The Indiana Court of Appeals has remanded a case regarding a non-violent contact order issued by a Marion Superior judge June 30, 2008, which involved a divorcing couple. The ruling calls the order "defective."
In DeVone Moore v. Damon Moore, No. 49A02-0810-CV-978, DeVone Moore's attorneys appealed a protective order granted to DeVone in response to physical, mental, and emotional abuse from her husband Damon Moore.
Neither party was represented at the June 30, 2008, hearing; Damon was not represented on this appeal and did not file an appellee's brief.
The abuse, which Damon had not denied, had escalated after he learned she was planning to file for divorce from him. The court had granted her an ex parte order for protection June 18, 2008, but amended that order June 30, 2008, so Damon could still have contact with DeVone, as long as it was "peaceable contact, without threats of violence or actual violence."
DeVone agreed to the peaceable contact because the two had a daughter together, and DeVone wanted her husband to still have contact with their child.
But the Court of Appeals disagreed with the trial court's non-violent contact order, calling it confusing.
"... The trial court issued an order for protection using the standard form authorized by the (Indiana Civil Protection Order Act)," Judge Margret Robb wrote. "Not only does the trial court's discussion of this alternative order confuse us, it obviously confused DeVone, who had difficulty understanding the relief being offered and communicating the relief she sought."
In its instructions to remand the protective order, Robb wrote, "... We hold that the order for protection does not provide the relief necessary to bring about a cessation of the violence or threat of violence as required by Indiana Code section 34-26-5-9(f). Therefore, we remand to the trial court to enter an order ... prohibiting communication, and ... requiring Damon to stay away from DeVone's residence and place of employment ...."
The Court of Appeals also instructed the trial court to include terms for unsupervised parenting time for Damon and their daughter, and to check "yes" for Damon to be Brady disqualified, meaning he couldn't buy, receive, or possess a gun while he was subject to the protective order.
Matthew Albaugh and Jon Laramore, both of Baker & Daniels in Indianapolis, represented DeVone pro bono on this appeal.
Albaugh said he was pleased with the ruling for his client and that there is another takeaway from this case.
He pointed to the part of the opinion that states, "No standard form for such an order has been created by the division of state court administration, and there is no mention of such an order in the (Indiana Civil Protection Order Act), in Marion County's local rules, or in the Protection Order Deskbook."
Kerry Hyatt Blomquist of the Indiana Coalition Against Domestic Violence, who filed an amicus brief, agreed.
Because this was a published opinion, she wrote via e-mail, "It will give Indiana judges the precedent to follow; specifically why they cannot issue NVCOs (non-violent contact orders). The first paragraph of the opinion says it all; NVCOs are indeed defective."
Indiana Lawyer covered this case in the Jan. 21 - Feb. 3, 2009, issue: "I'm gonna just pray that he does the right thing."