Court: Indiana Court of Appeals; June 14, 2019; Indiana; State Appellate Court
Following multiple incidents of alleged domestic violence, N.E. Wife applied for a protection order against L.W. Husband. The trial court denied her request without conducting an evidentiary hearing, asserting that a no-contact order against Husband rendered the protection order unnecessary. Wife appealed, raising two main issues: (1) whether the trial court provided an adequate hearing on her petition, and (2) whether it was correct to deny her petition based solely on the existing no-contact order. The appellate court determined that the trial court's hearing was inadequate, as it did not allow Wife to testify or present evidence, violating the Indiana Civil Protection Order Act (CPOA). Additionally, the court found that the trial court erred in its reasoning regarding the no-contact order. Consequently, the appellate court reversed the trial court's decision and remanded the case for further proceedings.
Wife alleged four significant incidents of abuse by Husband. The first incident involved Husband physically assaulting Wife after an argument, leading to his arrest and subsequent misdemeanor battery conviction. The second incident occurred after Husband returned home intoxicated, where he physically assaulted Wife, resulting in bruising and forcing her to flee to Ohio. The third incident involved Husband intimidating Wife's grandchildren, leading to police intervention. The fourth incident involved Husband's aggressive behavior while wielding a knife, causing Wife to seek police help again. Following these events, Wife experienced anxiety and panic attacks as a result of the abuse.
Wife filed a petition for a protection order on August 21, 2018, requesting that the trial court prevent Husband from contacting her, evict him from her home, and grant her possession of her property and dog. She sought compensation for damages from his violent acts, including attorney fees and counseling costs, and requested that Husband surrender a firearm. On August 22, the trial court issued an Ex Parte Order for Protection but did not indicate whether the petition was granted or denied. The court set a hearing for September 18, 2018, and advised Wife to seek legal counsel.
At the hearing, Wife appeared without an attorney, while Husband did not attend. The trial court did not take evidence but confirmed a no-contact order was in effect due to Husband's pending criminal case. The court explained that this existing order provided sufficient protection, rendering a separate protection order unnecessary. Wife's request for eviction was also denied because Husband was in custody and barred from her residence by the no-contact order. The court suggested she arrange for Husband's belongings to be removed and change the locks. Ultimately, the trial court issued a written Order Denying the Petition for an Order for Protection, stating Wife had not proven the occurrence of domestic violence or related offenses. The denial was based on the presence of the no-contact order from the criminal case. Wife subsequently appealed the decision.
Husband did not submit an appellee's brief, leading to a presumption of prima facie error if the appellant's brief demonstrates such error. Wife claims she was denied a fair hearing for her protection order petition, as the trial court did not allow her to testify, present evidence, or call witnesses. The Indiana Coalition Against Domestic Violence and Battered Women's Justice Project submitted an amicus brief supporting Wife, emphasizing the necessity of a fair hearing for survivors of intimate partner violence and the importance of courts applying the law correctly to provide justice. Indiana law mandates that the Civil Protection Order Act (CPOA) should protect victims of domestic violence and allow them to file petitions against family or household members who pose a threat. The court has discretion in granting protective relief under the CPOA, but minimum hearing requirements include the opportunity for parties to testify and cross-examine witnesses. Failure to provide these safeguards constitutes an error.
The trial court denied Wife's petition for a protection order without allowing her to testify, present evidence, or call witnesses, instead instructing her that she could contact the police if Husband violated a separate no-contact order. This denial was found to be in error, as it did not comply with Indiana Code section 34-26-5-9, which requires an evidentiary hearing. The court's determination that Wife failed to prove domestic violence by a preponderance of the evidence was also deemed premature, as the hearing was inadequate. Furthermore, the trial court incorrectly concluded that the existence of a no-contact order precluded Wife from seeking a protection order, as Indiana law permits the filing of such petitions irrespective of ongoing criminal proceedings. Consequently, the appellate court reversed the trial court's decision and remanded for a new hearing, allowing Wife the opportunity to present her case.
A protection order and a criminal no-contact order serve different purposes, with the former providing broader relief, including immediate issuance without a hearing, whereas the latter is limited to prohibiting contact as a condition of legal proceedings. The civil protection order system offers advantages for survivors, such as a lower burden of proof and additional relief options, which are not available in the criminal system. The court found that the trial court incorrectly required Husband's presence to grant Wife's eviction request, as Indiana law allows for ex parte protective relief without notice or hearing, including eviction from the petitioner's residence. Additionally, Wife sought financial relief from Husband for attorney fees and expenses arising from his violent actions, and the court emphasized that it has the authority to grant such relief. Consequently, the court determined that the initial hearing on Wife's protection order petition was inadequate and reversed the trial court's denial, remanding the case for a new hearing to assess the evidence and provide appropriate relief.
The court reversed and remanded the case, with Judges Baker and Najam concurring. The lack of a no-contact order exhibit during the hearing left the circumstances of its issuance unclear, relying instead on the chronological case summary. The amici curiae sought a ruling to affirm that temporary ancillary relief, like eviction requests in protection order cases, is discretionary and aligns with the Comprehensive Protection Order Act (CPOA). However, the court declined this request. Relevant Indiana Code sections 34-26-5-9(c)(3) and (4) outline the relief available, which includes ordering a respondent to pay attorney's fees, reimburse expenses related to domestic violence (such as counseling and property repair), and prohibiting the respondent from possessing firearms or specified deadly weapons, requiring their surrender to law enforcement during the protection order's duration, unless otherwise ordered by the court. Additional provisions regarding firearm surrender are found in Ind. Code 34-26-5-9(f).
