Wednesday, June 11, 2014

28 Year Protective Order Term Vacated by Indiana Court of Appeals on Rehearing

I previously wrote about a 28 Year Protective Order Term issued against an Indiana woman which was upheld on appeal. The basis that the panel relied upon was that the woman had agreed to the extension of the PO. Typically a PO is extended by two years[en1] which would be a likely assumption. In agreeing to the extension the woman complained on appeal that she had not agreed to a 28 year term.

As I assist parents through handling the process of child custody battles and litigation I often hear complaints about what the court did to them and how it isn't fair. I will again take this opportunity to restate that “fair” is a place with stinky animals, greasy food, and carnival rides. You don't find fair in a courtroom. Rather, the courts are intended as a due process forum. Due process is an opportunity to be heard.[en2] Being heard entails much more than simply saying your piece - presenting your story.

The traps that lawyers and, more often, self-represented litigants succumb to numerous and foremost is the opportunity to object. Failure to object constitutes waiver of the issue.[en3] Prior to the hearing is a request for special findings and conclusions of law[en4] which requires a judicial officer to state the specific evidence relied upon and reasons for the judgment. Special Findings place a higher standard upon the Court of Appeals to uphold a trial court when review has been sought.[en5]

Appeal is a method of challenging the judgment of the trial court by arguing that the trial court was in error or applied an improper standard in coming to its conclusion. Appeals must be taken within 30 days of the judgment being appealed or the issue is waived.[en6] If the decision of the appellate panel is not satisfactory to the Appellant then a rehearing or transfer may be sought by the Appellant. Rehearing is asking the Court of Appeals to reconsider the issue while transfer is asking the Indiana Supreme Court to consider the matter. Both must be filed within 30 days of the decision.[en7]

In this case AN properly sought rehearing which was granted for the limited purpose of examining the prior decision of this panel which upheld the 28 year PO term. The panel this time concluded that the 28 year term order was improperly issued based upon the need for specific findings that the women posed a threat of future violence. The panel relied upon a prior decision which stated;
For example, at the state level, violation of the trial court’s protective order is punishable by confinement in jail, prison, and/or a fine. Furthermore, after the trial court has issued a protective order, it is a federal offense for a respondent to purchase, receive, or possess a firearm if the protected person is his current or former spouse, a current or former significant other, or a person with whom the respondent has a child. Thus, an improperly granted protective order may pose a considerable threat to the respondent’s liberty. [en8]

The matter is remanded to the trial court “to determine a reasonable extension of [the] protective order.” Thus, by availing herself of due process offered by the courts this women won't be lamenting and complaining until the year 2040 that she is under the burden of “an unlawful protective order.” Others should take heed.

[1] see Indiana Code § 34-26-5-9(e)
[2] “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
[3] We decline to address an issue for the first time on appeal upon which the trial court did not rule and where the issue was not raised below. See GKC Ind. Theatres, Inc. v. Elk Retail Investors, LLC., 764 N.E.2d 647, 651 (Ind. Ct. App. 2002) (“As a general rule, a party may not present an argument or issue to an appellate court unless the party raised that argument or issue to the trial court.”).
In the absence of a specific and timely objection, a claim regarding the admission of evidence is not available on appeal unless it constituted fundamental error. Troxell v. State, 778 N.E.2d 811 (Ind. 2002).
In order to preserve for review a claim that the trial court erroneously admitted evidence, a specific and timely objection must be made. Tate v. State, 835 N.E.2d 499 (Ind. Ct. App. 2005), trans. denied.
The failure to object at trial waives any claim of error and allows otherwise inadmissible hearsay evidence to be considered for substantive purposes. Johnson v. State, 734 N.E.2d 530, 532 (Ind. 2000).
[4] See Indiana Rules of Trial Procedure, Rule 52(A)
[5] The trial court in this case entered findings of fact and conclusions of law pursuant to Ind. Trial Rule 52(A). Accordingly, our standard of review is two-tiered: first, we determine whether the evidence supports the findings and, second, whether the findings support the judgment. Marion Cnty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213 (Ind. 2012). We view the evidence in the light most favorable to the judgment and defer to those findings if they are supported by the evidence or any legitimate inferences flowing therefrom. Id. Legal conclusions, on the other hand, are reviewed de novo. Id
[6] The Indiana Rules of Appellate Procedure provide that a party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty days after entry of a final judgment. In re D.L., 952 N.E.2d 209, 211 (Ind. Ct. App. 2011), trans. denied (citing App. R. 9(A)(1)). “The timely filing of a notice of appeal is a jurisdictional prerequisite, and failure to conform to the applicable time limits results in forfeiture of an appeal.” Bohlander v. Bohlander, 875 N.E.2d 299, 301 (Ind. Ct. App. 2007) (citation omitted), trans. denied
[7] see Indiana Rules of Appellate Procedure (2014) Rule 54(B); Rule 57(C)
[8] Barger v, Barger, 887 N.E.2d 990, 993-94 (Ind. Ct. App. 2008)

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1 comment:

FedupwithNJfamilyCourt said...

Stuart, I am living in NJ and subject to a vindictive ex spouse, who is alienating my children from me. I would like to hear more on "objections" and how to use them in a trial court environment. My ex has made numerous false claims of DV against me. In the trial court environment I have let these claims by her attorney go and have paid a huge price. I would be very interested in how objections can help prevent evidence in a trial.