Markaj v. Markaj

Plaintiff filed a complaint and motion for domestic violence protective order (hereinafter “DVPO”) on March 12, 2021.  When using form AOC-CV-303, Plaintiff described no instances where Defendant either threatened use or actually used a firearm in the context of domestic violence.  However, Plaintiff did describe instances of harassment.   Additionally, when prompted by the form AOC-CV-303 regarding whether Defendant had firearms and ammunition in his possession, Plaintiff noted that she was uncertain of how many or where Defendant kept his firearms and ammunition given the parties had been divorced since March of 2016.  In addition to leaving the space blank on the form AOC-CV-303 as to whether the Defendant had a “pattern of threatened use of violence with a firearm against any persons,” Plaintiff also did not indicate that she wished the Court to prohibit Defendant from possessing or purchasing firearms.

On June 1, 2021, the trial court entered a DVPO against Defendant.  When entering the DVPO, the trial court used form AOC-CV-306.  The trial court did not check any boxes on the form AOC-CV-306 to indicate that Defendant had either threatened use or actually used a firearm in the context of domestic violence.  However, the trial court did check the box in the “conclusions” section of the AOC-CV-306 form indicating “4. The defendant’s conduct requires that he/she surrender all firearms, ammunition and gun permits.”  Also, under the “order” section of the AOC-CV-306 form, the trial court check the box indicating Defendant is “‘prohibited’ from either ‘possessing,’ ‘receiving,’ or ‘purchasing’ and firearm, and that Defendant’s ‘concealed handgun permit is suspended for the effective period’ of the DVPO.”  On June 11, 2021, Defendant filed a motion to modify the DVPO, seeking that the court modify the “conclusions” section of the AOC-CV-306 prohibiting him from possessing, receiving, purchasing firearms, possessing an active concealed handgun permit, and requiring Defendant to surrender all firearms, ammunition, and gun permits to the sheriff.

 

Defendant contends the trial court erred in ordering him to surrender firearms, ammunition, and gun permits after the entry of the DVPO.  The Court of Appeals agreed with Defendant’s contention and vacated that portion of the DVPO.  The trial court failed to find the necessary findings to support a conclusion of ordering Defendant to surrender firearms, ammunition, and gun permits.  Competent evidence did not exist on the record to conclude that the trial court could have formed a basis for such a conclusion.  Although the Court of Appeals agreed that competent evidence existed to support the entry of a DVPO against Defendant, competent evidence did not exist to order Defendant to surrender firearms, ammunition, and gun permits upon the entry of the DVPO.