Feeds:
Posts
Comments

Posts Tagged ‘wife’

The Division II court of appeals held recently that someone accused of domestic violence in a domestic violence protection order proceeding does not have a right to a trial by jury.

In 2008, the wife/mother, Tiffany Blackmon, filed a petition for a domestic violence protection order on her behalf and on behalf of her seven-year-old son against her estranged husband, Brian Blackmon.

The trial court issued a temporary order of protection and set a date for the return hearing.  The parties then continued the date of the return hearing a number of times and Mr. Blackmon filed a jury demand.

The trial court denied Mr. Blackmon’s jury demand.  The appellate court affirmed.  To reach its holding, the court first established that the right to trial by jury enshrined in the state Constitution was limited to those causes of action for which a jury was available when the Constitution was adopted in 1889.

At that time, a jury was available to hear a cause of action sounding in law, but not in equity.  The distinction between law and equity focuses on the relief sought.  Injunctive relief is equitable.  An injunction is a court order prohibiting a party from engaging in a particular behavior.  Most other kinds of relief sound in law.

The court of appeals then reasoned that a domestic violence protection order – which prohibits a party from having contact with the other party – is injunctive in nature and therefore sounds in equity, and therefore the prohibited party does not have a right to a trial by jury.

Advertisements

Read Full Post »