Justices split 3-2 in reversing protective order

Justices Christopher Goff and Mark Massa split from their colleagues in the majority of the Indiana Supreme Court that reversed the grant of a woman’s second protective order against her ex-husband Friday.

In the case of S.H. v. D.W., 19S-PO-118, D.W. was granted a protective order from her then-husband after he physically abused her. At one point during 2016, while the couple’s divorce proceedings were pending, S.H. grabbed D.W. by the neck, forced her from her car, and slammed her face into the car door. S.H. continued to throw D.W. to the ground and threw a printer and table at her. D.W. called the police, and the day after she filed her petition for a protective order, S.H. sought his own against D.W.

At a hearing, S.H. disputed the allegations of D.W.’s petition but did not object to the entry of a two-year protective order against him. He, in turn, voluntarily dismissed his own petition in exchange for D.W.’s agreement to a restraining order against her in their separate dissolution-of-marriage action.

Two years later, D.W. filed for a second petition, alleging that S.H. had twice tried to indirectly contact her through social media. She argued that the first protective order had “kept him away physically” and that she would like the second order to continue that. She admitted that during the protective order’s two-year term, S.H. had not violated the order, visited her residence or place of employment or contacted D.W. directly. The trial court granted a second petition and denied S.H.’s motion to correct error.

In its decision, the Indiana Court of Appeals concluded that although she provided minimal evidence to support the extension of the protective order, that evidence was enough to satisfy her burden. After granting transfer in the case, however, a majority of the Indiana Supreme Court reversed the appellate court’s decision.

With Justice Geoffrey Slaughter writing for the majority, the high court concluded there was insufficient evidence to support that S.H. posed a present, credible threat to D.W. to justify the second protective order. Slaughter noted this is the first time the Supreme Court has considered the meaning and application of Indiana Civil Protection Order Act.

“Entering one protective order does not, by itself, justify entering a second order — or renewing or extending the first order,” the majority wrote. “… But the existence of a prior order does not dictate the outcome of a later dispute between the same parties. …Thus, the circumstances leading to entry of a prior order generally cannot be the sole basis for entering a new order or renewing or extending the previous one.”

The majority concluded that because S.H.’s physically violent act against D.W. only happened once with no follow-up act, no threat that it would recur, and no other reasonable grounds to believe that he presently intends to harm D.W. or her family,  the act does not permit the reissuance, renewal, or extension of the protective order.

“Evidence that the respondent violated a protective order may alone justify extending the order’s duration because it shows a disregard of judicial efforts to ensure a prior victim’s safety and security. But when, as here, the respondent did not violate the prior order, we would put the respondent in an impossible, no-win situation ‘if full compliance with a [prior] protective order can be a basis for extending the order or issuing a new one,’” the majority wrote.

Finding the evidence “simply lacking,” the majority, consisting also of Chief Justice Loretta Rush and Justice Steven David, reversed and remanded the trial court’s decision with instructions to vacate entry of the second protective order against S.H. But in a separate opinion, Goff, joined by Massa, dissented from the majority, stating that his “colleagues seek only to assure fairness to all parties in cases arising under the Act.”

“However, by requiring new evidence of an act or threat to justify extending the protection order beyond its initial two-year period, I believe the Court’s opinion today — although confined to the record here — unnecessarily weakens the Act’s protection,” Goff opined.

Goff argued that requiring new evidence of conduct by the respondent to justify extending a protection order puts the protective order’s petitioner at risk of further harm.

“Is it really necessary for our trial courts, in issuing an extension, to wait for the respondent to commit an act of violence or to otherwise violate the original order of protection? I think not,” Goff wrote. “And to conclude otherwise, in my opinion, defeats the Act’s purpose of promoting the ‘protection and safety of all victims of domestic or family violence’ and preventing that violence.”

The dissenting justices agreed with the majority that the mere “existence of a prior order does not dictate the outcome of a later dispute between the same parties.” But he argued that the petitioner’s sworn testimony, so long as the trial court finds it credible, should suffice in meeting the evidentiary requirement.

In addition to his dissent, Goff opined that courts should develop an adequate record and factual basis for issuing and/or extending a protection order to “ensure the proper outcome” by including testimony from the parties and witnesses, as well as other evidence sufficient to allow a reviewing court to determine that a petitioner made a prima facie case satisfying the Act’s requirements.”