Reversal: Wife Was Wrongly Denied Protective Order Hearing

Marilyn Odendahl

A woman alleging domestic violence at the hands of her husband will have another chance to make her case for a protective order against him after the Indiana Court of Appeals ordered a trial court to conduct a new hearing.

In N.E. v. L.W., 18A-PO-2514, wife N.E. filed a petition for protective order against her husband, L.W., alleging physical and verbal abuse on four occasions between December 2017 and August 2018. The alleged abuse included L.W. grabbing N.E. by the neck, throwing her, knocking over furniture and intimidating the couple’s granddaughter, prompting their 12-year-old grandson to call police.

Rather than granting or denying the petition ex parte, the Marion Superior Court set the matter for a hearing and encouraged N.E. to seek counsel regarding a divorce. N.E. was not permitted to present evidence or testimony during the hearing, and the trial court denied her motion after learning that a no-contact order had been issued in a criminal matter involving L.W.

N.E. also asked the court to evict L.W. from her home, but the court likewise declined that motion because he was already subject to the no-contact order, and because he was not present at the hearing. Instead, the court told N.E. to put her estranged husband’s belonging in boxes, give the boxes to family members “and just be done with it.” If L.W. tried to return to the house, the judge told N.E. to call the police.

N.E. appealed, and the Indiana Coalition Against Domestic Violence and Battered Women’s Justice Project filed amici briefs in favor of a “fair and full hearing on the merits of a petition for a protective order … .”

The Indiana Court of Appeals likewise determined the hearing “did not meet the minimum requirements of Indiana Code section 34-26-5-9 and that the trial court erred when it did not allow Wife to testify, present evidence, and call witnesses before denying her petition.” Judge Margret Robb, writing for the panel, relied on Essany v. Bower, 790 N.E.2d 148 (Ind. Ct. App. 2003) to support reversal of N.E.’s protective order petition.

The case was, thus, remanded for a new hearing, so the COA declined to determine whether N.E. had met her burden of proving that domestic violence occurred. However, the appellate court agreed with N.E. and the amici that the denial of the PO based on the no-contact order was “wrongly based on the existence of a pending criminal court order and not on the merits of [Wife’s] allegations.”

“Furthermore, we remind the trial court that a protection order and a criminal no-contact order are not interchangeable, and that a criminal no-contact order cannot provide Wife all the relief that a protection order can,” Robb wrote.

Finally, noting Indiana’s Civil Protection Order Act does not require a respondent to be present before ordering an eviction, the appellate court ordered the trial court on remand to consider whether the additional relief N.E. sought — including attorney fees and expenses related to the violence — should be granted.