Moore v. Moore

The court affirmed an order of protection in favor of the wife.  The husband had challenged the order and statutory authority on due process and equal protection grounds.  Police had arrested and charged the husband with criminal domestic violence after the couple’s son had called police and reported that the husband had become “physically abusive with him and his mother and threatened them with a weapon.”   The husband was released the next day on bond and ordered to not go near the family’s residence.  Despite the order, he drove by and entered the yard, removing several items.  The wife “filed an action pursuant to Section 20-4-50 of the ‘Protection from Domestic Abuse Act’ requesting an emergency hearing and an Order of Protection against Husband.”  At the hearing both the husband and wife appeared without counsel.  The judge asked the wife if she wanted counsel; she said she wanted to proceed with the hearing without counsel.  The husband also requested counsel; however, the judge denied the request, stating that the wife wanted to go forward.  The judge concluded that the husband had abused both wife and son, and issued an order of protection which, inter alia, “restrained Husband from committing any further abuse or from having contact with Wife and the parties’ two minor children; awarded Wife temporary custody of the parties’ children; ordered husband to pay temporary child and spousal support; and awarded Wife temporary possession of the marital home.”  The husband later, with counsel, filed a motion for reconsideration, arguing that the issuance of the order violated due process because he didn’t have sufficient notice and opportunity to answer with the assistance of counsel.  The court held that the husband did receive procedural due process prior to the issuance of the Order of Protection.  However, it also found that an order of protection issued pursuant to an emergency hearing is temporary, and another hearing should be conducted by the family court at a later date.  Findings of fact are definitive and therefore improper under the statute without the assistance of counsel.  Applying that finding to this case, the court held that the finding of physical abuse was not a final adjudication and therefore could not be used against the husband in future litigation.



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