Ruling affirms 1-year protective order, OKs deviating from statute’s 2-year term

Indiana trial courts are not bound by a two-year term for protective orders found in state law, but they also may not establish a policy setting a standard term for protective orders that substitutes for a different term of duration.

That conclusion came in the Indiana Court of Appeals’ opinion Tuesday in a Hancock County case, H.H. v. S.H.,  20A-PO-926.

The appellate panel affirmed a one-year protective order for H.H. against her ex-husband, S.H., whom she claimed was abusive, intimidated her and circulated leaflets to neighbors and her employer attacking her alleged sexual conduct and her character.

S.H. had just been released from prison after 13 years when he returned in 2018 to live with his wife, but their relationship deteriorated and they divorced in December 2019. H.H. broke the lease and vacated their apartment the next month because she said he refused to leave.

She went to court to get a protective order against him that same month. After a temporary protective order was issued, the Hancock Superior Court held a contested hearing at which S.H. appeared by counsel but not in person because he had been picked up by immigration officials and was facing deportation to Lebanon. The trial court granted a one-year protective order.

H.H.’s counsel objected, arguing she “was entitled to a two-year order because Indiana Code Section 34-26-5-9(f) contemplates two years as a default term. The trial court expressed the ‘policy’ of the court, that is, to issue a one-year protective order. … On March 31, 2020, the trial court issued a written protective order with specific findings, set to expire on March 17, 2021,” Judge L. Mark Bailey wrote in describing the background leading to this appeal.

In affirming the one-year duration of the protective order in this case, the COA noted the Legislature qualified the two-year standard by adding “unless another date is ordered by the court. … Here, the two-year default duration was selected by the Legislature in furtherance of the purposes of the Act and should not be considered meaningless. Although the statutory scheme confers broad discretion on the trial court, the breadth of this discretion does not include a blanket substitution of ‘policy’ for legislative enactment.”

However, the panel declined to remand as H.H. asked on appeal, instead finding “the facts and circumstances present in this case are consistent with a one-year term of civil protection. That is, at the time of the hearing, S.H. was in custody awaiting deportation to Lebanon. As the potential for S.H. to contact H.H. is greatly restricted, we discern no necessity for remand.”

“Indiana Code Section 34-26-5-9(f) does not require that the trial court make a particularized finding to support a deviation from the stated two-year term. In issuing a protective order, the trial court may exercise discretion in selecting an appropriate term but may not substitute a policy in place of legislation,” the panel concluded.

The court declined to weigh S.H.’s pro se cross-appeal that argued in inflammatory language that, among other things, “Protective order cases are unconstitutional and unlawful because it became used as a tool to trick and to cheat justice and for extortion to steal Husbands estates and money mostly by bad wives and women who [are] cheating on husbands … .”

“Apart from the use of incendiary language, S.H. fails to develop an argument supported by cogent reasoning and relevant authority,” the panel held in a footnote.