Question about Ex With Protective Order

[annemichellesdad]

I have an ex who practices parental alienation with the best of them. As part of her effort, she obtained a Temporary Protective Order for stalking in response to my many requests to see my child, whom she was withholding from me. The judge was just disinteresting enough in the hearing to grant a 12-Month order.

Following the issuance of the 12-Month TPO, my ex filed two separate charges against me, alleging two separate violations of the order. While I faced these, she petitioned to have the 12-month order made permanent. The sole basis of her motion (and the sole evidence) was the 2 charges she had filed against me. On the same basis (explicity stated in the order), the judge made the order permanent.

In both instances of allegations, my ex lacked probably cause to bring the charge. Georgia law defines probably cause for someone to bring a charge as something that reasonable person would believe constituted a violation of the order. The dismissal constitutes a prima facie lack of probably cause, but it can be overcome. In this case, it can be shown that, although the ex had an attorney and had actually been with him just hours before she filed the charge, she failed to seek his council on the matter, perhaps even intentionally, because she was motivated more by malice than justice. In fact, the dismissal order itself incredibly includes statements made by her attorney which undermined her claims and shows that she filed the charge without his advise or approval. Due to one of her charges, I spent two weeks in jail.

Followed the issuance of the Permanent Order, both of the charges against me were dismissed in my favor.

1 - Due to the basis of both the motion and the order, namely the two charges against me, isn't it logical that the subsequent dismissal of these charges represents a substantial change in circumstances in which the material facts of the case no longer represents the required finding? And, as such, is there not solid grounds for a termination of the order on this finding?

2 - In addition to the above-stated reason, I have other concerns about the continuation of the Order. First, my ex continues to undermine the order herself by calling me, emailing me, sending me text messages, approaching me in public, and fraternizing with me. In all instances, she initiates the contact and it is unsolicited. (I am very particular not to violate the order myself.) Doesn't this, also, vitiate the order to a point beyond further justification of it? My other concern is that the repeated charges which she has brought, and which have been dropped, demonstrate a pattern of abuse of the order. Would not a judge, too, share these concerns and agree, along with #1 above, agree that the order should be terminated?

2 - Lacking probably cause on one of the charges, and having spent two weeks in jail because of her charge, is there not a good cause of action for a false imprisonment lawsuit against the ex?

3 - The order says that I am not to contact, directly or indirectly, my ex or her "immediate family". (It's a "form" order and that's all it says in regards to the matter, essentially.) How does that affect my relationship with my daughter? For the purposes of this order, am I also prohibited from contacting her? And, if so, wouldn't the fact that it is a permanent order for all intents and purposes constitute the termination of my parental rights without any hearing of fitness? Certainly such wording refers only to her OWN immediately family (parents, siblings, etc) without affecting my relationship with my daughter.

Much thanks

[socrateaser]

>Followed the issuance of the Permanent Order, both of the
>charges against me were dismissed in my favor.

What exactly do you mean when you say that the charges were dismissed in your favor? Do you mean that you were in jail awaiting trial, and the court dropped the case and chose instead to issue a permanent restraining order against you?

>1 - Due to the basis of both the motion and the order, namely
>the two charges against me, isn't it logical that the
>subsequent dismissal of these charges represents a substantial
>change in circumstances in which the material facts of the
>case no longer represents the required finding? And, as such,
>is there not solid grounds for a termination of the order on
>this finding?

A permanent injunction requires  (1) proof of inadequate legal remedy (i.e., money is insufficient), (2) the court balance the hardships of the parties, (3) that the order is enforceable, and (4) that the relief is necessary to provide a remedy for the petitioner.

Here, a legal remedy is inadequate, because petitioner is apparently afraid of injury from respondent, and money will not remedy the situation. The balance of hardships favors petitioner because she can be protected by the injunction, and respondent's only harm is not being within petitioner's proximity, which doesn't mean that petitioner cannot spend time with his child. The order is enforceable, because failure to stay away will subject respondent to arrest for contempt. And, the relief is necessary, because without it, petitioner will not feel safe from respondent's advances.

Thus, an injunction may issue.

Respondent's argument that the charges against him being dropped is sufficient to demonstrate that the injunction is not necessary, does not suffice because (1) Petitioner only need be afraid of respondent -- there is no requirement that an actual danger exist, and (2) contempt requires proof beyond reasonable doubt, so even though there may be insufficient evidence to satisfy the burden of proof for a contempt, there may nevertheless be sufficient proof to maintain a permanent injunction.

Thus respondent's argument fails.

