Happe v. Zimmerman, Record No. 0588-22-3 (Va. Ct. App. May 23, 2023)
In an issue of first impression, the Court of Appeals determines the standard a petitioner must meet to extend a protective order.
Facts. In January 2020, Kathryn Zimmerman got a two-year protective order against Dale Happe due to his obsessive behavior with her. Though Happe never spoke to Zimmerman after the order was entered, Zimmerman caught Happe staring at her on several occasions with the intention, she believed, of making “his presence very, very noticeable.” So, Zimmerman sought to extend the protective order. At the circuit court hearing, Happe moved to strike Zimmerman’s evidence because she had not proven that she had been subject to an act of violence, force, or threat since the initial protective order. The circuit court issued a letter opinion denying Happe’s motion and extending the protective order to January 20, 2024. In its final order, however, the protective order was extended to March 7, 2024. Happe appealed.
Issue. Whether a petitioner must prove that they are or have been, within a reasonable period, subjected to an act of violence, force, or threat to obtain an extension of a protective order.
Holding. If a court finds, by a preponderance of the evidence, that an extension of a protective order would “protect the health and safety of the petition,” then the court may extend the order.
Notes. To obtain a protective order, a petitioner must show that they are or have been, within a reasonable period, subjected to an act of violence, force, or threat. Before 2010, a petitioner could not extend a protective order; they could only reinitiate the process. In 2010, the General Assembly amended Code § 19.2-152.10 to allow a petitioner to request an extension of an existing order “to protect the health and safety of the petitioner.” The statute’s plain language imposes no requirement that a petitioner give proof of an act of violence, force, or threat to obtain an extension of an initial order. Here, Zimmerman showed that Happe continued to act unusually, indicating that his obsession with Zimmerman had not resolved. Thus, the record supported the trial court’s extension of the order to protect Zimmerman’s health and safety.
Finally, when a written order conflicts with a letter opinion, courts presume that the order accurately reflects the court’s decision.