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N.E. v. L.W.

Court of Appeals of Indiana

June 14, 2019

N.E., Appellant-Petitioner,
L.W., Appellee-Respondent.

          Appeal 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, Indiana

          ROBB, JUDGE.

         Case Summary and Issue

         [¶1] 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.

         Facts and Procedural History

         [¶2] 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.

         [¶3] 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.

         [¶4] 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.

         [¶5] 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 incident. Id.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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 does.

         Transcript of the Record at 4.[1] 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.

         [¶9] 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. Okay?" Id.

         [¶10] 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 ...

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