>2 - In addition to the above-stated reason, I have other
>concerns about the continuation of the Order. First, my ex
>continues to undermine the order herself by calling me,
>emailing me, sending me text messages, approaching me in
>public, and fraternizing with me. In all instances, she
>initiates the contact and it is unsolicited. (I am very
>particular not to violate the order myself.) Doesn't this,
>also, vitiate the order to a point beyond further
>justification of it? My other concern is that the repeated
>charges which she has brought, and which have been dropped,
>demonstrate a pattern of abuse of the order. Would not a
>judge, too, share these concerns and agree, along with #1
>above, agree that the order should be terminated?

I could undertake another legal analysis here, but I think it's better to simply say that it's not clear to me why you need to have the injunction vacated. If you can see your children under the existing order, then the fact that the injunction is in force is a minor annoyance and shouldn't trouble you. If you can't see your kids, then you need to make that clear, because it's not clear at all.

>
>2 - Lacking probably cause on one of the charges, and having
>spent two weeks in jail because of her charge, is there not a
>good cause of action for a false imprisonment lawsuit against
>the ex?

The phrase is "probable cause," and it means: a fair probability that a crime has been committed. If both charges were dismissed and one was dismissed for lack of probable cause, then that charge might constitute a potential civil suit for malicious prosecution, and intentional infliction of emotional distress. However, if there was probable cause for the other charge, but not sufficient evidence to prove the case beyond reasonable doubt, then that would be sufficient to hold you in jail -- because probable cause is all that's required to charge someone with a criminal act.


>3 - The order says that I am not to contact, directly or
>indirectly, my ex or her "immediate family". (It's a "form"
>order and that's all it says in regards to the matter,
>essentially.) How does that affect my relationship with my
>daughter? For the purposes of this order, am I also prohibited
>from contacting her? And, if so, wouldn't the fact that it is
>a permanent order for all intents and purposes constitute the
>termination of my parental rights without any hearing of
>fitness? Certainly such wording refers only to her OWN
>immediately family (parents, siblings, etc) without affecting
>my relationship with my daughter.

You should have the court clarify how you are to exercise visitation with your child. If the court says that you are restrained from ever being in proximaty to your child, then that may well constitute a de facto termination of parental rights.

I've never heard of someone filing for an inverse parental rights termination action, but this could be the grounds that would permit it.

It's likely that you're only restrained from being around the other parent and her inlaws, but not your child. Don't guess, or you'll be back in jail again. Request that the court issue a clarifcation order.

[annemichellesdad]

Thanks for the input.

The ex petitioned for the temporary order to become permanent AFTER she filed the two charges but BEFORE the charges were actually dismissed. The charges were brought in a different county than where the order was obtained. Thus, my point was that a permanent order was issued on the basis that the ex filed two charges. Evidence of those two PENDING charges was the only evidence considered. Had it not been for the ex making those two charges, the judge would have had no basis for making the order permanent. (A "reasonable fear" is all that is necessary for a 12-month temporary order, but clearly the standard is higher for a permanent one, else it would have been made permanent from the beginning, correct?) From a legal standpoint, the basis for the permanent order wasn't a claim that the petitioner had a reasonable fear. Rather, it was that the allegation that the order itself had been violated. After the charges were dismissed, there existed a significant change in circumstances under which the petitioner's plea was no longer sustainable on the basis on which it was awarded, and the facts of the case no longer supported the required finding.

1 - Does this argument seem succeed or fail?


There is another basis for the order to be vacated, and that is the the petitioner herself undermines and vitiates any claim of "reasonable fear" by continually initiating, soliciting, and enjoining contact with the defendant. Remember, this is a non-violent "stalking" order in which she specifically asks that the defendant be prohibited from having contact with her. But then she turns around and continues to contact the defendant, with no apparant fear whatsoever. I have dozens of phone text messages and voice mails, letters and emails, and witnessed incidents of her inititating friendly contact with me in public that completely undermine the very intent of the order. On one occassion, she freely entered a restaurant where I was already dining and sat down and joined me. Does this sound like someone who has a reasonable fear.

2 - Thus, does undermining and vitiating the intent of an order in this fashion constitute a reasonable grounds for vacating?

Finally, there are the nature of the two charges. Two charges in three months. Both dismissed outright by the prosecutor. (When I say that they concluded "in my favor", I mean that there was no plea deal for the dismissal; I did nothing for them to be dismissed.) Indeed, there is a current lawsuit pending against the petitioner for malicious prosecution and intentional infliction of emotional distress on one of the charges. However, two dismissed charges in three months, along with her own tendency to freely contact me as the mood strikes her, appears to me to be an abuse of the of the order which she obtained. Certainly, the court did not intend to empower the petitioner to file charges against the defendant whenever she wished, even if it does leave her vulnerable to tort litigation later on. I now have an even greater fear -- and greater expectation - that the petitioner may make a unjustified claim whenever it suits her against me than she, herself, seems to have fear of me.  

