No. Certiorari is for appeals of final orders. A TRO is a non-final order and hence cannot be appealed; the challenging party petitions a higher court directly to direct the lower court to vacate its order.
A writ is not an appeal. Writ of Certiorari review the vires of the decision of the lower court or body and often times can only be applied if there is no other remedy. A Mandamus is a command to do something. Unless the US is very different.
The OP. Most Jurisdictions allow the part against whom an Temp Injunction has been passed to apply to the same court to vacate the order. So even if an order is passed, you can always attempt to have it vacated.
To actually answer the OP (finally) it usually depends on the state as to what/where you have an appeal as a matter of right.
I can speak for West Virginia in that we have a State Supreme Court and below that Circuit Courts (WV does not have an intermediate appeals court). As you can imagine, the Circuit Court does not want to be bothered with minor things, so the legislature has created Family Courts and Magistrate Courts which are inferior to the Circuit Courts.
You get a TRO from the Magistrate Court, and a final hearing must be held withing 5 days before the Family Court.
In any final judgment (a TRO is not final as pointed out above) before a Family Court or a Magistrate Court, a person has an appeal as a matter of right, de novo (or a brand new trial on the facts) before the Circuit Court if they feel that they have been done wrong.
If they feel that the Circuit Court is then wrong, then you have a discretionary appeal to the State Supreme Court which would only hear it if there was a clear error on the part of the Circuit Court Judge.
In practice, though a Circuit Court judge is going to be very pissed if you don’t have a good reason as they don’t want to hear family matters and speeding tickets.
I believe that most states have similar automatic rights of appeal from these lower courts because the legislature realizes that judges of these lower courts aren’t exactly, well, qualified to do much of anything.
But as was said above, the standard of proof is so low for an RO that a successful appeal is unlikely to say the least.
The only solution: Pay her cash to drop it, and get an attorney to negotiate as by the terms of the RO, you can’t contact her directly.
Did you read my post? As I spelled out pretty clearly, a non-final order cannot be appealed. Hence, the complaining party has no other remedy. The mandamus sought in this case is a command to vacate the temporary restraining order.
There are other ways to prevent this apart from branding the man as a wife beater. First, when a couple goes through a divorce, there is typically an order for separate maintenance, or temporary support order. These usually outline who gets possession of what during the divorce proceedings. Usually the wife and kids get the house. If the man is coming over for any reason, she can legally bar him from the property like any homeowner can.
If the man comes over and commits a crime such as assault or battery, then the criminal justice system can respond just like if I were to come over to your house and threaten you with bodily harm.
This “verbal and emotional abuse” while favorites of the man hater lobby because of how vague they are, are not criminal offenses in any state, nor should they be. If they were, most posters in the BBQ Pit would be charged with a crime.
Sure, it is awful to do this in front of the kids, but if we were serious about that then every marriage should be supervised by big brother. And again, the woman has the right to enforce the separate maintenance agreement by barring him from the property.
And if we want to enforce a playground rule like they are 8 year olds, (“You stay on that side, and you stay on the other just so nothing happens”) then why slap the man with a court order sending him to jail if he comes over, but leave the woman free to call him at any time? Just order them both to stay apart as part of the general agreement.
Good point that I will conciede, which I hope proves that I am open minded even though I have a very strong opinion on this issue. I guess I will have to modify my thoughts a bit here.
I can certainly understand a RO being dropped after an extended period if the offending party has demonstrated that they are no longer a threat. In my example above, where I said that if an RO is dismissed, then chances are it should have never been granted was meant more in the context of one being dropped soon after being issued becuase the person with the RO fought it.
In my case, I did nothing to warrant an RO. The accusations were based on outright lies and there was zero proof. I fought the RO placed on me to defend my name and out of prinicpal. So, the point I was making is that if an RO is granted and then the person who has the RO against them hires and attorney and (for the sake of this example, lets say this happens within two weeks of the RO being granted) successfully fights and the RO is dropped it is my opinion that the RO should have never been granted in the first place.
Getting an RO dropped after it has been issued is nearly (but not always apparently as some of the other posters have said) impossible. Of course RO will be dismissed after a year if there has been no further incidents, but is that really relevant? By that time the damage has been done if the person is innoccent.
