Revas Spencer v. Tiffany Spencer , 2013 Ind. App. LEXIS 287 ( 2013 )

FOR PUBLICATION
Jun 19 2013, 7:07 am
ATTORNEY FOR APPELLANT:
DEBRA S. ANDRY
Paoli, Indiana
IN THE
COURT OF APPEALS OF INDIANA
REVAS SPENCER, )
)
Appellant-Respondent, )
)
vs. ) No. 36A04-1211-PO-605
)
TIFFANY SPENCER, )
)
Appellee-Petitioner. )
APPEAL FROM THE JACKSON SUPERIOR COURT
The Honorable Bruce A. MacTavish, Judge
Cause No. 36D02-1208-PO-135
June 19, 2013
OPINION - FOR PUBLICATION
MAY, Judge
Revas Spencer (Husband) appeals the denial of the Agreed Order Dismissing Order of
Protection he and Tiffany Spencer (Wife) submitted to the trial court. We reverse.
FACTS AND PROCEDURAL HISTORY
On August 20, 2012, Wife filed a petition for order of protection against Husband,
alleging she had been a victim of domestic violence. At a hearing on September 7, Wife
testified she wanted an Order of Protection, and the trial court granted her request. On
September 20, Wife filed a verified request for dismissal of the Order of Protection; the trial
court denied that request without a hearing. On October 25, Wife and Husband filed an
Agreed Order Dismissing Order of Protection. The trial court held a hearing on October 31,
and denied the parties’ request to dismiss the protective order.
DISCUSSION AND DECISION
We first note Wife did not file an appellee’s brief. When an appellee does not submit
a brief, we do not undertake the burden of developing arguments for that party. Thurman v.
Thurman, 777 N.E .2d 41, 42 (Ind. Ct. App. 2002). Instead, we apply a less stringent
standard of review and may reverse if the appellant establishes prima facie error. Id. Prima
facie error is “error at first sight, on first appearance, or on the face of it.” Van Wieren v. Van
Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006).
The trial court erred when it denied the request to dismiss the order of protection, as
Ind. Code § 34-26-5-12 does not permit trial court discretion to deny a written request to
dismiss a protective order. Our standard of review involving statutory interpretation is well-
settled:
2
A question of statutory interpretation is a matter of law. In such interpretation,
the express language of the statute and the rules of statutory interpretation
apply. We will examine the statute as a whole, and avoid excessive reliance on
a strict literal meaning or the selective reading of words. Where the language
of the statute is clear and unambiguous, there is nothing to construe. However,
where the language is susceptible to more than one reasonable interpretation,
the statute must be construed to give effect to the legislature's intent. The
legislature is presumed to have intended the language used in the statute to be
applied logically and not to bring about an absurd or unjust result. Thus, we
must keep in mind the objective and purpose of the law as well as the effect
and repercussions of such a construction.
Nash v. State, 881 N.E.2d 1060, 1063 (Ind. Ct. App. 2008), trans. denied.
Ind. Code § 34-26-5-12, which governs the dismissal of Orders of Protection,
provides, “If a petitioner: (1) files a written request for dismissal with a court; or (2) makes
an oral request on the record to dismiss the case in open court; the court shall without delay
or any conditions dismiss the case without prejudice.” The use of the word “shall” in a
statute “generally connotes a mandatory as opposed to a discretionary import.” Parmeter v.
Cass County Dept. of Child Services, 878 N.E.2d 444, 447 (Ind. Ct. App. 2007), reh’g
denied. As the word “shall” appears in the statute regarding the trial court’s actions when the
petitioner files for the dismissal of an Order of Protection, the trial court did not have
discretion to deny the parties’ request to dismiss the protective order.1 Accordingly, we
reverse the decision of the trial court.
1
In denying the parties’ request to dismiss the Order of Protection, the trial court stated it would not dismiss
the Order because Husband had “gotten charged criminally with violating it[.]” (Tr. Vol. 2 at 5.) While we
understand the reason for the trial court denial of the parties’ request to dismiss, it is unfortunately not afforded
such discretion. Like the trial court, we are bound by the language of the statute and make our decision on
appeal based on the rules of statutory interpretation.
3
Reversed.
BAKER, J., and MATHIAS, J., concur.
4