Monday, March 30, 2015

Res Judicata in a Domestic Violence Protection Order [DVPO] Indiana opinion and its application to Child Custody Modification - Abuse of Civil Protection Order Act

A Domestic Violence Protection Order [DVPO] will not stop someone who intends to harm the person I refer to as the targeted individual rather than protected person as courts often do.[en1] However, it is a law enforcement tool that may allow for interdiction of the potential perpetrator which would not otherwise be legally possible. It also inhibits the respondent’s liberty whether he or she is a likely perpetrator of Domestic Violence. It is for this reason that it is imperative that a DVPO only be properly granted. The Indiana Court of Appeals has succinctly reasoned why this caution must be observed;
”[A]t the state level, violation of the trial court’s protective order is punishable by confinement in jail, prison, and/or 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.”[en2] [emphasis added][en3]

Vacating the Domestic Violence Protective Order
The Indiana Court of Appeals on 26 March 2015 rendered an opinion in A.A. v A.S. heard by Judge Calvin D Hawkins in the Lake County Superior Court. The DVPO case arose from the parties’ marriage. Their marriage was dissolved on 24 September 2013. Strategically, on the same day, A.S. filed a DVPO petition [“2013 Petition”] against A.A. alleging that A.A. had committed multiple acts of Domestic Violence and stalking against A.S. in 2012. The trial court granted an emergency ex parte order for protection.[en4] On 22 October 2013, the trial court dismissed the petition due to A.S.’s failure to show that Domestic Violence had occurred by a preponderance of the evidence. That should have ended the litigation on that issue.

However, on 04 June 2014, A.S. again petitioned [“2014 Petition”] for a DVPO against A.A and appeared pro se at an ex parte hearing in front of Judge Hawkins. The trial court granted an ex parte order for protection and set a hearing on the motion. On 03 July 2014, A.A., within the time limit prescribed by statute[en5], filed a motion to dismiss 2014 Petition. Judge Hawkins denied the motion to dismiss at the outset of the 28 August 2014 hearing. At the hearing, A.S. recounted many incidents of domestic abuse which occurred prior to filing 2013 Petition. The last Domestic Violence incident was alleged by A. S. to have occurred in January of 2013. When asked by counsel if there had been any incidents following 2013 Petition A.S. responded, “No, but I don’t want any more to happen.” The trial court then found that Domestic or Family Violence had occurred sufficient to justify the issuance of a DVPO, that A.A. represented a credible threat to the safety of a A.S., and that granting to A.S. a one-year protective order against A.A. was necessary to bring about a cessation of the violence or the threat of violence.[en6]

A.A. appealed citing the doctrine of res judicata.[en7] A.S. argued that the matter wasn’t settled because the dismissal of 2013 Petition was not rendered “on the merits,” as is required by the second element of the res judicata doctrine. However, the order dismissing 2013 Petition states, “The Petitioner has not shown, by a preponderance of the evidence, that domestic or family violence, stalking, or a sex offense has occurred sufficient to justify the issuance of an Order for Protection.” Clearly there was a hearing, evidence was presented, witnesses heard, and a judgment rendered on the merits. Accordingly, A.S. was barred from attempting to gain a subsequent DVPO based on any allegations of Domestic Violence prior to that previous hearing in 2013. Res judicata exists because it prevents dissatisfied litigants, like A.S., from seeking to get a different judge to hear the same matter. Trying to re-litigate before a different judge is called forum shopping. The doctrine of res judicata brings finality to litigation and reduces redundant litigation by not permitting parties who had been denied relief to re-petition in different courts.

The panel in reversing Judge Hawkins reasoned, “[t]he trial court was precluded, under the doctrine of res judicata, from granting a protective order based on incidents that occurred prior to [the previous hearing], and there were no alleged incidents of misconduct which occurred after that [hearing]. Therefore, the trial court’s grant of the order for protection was clearly erroneous.”

Res judicata
The doctrine of res judicata prevents the relitigation of a matter already adjudicated. This is the basis for the prohibition in child custody modification hearings on the submission of evidence relating to that which occurred prior to the last date that evidence was submitted in the previous custody hearing.[en8] There are however exceptions to this rule[en9] which I will not go into here but can develop in individual cases as those exceptions are fact specific. Res judicata applies when the same matter is brought before the court which had already been ruled upon and settled.

Res judicata serves the purpose of judicial economy. This rule is intended to bar the relitigation of a matter already brought to finality. That is, when a court of competent jurisdiction, including an appellate court or the underlying court on remand, has entered a final order as to the parties on a claim, demand, or cause of action the parties or their privies may not bring the same claim, demand, or cause of action to the court again.

Child Custody/Parenting Time Modification
To seek a change in child custody or parenting time orders Indiana has codified the requirements that must be met for an order to be modified.[en10] All other states have similarly done so. The purpose of this is the presumption that “permanence and stability are considered best for the child’s welfare and happiness.”[en11]

Therefore, the procedural hurdle which has been established that must be overcome is twofold; 1] there must be a substantial change in one of the enumerated factors provided for in statute, and 2] the modification must be in the best interest of the child.[en12] The modification statute provides that the court is not to consider evidence preceding the last custody hearing.[en13] There are exceptions though. It is the failure of practitioners and parents to understand the exceptions that lead to the mistaken belief that events prior to the previous hearing are off limits. The doctrine of res judicata, and more likely in child custody case collateral estoppel[en14], is not an absolute bar to presenting evidence from a prior child custody hearing. The Court of Appeals has held that it is well within the discretion of the trial court to hear prior evidence stating that prior evidence of “past behaviour was a valid predictor of future conduct.”[en15] Although prior evidence may be heard the doctrine of res judicata requires, and the Court has similarly held, that the change in the factors for considering modification of custody must have occurred subsequent to the previous hearing on custody.[en16]

The doctrine of res judicata provides that matters previously settled may not be re-litigated. In the case examined here it was the denial of a petition for a DVPO and, as I have explained, it is also applicable to child custody and parenting time matters. Incidents of Domestic Violence occurring prior to a previous hearing or decision may not be properly admitted unless for the purpose of demonstrating a pattern of behaviour relevant to a cause of action arising subsequent to the prior court action. In the immediate case the Court correctly applied res judicata because the matter had been settled when a prior court dismissed the claim and no new allegations had arisen.

