J.K. v. T.C.
25 N.E.3d 179
| Ind. Ct. App. | 2015Background
- J.K. and T.C. divorced; T.C. alleged J.K. choked her on Dec. 10, 2007. No criminal charge from that incident and no evidence of other violence or contact since 2008.
- Three successive protective orders were previously entered (2007–2009, 2009–2011, 2011–2014) and expired without reported violation.
- On March 4, 2014, T.C. sought a fourth protective order; the court issued an ex parte order and later held a hearing.
- At the May 8, 2014 hearing the court: placed burden on J.K. to show an order was unnecessary; refused to allow J.K. to cross-examine or present evidence; extended the order for five years and barred firearm possession.
- The Court of Appeals reviewed whether there was sufficient evidence to reissue/extend the protective order and whether procedural protections required by the Civil Protective Order Act (CPOA) were observed.
Issues
| Issue | Plaintiff's Argument (T.C.) | Defendant's Argument (J.K.) | Held |
|---|---|---|---|
| Whether there was sufficient evidence to reissue/extend a protective order based on a single 2007 incident and prior orders | A new protective order is warranted to protect her safety given the prior choking incident and previous orders | Reissuance requires current evidence of a continuing threat; prior orders and remote incident alone are insufficient | Reversed: insufficient evidence that a new five-year order was necessary |
| Whether the trial court applied proper burden and procedures under the CPOA at the hearing | Implicit: prior orders and petitioner’s statement that protection remained necessary justified reissuance | Trial court erred by shifting burden to J.K., denying his opportunity to present evidence and cross-examine, and relying on prior orders | Reversed: trial court misallocated burden and failed to provide required hearing procedures |
Key Cases Cited
- Morgal-Henrich v. Henrich, 970 N.E.2d 207 (Ind. Ct. App.) (appellate review and prima facie error when appellee does not file brief)
- Trinity Homes, LLC v. Fang, 848 N.E.2d 1065 (Ind.) (definition of prima facie error)
- Essany v. Bower, 790 N.E.2d 148 (Ind. Ct. App.) (CPOA hearings must allow presentation of evidence and cross-examination)
- Barger v. Barger, 887 N.E.2d 990 (Ind. Ct. App.) (significant consequences of improperly granted protective orders)
- A.N. v. K.G., 10 N.E.3d 1270 (Ind. Ct. App.) (extensions beyond statutory two years require supporting findings of continuing threat)
- Tons v. Bley, 815 N.E.2d 508 (Ind. Ct. App.) (remoteness of the underlying act may be considered when assessing current threat)