McKinney v. McKinney
| Decision Date | 12 January 2005 |
| Docket Number | No. 52A05-0405-CV-288.,52A05-0405-CV-288. |
| Citation | 820 N.E.2d 682 |
| Parties | William A. McKINNEY, Appellant-Respondent, v. Katherine J. McKINNEY, Appellee-Petitioner. |
| Court | Indiana Appellate Court |
Gary A. Cook, Peru, IN, for Appellant.
Appellant-Respondent William A. McKinney ("Husband") appeals the trial court's issuance of a protective order against him and for the protection of Appellee-Petitioner Katherine J. McKinney ("Wife"). We affirm.
On appeal, Husband raises two issues, which we consolidate and restate as whether his state, federal, and statutory procedural due process rights were violated when the trial court ordered him to forfeit the marital residence, which he and Wife jointly owned, without affording him the opportunity to present evidence and cross-examine witnesses.
Prior to April of 2004, Husband and Wife were married and resided at 311 East 2nd Street in Peru, Indiana. Husband and Wife shared the marital residence with their five children. On April 22, 2004, Wife filed a petition for a protective order against Husband — as well as a request for a hearing — wherein she alleged that, by telephone, Husband threatened to physically harm her and her children. As relief, Wife requested that the trial court, in part, "[o]rder [Husband] to stay away from [her] residence, school, [and] place of employment." Appellant's App. at 5-6. Specifically, Wife asked the trial court to exclude Husband from the following locations: "602 Jackson Peru, 212 E. 3rd Peru, [and] 122 E. Franklin Peru."1 Id. at 6. In response, the trial court issued an ex parte order for protection, pursuant to Indiana Code Section 34-26-5-10, and scheduled a hearing for April 29, 2003.
Husband, by counsel, and Wife attended the subsequent hearing on April 29, 2003. At the beginning of the hearing, the trial court placed the parties under oath. The trial court then asked Wife to explain the circumstances that prompted the filing of her petition for protective order. Wife testified that Husband had made two telephone calls to her wherein he was "screaming and yelling so loud [she] had to move the phone away from [her] ear." Tr. at 2. During the first telephone conversation, Husband threatened to "slam" Wife's son against the wall and, during the second conversation, Husband threatened to "beat on the boys because they weren't minding." Id. at 3-4. At the hearing, after providing this testimony, Wife orally requested possession of the marital residence, i.e., 311 E. 2nd Street.
After its examination of Wife, the trial court asked Husband whether he had a problem with the issuance of the protective order. In response, Husband clarified that, while he contested Wife's allegations, he had no objection to the issuance of a protective order, which would prohibit him from having any contact with Wife. Rather, the sole objection that Husband raised against the issuance of the protective order was Wife's oral request to prohibit him from the marital residence. The following discussion between the trial court and Husband ensued:
At the conclusion of the hearing, the trial entered a two-year protective order against Husband, pursuant to Indiana Code Section 34-26-5-10, which provides in relevant part:
Appellant's App. at 25. The trial court explained that it gave Wife possession of the marital residence because she has four children, whereas Husband has only one child, and the house was large enough to accommodate her family. It is from this order that Husband now appeals.
On appeal, Husband argues that his state, federal, and statutory procedural due process rights were violated when the trial court prohibited him from residing at the marital residence, which he and Wife jointly owned, without affording him the opportunity to present evidence and cross-examine witnesses. At the outset, we observe that Wife chose not to file an Appellee's Brief. When an appellee fails to submit a brief in accordance with our rules, we need not undertake the burden of developing an argument for the appellee. Johnson County Rural Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 991 (Ind.Ct.App.1985). Indiana courts have long applied a less stringent standard of review with respect to showings of reversible error when an appellee fails to file a brief. Id. Thus, we may reverse the trial court if the appellant is able to establish prima facie error. Jones v. Harner, 684 N.E.2d 560, 562 n. 1 (Ind.Ct.App.1997). In this context, "prima facie" is defined as "at first sight, on first appearance, or on the face of it." Id. (internal citations omitted). In the present case, Husband contends that, by not allowing him to present evidence and cross-examine witnesses, the trial court violated his right to a hearing under Indiana Code Section 34-26-5-10, his Fourteenth Amendment right to due process, and his due process rights under Article I, Section 12 of the Indiana Constitution. We separately address these arguments.