3 - Thus, and finally, does this type of abuse of an order constitute a reasonable grounds for vacating? If not, how many charges, how many trips to jail, and how many dismissals are necessary before a judge begins to think that maybe the order isn't such a good idea after all? (Not rhetorical.)

Much thanks. I hope I've stated my "case" a little better this time. It's tough sometimes dealing with and communicating about bizarre and unreasonable behavior.

[socrateaser]

>Thanks for the input.
>
>The ex petitioned for the temporary order to become permanent
>AFTER she filed the two charges but BEFORE the charges were
>actually dismissed. The charges were brought in a different
>county than where the order was obtained. Thus, my point was
>that a permanent order was issued on the basis that the ex
>filed two charges. Evidence of those two PENDING charges was
>the only evidence considered. Had it not been for the ex
>making those two charges, the judge would have had no basis
>for making the order permanent. (A "reasonable fear" is all
>that is necessary for a 12-month temporary order, but clearly
>the standard is higher for a permanent one, else it would have
>been made permanent from the beginning, correct?) From a legal
>standpoint, the basis for the permanent order wasn't a claim
>that the petitioner had a reasonable fear. Rather, it was that
>the allegation that the order itself had been violated. After
>the charges were dismissed, there existed a significant change
>in circumstances under which the petitioner's plea was no
>longer sustainable on the basis on which it was awarded, and
>the facts of the case no longer supported the required
>finding.
>
>1 - Does this argument seem succeed or fail?

Fails, because the judge didn't need any evidence beyond the ex's statement of fear in order to convert the preliminary injunction into a permanent one, unless you can show some other hardship. But, as I said, the injunction apparently does not keep you from your child, so there really is no other hardship.

>There is another basis for the order to be vacated, and that
>is the the petitioner herself undermines and vitiates any
>claim of "reasonable fear" by continually initiating,
>soliciting, and enjoining contact with the defendant.

Under the doctrine of res judicata, a final judgement is "final" after the time for reconsideration or appeal passes. Parties cannot reopen the judgment for subsequent relitigation based upon new facts, except in cases where a person's liberty interests are at stake (i.e., they're in jail).

Here, because respondent is arguing that petitioner is not afraid of respondent anymore, you are introducing a new fact, after the time for appeal and reconsideration has passed, thus the evidence is barred by res judicata.

Respondent can argue that the injunction should be lifted because it impairs respondent's liberty of movement while in proximity of petitioner, however, this is not so invasive so as to render respondent incarcerated and courts are extremely loath to lift stalking orders for fear that they will err and someone will be seriously injured as a consequence.

>Remember, this is a non-violent "stalking" order in which she
>specifically asks that the defendant be prohibited from having
>contact with her. But then she turns around and continues to
>contact the defendant, with no apparant fear whatsoever. I
>have dozens of phone text messages and voice mails, letters
>and emails, and witnessed incidents of her inititating
>friendly contact with me in public that completely undermine
>the very intent of the order. On one occassion, she freely
>entered a restaurant where I was already dining and sat down
>and joined me. Does this sound like someone who has a
>reasonable fear.

Petitioner is using the injunction as a sword instead of a shield. This is not necessarily unlawful. However, if you have credible evidence that you are being routinely harrassed, then file for a stalking order on petitioner and then use your evidence to try to negotiate a stipulation where petntioner agrees to stipulate to lifting the injunction against you in return for your dropping the stalking charge against her.

>2 - Thus, does undermining and vitiating the intent of an
>order in this fashion constitute a reasonable grounds for
>vacating?

No.

>
>Finally, there are the nature of the two charges. Two charges
>in three months. Both dismissed outright by the prosecutor.
>(When I say that they concluded "in my favor", I mean that
>there was no plea deal for the dismissal; I did nothing for
>them to be dismissed.) Indeed, there is a current lawsuit
>pending against the petitioner for malicious prosecution and
>intentional infliction of emotional distress on one of the
>charges. However, two dismissed charges in three months, along
>with her own tendency to freely contact me as the mood strikes
>her, appears to me to be an abuse of the of the order which
>she obtained. Certainly, the court did not intend to empower
>the petitioner to file charges against the defendant whenever
>she wished, even if it does leave her vulnerable to tort
>litigation later on. I now have an even greater fear -- and
>greater expectation - that the petitioner may make a
>unjustified claim whenever it suits her against me than she,
>herself, seems to have fear of me.  

You can sue for malcious prosecution, and infliction of emotional distress. And, you can ask for a restraining order because you're afraid of petitioner. So, do that.

Beyond that, your facts here are irrelevant. The injunction is final and it will not be lifted absent proof of new evidence, not available during trial, which could not have been discovered using due diligence and the tools of discovery, and which demonstrates fraud, mistake, illegality or duress.

