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Judges dismiss man’s appeal of protection order extension

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The Indiana Court of Appeals dismissed a Porter County man’s appeal of a judge’s decision to reset a hearing on a temporary protection order for six months after the victim had an anxiety attack while testifying. The judges held Douglas Allison had to seek a discretionary interlocutory appeal in the matter.

Heather Pepkowski petitioned for an ex parte protection order against Allison, her neighbor, alleging he harassed her and her mother, which constituted stalking. The trial court granted the order and set a hearing for 45 days later. Pepkowski was the first to testify at the hearing, but because she had an apparent anxiety attack while on the stand, Porter Superior Judge Julia Jent continued the hearing for six months. Jent also extended the temporary protection order until that time.

“It was certainly within the trial court’s discretion to continue the matter based on Pepkowski’s apparent anxiety attack at the hearing. A six-month delay, though, defeats the (Indiana Civil Protection Order) Act’s purpose of protecting victims in a fair, prompt, and effective manner. It also runs contrary to Section 34-26-5-10(a), which requires a hearing within thirty days after a request for a hearing is filed ‘unless continued by the court for good cause shown.’ The trial court made no record explaining why a delay of six months was necessary,” Senior Judge Carr Darden wrote in Douglas J. Allison v. Heather Pepkowski, 64A05-1311-PO-554.

Allison argued that the trial court’s Oct.10, 2013, order is appealable as a matter of right because it is an interlocutory order granting or refusing to dissolve a preliminary injunction. However, a preliminary injunction may not be granted without notice and an opportunity to be heard at a hearing, Darden pointed out. Allison appeared at the October hearing, but it ended before he had an opportunity to be heard. The court’s extension granted a temporary protection order, not a preliminary injunction.

The judges dismissed Allison’s appeal because temporary protection orders are not appealable as of right.

“To pursue this appeal, Allison was required to seek the trial court’s certification of the order for interlocutory appeal, and upon the court’s certification, to ask us to accept jurisdiction over the appeal,” Darden wrote.

 

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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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