Husband first contends that the trial court denied him the right to a hearing pursuant to Indiana Code Section 34-26-5-10. In particular, Husband asserts that when the trial court denied him an opportunity to present testimony and cross-examine witnesses, it deprived him of a "hearing" under the Civil Protection Order Act ("CPOA"). Indiana Code Section 34-26-5-1, which governs the construction of the CPOA, provides that the CPOA "shall be construed to promote the: (1) protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner; and (2) prevention of future domestic and family violence." In addition, Indiana Code Section 34-26-5-10(a)(1) provides, in relevant part, that where, as here, the trial court issues a protection order ex parte, provides relief under section 9(b),2 and a party requests a hearing, the court shall set a date for a hearing on the petition. Such 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. Ind.Code § 34-26-5-10(a)(1).
The legislature did not define the term "hearing" as it appears in the CPOA. However, in Essany v. Bower, 790 N.E.2d 148, 152 (Ind.Ct.App.2003), another panel of this Court held that "when the legislature provided for hearings under CPOA, it intended that the petitioner, and the respondent if present, be permitted to call witnesses at those hearings."
Here, the record reveals that, during the hearing under Indiana Code Section 34-26-5-10, the trial court gave Husband the opportunity to contest Wife's allegations, which he did. At that time, Husband did not object to the issuance of the protective order, except as it pertained to the marital residence, nor did he request to call any additional witnesses. Rather, Husband's sole complaint was that he, too, needed a place to live and, thus, he wished to remain in the marital residence. However, after discovering that the parties owned or were in the process of owning two houses, the trial court determined that, for at least the two-year time period pertinent to the protective order, Wife should receive the residence because she has four children and the residence would accommodate her large family. Based upon this evidence, we do not believe that Husband was denied a hearing pursuant to Indiana Code Section 34-26-5-10.3
Husband next argues that, by not allowing him to present evidence and cross-examine witnesses at the protective order hearing, the trial court violated his Fourteenth Amendment right to due process, as well as his rights under Article I, Section 12 of the Indiana Constitution. The Fourteenth Amendment of the United States Constitution prohibits any state from depriving a person of life, liberty, or property without due process of law. The due course of law provision of the Indiana Constitution provides that "All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law." Indiana courts have consistently construed Article I, Section 12 of the Indiana Constitution as analogous to the federal due process clause. See, e.g., Doe v. O'Connor, 790 N.E.2d 985, 988 (Ind.2003)
; see also McIntosh v. Melroe Co., 729 N.E.2d 972, 976 (Ind.2000).
The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.4Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Austin v. Vanderburgh County Sheriff Merit Comm'n, 761 N.E.2d 875, 879 (Ind.Ct.App.2002). In the present case, Husband's interest in the marital residence, which he and Wife jointly own, is encompassed in the federal and state constitutional protection of property. Accordingly, the question before us becomes whether...
To continue reading
Request your trial
-
Lily E. Hamilton On Behalf of Amber J. Lethem v. Lethem
...test. See, e.g., Pendleton v. Minichino, 1992 WL 75920, at *5–11 (Conn.Super.Ct.1992) (applying Mathews–Doehr ); McKinney v. McKinney, 820 N.E.2d 682, 688 (Ind.Ct.App.2005) (applying Mathews); Knight v. Knight, 525 N.W.2d 841, 844 (Iowa 1994) (applying Mathews to reject challenge regarding ......
-
Melton v. Ind. Athletic Trainers Bd.
...only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. McKinney v. McKinney, 820 N.E.2d 682, 687 (Ind.Ct.App.2005) (citing Roth, 408 U.S. at 569, 92 S.Ct. at 2705 ). [22] “Generally stated, due process requires notice, an opportuni......
-
Ind. Bureau of Motor Vehicles v. Gurtner
...requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” McKinney v. McKinney, 820 N.E.2d 682, 688 (Ind.Ct.App.2005) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ). [20] As explained by the Supreme ......
-
Mahmood v. Mahmud
...See, Gourley v. Gourley, 158 Wash.2d 460, 145 P.3d 1185 (2006); H.E.S. v. J.C.S., 175 N.J. 309, 815 A.2d 405 (2003); McKinney v. McKinney, 820 N.E.2d 682 (Ind.App.2005); Paschal v. Hazlinsky, 803 So.2d 413 (La.App. 15. Zuco v. Tucker, supra note 13. See, also, Neb.Rev.Stat. § 27-403 (Reissu......