>
>3 - Thus, and finally, does this type of abuse of an order
>constitute a reasonable grounds for vacating? If not, how many
>charges, how many trips to jail, and how many dismissals are
>necessary before a judge begins to think that maybe the order
>isn't such a good idea after all? (Not rhetorical.)

You have grounds for a restraining order against petitioner. Request one. Then if she approaches you, call the police and the shoe will be on the other foot.

>
>Much thanks. I hope I've stated my "case" a little better this
>time. It's tough sometimes dealing with and communicating
>about bizarre and unreasonable behavior.

Frankly, you're trying way too hard to be a jailhouse lawyer. You're arguing law from a position of believing that you can apply your personal sense of justice to the facts in order to obtain a conclusion of law.

You can't. If you want to correctly analyze a legal problem, then you need to know the rules first, and that's not gonna happen unless you go to law school.

[annemichellesdad]

Thank you again for the input. I understand most of what you're saying, but have just a few questions in order to  sufficiently explore this material, if you wouldn't mind indulging me just a little bit more:

>
>Fails, because the judge didn't need any evidence beyond the
>ex's statement of fear in order to convert the preliminary
>injunction into a permanent one, unless you can show some
>other hardship. But, as I said, the injunction apparently does
>not keep you from your child, so there really is no other
>hardship.

I'm confused here. For the years I've been reading this board, it is reiterated over and over again that the wording of an order is vital to its meaning, that nothing can be inferred from what isn't explicitly stated, and nothing can be removed from something that is.

The order explicitly states:

"The Respondant has knowingly and willfully violated OCGA 16-5-90 and placed the Petitioner in reasonable fear because SEE EXHIBIT A."

"Exhibit A" is the two written charges. (This is a "form order" with checkmarks and blanks. The reason, stated as "SEE EXHIBIT A" was typed onto a blank space.) This statement is the SOLE justification given in the order for its issuance. Following it, the order goes right into "Thus, the Respondant is hereby enjoined and restrained etc..."

1 - In other words, the Order states a fact that does not exist; I DIDN'T violate the order, as the dismissals make clear. And the Petitioner made no other "statement of fear" or other evidence in her pleading whatsoever, and no other statement or basis whatsoever is acknowledged in the order. Are you suggesting that ANOTHER "statement of fear" is inferred in the order without it actually being stated? Thus, does this order mean what it says, or does it mean something else?

2 - If it says that I "knowingly and willfully violated" the temporary order, but then it turns out I did not, then the order has a fatal defect, does it not? The issue was pending in another court at the time the order was written, and the allegation (being adjudicated in a different court altogether)  could not be DISPROVEN at the time of trial.

>
>Under the doctrine of res judicata, a final judgement is
>"final" after the time for reconsideration or appeal passes.
>Parties cannot reopen the judgment for subsequent relitigation
>based upon new facts, except in cases where a person's liberty
>interests are at stake (i.e., they're in jail).
>

3 - You're suggesting here that the law makes a provision for issuing a protective order but not for actually vacating one? I thought any order with a NON-AMENDABLE DEFECT could be vacated. In this case, the order states that I "willfully and knowingly" violated the order. when in fact, I had not. (The mere allegation of contempt does not constitute actual contempt.) Had the charges resulted in a conviction, or, had the order been written following a conviction rather than mere allegations, there would have been no conflict in the order. As such, once the charges were dismissed, there was no longer any factual claim in the pleading which actually existed, and, by claiming a fact that later turned out to be false, the statement upon which the order is based becomes defective. Correct?

>Here, because respondent is arguing that petitioner is not
>afraid of respondent anymore, you are introducing a new fact,
>after the time for appeal and reconsideration has passed, thus
>the evidence is barred by res judicata.
>

4 - The lack of fear of the Respondant (and the evidence showing such) was not a fact available at the time of trial. Indeed, if her conduct demonstrating a lack of fear all occurred AFTER the issuance of the order, how could it have been subject to discovery and argued at trial at all? It is as if she waited for the order to made, and then acted as if she were never afraid at all. This is what I mean when I say her conduct "vitiates" the effect of the order. Thus, can't this new evidence, based ENTIRELY upon the conduct of the Petitioner FOLLOWING the issuance of the order (namely, the letters, emails, witness of public behavior with the Defendant, phone calls, etc) be used as a basis for a motion to terminate the order on the grounds that she isn't really afraid and that the evidence proving such simply didn't exist at the time of the trial?

5 - Finally, in regards to the issue of res judicata, I recalled having this citation in my notes from the Ga Appellate Court. Doesn't it seem to say that the court which issued the order may also review and/or vacate their own order at their own discretion and for no other purpose other than in the interest of justice?

