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Protective order against ex-husband reversed for lack of evidence

January 23, 2015

A trial court had insufficient evidence to extend a protective order a woman sought against her ex-husband, the Indiana Court of Appeals ruled in reversing the order.

J.K. continued to live two doors down from his ex-wife, T.C., in a Chesterton townhouse community after they divorced in 2008. When T.C. told J.K. she wanted a divorce in 2007, she claims he choked her with his forearm, causing her pain and to fear for her life. She got a protective order and has renewed two-year-long protective orders since.

The COA noted, though, that there was no testimony about the choking allegation at the original P.O. hearing. The account comes from T.C.’s most recent petition in which a five-year protective order was granted to T.C. ex parte last March, and which J.K. challenged.

The protective order barred J.K. from contacting or coming near T.C., going to a K-Mart Store in Chesterton or Chesterton High School. It also forbid him from possessing firearms.

The COA noted that Porter Superior Judge Julia Jent told J.K.’s attorney at a hearing challenging the order, “The original basis is still there counsel. Look at the statute. There is no statute of limitations. If it happened ten years ago we can issue it still. Okay?”

Appellate Judge Michael Barnes disagreed. “We do not believe the legislature intended that protective orders can be reissued, renewed, or extended ad infinitum based solely upon evidence related to the protective order’s initial issuance, contrary to the trial court’s belief,” he wrote in J.K. v. T.C., 64A05-1406-PO-259.  

In reversing, the Court of Appeals cited its recent decision, A.N. v. K.G., 10 N.E.3d 1270, 1272 (Ind. Ct. App. 2014), which held an extension of a protective order “must be viewed in light of the continuing harm or the threat of continuing harm that necessitated the issuance of the protective order in the first instance,” and that “the extension must be equally supported by a court’s conclusion that such additional time, in excess of the statutorily two-year approved extension, is necessary to protect the petitioner and to bring about a cessation of the violence or the threat of violence.”

The panel also concluded that the Civil Protective Order Act under I.C. § 34-26-5 places the burden on the petitioner to prove by a preponderance of the evidence that a P.O. should be extended. The panel also was troubled that the court cited the protective order as the reason there had been no instances of domestic violence since the choking allegation. “(I)t places a respondent in a no-win situation if full compliance with a protective order can be a basis for extending the order or issuing a new one,” Barnes wrote.

“We conclude that J.K. has demonstrated prima facie error. On the slim record before us, there simply is insufficient evidence that there is a proper basis for issuing a new, five-year protective order against J.K. … If T.C. believes such evidence exists, she may file another request for a protective order, and the trial court may issue one after conducting a hearing at which the burden of proof is placed upon T.C. and at which both parties have the opportunity to present evidence and cross-examine witnesses,” the panel concluded.    


 



 

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