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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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