"Courts of record retain full control over orders and judgments during the term at which they were made, and, in the exercise of a sound discretion, may revise or vacate them. Such discretion will not be controlled unless manifestly abused. [Cits.] During the term of court at which a judgment is rendered the court has power, on its own motion, to vacate the same for irregularity, or because it was improvidently or inadvertently entered. [Cit.] The superior [or state] court, as a general rule, has plenary power over its orders and judgments during the term at which they were rendered, and may amend, correct, or revoke them for the purpose of promoting justice. [Cit.] A motion to set aside and vacate a judgment cannot be determined by any fixed rule, but depends on the circumstances of the case, and exercise of the power to vacate a judgment rendered during the term will not be controlled on review unless abused. [Cit.] The plenary control of the court over orders and judgments during the term at which they were rendered extends to all orders and judgments [including judgment by default] save those which are founded upon verdicts. [Cits.]" Whitlock v. Wilson, 79 Ga. App. 747 (54 SE2d 474) (1949); Martin v. Gen. Motors Corp., 226 Ga. 860 (1) (178 SE2d 183) (1970); Hunter v. Gillespie, 207 Ga. 574, 575 (63 SE2d 404) (1951); see Holcomb v. Trax, Inc., 138 Ga. App. 105 (225 SE2d 468) (1976).

Thanks so much again. Please don't get frustrated with me! It's important to me that this order be dropped and I am exploring every avenue because the mother is, indeed, using it as a sword instead of a shield, and that is a thing which causes me to always live in fear. I am unable to call the house to speak with my daughter, and whenever I send her a letter, I am in fear that the ex may concoct something to say I was really trying to contact her, instead. One false accusation can affect somone for months, and even a so-called "remedy" through tort litigation can take years. So again, thank you for indulging me.

[socrateaser]

>The order explicitly states:
>
>"The Respondant has knowingly and willfully violated OCGA
>16-5-90 and placed the Petitioner in reasonable fear because
>SEE EXHIBIT A."
>
>"Exhibit A" is the two written charges. (This is a "form
>order" with checkmarks and blanks. The reason, stated as "SEE
>EXHIBIT A" was typed onto a blank space.) This statement is
>the SOLE justification given in the order for its issuance.
>Following it, the order goes right into "Thus, the Respondant
>is hereby enjoined and restrained etc..."
>
>1 - In other words, the Order states a fact that does not
>exist; I DIDN'T violate the order, as the dismissals make
>clear. And the Petitioner made no other "statement of fear" or
>other evidence in her pleading whatsoever, and no other
>statement or basis whatsoever is acknowledged in the order.
>Are you suggesting that ANOTHER "statement of fear" is
>inferred in the order without it actually being stated? Thus,
>does this order mean what it says, or does it mean something
>else?

The fact that the charges for contempt were dismissed, does not prove that you did not place petitioner in reasonable fear. The fact that petitioner filed the complaints is evidence tending to prove that petitioner was in reasonable fear of respondent at the time the complaints were made.

The charges could be dismissed if the court believed that there was insufficient evidence to prove contempt beyond reasonble doubt, even though were the burden of proof lowered to a preponderance of the evidence, the charges would prove contempt. But, even here, all that is required to maintain the injunction is proof that petitioner is reasonably afraid of you.

You have the almost impossible duty to prove a negative, i.e., that petitioner has no reasonable cause to feel a subjective fear of respondent. This is why domestic violence restraining orders are so damnable, because they are set up so that no one can refute them. And, it's why I always tell someone who is going into a hearing for a dv order that they should get a polygraph and attempt to show that there is no truth to any of the factual allegations and thus no proof to support a reasonable fear.

You would need to show that petitioner was not in fear of you at the time she filed the complaints. If you have objective third party proof that petitioner was in your proximity, by her own intention, and not afraid immediately after filing the complaints (like within a few hours), and especially proof that this lack of fear occurred in between the filing of the two complaints, that might do it.

Otherwise, you're probably wasting your time.

>
>2 - If it says that I "knowingly and willfully violated" the
>temporary order, but then it turns out I did not, then the
>order has a fatal defect, does it not? The issue was pending
>in another court at the time the order was written, and the
>allegation (being adjudicated in a different court altogether)
> could not be DISPROVEN at the time of trial.

Irrelevant in view of my answer to #1, because your premise is faulty -- dismissal of a charge does not void the fact that the charge was made, or that the person making the charge wasn't reasonably afraid at the time of filing.

>3 - You're suggesting here that the law makes a provision for
>issuing a protective order but not for actually vacating one?
>I thought any order with a NON-AMENDABLE DEFECT could be
>vacated. In this case, the order states that I "willfully and
>knowingly" violated the order. when in fact, I had not. (The
>mere allegation of contempt does not constitute actual
>contempt.) Had the charges resulted in a conviction, or, had
>the order been written following a conviction rather than mere
>allegations, there would have been no conflict in the order.
>As such, once the charges were dismissed, there was no longer
>any factual claim in the pleading which actually existed, and,
>by claiming a fact that later turned out to be false, the
>statement upon which the order is based becomes defective.
>Correct?

