D.M. v. H.H. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 31, 2016
• Docket: 81A01-1507-PO-922
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 31 2016, 8:38 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT Leanna Weissmann Lawrenceburg, Indiana

IN THE COURT OF APPEALS OF INDIANA

D.M., March 31, 2016 Appellant-Respondent, Court of Appeals Cause No. 81A01-1507-PO-922 v. Appeal from the Union Circuit Court H.H., The Honorable Matthew R. Cox, Appellee-Petitioner. Judge Trial Court Cause No. 81C01-1504-PO-58

Barnes, Judge.

Case Summary [1] D.M. appeals the trial court’s grant of a protection order to H.H. We affirm.

Court of Appeals of Indiana | Memorandum Decision 81A01-1507-PO-922 | March 31, 2016 Page 1 of 8 Issue [2] D.M. raises two issues, which we restate as:

I. whether the trial court properly denied his motion for a continuance; and

II. whether his due process rights were violated.

Facts [3] D.M. and H.H. dated for several years. On April 14, 2015, H.H. filed a petition

for a protection order and alleged that the relationship had become abusive and

violent and that D.M. refused to return her personal possessions. On April 20,

2015, the trial court issued a notice to appear for a hearing on May 6, 2015.

There is no indication in the record that the trial court issued an ex parte

protection order. The Chronological Case Summary indicates that D.M. was

served with the notice to appear by the sheriff’s department on April 24, 2015.

The notice to appear stated that the trial court had issued “an Ex Parte Order

for Protection,” informed D.M. of the hearing date, and stated “Please bring all

documents and witnesses relating to this case with you to Court on your

hearing date.” App. p. 58(B). Both D.M. and H.H. appeared pro se for the

hearing on May 6, 2015.

[4] At the hearing, H.H. first testified regarding her allegations of D.M.’s abusive

and violent behavior during an April 7, 2015 incident. H.H. also testified

regarding her personal possessions that D.M. was refusing to return until she

reimbursed him for money that she had borrowed. The trial court then asked

for D.M.’s response to the allegations. D.M. stated: Court of Appeals of Indiana | Memorandum Decision 81A01-1507-PO-922 | March 31, 2016 Page 2 of 8 A . . . I do . . . a . . . there are a number of inaccuracies or a untruths in which she has said. A . . . regarding the . . . the . . . her attack on me on that day . . . a . . . regarding other items in there. At this point in time I’ve not seen anything other than the paper that was dropped off by the deputy that I signed. And I’ve been advised to ask for a continuance so I have time to look at the materials that she has submitted, because I’ve not seen anything, and to seek legal counsel.

Tr. pp. 7-8. The trial court then denied D.M.’s motion for a continuance, and

D.M. testified extensively regarding his relationship with H.H. At the end of

the hearing, the trial court directed the parties to immediately exchange

personal possessions. If there was a disagreement over ownership of any

property, the trial court directed the parties to file a replevin action. The trial

court also directed D.M. to file legal action to collect the debt owed by H.H. if

he was concerned about receiving payment. The trial court took the petition for

protection order under advisement. After the hearing, D.M. filed a letter to the

trial court with attachments, which the trial court struck from the record and

returned to D.M. On May 19, 2015, the trial court granted the protection

order.

[5] On June 4, 2015, an attorney entered his appearance on behalf of D.M. On

June 16, 2015, D.M. filed a motion to correct error. D.M. argued that the trial

court should have granted his continuance so that he could have obtained

counsel to assist him at the hearing. The trial court denied D.M.’s motion to

correct error. D.M. now appeals.

Court of Appeals of Indiana | Memorandum Decision 81A01-1507-PO-922 | March 31, 2016 Page 3 of 8 Analysis [6] At the outset, we note that H.H. did not submit an appellee's brief. In such a

situation, we do not undertake the burden of developing arguments for the

appellee. Hill v. Ramey, 744 N.E.2d 509, 511 (Ind. Ct. App. 2001). Applying a

less stringent standard of review with respect to showings of reversible error, we

may reverse the lower court if the appellant can establish prima facie error. Id.

Prima facie, in this context, is defined as “at first sight, on first appearance, or

on the face of it.” Id. Where an appellant is unable to meet that burden, we

will affirm. Id.

I. Continuance

[7] D.M. first argues that the trial court abused its discretion by denying his motion

for a continuance. The decision to grant or deny a continuance is within the

sound discretion of the trial court, and we will not reverse that decision unless

the trial court has abused its discretion. Evans v. Thomas, 976 N.E.2d 125, 126-

27 (Ind. Ct. App. 2012), trans. denied. A trial court abuses its discretion when it

reaches a conclusion that is clearly against the logic and effect of the facts or the

reasonable and probable deductions that may be drawn therefrom. Id. at 127.

If good cause is shown for granting the motion, denial of a continuance will be

deemed to be an abuse of discretion. Id.; see Ind. Trial Rule 53.5. Among the

things to be considered on appeal from the denial of a motion for continuance,

we must consider whether the denial of a continuance resulted in the

deprivation of counsel at a crucial stage in the proceedings. Evans, 976 N.E.2d

Court of Appeals of Indiana | Memorandum Decision 81A01-1507-PO-922 | March 31, 2016 Page 4 of 8 at 127. We must also consider whether a delay would have prejudiced the

opposing party to an extent sufficient to justify denial of the continuance. Id.

