When a Restraining Order Will Not be Granted

Wife [W] and Husband [H] had a daughter [D] together in 2009, and married each other in 2011. W filed for divorce from H in 2013. She had an attorney, but H represented himself.

In December of 2013, W filed a request for a restraining order against H. In the March, 2014 hearing, W claimed H was jealous and had threatened to harm or kill her. He would physically restrain her when they argued and he damaged property when he was angry. H claimed that W was lying to the court so she wouldn’t have to pay him spousal support. Since she had friends who were witnesses to the alleged abuse, and H had only himself, the court found for W and granted a three-year restraining order against H.

In 2015, their marriage was officially over, and in 2016, W returned to court requesting the restraining order be made permanent. She claimed that H would show up where ever she happened to be from local restaurants, to street parades – even to the gym she belonged to. She was afraid that he would show up where she was and become violent. This time H was also represented by counsel. H claimed that they lived in a small town, and if he saw her at a restaurant or even the annual parade, he would leave. He also stated that when he joined the local gym, he asked if W were a member, because he could not be one if she were. He was told she was not a member, so he joined. H called the manager as a witness to H’s contentions. The manager also stated that later, when W joined the gym, she asked if H was a member. When told he was, she joined the gym anyway. The court refused to grant the restraining order.

The court stated it was “cognizant of the basis upon which the initial restraining order was granted,” but noted, “the granting of the original restraining order does not confirm that this Court made a finding that every allegation made by [W] was true, but that this court found a sufficient factual basis to determine that spousal abuse had occurred.” Regarding the testimony presented at the hearing on the renewal request, the trial court stated it “generally found [H] to be the more credible witness.” In denying the request for renewal, the court determined “that the factual testimony at the original trial resulting in the granting of the current restraining order is insufficient to provide a basis by itself to support the necessary findings to order the continuation of this restraining order.”

W appealed. The Appellate Court agreed with the trial court stating:

“It is not enough this party entertain a subjective fear the party to be restrained will commit abusive acts in the future. The ‘apprehension’ those acts will occur must be ‘reasonable.’ That is, the court must find the probability of future abuse is sufficient that a reasonable woman (or man, if the protected party is a male) in the same circumstances would have a ‘reasonable apprehension’ such abuse will occur unless the court issues a protective order…”

“…The party seeking renewal of the restraining order had demonstrated reasonable apprehension of future abuse… Again, appellant points to nothing comparable in the present case. The trial court’s order is affirmed and the matter is remanded for further proceedings consistent with this decision. Costs on appeal are awarded to respondent.”

Categories: Divorce, Domestic Violence
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