Faulty premise for same reason as previously explained.

>4 - The lack of fear of the Respondant (and the evidence
>showing such) was not a fact available at the time of trial.
>Indeed, if her conduct demonstrating a lack of fear all
>occurred AFTER the issuance of the order, how could it have
>been subject to discovery and argued at trial at all? It is as
>if she waited for the order to made, and then acted as if she
>were never afraid at all. This is what I mean when I say her
>conduct "vitiates" the effect of the order. Thus, can't this
>new evidence, based ENTIRELY upon the conduct of the
>Petitioner FOLLOWING the issuance of the order (namely, the
>letters, emails, witness of public behavior with the
>Defendant, phone calls, etc) be used as a basis for a motion
>to terminate the order on the grounds that she isn't really
>afraid and that the evidence proving such simply didn't exist
>at the time of the trial?

Same answer as #3, 2 and 1.

>
>5 - Finally, in regards to the issue of res judicata, I
>recalled having this citation in my notes from the Ga
>Appellate Court. Doesn't it seem to say that the court which
>issued the order may also review and/or vacate their own order
>at their own discretion and for no other purpose other than in
>the interest of justice?
>
>"Courts of record retain full control over orders and
>judgments during the term at which they were made, and, in the
>exercise of a sound discretion, may revise or vacate them."

Assuming your citation is good law (not overruled by later court decision or statute), then this is an unusual property of GA law which seriously undermines the doctrine of res judicata, and may help you.

Here, I would argue that the petitioner's subsequent behavior in routinely initiating contact and showing no fear by coming into your proximity is grounds to vacate the injunction, because it is no longer necessary to protect the person whom it was intended to protect.

Good luck.

[annemichellesdad]

Much thanks. The appellate court ruling was copied verbatim. I couldn't find anything overruling it, but I will look again. It seems to be a fairly well-entrenched doctrine in GA, but then again GA does A LOT of things differently than the rest of the courts in the country!

You have raised an interesting point here:

Soc wrote: >>You would need to show that petitioner was not in fear of you at the time she filed the complaints. If you have objective third party proof that petitioner was in your proximity, by her own intention, and not afraid immediately after filing the complaints (like within a few hours), and especially proof that this lack of fear occurred in between the filing of the two complaints, that might do it.


In fact, this MIGHT just be provable.

On the day in question of the charge, we had both been summoned to appear in court for a hearing; she was requesting attorney's fees for an action that she had brought against me... and lost. On the day of court, I decided to go ahead and offer her HALF of the fees as a gesture of good will. The judge entered and said he would give everyone a few minutes to try and settle their case. He then left. In open court, I approached her, handed to her an envelop containing a check and sat back down. There was no note or conversation between us, and although a deputy bailiff was present, she did not voice a complaint. When court resumed, we both agreed to the judge that the issue was settled satisfactoraly, and I left. About 30 minutes later, I got a call from her telling me that she was willing to discuss visitation for Christmas and that she would wait for me at the law library of the courthouse. My parents were with me when I received the call. I returned, and we quickly worked out a schedule and peacefully parted company.

A few days later, the charge came. Shortly after our meeting in the law library, she complained that I approached her in open court and handed her an envelop, in violation of the order. There was no mention of our private meeting or anything like that... just the handing of a check in the courtroom. The prosecutor was disqusted with the charge when she read it and immediately submitted the nolle prosse.

1 - So, on the basis of what you said, is it credible to believe that a person who is summoned to appear in court on behalf of their own action to collect money was genuinely feared for her safety by accepting the very check they wanted to collect in the first place? If so, then why turn around a half hour later and call the very person that placed them in "reasonable fear" back to the courthouse to meet with them again in person and in private (where, unlike open court, no bailiff was even present)? She didn't even file the charge until AFTER the private meeting which she, herself, solicited! What do you think. Soc ... a reasonable chance to "prove a negative"?

