Robb, J.
Case Summary and Issue
Following four instances of alleged domestic violence, N.E. (“Wife”) sought a protection order against L.W. (“Husband”). The trial court denied Wife’s request without holding an evidentiary hearing, finding that a protection order was not necessary because Husband was subject to a criminal no-contact order as to Wife. Wife now appeals, raising two issues for our review: (1) whether the trial court failed to provide Wife with an adequate hearing on her petition for a protection order; and (2) whether the trial court erred in denying Wife’s petition on grounds that a no-contact order was in place. Concluding that the hearing, in which the trial court did not allow Wife to testify or present evidence, was inadequate under the Indiana Civil Protection Order Act (“CPOA”) and that the trial court erred in denying Wife’s protection order petition on grounds that a no-contact order was in place, we reverse and remand for further proceedings.
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Generally, a trial court has discretion to grant protective relief according to the terms of the CPOA. See Ind. Code § 34-26-5-9. Under Indiana Code section 34-26-5-9(a)(2), a trial court may “upon notice and after a hearing, whether or not a respondent appears, issue or modify an order for protection.” (Emphasis added). In Essany v. Bower, 790 N.E.2d 148, 152 (Ind. Ct. App. 2003), we held that the minimum requirements for a hearing under the CPOA include the opportunity to testify, as well as call and cross-examine witnesses. A trial court errs if it issues a protection order absent these safeguards. See id. at 153.
Here, the trial court summarily denied Wife’s petition for a protection order without affording her the opportunity to testify, present evidence, and call witnesses. Instead of holding an evidentiary hearing, the trial court instructed Wife that she was “free to go[;]” that because a no-contact order was in place, if Husband attempted to return to the house, Wife could “contact the police and tell them that there is a [no-contact] order by virtue of a criminal case and they will– they can arrest him[;]” and that Wife could seek an order for protection at a later time if Husband’s criminal case did not result in a conviction. Tr. at 5. In light of our holding in Essany, we conclude that the September 18 hearing did not meet the minimum requirements of Indiana Code section 34-26-5-9 and that the trial court erred when it did not allow Wife to testify, present evidence, and call witnesses before denying her petition. We, therefore, reverse and remand to the trial court for a new hearing.
Wife next contends that the trial court erred by denying her request for a protection order. Wife specifically argues that the trial court erred in (1) determining that she failed to prove, by a preponderance of the evidence, that domestic violence occurred; and (2) there was no need to issue a protection order because a no-contact order was in place. We address these arguments because they are likely to recur on remand.
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The trial court also indicated in a minute sheet that it was declining to issue the protection order because Husband was subject to a no-contact order as to Wife. Wife maintains that the trial court erred in making this determination. The amici argue that the trial court’s denial of Wife’s petition was “wrongly based on the existence of a pending criminal court order and not on the merits of [Wife’s] allegations.” Br. of Amici Curiae at 11. We agree.
Indiana Code section 34-26-5-6 allows a party to seek a protection order at any time. The fact that Husband was subject to a no-contact order as to Wife, in a criminal proceeding, did not prohibit Wife from seeking a protection order. See Ind. Code § 34-26-5-6(1) (“An order for protection is in addition to, and not instead of, another available civil or criminal proceeding.”); see also Ind. Code § 34-26-5-6(2) (“A petitioner is not barred from seeking an order because of another pending proceeding.”). To the extent that the trial court based its denial of Wife’s petition on the existence of a no-contact order, the trial court erred.
Furthermore, we remind the trial court that a protection order and a criminal no-contact order are not interchangeable, and that a criminal no-contact order cannot provide Wife all the relief that a protection order can…
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Conclusion
Based on the foregoing, we conclude that: (1) Wife’s hearing on her petition for a protection order was inadequate under the CPOA; and (2) the trial court erred in denying Wife’s petition on grounds that a no-contact order was in place. For the reasons stated above, we reverse and remand with instructions to the trial court to conduct a new hearing on Wife’s petition for a protection order against Husband, determine whether Wife has proven the allegations in her petition by a preponderance of the evidence, and grant her all appropriate relief.
Reversed and remanded.
Baker, J., and Najam, J., concur.