ILNews

Panel orders lower court to enforce protective order

Back to TopCommentsE-mailPrintBookmark and Share

Highlighting a bias in state statute relating to protective orders, the Indiana Court of Appeals has held that an accuser’s request for a civil contempt hearing against someone alleged to have violated a protective order can’t be tied to any other criminal or civil proceedings under way or available in the future.

The three-judge appellate decision came today in S.W. by P.W. v. B.K., No. 71A03-1012-PO-655, which comes from St. Joseph Superior Judge Roland Chamblee and Magistrate Brian Steinke.

This case involves a developmentally disabled adult named S.W. who shares an apartment with another developmentally disabled woman as part of a semi-independent living program. P.W., the woman’s sister, obtained a protective order following September 2010 incidents in which B.K. came to the apartment late at night and pounded on the door, trying to enter and yelling for S.W. to come to the door. The South Bend Police Department responded. The ex parte protective order prohibited B.K. from stalking, harassing, annoying, contacting, or visiting the residence. B.K. apparently disregarded the order and returned to the apartment at least twice in November and displayed similar behavior.

P.W. filed a petition for B.K. to appear for a hearing to show cause why he shouldn’t be held in contempt for violating the protective order, and with that petition P.W. filed affidavits supporting the request and also asked for attorney fees. The trial court denied her petition the same day without a hearing, stating that the protective order violations were criminal matters that should be handled by the prosecutor’s office. She filed a motion to correct error and the trial court denied that motion on the same grounds.

On appeal, the appellate panel addressed S.W.’s claim that her due-process rights were violated by the trial court’s refusal to hold a hearing on the alleged indirect civil contempt accusation. The panel explored Indiana Code 34-47-3-5 that lists an array of notice requirements for the accused and how that person must be served with the court order he or she is accused of violating and the specific facts outlined in the accusation.

“Interestingly, the indirect civil contempt statute addresses due process issues, but only in terms of preserving the due process rights of the person accused of contempt,” Judge Terry Crone wrote for the panel that included Judge Edward Najam and Chief Judge Margret Robb. “Absent from the statute is any express language indicating that the accuser is entitled to a hearing.”

The judges agreed with S.W’s citation of I.C. 34-47-5-6 that says in part, “an order for protection is in addition to, and not instead of, another available civil or criminal proceeding… A petitioner is not barred from seeking an order (of protection) because of another pending proceeding.”

“We do not find any parallel provision in the contempt statute, but find the statute instructive,” the court wrote in its footnote, expanding on what it wrote in the opinion itself. “The record does not indicate the specifics of any criminal proceedings against (B.K.) or whether they are still pending, and we do not believe that the decision to grant or deny a civil contempt petition should be based on such collateral matters. Instead, the petition should be valued independently, without reference to other proceedings that may or may not otherwise protect the person for whose safety the original protective order was issued.”

The judges also determined S.W. should be reimbursed her $250 appellate filing fee because this appeal is based on the trial court’s refusal to enforce the protective order against B.K. and that’s what is being reversed and remanded here.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

ADVERTISEMENT