(I promise this is the last question I'll bother you with on the matter!) :)

[socrateaser]

>Much thanks. The appellate court ruling was copied verbatim.
>I couldn't find anything overruling it, but I will look again.
>It seems to be a fairly well-entrenched doctrine in GA, but
>then again GA does A LOT of things differently than the rest
>of the courts in the country!
>
>You have raised an interesting point here:
>
>Soc wrote: >>You would need to show that petitioner was not in
>fear of you at the time she filed the complaints. If you have
>objective third party proof that petitioner was in your
>proximity, by her own intention, and not afraid immediately
>after filing the complaints (like within a few hours), and
>especially proof that this lack of fear occurred in between
>the filing of the two complaints, that might do it.
>
>
>In fact, this MIGHT just be provable.
>
>On the day in question of the charge, we had both been
>summoned to appear in court for a hearing; she was requesting
>attorney's fees for an action that she had brought against
>me... and lost. On the day of court, I decided to go ahead and
>offer her HALF of the fees as a gesture of good will. The
>judge entered and said he would give everyone a few minutes to
>try and settle their case. He then left. In open court, I
>approached her, handed to her an envelop containing a check
>and sat back down. There was no note or conversation between
>us, and although a deputy bailiff was present, she did not
>voice a complaint. When court resumed, we both agreed to the
>judge that the issue was settled satisfactoraly, and I left.
>About 30 minutes later, I got a call from her telling me that
>she was willing to discuss visitation for Christmas and that
>she would wait for me at the law library of the courthouse. My
>parents were with me when I received the call. I returned, and
>we quickly worked out a schedule and peacefully parted
>company.
>
>A few days later, the charge came. Shortly after our meeting
>in the law library, she complained that I approached her in
>open court and handed her an envelop, in violation of the
>order. There was no mention of our private meeting or anything
>like that... just the handing of a check in the courtroom. The
>prosecutor was disqusted with the charge when she read it and
>immediately submitted the nolle prosse.
>
>1 - So, on the basis of what you said, is it credible to
>believe that a person who is summoned to appear in court on
>behalf of their own action to collect money was genuinely
>feared for her safety by accepting the very check they wanted
>to collect in the first place? If so, then why turn around a
>half hour later and call the very person that placed them in
>"reasonable fear" back to the courthouse to meet with them
>again in person and in private (where, unlike open court, no
>bailiff was even present)? She didn't even file the charge
>until AFTER the private meeting which she, herself, solicited!
>What do you think. Soc ... a reasonable chance to "prove a
>negative"?

That she wasn't afraid to meet you in the courthouse is not very compelling, because you were both in the courthouse and the likelihood of a violent outburst was at least not as reasonable as in some other location.

I don't think you can make this work. She can allege that when you met with her, she became even more afraid and so filed the second complaint.

[socrateaser]

>The order explicitly states:
>
>"The Respondant has knowingly and willfully violated OCGA
>16-5-90 and placed the Petitioner in reasonable fear because
>SEE EXHIBIT A."
>
>"Exhibit A" is the two written charges. (This is a "form
>order" with checkmarks and blanks. The reason, stated as "SEE
>EXHIBIT A" was typed onto a blank space.) This statement is
>the SOLE justification given in the order for its issuance.
>Following it, the order goes right into "Thus, the Respondant
>is hereby enjoined and restrained etc..."
>
>1 - In other words, the Order states a fact that does not
>exist; I DIDN'T violate the order, as the dismissals make
>clear. And the Petitioner made no other "statement of fear" or
>other evidence in her pleading whatsoever, and no other
>statement or basis whatsoever is acknowledged in the order.
>Are you suggesting that ANOTHER "statement of fear" is
>inferred in the order without it actually being stated? Thus,
>does this order mean what it says, or does it mean something
>else?

The fact that the charges for contempt were dismissed, does not prove that you did not place petitioner in reasonable fear. The fact that petitioner filed the complaints is evidence tending to prove that petitioner was in reasonable fear of respondent at the time the complaints were made.

The charges could be dismissed if the court believed that there was insufficient evidence to prove contempt beyond reasonble doubt, even though were the burden of proof lowered to a preponderance of the evidence, the charges would prove contempt. But, even here, all that is required to maintain the injunction is proof that petitioner is reasonably afraid of you.

You have the almost impossible duty to prove a negative, i.e., that petitioner has no reasonable cause to feel a subjective fear of respondent. This is why domestic violence restraining orders are so damnable, because they are set up so that no one can refute them. And, it's why I always tell someone who is going into a hearing for a dv order that they should get a polygraph and attempt to show that there is no truth to any of the factual allegations and thus no proof to support a reasonable fear.

You would need to show that petitioner was not in fear of you at the time she filed the complaints. If you have objective third party proof that petitioner was in your proximity, by her own intention, and not afraid immediately after filing the complaints (like within a few hours), and especially proof that this lack of fear occurred in between the filing of the two complaints, that might do it.

Otherwise, you're probably wasting your time.

>
>2 - If it says that I "knowingly and willfully violated" the
>temporary order, but then it turns out I did not, then the
>order has a fatal defect, does it not? The issue was pending
>in another court at the time the order was written, and the
>allegation (being adjudicated in a different court altogether)
> could not be DISPROVEN at the time of trial.

