Jacquelyn Ivankovic v. Milan Ivankovic

• Court: Indiana Court of Appeals
• Decided: February 21, 2024
• Docket: 23A-DC-01954
• Status: Published

Opinion

FILED Feb 21 2024, 9:03 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Jacquelyn Ivankovic, Appellant-Respondent

v.

Milan Ivankovic, Appellee-Petitioner

February 21, 2024 Court of Appeals Case No. 23A-DC-1954 Appeal from the Lake Superior Court The Honorable Thomas P. Hallett, Special Judge Trial Court Cause No. 45D03-2201-DC-2

Opinion by Judge Mathias Judges Tavitas and Weissmann concur.

Court of Appeals of Indiana | Opinion 23A-DC-1954 | February 21, 2024 Page 1 of 10 Mathias, Judge.

[1] The Lake Superior Court, sitting here as a dissolution court, denied Jacquelyn

Ivankovic’s (“Wife’s”) request for a temporary restraining order and a

permanent injunction, asking that Milan Ivankovic (“Husband”) be enjoined

from contacting Wife’s employer to make allegations that Wife had engaged in

wrongdoing. The court concluded that it lacked the authority to prohibit

Husband from making statements concerning Wife to third parties outside the

presence of the parties’ minor children. Wife appeals, arguing that the trial

court has statutory authority to issue the requested injunction because doing so

would protect the financial well-being of the parties’ minor children.

[2] We affirm.

Facts and Procedural History [3] During the parties’ marriage, Wife was the director of pharmacy for a hospital

in Merrillville and Husband was a middle school teacher. The parties have three

children, and, during the marriage, they purchased a Boston terrier named

Roxy.

[4] The parties’ marriage was dissolved in Lake Superior Court on November 18,

2022. Wife appealed the division of marital property, specifically the order

requiring Wife to pay Husband for one-half of his share of the family dog’s

value. Wife also appealed the order so far as it allowed the children to take the

dog to Husband’s residence during his parenting time. See Ivankovic v. Ivankovic,

205 N.E.3d 1061 (Ind. Ct. App. 2023). Court of Appeals of Indiana | Opinion 23A-DC-1954 | February 21, 2024 Page 2 of 10 [5] Our court issued its opinion on March 15, 2023, and agreed with the trial court

that, for the purpose of a dissolution action, Roxy should be treated as personal

property. See id. at 1064. Therefore, “whichever spouse is awarded the canine

will have sole possession to the complete exclusion of the other.” Id. For this

reason, our court concluded that the trial court erred when it awarded the

children “discretionary decision-making authority to transport Wife’s personal

property to Husband’s residence during parenting time.” Id. at 1065.

[6] The day after our court’s opinion issued, Husband began a campaign of

harassment against Wife. In response, Wife filed a request for a temporary

restraining order and permanent injunction against Husband. In support, Wife

alleged that Husband had contacted Wife’s employer and made claims that

Wife had engaged in wrongdoing during the course of her employment. Wife

believed Husband wanted her employer to fire her. Because Wife’s income is

significantly greater than Husband’s, she pays the children’s fixed expenses and

child support to Husband, who is the non-custodial parent. Wife claimed that

Husband’s attempt to interfere with her job threatened the children’s economic

stability. Appellant’s App. p. 60. And Wife stated that her employer is

investigating Husband’s claims that she had engaged in wrongdoing during her

employment, and her job may be in jeopardy. Id.

[7] The trial court held a hearing on Wife’s request on April 4. The parties

presented evidence concerning Husband’s communications with Wife’s

employer. After considering the parties’ arguments whether the trial court could

lawfully restrict Husband’s speech, the court concluded that it lacked the

Court of Appeals of Indiana | Opinion 23A-DC-1954 | February 21, 2024 Page 3 of 10 authority to prohibit Husband from making statements concerning Wife to third

parties outside the children’s presence. Appellant’s App. pp. 22-23.

[8] Wife filed a motion to correct error, arguing that Husband’s communications

were not entitled to First Amendment protection but were slanderous and

defamatory speech. Id. at 73-74. On August 10, the trial court denied Wife’s

motion because Husband’s communications with third parties involved

allegations that Wife committed illegal conduct, which is speech protected

under the First Amendment. Id. at 20-21.

[9] Wife now appeals.