Child custody matters however are not fully settled until the child has been emancipated. For purposes of res judicata child custody matters are resolved until there has been a substantial change in at least one of the essential factors for determining custody and parenting time. Events prior to the previous submission of evidence may be considered relevant, and appropriately admitted, so long as such evidence is connected to the change occurring following the previous submission of evidence.

[1] I avoid use of the term “protected person” because I feel that it can give the target of Domestic Violence a false sense of security in that he or she is now protected. It is still incumbent upon any person to be vigilant in providing for his or her own security regardless of any Domestic Violence issues.
[2] Barger v Barger, 887 N.E. 2d 990, 993-94 (Ind. Ct. App. 2008) (internal citations omitted)
[3] I note that the Court of Appeals uses the pronoun “him” in the example when referring to someone who is the respondent in a DVPO as a means to demonstrate the ubiquity of which abuser is used synonymous with males although perpetrators are about equally divided by gender.
[4] Indiana Code section IC 34-26-5-9(a)(1) provides that if it appears from a petition for an order for protection or from a petition to modify an order for protection that domestic or family violence has occurred or that a modification of an order for protection is required, a court may, without notice or hearing, immediately issue an order for protection ex parte or modify an order for protection ex parte.
[5] Indiana Code section 34-26-5-10(a) provides that if a court issues an order for protection ex parte or a modification of an order for protection ex parte and enjoins the Respondent from performing certain acts then, upon a request by either party not more than thirty days after service of the order or modification, the court shall set a date for a hearing on the petition. The hearing must be held not more than thirty days after the request for a hearing is filed unless continued by the court for good cause shown.
[6] Indiana Code section 34-26-5-9 provides: A finding that domestic or family violence has occurred sufficient to justify the issuance of an order under this section means that a respondent represents a credible threat to the safety of a petitioner or a member of a petitioner’s household. Upon a showing of domestic or family violence by a preponderance of the evidence, the court shall grant relief necessary to bring about a cessation of the violence or the threat of violence.
[7] The doctrine of res judicata bars the litigation of a claim after a final judgment has been rendered in a prior action involving the same claim between the same parties or their privies. Small v. Centocor, Inc., 731 N.E.2d 22, 26 (Ind. Ct. App. 2000), reh’g denied, trans. denied. The principle behind this doctrine, as well as the doctrine of collateral estoppel, is the prevention of repetitive litigation of the same dispute. Id. The following four requirements must be satisfied for a claim to be precluded under the doctrine of res judicata: 1) the former judgment must have been rendered by a court of competent jurisdiction; 2) the former judgment must have been rendered on the merits; 3) the matter now in issue was, or could have been, determined in the prior action; and 4) the controversy adjudicated in the former action must have been between the parties to the present suit or their privies. Id. MicroVote Gen. Corp. v. Indiana Election Comm’n, 924 N.E.2d 184, 191 (Ind. Ct. App. 2010).
[8] Indiana Code 31-17-2-21[c] provides that “[t]he court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating the the best interest of the child as described by section 8 and, if applicable, section 8.5 of this chapter.”
[9] Indiana Code Section 31-14-13-9 provides: In a proceeding for a custody modification, the court may not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child as described in section 2, and if applicable, section 2.5 of this chapter. [emphasis added]
If a party raises a previously litigated issue or fails to object when it is raised then that party cannot later claim error. “A timely objection is a prerequisite to appellate review,” Werner v. Werner, 946 N.E.2d 1233, 1246 (Ind. Ct. App. 2011) (quoting Trout v. Trout, 638 N.E.2d 1306, 1397 (Ind. Ct. App. 1994), trans. denied), trans. denied.
[10] Modification of custody and parenting time is controlled by Indiana Code 31-17-2-21
[11] Lamb v Wenning, 600 N.E. 2d 96, 97 (Ind. 1992)
[12] Indiana Code 31-17-2-21 at [a]
[13] Id at [c]
[14] The collateral estoppel doctrine states that a prior judgment between the same parties on a different cause of action may not be re-litigated as to the issues in controversy upon which the finding or judgment was rendered. When an issue of ultimate fact has been determined by a valid judgment, that issue cannot be again litigated between the same parties in future litigation.
[15] Arms v Arms, 803 N.E. 2d 1201, 1209 (Ind. Ct. App. 2004) (evidence from prior hearing was just as relevant to instant hearing, as past behaviour was a valid predictor of future conduct.)
[16] Wolljung v Sidell, 891 N.E. 2d 1109, 1111 (Ind. Ct. App. 2009) (We note that a trial court is limited to considering changes in the factors that have occurred since the last custody decree.)
note: I propound that factors occurring “following the close of evidence” would be a more accurate standard to use considering the lapse of time which allows for the submission of proposed TR52 findings and conclusions as well as the judicial officer’s time to write and deliver the order. I have yet to find a need to make this argument at either the trial court or appellate level.

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