M M v. L P

CourtIndiana Court of Appeals
DecidedAugust 5, 2024
Docket23A-PO-02089
StatusPublished

This text of M M v. L P (M M v. L P) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
M M v. L P, (Ind. Ct. App. 2024).

Opinion

IN THE

Court of Appeals of Indiana M.M., FILED Aug 05 2024, 8:39 am Appellant-Respondent CLERK Indiana Supreme Court Court of Appeals v. and Tax Court

L.P., Appellee-Petitioner

August 5, 2024 Court of Appeals Case No. 23A-PO-2089 Appeal from the Clinton Circuit Court The Honorable Bradley K. Mohler, Judge Trial Court Cause No. 12C01-2305-PO-405

Opinion by Judge Tavitas Judge Mathias concurs.

Court of Appeals of Indiana | Opinion 23A-PO-2089 | August 5, 2024 Page 1 of 21 Judge Weissmann dissents with separate opinion.

Tavitas, Judge.

Case Summary [1] M.M. (“Father”) appeals the trial court’s grant of a protection order against him

to protect his ex-wife, L.P. (“Mother”). Mother filed the petition for a

protection order in the Clinton Circuit Court, and Father orally requested a

transfer to the special judge who was handling Father’s and Mother’s post-

dissolution matters. The trial court denied Father’s request and granted

Mother’s petition for a protection order. On appeal, Father argues that the trial

court erred by denying his request for a transfer to the special judge. We

conclude that transfer to the special judge was not required and, even if the trial

court should have granted the transfer, any error in this case was harmless.

Accordingly, we affirm.

Issue [2] Father raises one issue, which we restate as whether the trial court erred by

denying Father’s request for transfer of the matter to the special judge.

Facts [3] Father and Mother married in 2012 and had two children. Their marriage was

dissolved in 2019 by the Clinton Circuit Court. In 2020, the parties agreed that

Judge Benjamin Diener would serve as the special judge in the matter, the trial

Court of Appeals of Indiana | Opinion 23A-PO-2089 | August 5, 2024 Page 2 of 21 court approved the agreement, and the special judge assumed jurisdiction over

the post-dissolution matters. Over the next few years, the special judge resolved

multiple disputes between the parties.

[4] In May 2023, Mother filed a pro se petition for a protection order against

Father in the Clinton Circuit Court. At the time, there were no post-dissolution

matters pending before the special judge. Mother alleged that she had been the

victim of stalking and/or repeated acts of harassment by Father. Mother also

requested that her current husband and her older child from a previous

relationship be protected, but Mother did not mention her children with Father.

Mother checked the following option on the form for the petition: “Specify the

arrangements for parenting time with our minor child(ren),” and Mother

handwrote, “Already at speedway would like to use parenting app and cut off

texting and calling.” Appellant’s App. Vol. II p. 11.

[5] On May 30, 2023, the trial court granted an ex parte order of protection. The

order enjoined Father from “threatening to commit or committing acts of

domestic or family violence or stalking” against Mother and her older child. Id.

at 28. The order also provided: “[Father] is prohibited from harassing,

annoying, telephoning, contacting, or directly or indirectly communicating with

[Mother], except: does not prohibit reasonable and peaceful communications

regarding the parties’ children and parenting time.” Id. The order also

specifically provided: “This order is not intended to interfere with any parenting

time/child visitation orders issued by any other court.” Id. at 29.

Court of Appeals of Indiana | Opinion 23A-PO-2089 | August 5, 2024 Page 3 of 21 [6] Father, who was also pro se at the time, filed a written motion specifically

requesting that the trial court set the matter for a hearing. Father did not file a

motion for a change of judge or a motion to transfer the petition for a protection

order to the special judge. The trial court then set the matter for hearing on

August 9, 2023. At the hearing, however, Father orally requested dismissal for

“lack of jurisdiction” and requested a transfer to the special judge. Tr. Vol. II p.

4. Father argued that the petition for a protection order was a “collateral

attack” on the custody order “[s]ince it affect[ed his] custody.” Id. at 5. Father

orally cited State ex rel. Meade v. Marshall Superior Ct. II, 644 N.E.2d 87, 89 (Ind.

1994). The trial court denied Father’s motion and heard evidence regarding

Mother’s petition for a protection order.

[7] On August 9, 2023, the trial court granted Mother’s petition for a protection

order against Father. The order “enjoined [Father] from threatening to commit

or committing acts of domestic or family violence, stalking, or harassment”

against Mother and her older child. Appellant’s App. Vol. II p. 33. The order

also provided: “[Father] is prohibited from harassing, annoying, telephoning,

contacting, or directly or indirectly communicating with [Mother], except: does

not prohibit reasonable and peaceful communications regarding the parties’

children and parenting time, with all such communications to be via CloseApp

parenting application.” 1 Id. Father now appeals.

1 The parties and trial court are likely referring to the co-parenting application called AppClose.

Court of Appeals of Indiana | Opinion 23A-PO-2089 | August 5, 2024 Page 4 of 21 Discussion and Decision [8] Father argues that the trial court erred by granting Mother’s petition for a

protection order because the matter should have been heard by the special judge

hearing the parties’ post-dissolution matters. “We review a trial court’s order

on a motion to transfer venue for an abuse of discretion.” Muneer v. Muneer,

951 N.E.2d 241, 243 (Ind. Ct. App. 2011). An abuse of discretion occurs when

the trial court’s decision is clearly against the logic and effect of the facts and

circumstances before the trial court, or when the trial court has misinterpreted

the law. Id. Where the issue presented is purely a matter of law, we review the

trial court’s order de novo. Id.

[9] In support of his argument, Father relies, in part, upon provisions of the

Indiana Civil Protection Order Act, Indiana Code Chapter 34-26-5. Indiana

Code Section 34-26-5-4(d) provides the following regarding venue:

If a court has jurisdiction over an action that relates to the subject matter of the requested civil order for protection under section 2(b) or 2(c)(3) of this chapter, either because of an action pending in that court or in the exercise of the court’s continuing jurisdiction, the petitioner must file the petition for an order for protection in that court.

Further, if the petition is filed in the incorrect court, it may be transferred as

follows:

If a person who petitions for an ex parte order for protection also has a pending case involving:

Court of Appeals of Indiana | Opinion 23A-PO-2089 | August 5, 2024 Page 5 of 21 (A) the respondent; or

(B) a child of the petitioner and respondent;

the court that has been petitioned for relief shall immediately consider the ex parte petition and then transfer that matter to the court in which the other case is pending.

Ind. Code § 34-26-5-6(4).

[10] Importantly, nothing was pending in the dissolution matter at the time Mother

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M M v. L P, Counsel Stack Legal Research, https://law.counselstack.com/opinion/m-m-v-l-p-indctapp-2024.