Kevin K. Andrews v. N.A. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 9, 2018
• Docket: 48A02-1701-PO-209
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Mar 09 2018, 9:10 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court collateral estoppel, or the law of the case.

APPELLANT PRO SE APPELLEE PRO SE Kevin K. Andrews N.A. Bloomington, Indiana Alexandria, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kevin K. Andrews, March 9, 2018

Appellant-Respondent, Court of Appeals Case No. 48A02-1701-PO-209 v. Appeal from the Madison Circuit Court. The Honorable Stephen D. Clase, N.A., Magistrate. Appellee-Petitioner. Trial Court Cause No. 48C03-1610-PO-951

Friedlander, Senior Judge

[1] Kevin Andrews, pro se, appeals the trial court’s denial of his motion to correct

error after a protective order was issued against him at the request of N.A., his

ex-wife. The sole issue Andrews raises on appeal (restated) is whether the trial

court erred in denying his motion to correct error. We affirm.

Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PO-209 | March 9, 2018 Page 1 of 4 [2] On October 17, 2016, N.A. filed a petition for a protective order against

Andrews. In her petition, she alleged that Andrews had stalked her on three

occasions. That same day, the trial court issued an ex parte order for

protection, which was to expire on October 17, 2018. Thereafter, Andrews filed

a request for a hearing to challenge the protective order. The hearing was held

on December 2, 2016, and on that same day, the trial court issued an order

confirming the October 17, 2016 protective order.

[3] On December 21, 2016, Andrews filed a motion to correct error, challenging

the three instances of stalking that N.A. alleged in her protective order petition

and maintaining that the protective order should not have been granted. On

December 29, 2016, the trial court denied Andrews’s motion to correct error.

Andrews appeals.

[4] N.A. did not file an appellee’s brief. When an appellee does not submit a brief,

we do not undertake the burden of developing arguments for that party.

Thurman v. Thurman, 777 N.E.2d 41 (Ind. Ct. App. 2002). Instead, we apply a

less stringent standard of review and may reverse if the appellant establishes

prima facie error. Id. Prima facie error is “error at first sight, on first appearance,

or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d 216, 221 (Ind. Ct.

App. 2006).

[5] We review the denial of a motion to correct error for abuse of discretion. Jo.W.

v. Je.W., 952 N.E.2d 783 (Ind. Ct. App. 2011). Andrews can demonstrate an

Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PO-209 | March 9, 2018 Page 2 of 4 abuse of discretion only by showing the trial court erred when issuing the

protective order against him. See id.

[6] Andrews argues, essentially, that the evidence was insufficient to support

granting N.A.’s request for a protective order. When reviewing sufficiency of

the evidence to support a protective order, we neither reweigh the evidence nor

judge the credibility of witnesses. Tisdial v. Young, 925 N.E.2d 783 (Ind. Ct.

App. 2010). We consider only the probative evidence and reasonable

inferences therefrom supporting the trial court’s judgment. Id.

[7] Indiana Code section 34-26-5-2(a) (2002) establishes the criteria by which a trial

court may grant a protective order:

A person who is or has been a victim of domestic or family violence may file a petition for an order for protection against a: (1) family or household member who commits an act of domestic or family violence; or (2) person who has committed stalking under IC 35-45-10- 5 or a sex offense under IC 35-42-4 against the petitioner.

A person who requests a protective order must prove one of the elements of

Indiana Code section 34-26-5-2(a) by a preponderance of the evidence. Tons v.

Bley, 815 N.E.2d 508 (Ind. Ct. App. 2004).

[8] At the protective order hearing, N.A. testified as follows: that during a

supervised visit between Andrews and their sixteen-year-old child (Child), the

facilitator ended the visit early and called N.A. because Andrews’s behavior

during the visit caused the facilitator to fear for her safety; that following a

Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PO-209 | March 9, 2018 Page 3 of 4 hearing on parenting time that both N.A. and Andrews attended, Andrews

waited in the parking lot for twenty-five minutes until N.A. exited the

courthouse and then watched N.A. get into her vehicle; and that Andrews

attended their Child’s football game after the trial court had terminated

Andrews’s visitation rights and that N.A. feared for her safety. Andrews gave

an alternate version of these events. He claimed that the supervised visit

incident “was ruled hearsay” by the trial court; that both he and N.A. were

ordered to be at the parenting-time hearing, and he did not display any “illegal

behavior” following the hearing; and that there were no court orders in place to

prevent him from attending Child’s football game, and the parties did not come

into direct contact during the game. Appellant’s Br. p. 3.

[9] The trial court heard the testimony and observed the demeanor of the

witnesses. The court concluded that stalking had occurred and that Andrews

represented a credible threat to N.A.’s safety. Andrews’s arguments to the

contrary amount to an invitation to reweigh the evidence and judge the

credibility of the witnesses, which we cannot do. See Tisdial, 925 N.E.2d at 785

(appellate court cannot reweigh evidence or judge the credibility of witnesses).

We affirm the trial court’s denial of Andrews’s motion to correct error.

[10] Judgment affirmed.

Kirsch, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PO-209 | March 9, 2018 Page 4 of 4