Additional evidence unneccessary to extend woman’s protective order

A circuit court has examined the legislative history of Virginia’s protective order statute and concluded that new or additional evidence is not required for an extension.

Floyd County Circuit Court Judge K. Mike Fleenor Jr., found that “requiring Petitioner to present new or additional evidence contravenes both the black letter and the spirit of the statute.”

Fleenor’s March 21 letter opinion is Zimmerman v. Happe (VLW 022-8-020).

2020 protective order

In January 2020, Katheryn Zimmerman obtained a two-year protective order against Dale Happe in the Floyd County General District Court after submitting evidence of text messages and emails from Happe.

Zimmerman testified at the 2020 protective order hearing that she and her husband hired Happe as lead carpenter for their company in 2017, but they later reduced his role to subcontractor due to performance issues.

As the company’s owner and human resources director, Zimmerman communicated with Happe frequently. Although both parties were married at the time, Happe began sending her suggestive text messages and showing up unannounced at her home. By December 2019, he had sent so many messages that Zimmerman changed her phone number and email address. He also allegedly tried to contact her in person, including following her out of a store.

Happe’s messages professed his love for Zimmerman, described the effects of a medication he was using, offered to purchase a van for her, and made references to missing her children.

Fleenor said that while the messages “did not evince any overt violent proclivity” on Happe’s part, they did demonstrate consistent efforts to contact Zimmerman that she clearly found to be   inappropriate.

2022 extension request

In support of extending the 2020 order, Zimmerman resubmitted the evidence she had relied on previously. She also testified that, while she hadn’t spoken to Happe, she had seen him in public multiple times and she felt that he was staring at her and her children.

Happe testified that he had not attempted to contact Zimmerman since the protective order was issued and he denied staring at or attempting to threaten or intimidate her or her children.  Zimmerman did not cross-examine him.

The District Court extended the protective order. Happe appealed to the Circuit Court on the single issue of whether extending a protective order Virginia Code § 19.2-152.10(B) requires the presentation of new or additional evidence to support it.

Legislative history

Because there was no case law on point, the court examined the legislative history of Virginia’s protective order statute.  As originally drafted in 1997, it set a maximum issuance period of two years for any protective order and did not permit extensions to be sought.

An amendment to the law proposed by the House in 2010 would have allowed for a one-year extension if the respondent continued to pose a threat to the safety of the petitioner or the petitioner’s family.

A subsequent amendment allowed for a two-year extension, removed the “continues to pose a threat” language and provided that such an extension was available “to protect the health and safety of the petitioner or persons who are family.”

The final amendment approved and ratified by the General Assembly kept that language as well as the two-year period, and has not been substantively amended since.

Fleenor noted at no stage in the process was the language altered to limit the number of exemptions.

‘Health and safety’

Based on his examination of the legislative history, Fleenor found that on its face the statute didn’t require any additional evidence to support an extension.

“By removing the specter of ‘threat’ from the calculation and instituting a standard of essentially maintaining the ‘health and safety’ currently in place, the General Assembly granted the Court broad discretion to grant an extension.”

— Judge K. Mike Fleenor Jr.

“If the General Assembly had intended for such a requirement, the Court would expect to find [it] either in the explicit text of the statute or in at least one of the various iterations of the amendment,” he said.

Fleenor found it significant that the General Assembly’s amendment focused on the health and safety of the petitioner.

“By removing the specter of ‘threat’ from the calculation and instituting a standard of essentially maintaining the ‘health and safety’ currently in place, the General Assembly granted the Court broad discretion to grant an extension,” the judge held.

The judge pointed out that requiring new or additional evidence for an extension would essentially require a petitioner to allege violations of the prior order or allow the order to lapse “and subject the petitioner to possible jeopardy of her ‘health and safety’” so that she could obtain more evidence.

“Here, [Zimmerman] presented credible evidence that she fears for the health and safety of herself and her four minor children as a result of [Happe’s] actions,” Fleenor found.

Further, “the fact that both parties remain in the same small community without any material change in circumstance for either side also tips the scales in favor of maintaining the status quo,” the judge concluded.

As a result, Fleenor extended the protective order for an additional two years.