an order is interlocutory by nature—like a de facto custodian determination that doesn’t resolve custody—no amount of finality language will transform it into an appealable judgment. Under Hale v. Deaton, CR 54.02 requires “a final adjudication upon one or more of the claims in litigation” that “conclusively determine[s] the rights of the parties in regard to that particular phase of the proceeding.” A threshold ruling that merely allows someone to proceed with their custody claim doesn’t cut it. Wait for the final custody order before you appeal the de facto determination, or risk having your appeal dismissed and starting the appellate clock all over again. And if you’re the trial court? Think twice before adding CR 54.02 language to orders that don’t actually resolve anyone’s rights. It just creates confusion and wasted appellate resources.

Unreported. http://opinions.kycourts.net/COA/2025-CA-000227.PDF

Muhanad Hreh v. Hana Khattab, 2025-CA-0563

Muhanad Hreh and Hana Khattab divorced in 2021, but the domestic violence that plagued their marriage didn’t get the memo. In 2020, Hana obtained a three-year DVO based on some truly alarming conduct. Incidents included Muhanad strangling her while she held their baby, unbuckling their one-year-old in a snowstorm and driving off at dangerous speeds, and other physical abuse. When that DVO expired in 2023 and an attempted extension was vacated for improper notice, Hana filed a new petition in March 2024. She alleged Muhanad continued harassing her via text and video calls, filed false CPS reports and criminal charges against her father to pressure her into dropping the DVO, insisted on meeting at secluded locations for child exchanges, and started attending her mosque (where he was eventually banned for verbal outbursts). When security told him to leave the mosque because Hana was there and the DVO was in effect, he refused for 12 minutes until police arrived. The family court granted a new three-year DVO, finding domestic violence had occurred and was likely to occur again based on “a continuing threat” and Muhanad’s pattern of showing up where he knew Hana would be.

On appeal, Muhanad argued the court erred because the new DVO was based on the same 2020 allegations, Hana failed to prove future violence was likely, and the court didn’t consider the impact on him. His key argument? New acts of domestic violence were required. The Court of Appeals wasn’t buying it.

The Decision

Judge Lambert’s unanimous opinion held that while this was properly a new DVO (not an extension per Fedders v. Vogt-Kilmer), the court could absolutely rely on past allegations. Walker v. Walker expressly held that KRS 403.740 “only requires a court determine whether domestic violence has occurred at some point in the past.” It doesn’t require new incidents after an expired DVO. Courts can consider prior protective orders under KRS 403.735, and Chapter 403’s purpose is to protect victims from “further wrongful conduct.” Hana’s testimony about Muhanad’s efforts to isolate her, his harassment, showing up at her mosque, and his general hostile behavior—combined with the court’s credibility assessments—constituted substantial evidence that future violence was likely. The Court also swatted down the argument about “considering impact on the respondent,” clarifying that Wright and Rankin require a full hearing (which happened), not some balancing test before granting protection. Louisville lawyer, James Murphy for the winner.

Practice Pointer: Walker v. Walker is your best friend in DVO practice. Past acts of domestic violence—even those supporting an expired DVO—can support a new one. KRS 403.740(1) requires that domestic violence “has occurred at some point in the past” and “may again occur.” It doesn’t demand fresh violence after the first DVO expires. Continued harassment, isolation attempts, false allegations to pressure dropping protection, and stalking behavior at known locations constitute substantial evidence that future violence is likely. Don’t let losing parties (like Muhanad here, represented by Allen Dodd) argue expired DVOs create res judicata bars. They don’t.

Unpublished. http://opinions.kycourts.net/COA/2025-CA-000563.PDF

L.B.R., a minor child, v. A.R., a minor child and Makayla Lynn Robbins, 2025-CA-0683

Two ten-year-old students. One playground. One gun. A.R. approached L.B.R. to ask a homework question. L.B.R.’s response? He lifted his shirt to reveal a handgun, confirmed it was real when she asked, pulled it out, pointed it at her, and told her he could shoot her. A.R. froze until her mother—watching from several hundred yards away—called for her twice. The children scattered. Police were called. The Pendleton County Circuit Court (Judge Heather Fryman) granted A.R. a three-year IPO prohibiting L.B.R. from being within 500 feet of A.R. or any Pendleton County school. But Judge Fryman openly questioned whether the IPO would survive appeal, acknowledging she was “in a bit of a quandary statutorily.” She was right to worry.

The Court of Appeals vacated in an opinion by Judge Moynahan (joined by Chief Judge Thompson and Judge Cetrulo), with Jan Shaw representing L.B.R. and no brief filed for appellees. The problem? Kentucky’s IPO statute requires “stalking” under KRS 508.130, which demands “a pattern of conduct composed of two (2) or more acts, evidencing a continuity of purpose.” The Court held that “a single encounter cannot be segmented into discrete actions to satisfy the requirement.” Even though L.B.R. showed the gun, confirmed it was real, pulled it out, pointed it, and threatened to shoot — all during “a single, continuous encounter”— it didn’t meet the statutory threshold. The Court cited Smith v. Howell (multiple threats in one voicemail don’t constitute two acts) and Strong v. Gary (requiring temporally distinct incidents). Precedents upholding IPOs involve separate incidents, like Allen v. Eder‘s suitor, who followed a victim to a soccer game, sent unwanted flowers, then sent harassing texts.

The Court emphasized that nothing should “minimize the seriousness of the conduct.” A ten-year-old threatened with a gun is “unconscionable.” But courts must “apply the statutes as the General Assembly has written them, not as we might wish them to be.” The opinion closed with a pointed invitation: “This case highlights a gap in the existing statutory framework—one that leaves children who experience a single, significant act involving a threat of imminent harm without access to protective relief. Given our nation’s modern history of recurrent school-related shootings, we invite the General Assembly to examine whether circumstances involving threats to children at schools warrant broader protections than afforded by the IPO statute as currently written.”

Practice Pointer: IPOs require two temporally distinct acts—you cannot slice one incident into multiple “acts” to satisfy KRS 508.130. Even egregious single-encounter conduct won’t suffice, as we see in this case. Consider criminal charges or school-based protections instead, and advocate for legislative change. This is a clear signal to the General Assembly that the IPO framework needs attention for school-based threats involving children.

Unpublished. http://opinions.kycourts.net/COA/2025-CA-000683.PDF

Criminal Tally

And, without further delay, here’s the weekly criminal tally. As a surprise to none of our regular readers, the win goes to the prosecutors.

The box score:
Prosecutors: 5
Defendants: 1
Ties: 1

Thanks for reading! Click here for the previous Round Up.