I have never said that RO shouldn’t be used and that there aren’t times a woman is in fear. However I will submit and stand by my statements that too many times RO’s are a punitive tactic used by women to punish men and the courts, in the name of caution, encourage this. There is no penalty for a blantant false accusation and the harm done to the innoccent is overlooked.
Sorry for the double reply to your post, but after re-reading it I think it is extreamly important to take issue with the statement above. While I will agree that an RO does tell someone to stop doing something it also does a lot more. It gives the person who requested the RO essentially unlimited power over the marital assests of a family. When my ex had the RO on me she did the following and I was forbiden by the courts to do anything to stop it:
1: She cleaned out our bank accounts, leaving me with zero money to live on.
2: I had recently broken my back at work and recieved One Hundred Thousand Dollars in a settlement from the company due to their neglegence in my injury. She also cleaned that account out too. One Hundred Thousand Dollars and every day I pay the price for that money with my injury. And no, she didn’t have to give it back to me during the divorce. It was in a joint account and the court, via the RO, gave here the exclusive right to take that money.
3: She ran up and maxed out all of our credit cards and then closed any out that had any balance left on them. Who do you think they called when payment came due? They were joint, didn’t matter if she ran them up.
4: I had a car in the garage that I was restoring as a hobby. The car was not titled yet and 99% complete at that time. My friend and I spent about 2 years bringing this car back to life to essentially a show car restoration. She took the title to the DMV and had it titled in her name. Because of this RO an expensive asset became hers alone.
5: She moved her boyfriend in the house the day after the RO was granted. Do you think the courts were concerned that he was in my house living with my children? Do you think they were concerened about the mental confusion my children experienced from seeing thier father kicked out one day and a new man moved in the next?
6: And the great news is I got to finace it all. Guess who was still responsible for the electric, cable, water, etc…??? Why didn’t I just quit paying? Because the terms of the RO forbid me to make any changes in reference to housing and it’s assosiated accounts. They were all in my name. I better find the money to pay them, because if I don’t and they get cut off I go to jail. But wait? Remember paragraph’s one and two where she cleaned out the accounts and left me with zero access to any funds? Where am I going to get the money to do this? Doesn’t matter, pay up or go to jail.
Of course the list goes on but I am afraid if I list anymore you will think I am just being mean. I hope that this demonstates why an RO is an attractive deal for a woman in order to get power and control over a man. This is why there has to be a burden of proof in order to get an RO. You can’t destroy a man’s life just because someone makes an accusation. There has to be proof.
And to tie this in with the OP. Even though all this was done, and even though I had done nothing AND it was apparent that the RO was only asked for to accomplish the above the attorney I hired to fight the RO told me I had almost a zero chance of getting it lifted. The fact that my RO was eventually dropped is irrellivent. By the time it was my life, finances, reputation and emotions were destoyed.
There is a huge difference between:
- On the basis of the evidence presented, there is not enough factual information to warrant the issuance of an RO.
and
- The bitch is lying.
In other words, she can actually, really and truly be in fear of her safety, but the standard for issuance of an RO (at least it is supposed to be) is that would a person in her situation* reasonably* be in fear of her safety.
If she was hypersensitive, she didn’t commit perjury by applying for the RO.
Please tell me you didn’t type this. Really? From your post you sound like an intelligent person. Correct me if I am wrong but are you advocating Government Sponsored Extortion? If that is a solution then it gives a huge incentive for the placement of false RO’s. I would hope that after this being pointed out you would re-consider that statement. You seem like a nice enough person, so I will chalk it up to a long post with a hastily written statement.
Hypothetical question:
Boy meets girl. Boy falls in love with girl. Boy asks girl to move into his house. The day after she moves in, she files for and gets a RO. Can she keep the house?
That seems scary to me, but a little far-fetched to be reality.
I would guess she would keep it for the duration of the TRO, especially as the judge will have no way of knowing that she just moved in yesterday. But I would have to think he could subsequently have her evicted in ordinary civil courts based on his ownership and her limited connection to the place, as above. (The RO might remain in place.)