Standard of Review [10] Husband does not participate in this appeal. In this circumstance, we “need not

develop an argument for [Husband] but instead will reverse the trial court’s

judgment if [Wife’s] brief presents a case of prima facie error.” In re Adoption of

E.B., 163 N.E.3d 931, 935 (Ind. Ct. App. 2021) (citation and quotation marks

omitted). Prima facie error means “at first sight, on first appearance, or on the

face of it.” Jenkins v. Jenkins, 17 N.E.3d 350, 352 (Ind. Ct. App. 2014). “Still, we

are obligated to correctly apply the law to the facts in the record to determine

whether reversal is required.” Id.

[11] We also observe that the denial of injunctive relief lies within the sound

discretion of the trial court and will not be overturned unless it was arbitrary or

Court of Appeals of Indiana | Opinion 23A-DC-1954 | February 21, 2024 Page 4 of 10 amounted to an abuse of discretion. 1 Ferrell v. Dunescape Beach Club Condos. Phase

I, Inc., 751 N.E.2d 702, 712 (Ind. Ct. App. 2001). The trial court considers four

factors in determining the propriety of injunctive relief: (1) whether the

plaintiff’s remedies at law are inadequate; (2) whether the plaintiff can

demonstrate a reasonable likelihood of success on the merits; (3) whether the

threatened injury to the plaintiff outweighs the threatened harm a grant of relief

would occasion upon the defendant; and (4) whether the public interest would

be disserved by granting relief. Id. Because Wife sought a permanent injunction,

the second of the four traditional factors is slightly modified because the issue is

not whether the plaintiff has demonstrated a reasonable likelihood of success on

the merits, but whether she has in fact succeeded on the merits. See id. at 713.

Wife bore the burden to demonstrate that certain and irreparable injury would

result if the injunction was denied. See Crawley v. Oak Bend Estates Homeowners

Ass'n, Inc., 753 N.E.2d 740, 744 (Ind. Ct. App. 2001), trans. denied.

Discussion and Decision [12] Wife argues that the trial court had statutory authority to issue the requested

injunction and the restraint on Husband’s speech under these circumstances

was not constitutionally impermissible. The trial court concluded that it lacked

1 Wife only appeals the trial court’s denial of her request for a permanent injunction.

Court of Appeals of Indiana | Opinion 23A-DC-1954 | February 21, 2024 Page 5 of 10 authority to issue the injunction because doing so would violate Husband’s

First Amendment right to free speech.2

[13] Wife acknowledges our court’s prior decisions holding that a trial court cannot

restrain a prior spouse from making disparaging remarks about his or her

former spouse outside the presence of their children. See e.g. Israel v. Israel, 189

N.E.3d 170, 180 (Ind. Ct. App. 2023), trans. denied; In re Paternity of G.R.G., 829

N.E.2d 114, 125 (Ind. Ct. App. 2005). But Wife argues that restricting Husband

from making statements that she engaged in wrongdoing during the course of

her employment to her employers and co-workers is permissible to safeguard

the children’s financial well-being. Appellant’s App. p. 19.

[14] Before we address Wife’s argument, we consider our court’s decision in Israel.

In that case, the husband argued that the non-disparagement clause in the

court’s final decree was an unconstitutional prior restraint of speech. Israel, 189

N.E.3d at 179. Specifically, the decree provided that the parties would not make

disparaging comments about the other “in the presence of [Child], friends,

2 The First Amendment, made applicable to the States through the Fourteenth Amendment, provides that “Congress shall make no law . . . abridging the freedom of speech . . . .” U.S. Const. amend. I. First Amendment protections against prior restraints on speech are trigged by state action. In re Paternity of K.D., 929 N.E.2d 863, 868 (Ind. Ct. App. 2010). A trial court’s issuance of an injunction constitutes a state action triggering First Amendment protections. Id. Article 1, Section 9 of the Indiana Constitution provides independent protections for freedom of speech. See State v. Katz, 179 N.E.3d 431, 442 (Ind. 2022). In Katz, our supreme court encouraged litigants to raise constitutional claims under both our state and federal constitutions. Id. at 443. Husband only argued his right to free speech under the First Amendment and the trial court appropriately confined its analysis to the federal constitutional right to free speech. However, we feel compelled to observe that Husband’s speech in this case would likewise be protected under Article 1, Section 9.

Court of Appeals of Indiana | Opinion 23A-DC-1954 | February 21, 2024 Page 6 of 10 family members, doctors, teachers, associated parties, co-workers, employers,

the parenting coordinator, media, the press, or anyone.” Id. at 175 (record

citation omitted).

[15] Our court noted that “‘[non-disparagement] orders are, by definition, a prior

restraint on speech,’” which is a term describing “‘administrative and judicial

orders forbidding certain communications when issued in advance of the time

that such communications are about to occur.’” Id. at 179 (citations omitted). A

prior restraint on speech is not per se unconstitutional but “does come to a

court ‘bearing a heavy presumption against its constitutional validity.’” Id.