Irrelevant in view of my answer to #1, because your premise is faulty -- dismissal of a charge does not void the fact that the charge was made, or that the person making the charge wasn't reasonably afraid at the time of filing.

>3 - You're suggesting here that the law makes a provision for
>issuing a protective order but not for actually vacating one?
>I thought any order with a NON-AMENDABLE DEFECT could be
>vacated. In this case, the order states that I "willfully and
>knowingly" violated the order. when in fact, I had not. (The
>mere allegation of contempt does not constitute actual
>contempt.) Had the charges resulted in a conviction, or, had
>the order been written following a conviction rather than mere
>allegations, there would have been no conflict in the order.
>As such, once the charges were dismissed, there was no longer
>any factual claim in the pleading which actually existed, and,
>by claiming a fact that later turned out to be false, the
>statement upon which the order is based becomes defective.
>Correct?

Faulty premise for same reason as previously explained.

>4 - The lack of fear of the Respondant (and the evidence
>showing such) was not a fact available at the time of trial.
>Indeed, if her conduct demonstrating a lack of fear all
>occurred AFTER the issuance of the order, how could it have
>been subject to discovery and argued at trial at all? It is as
>if she waited for the order to made, and then acted as if she
>were never afraid at all. This is what I mean when I say her
>conduct "vitiates" the effect of the order. Thus, can't this
>new evidence, based ENTIRELY upon the conduct of the
>Petitioner FOLLOWING the issuance of the order (namely, the
>letters, emails, witness of public behavior with the
>Defendant, phone calls, etc) be used as a basis for a motion
>to terminate the order on the grounds that she isn't really
>afraid and that the evidence proving such simply didn't exist
>at the time of the trial?

Same answer as #3, 2 and 1.

>
>5 - Finally, in regards to the issue of res judicata, I
>recalled having this citation in my notes from the Ga
>Appellate Court. Doesn't it seem to say that the court which
>issued the order may also review and/or vacate their own order
>at their own discretion and for no other purpose other than in
>the interest of justice?
>
>"Courts of record retain full control over orders and
>judgments during the term at which they were made, and, in the
>exercise of a sound discretion, may revise or vacate them."

Assuming your citation is good law (not overruled by later court decision or statute), then this is an unusual property of GA law which seriously undermines the doctrine of res judicata, and may help you.

Here, I would argue that the petitioner's subsequent behavior in routinely initiating contact and showing no fear by coming into your proximity is grounds to vacate the injunction, because it is no longer necessary to protect the person whom it was intended to protect.

Good luck.

[annemichellesdad]

Much thanks. The appellate court ruling was copied verbatim. I couldn't find anything overruling it, but I will look again. It seems to be a fairly well-entrenched doctrine in GA, but then again GA does A LOT of things differently than the rest of the courts in the country!

You have raised an interesting point here:

Soc wrote: >>You would need to show that petitioner was not in fear of you at the time she filed the complaints. If you have objective third party proof that petitioner was in your proximity, by her own intention, and not afraid immediately after filing the complaints (like within a few hours), and especially proof that this lack of fear occurred in between the filing of the two complaints, that might do it.


In fact, this MIGHT just be provable.

On the day in question of the charge, we had both been summoned to appear in court for a hearing; she was requesting attorney's fees for an action that she had brought against me... and lost. On the day of court, I decided to go ahead and offer her HALF of the fees as a gesture of good will. The judge entered and said he would give everyone a few minutes to try and settle their case. He then left. In open court, I approached her, handed to her an envelop containing a check and sat back down. There was no note or conversation between us, and although a deputy bailiff was present, she did not voice a complaint. When court resumed, we both agreed to the judge that the issue was settled satisfactoraly, and I left. About 30 minutes later, I got a call from her telling me that she was willing to discuss visitation for Christmas and that she would wait for me at the law library of the courthouse. My parents were with me when I received the call. I returned, and we quickly worked out a schedule and peacefully parted company.

A few days later, the charge came. Shortly after our meeting in the law library, she complained that I approached her in open court and handed her an envelop, in violation of the order. There was no mention of our private meeting or anything like that... just the handing of a check in the courtroom. The prosecutor was disqusted with the charge when she read it and immediately submitted the nolle prosse.

1 - So, on the basis of what you said, is it credible to believe that a person who is summoned to appear in court on behalf of their own action to collect money was genuinely feared for her safety by accepting the very check they wanted to collect in the first place? If so, then why turn around a half hour later and call the very person that placed them in "reasonable fear" back to the courthouse to meet with them again in person and in private (where, unlike open court, no bailiff was even present)? She didn't even file the charge until AFTER the private meeting which she, herself, solicited! What do you think. Soc ... a reasonable chance to "prove a negative"?

(I promise this is the last question I'll bother you with on the matter!) :)