Now that you bring it up, suppose she never actually lives there - or, FTM, suppose she’s never seen the guy in her life? Does she have to bring documentation to court proving that she’s actually connected to the guy and/or lives at the place? I looked around a bit and all I can find is that you fill out some forms.
So here’s the scenario. Some stranger goes to court and fills out forms claiming to be the girlfriend or spouse of some wealthy man, using his actual address as her home address. She is convincing in front of the judge, and he grants her a TRO. The cops show up at the guy’s house and bounce him out, at which point she moves in. He can’t go near the place for the duration of the TRO, nor can anyone else on his behalf. 10 days later, he shows up at the hearing and proves that he has no connection to this woman at all, but by then she is gone, with who knows what of his possessions with her …
Hard to believe there’s not some flaw in this scheme. But maybe there’s something to it.
I think if it were possible, then we would have heard of someone trying it before.
My GOD Phipps, don’t give 'em any more ideas!:smack:
Great counter to my point, but as a society are we going to say that it ethical and right to trash a mans reputation, resrict his freedom of movement and put him in possible financial jepordy because someone is hypersensitive? There has to be (at least in my opinion) a standard that has to be meet prior to the issuance of an RO. It goes back to the same argument of "is it better to let twenty guilty men walk or imprision an innocent man for life?
*Note to the SD moderator. I understand that the conversation keeps bouncing back to the legality and fairness of RO’s. I don’t think it is possible to discuss the OP’s origional question without having this debate. I apologize if we are pushing the rules.
obbn, are you making this up?
If not, what led to the breakup?
Re: tdn’s hypothetical, she’d probably at least have to have received mail at that address.
I wish I could say that the events I described were fiction. But unfortunately they are 100% true and accurate. I have tried to be as non-biased as possible in my description.
The breakup was caused (at least I think, sometimes I still can’t figure it out) by my injury. It was serious enough that I am not able to work any longer. I had a high paying career and I don’t think that she could handle that fact. Also, she was having an affair while I was laying in ICU teetering between life and death. Of course I didn’t know this at the time, but wasn’t too hard to figure out when he was moved in the day after I was forced out.
And, if you think that what I have described is bad you don’t want to hear about the 7 years since the divorce. It is filled with false accusation (almost crazy claims) to law enforcement and the using of my children as weapons against me. I am still in a legal battle over my children that has me financially and emotionaly drained.
The biggest problem I have with sharing my story here or with people I meet is I think I come off as bitter and exagerating. I assure you that I am neither. My current wife (who btw has been wonderful through all this) told me recently that if she hadn’t seen the weapons grade crazy that my ex wife is with her own eyes she would have never believed it. I told her the stories before we were married and I could always see a bit of skeptisism in her eyes, but she has experienced it and found out if anything I was down playing events.
As I said in a previous post in this thread, I share my story whenever I can, becasuse people need to be aware that this is happening. Not just to me, but thousands of men every single year. Possibly my story will be read by someone with the power to change the system. Perhaps my story combined with the many on the internet (do a search and you will be amazed at how the stories all sound the same. Too similiar to discount a conspiracy for lack of a better word) will motivate our law makers to look into the issue. Or at the minimum influence the thinking of Judges to help them consider what is the right thing to do.
I will close by saying that I don’t support or advocate violence of any sort towards women. I would be the first one to stand up in defence of a woman if I saw her being threatened. I have a daughter and I would never want her hurt. But I think that we have to find a way to help those that truly need help while protecting those of us that are innocent. And possibly penalize those that use the courts and RO’s as weapons of revenge.
As far as contact between the two parties in a RO, at least in MO, neither party can make contact. When in court for my divorce last year (amicable, no RO), there was a couple ahead of us with a hearing for a RO renewal.
The guy had gotten one against the woman and the judge asked if he wished to renew it. The case before was a property dispute and the judge had sent the two guys to a meeting room to try to hash it out before he even heard the case. The guy asked if they could do the same thing. The judge said, “No. The restraining order currently in effect forbids her contacting you. If I let you two go to a room and ‘work it out’, I am ordering her to violate the restraining order. The only reason she’s even allowed near you right now is because she is in my court room.” “Well, before I can say I want to renew, I need to ask her–” “Do you want it renewed or not? As long as it is in effect, she cannot speak to you, therefore, you cannot speak to her.” “No.” “Order dissolved, you both may leave.”