(quoting In re Paternity of K.D., 929 N.E.2d 863, 868 (Ind. Ct. App. 2010)

(quoting N.Y. Times Co., v. U.S., 403 U.S. 713, 824 (1971))). A “prior censorship

of expression can be justified only by the most compelling governmental

interest.” Id. at 180 (citation omitted).

[16] Without question, protecting children from exposure to disparagement between

their parents is a compelling governmental interest. Id. For this reason, our

court concluded that the non-disparagement clause furthered the compelling

State interest in protecting the parties’ child’s best interests and did not violate

the First Amendment. Id. However, our court agreed with the husband that the

clause at issue “goes far beyond furthering that compelling interest to the extent

that it prohibits the parents from ‘making disparaging comments’ about the

other in the presence of ‘anyone’ even when Child is not present.” Id. (record

citation omitted). Because that portion of the non-disparagement clause was an

Court of Appeals of Indiana | Opinion 23A-DC-1954 | February 21, 2024 Page 7 of 10 unconstitutional prior restraint on speech, our court ordered it stricken from the

parties’ final decree. Id.

[17] Citing the Israel opinion, the trial court in this case denied Wife’s request to

enjoin Husband from making disparaging remarks about her to her employers

and co-workers. See Appellant’s App. pp. 21, 23. Wife argues that the trial court

interpreted the Israel holding too narrowly. She observes that she did not request

that the court issue an injunction against Husband from “making disparaging

remarks about her to anyone and everyone” but simply to her employer and co-

workers. Appellant’s Br. at 18-19. Wife argues that doing so promotes the

“compelling state interest of safeguarding the financial well-being of the

children” Id. at 19.

[18] Husband’s claims about Wife’s alleged misconduct during her employment,

including an allegation that she engaged in criminal conduct, could negatively

affect Wife’s employment, and, therefore, the children’s financial well-being,

but only if Husband’s allegations are proven to be true. 3 And, if Wife

committed misconduct during her employment, which results in a demotion or

3 Wife argues that Husband’s “disparaging statements about [Wife] constitute defamation because the statements have alleged misconduct on the part of [Wife] as well as alleging criminal conduct or misconduct by [Wife] in her trade, profession, or occupation. Accordingly, [Husband’s] slanderous and defamatory statements are unprotected speech.” Appellant’s Br. at 20. Whether Husband’s statements are defamatory is not an issue that was before the trial court or properly presented to our court. The trial court was only asked to consider whether Husband can be enjoined from making disparaging remarks about Wife. We agree that “the right to free speech does not entitle the speaker to make false accusations.” Appellant’s Br. at 21 (quoting In re the Paternity of K.D., 929 N.E.2d 863, 872 (Ind. Ct. App. 2010)). But the veracity of Husband’s allegations is not at issue in this appeal.

Court of Appeals of Indiana | Opinion 23A-DC-1954 | February 21, 2024 Page 8 of 10 termination of her employment, Wife is the one responsible for failing to

safeguard her children’s financial well-being.

[19] We agree with Wife that the State has a compelling state interest in protecting

and preserving a child’s financial well-being. See Champion v. Secretary of State,

761 N.W.2d 747, 754 (Mich. Ct. App. 2008). In addition, we do not condone

vindictive behavior. However, Husband has alleged that Wife engaged in

criminal wrongdoing, and “[a]llegations of criminal activity are public as a

matter of course.” In re Paternity of K.D., 929 N.E.2d at 872. Ultimately, the

children’s financial well-being will be adversely affected only if Wife has in fact

engaged in the wrongdoing as Husband has alleged. If that is the case, it is her

own conduct, not Husband’s, that would have a potentially adverse effect on

her employment. It is also important to remember that Wife has an adequate

remedy at law if Husband’s prior or future statements constitute defamation

and she suffers damages as a result. See Daugherty v. Allen, 729 N.E.2d 228, 235-

36 (Ind. Ct. App. 2000).

[20] For all of these reasons, we affirm the trial court’s order denying Wife’s request

for a permanent injunction against Husband.

[21] Affirmed.

Tavitas, J., and Weissmann, J., concur.

Court of Appeals of Indiana | Opinion 23A-DC-1954 | February 21, 2024 Page 9 of 10 ATTORNEY FOR APPELLANT Debra Lynch Dubovich Levy & Dubovich Merrillville, Indiana

Court of Appeals of Indiana | Opinion 23A-DC-1954 | February 21, 2024 Page 10 of 10