from the Marion Superior Court The Honorable Christina R.
Klineman, Judge Trial Court Cause No. 49G17-1808-PO-32889
ATTORNEYS FOR APPELLANT William A. McCarthy Amy Freeland
Indiana Legal Services, Inc. Indianapolis, Indiana
ATTORNEYS FOR AMICI CURIAE Kerry Hyatt Bennett Indiana
Coalition Against Domestic Violence Indianapolis, Indiana
Matthew T. Albaugh Faegre Baker Daniels LLP Indianapolis,
Summary and Issue
Following four instances of alleged domestic violence, N.E.
("Wife") sought a protection order against L.W.
("Husband"). The trial court denied Wife's
request without holding an evidentiary hearing, finding that
a protection order was not necessary because Husband was
subject to a criminal no-contact order as to Wife. Wife now
appeals, raising two issues for our review: (1) whether the
trial court failed to provide Wife with an adequate hearing
on her petition for a protection order; and (2) whether the
trial court erred in denying Wife's petition on grounds
that a no-contact order was in place. Concluding that the
hearing, in which the trial court did not allow Wife to
testify or present evidence, was inadequate under the Indiana
Civil Protection Order Act ("CPOA") and that the
trial court erred in denying Wife's protection order
petition on grounds that a no-contact order was in place, we
reverse and remand for further proceedings.
and Procedural History
On August 21, 2018, Wife filed a petition for a protection
order and request for a hearing, alleging that Husband
committed several acts of physical and verbal abuse against
her. Specifically, Wife alleged that on December 20, 2017,
Husband came home and began to argue with her. To end the
argument, Wife walked out of the home and went to her car to
make a phone call. However, Husband followed her, walked up
to her car, opened the door and began pulling her out of the
car by her arm, and eventually grabbed Wife by the neck. Wife
was able to free herself from Husband by kicking him in the
knee and knocking him down, but she was left with a bruised
arm from Husband's grip. Wife reported the incident to
the police, and Husband was eventually arrested. Husband
entered into a plea agreement and was convicted of Class C
misdemeanor battery as a result of the incident.
The second incident occurred on June 8, 2018, when Husband
returned home after consuming alcohol. He began calling Wife
names, and Wife told him that she wanted a divorce and then
asked Husband to leave the home. Husband "knocked over
furniture, knocked [Wife] around the living room, threw [her]
around on the floor, and grabbed [her] around [her neck],
which left bruises on [her] arms, legs, and neck. Husband
pulled [Wife's] wedding ring off of [her] finger, which
injured [Wife's] finger." Appellant's Appendix,
Volume 2 at 10. Wife fled her home and traveled "to Ohio
for three days . . . to get away from [Husband]."
Id. at 10. Husband was arrested again after the
incident, but Wife did not seek criminal charges because
Husband promised to leave her home.
The third incident occurred one month later, on July 8, 2018.
On that day, Wife's two grandchildren were eating at her
dining room table when Husband entered the room and yelled at
the thirteen-year-old granddaughter because he thought the
child had disrespected him. The granddaughter began to cry.
Husband then began "walking around the house, yelling,
and slamming doors" as well as "mak[ing]
intimidating movements and getting into [the
granddaughter]'s personal space." Id. at 9.
The twelve-year-old grandson called the police. When the
police arrived, they escorted Husband from Wife's home.
Wife attempted to take away Husband's key to her home,
but one of the officers ordered her to return it.
As for the fourth incident that occurred on August 16, 2018,
Husband became upset because a cooking pan that he wanted to
use had not been washed. He began to slam dishes into the
sink and yell at Wife. Husband repeatedly yelled at Wife
while holding a butcher knife. Soon thereafter, Husband
placed his hands on Wife's neck. Husband "stopped
himself from escalating, but did not stop yelling" at
Wife. Id. Wife eventually fled the home and sought
help from the police to remove Husband from the home. While
she did so, Husband continued to call her and left her a
voicemail message in which he called her "derogatory
names." Id. Wife suffered "anxiety
symptoms and a panic attack" as a result of the
In her August 21, 2018 petition for a protection order, Wife
asked the trial court to prohibit Husband from contacting
Wife or committing further acts of violence against her; to
evict Husband from Wife's home; and to grant Wife
possession and use of her home, vehicles, her personal
property, and her dog. Wife also requested that Husband be
ordered to compensate her for damages resulting from his acts
of violence, including attorney fees, counseling, and
property damage, and that Husband be prohibited from
possessing firearms and ordered to surrender a black revolver
to law enforcement.
On August 22, the day after Wife filed her petition, the
trial court issued a form order titled Ex Parte Order for
Protection. The order was a preprinted form with spaces to
apply checkmarks for applicable provisions. In the order, the
trial court indicated that a hearing date for the matter was
set for September 18, 2018. However, the trial court did not
mark either of the spaces on the form to indicate whether
Wife's petition was granted or denied ex parte. In the
comment space on the form, the trial court handwrote the
following: "[Wife] is encouraged to seek counsel
[regarding] divorce and separation of assets."
Id. at 20. Also, on August 22, the trial court
issued a Notice to Appear, directing Wife and Husband to
appear at the September 18 hearing.
Wife appeared pro se at the hearing, but Husband did not. The
matter was called by the trial court, however, Wife was not
administered the oath and no testimony or evidence was
offered. Instead, the trial court asked Wife if she still
sought an order for protection. Wife replied in the
affirmative and added that she had been advised by the
prosecutor's office that a no-contact order had been
issued under a criminal matter involving Husband. The trial
court then explained as follows regarding why Wife did not
need a protection order:
Right. So, it looks like [Husband] does have a pending case
in Criminal Court Five (5). He has been arrested on it, and
. . . let me see who is on the [no-contact] order. If
you're on the [no-contact] order, I probably
wouldn't do anything with this and you'd just have
the criminal case. Yeah. You are on the [no-contact] order.
So, there's already a [no-contact] order in place. Uhm,
so, you really don't need a protective order. The
[no-contact] order will give you more protections than this
of the Record at 4. The trial court told Wife that she could
seek an order for protection at a later time if Husband's
criminal case did not result in a conviction.
Also, at the hearing, Wife renewed her request that Husband
be evicted from her home. The trial court stated that Husband
would need to be present before it could order an eviction
and informed her that an eviction was not necessary because
Husband was in custody at the time and would be barred from
the residence by the no-contact order. The trial court
suggested that Wife "box up" Husband's
belongings and "give it to a family member of his and
just be done with it. Then change the locks."
Id. at 5. The trial court concluded the hearing by
stating: "All right, so, you're free to go. You have
the [no-contact] order. If [Husband] comes by, contact the
police and tell them that there is a [no-contact] order by
virtue of a criminal case and they will- they can arrest him.
After the hearing, the trial court issued its written Order
Denying Petition for an Order for Protection. In the order,
the trial court found that Wife "has not shown, by a
preponderance of the evidence, that domestic or family
violence, stalking or a sex offense has occurred sufficient
to justify the issuance of an Order for Protection."
Appellant's App. at 6. However, the trial court also
issued a minute sheet, indicating that it declined to grant
an order for protection because a criminal no-contact order
was in place at the time the petition was ...