Interesting story and absolutely correct. The RO placed on me forbid her contacting me. But it also made living life quite a crap shoot. As I believe one poster pointed out upthread: If I went to the store and she showed up I could be jailed. I went out to eat and she showed up, I better run away quick.
She was so intent on causing me problems she tried to have me arrested for passing her car on the interstate. Mind you, this was not some barren backwoods county road. I passed her on I-285 in Atlanta 40 miles from our home. I had and could not have had any reason to think she would be on this road. I didn’t stop, hell I didn’t even look at her. I only realized it was her and her car as I was passing. She called the police and demanded that I be arrested for violation of the RO. I was visited by the boys in blue, but thankfully the officer was a reasonable man and told me he wasn’t going to arrest me for that.
I stand by it. I hate the government sponsored extortion as much as anyone. If you can change the system more power to you. If I was in the situation, I would offer cash to get the order lifted. I enjoy hunting.
Doubtful. When issuing a TRO, a court would look at fairness, leaning towards the “victim,” in establishing who gets what. A judge would be hard pressed to give the girl sole possession of the house based on this. But it would be a fact question. If she sold her house, moved across country to a strange town with boy and had nowhere else to go, it is certainly possible. If she could just go back to her apartment? Doubtful.
Agreed. Good luck in changing the system so that a judge will actually apply the law in issuing an RO. They are all scared that the one time they tell a woman, “Sorry, there isn’t enough here” they will read the newspaper the next day about a woman who was scared of her husband, went to a magistrate for help, was denied, and three hours later was found strangled to death. They don’t want the heat for that, so ROs are given freely.
Throw her in jail for perjury? The man hater groups would love that. Headline “Abused Woman Seeks Help, Judge Imprisons Her”
This is not the case in a lot of states. She can call you all she wants. If you call her you go to the pokey.
I am quite pleased that you responded to my question. Your latest post was well thought out and reasonable, so my intitial assesment that you are intelligent was correct. And I somewhat understand your reasoning but do you realize the pandora’s box you are opening if this course of action became the standard way to cope with a RO, falsely placed or otherwise. Let me fast forward us to a conversation in the future:
Woman talking to supportive friend: “You know, Dave and I are having problems. I have been having an affair with Mike and I don’t know what to do. I wish we could just go away for a small vacation together and take sometime to decicde what to do. I talked to Mike and we would love to go to Hawaii, but we just can’t afford it”
Supportive Friend: "Oh I hear ya girl. That Mike is really a catch! He is so much better than that SOB husband Dave. I sure wish I could give you the money so you two could go away for a little while, but I just don’t have it. Hey! Wait a minute, I have an idea. Why don’t you go to the courthouse and pretend Dave threatened you. Tell them you are really really scared of him. Now, make sure you cry a little so it is convincing. You might even want to wear that dress, you know the one that makes you look like a school teacher from Little House on the Praire.
The Judge is sure to grant you an RO. And you know Dave, hunting season is coming up and he would do anything so he could go. But he won’t be able to because Betty told me if he has an RO he can’t be around guns."
And the best part is Dave doesn’t have to do anything to you at all. Peggy said that the Judges ALWAYS order an RO, because men are so big and scary and we girls never ever lie.
Woman “Squeal THIS is going to be so much fun … tell me more, tell me more.”
Supportive Friend “Well, from what Betty told me Peggy Sue that works down at the mall did this. You know Peggy right? Her husband, what a jerk, he deserved this. Anyway, when Dave finds out he can’t go hunting you can tell him that you will drop the RO if he gives you $5,000. And with that money you can go on your vacation with Mike!”
Woman “Squeal, Squeal Oh this is so going to work. Now should I say he shoved me and said he was going to kill me? What hairstyle do you think most says I’ve been abused? Do you think these earings go with a RO hearing?”
Of course I am being absurd, but I can certainly see this scenario playing out over and over again. When one finds out they can do it and get away with it, how long do you really think it would take for this to become a common occurance? This is why the police and the US Government don’t pay terrorist. Because if you pay one, soon you will be paying thousands.