[8] D.M. argues the trial court should have granted his motion for a continuance

because he was not served with a copy of the petition for a protection order and

because he was unaware of the allegations against him at the time of the

hearing. According to D.M., he was unable to secure counsel in the eleven

days between the time he was served and the time of the hearing despite

contacting two attorneys. He contends that the denial of his motion for

continuance resulted in the possibility that H.H. “gamed the system to

accomplish [the] speedy return of her possessions.” Appellant’s Br. p. 13.

Finally, D.M. argues that he was “ill prepared to counter H.H.’s accusations”

at the hearing. Id. at 12.

[9] We addressed a similar issue in Evans, 976 N.E.2d at 127. There, we held that

the trial court did not abuse its discretion by denying a motion to continue in a

protection order proceeding where the dispute between the parties was

escalating, the respondent had five days to secure counsel, the trial court was

willing to consider a modification of the protection order after respondent

secured counsel, and a continuance could have significantly prejudiced the

petitioner.

[10] Here, H.H. alleged that D.M. had become abusive and violent with her on

April 7, 2015, and she filed her petition for a protection order shortly thereafter

on April 14, 2015. It was clear from H.H.’s and D.M.’s testimony that the

Court of Appeals of Indiana | Memorandum Decision 81A01-1507-PO-922 | March 31, 2016 Page 5 of 8 animosity between them was escalating. H.H. also alleged that D.M. was

refusing to return her personal possessions, which she needed to earn an

income.

[11] D.M. argues that he only had eleven days to obtain counsel, but we rejected a

similar argument in Evans, where the respondent had only five days to obtain

counsel. Further, although D.M. alleges that H.H. was “gaming” the system to

obtain possession of her personal property, Indiana Code Section 34-26-5-9(c)

specifically allows a trial court to address the possession and use of essential

personal effects in a protection order. A delay in the proceedings would have

prejudiced H.H., who was unable to obtain her personal possessions, which she

used to earn income, despite police intervention in the matter.

[12] Finally, with regard to D.M.’s argument that he was unaware of H.H.’s

allegations until the time of the hearing, we note that the order to appear

specifically provided that H.H. was the petitioner and directed D.M. to bring

his witnesses and documents related to the case. Given the short amount of

time between the incident between the parties, H.H.’s ongoing efforts to retrieve

her personal property, and the time of the hearing, D.M. should have been able

to anticipate the subject of the hearing, and, in fact, he testified extensively

about his relationship with H.H. Under these circumstances, we cannot say

that the trial court abused its discretion by denying D.M.’s motion for a

continuance.

Court of Appeals of Indiana | Memorandum Decision 81A01-1507-PO-922 | March 31, 2016 Page 6 of 8 II. Due Process

[13] D.M. next contends that his due process rights under the United States and

Indiana Constitutions were violated because he was not served with a copy of

the petition for a protection order. The Due Process Clause of the Fourteenth

Amendment, “‘requires notice, an opportunity to be heard, and an opportunity

to confront witnesses.’” Evans, 976 N.E.2d at 128 (quoting Ind. State Bd. of

Educ. v. Brownsburg Cmty. Sch. Corp., 842 N.E.2d 885, 889 (Ind. Ct. App. 2006)).

Article I, Section 12 of the Indiana Constitution provides that “every person,

for injury done to him in his person, property, or reputation, shall have remedy

by due course of law.” “The same analysis is applicable to both the federal and

state claims.” Id.

[14] D.M., however, did not make a due process argument below. “Due process

rights are subject to waiver, and claims are generally waived if raised for the

first time on appeal.” Pigg v. State, 929 N.E.2d 799, 803 (Ind. Ct. App. 2010)

(citing In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001)), trans. denied.

D.M. did not make a due process argument during the May 6, 2015 hearing or

in his motion to correct error. Consequently, he cannot raise his due process

claim for the first time on appeal. The claim is waived.

[15] Waiver notwithstanding, D.M. argues that he was not served with a copy of

H.H.’s petition for a protection order, and he was unaware of the claims against

him. D.M. had eleven days prior to the hearing to request a continuance or

obtain a copy of the petition, but he failed to do so. D.M. did not request a

continuance until the hearing had already started and H.H. had already testified Court of Appeals of Indiana | Memorandum Decision 81A01-1507-PO-922 | March 31, 2016 Page 7 of 8 regarding her allegations. Further, as we have discussed, given the short

amount of time between the incident between the parties, H.H.’s ongoing

efforts to retrieve her personal property, and the time of the hearing, D.M.

should have been able to anticipate the subject of the hearing, and, in fact, he

testified extensively about his relationship with H.H. D.M. has not established

that his due process rights were violated. See, e.g., Evans, 976 N.E.2d at 128

(rejecting the respondent’s argument that his due process rights were violated).

Conclusion [16] The trial court did not abuse its discretion by denying D.M.’s motion for a

continuance, and D.M. has not established that his due process rights were

violated. We affirm.

[17] Affirmed.

Robb, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 81A01-1507-PO-922 | March 31, 2016 Page 8 of 8