To:       Colorado Attorney

 

From:   Robby Jones, Paralegal

 

Re:       Rabbit v. Rabbit

            Civil Protection Order

 

Date:   January 1, 2021

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Issue and Background

 

          Firm’s client Jessica Rabbit appeared in our office this morning. Jessica was clearly distraught and upset, apparently owing to a visit to her husband Joe Rabbit’s home on Saturday, September 26. Jessica and Joe have been married for several years and they have a four (4) year old son, Bugsy. The couple now lives separately and Bugsy lives with his mother.  Jessica has hired the firm to dissolve her marriage to Joe. Jessica prepared a hand-written petition for Dissolution of Marriage and she has filed the petition with the court (20DR1234). Jessica is overwhelmed and she is unsure about the quality of her hand-written petition. She is now waiting for the family court facilitator to contact her for her initial case management conference.  Jessica is anxious for the firm to take the reins. 

 

          The Rabbits’ marriage has been a tumultuous one. Joe Rabbit has a lengthy criminal record, including assault, possession of a controlled substance, and a Domestic Violence, false imprisonment charge in 2012. Jessica credibly alleges that Joe physically and sexually abused her no less than monthly during their marriage.

 

          Jessica Rabbit has been charged with arson, after allegedly setting fire to Joe’s car after finding Joe with another woman. Jessica is represented by the firm in that matter as well as in the divorce proceedings. Jessica is the defendant in a mandatory protection order pursuant to the arson charge.  She fears that Joe will attempt to have her arrested for violation of the MPO.

 

          The purpose of Jessica’s visit to the firm’s office today included filing a Verified Motion for a Civil Protection Order against Joe. Jessica Rabbit indicated that she wants protection for herself and Bugsy and wants to “limit custody” between Joe and Bugsy.

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Colorado Statute and Precedent

 

          It is clearly the will and intent of the Colorado legislature to protect victims of domestic violence and the minor children who may be incidental to that domestic violence. The legislature’s intent in this area is decisively affirmed by Colorado courts.   

 

            C.R.S. § 13-14-101 prohibits verbal and physical acts against at-risk adults, children and people currently or formerly in a domestic relationship:

 

                    (2) “Domestic abuse” means any act, attempted act, or threatened act of violence, stalking, harassment, or coercion that is committed by any person against another person to whom the actor is currently or was formerly related . . . or has lived in the same domicile . . . or has been involved in an intimate relationship.

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            C.R.S. § 18-3-402(1) is applicable to the instant case. Joe Rabbit regularly “cause[d] submission of (Jessica) by means of sufficient consequence reasonably calculated to cause submission against the victim’s will.” Joe Rabbit appears to have attempted to compel Jessica to sexually submit to his will against her own less than 72 hours ago. 

 

Ex parte Hearing

 

            The Colorado Court of Appeals, Div. A, in the matter of Fiffe v. Fiffe, 140 P.3d 160 (2005), said “a temporary or permanent civil protection order may be issued for any of the following relevant purposes: “to prevent assaults and threatened bodily harm”; to “prevent domestic abuse”; or “to prevent stalking.” Jessica Rabbit was in the home of Joe Rabbit on Saturday, September 26, 2015 at which time Joe forced Jessica into unwanted sexual activity, threatened to kill her if she did not give him money to buy beer and threatened to call the police, apparently referring to the criminal protection order that is now in effect against Jessica relating to the arson charge. 

 

            In Fiffe, the Court of Appeals said “Because protection orders necessarily are a deprivation of liberty or property, ex parte hearings lacking due process safeguards can only be justified by the extreme circumstance of imminent danger.”  C.R.S. 13-14-104.5 provides that certain acts resulting in “reasonable apprehension of future abuse” may be set for hearing “at the earliest possible time,” and “shall take precedence over all matters.”  Further, the statute says “[t]he court shall hear all motions as expeditiously as possible.” Cleary, the legislature intended protection of domestic violence victims to be highest priority and the courts in Colorado and elsewhere have affirmed that intention. 

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            The court may very likely grant an ex parte hearing.  The court is going to want to know  why, in light of his physical and sexual violence toward her, did Jessica Rabbit consent to visiting her husband in his home on September 26? What motivated her to go to his home, an act requiring multiple decisions? The court will almost certainly question Jessica’s motives, and her anticipation of the potential recurrence of past violence. If she thought there was a likelihood of violence, why did she visit his home? If she didn’t think there was a likelihood of violence, is she ignoring the precedents from the marriage?

                       

          Joe may argue the affirmative defense that Jessica’s visit to his home on September 26 was Jessica’s de facto withdrawal of the CPO.  The argument would be without merit.  In a case from Montrose County, Hotsenpiller v. Bennet, 16CA1337, the Court of Appeals, Division A, acknowledged that “Colorado case law interpreting the consent statute and its applicability is sparse and limited in scope.” Still, “[u]nder section 18-1-505, the defense of consent of the victim is not available to any crime unless “the consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.””               

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“Limit custody” 

 

            Jessica Rabbit stated that she wanted to “limit custody” between her husband and her four (4) year old son, but Jessica was not specific about what “limit custody” means. The prepared petition (attached) for the Civil Protection Order (JDF 402) suggests visitations that would be limited in duration, restricted to Jessica’s residence and require the presence at the visitation of a person approved by the court.  

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            The courts have statutory and fiduciary obligations to ensure the safety of Colorado citizens. Jessica Rabbit’s petition for a Protective Order instructing Joe Rabbit to not harm or bother her will almost certainly be heard at an ex parte hearing.  The court, though, may question why the matter must be heard in such an expeditious manner if Jessica is going to immediately allow Joe to have visitations, admittedly seriously limited ones, with Bugsy.  The “limit custody” strategy, concurrent with Jessica's visits to Joe's residence, may be seen as defeating the purpose of the ex parte hearing.  ​

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         Prepared by Robby Jones, Paralegal