IN THE
Court of Appeals of Indiana N.B., FILED Appellant-Respondent Feb 12 2025, 8:42 am
CLERK Indiana Supreme Court v. Court of Appeals and Tax Court
L.B., Appellee-Petitioner
February 12, 2025 Court of Appeals Case No. 24A-PO-1856 Appeal from the Daviess Circuit Court The Honorable Gregory Smith, Judge Tonya Hosford, Referee Trial Court Cause No. 14C01-2402-PO-173
Opinion by Judge May Judges Tavitas and DeBoer concur.
May, Judge.
Court of Appeals of Indiana | Opinion 24A-PO-1856 | February 12, 2025 Page 1 of 11 [1] N.B. appeals the trial court’s grant of a two-year order of protection to L.B.
under the Indiana Civil Protection Order Act (“CPOA”) based on a finding that
N.B. stalked and harassed L.B. He presents two arguments, which we restate
as:
1. Whether the trial court violated N.B.’s right to due process when it failed to hold a hearing within thirty days from the date his motion for hearing on the ex parte order of protection against him; and
2. Whether the record contains sufficient evidence to support the trial court’s grant of a two-year order of protection to L.B.
We affirm.
Facts and Procedural History [2] N.B. and L.B. began a romantic relationship in September 2022. In March
2023, the couple got engaged. However, in the midst of an argument on a trip
to Louisville in August or September 2023, N.B. told L.B. that he would kill
himself and her if she ended the relationship (hereinafter “the 2023 incident”).
L.B. felt “intimidated . . . scared . . . [and] threatened[.]” (Tr. Vol. II at 8.)
After the 2023 incident, the relationship was “pretty okay[.]” (Id. at 19.) In
November 2023, L.B. discovered she was pregnant. N.B. attended doctor’s
appointments with L.B. until January 2024. The couple took “pictures together
with the ultrasound picture[.]” (Id.) Also in January 2024, the couple went on
a nine-day cruise.
Court of Appeals of Indiana | Opinion 24A-PO-1856 | February 12, 2025 Page 2 of 11 [3] On February 15, 2024, L.B. told N.B. that she wanted to end the relationship.
After that date, N.B. called L.B. several times and messaged her on social
media. L.B. told N.B. she did not want to communicate with him. She
stopped responding around February 18, 2024. On February 18, 2024, N.B.
told L.B. he was going to call the Indiana Department of Child Services
(“DCS”), and DCS would place L.B. “on a three-day hold, a psych eval and
[her] baby would be taken out of [her].” (Id. at 8.) This call made L.B. feel
“terrorized[.]” (Id. at 21.) On February 19, 2024, L.B. blocked N.B.’s phone
number and his ability to contact her via social media.
[4] On February 28, 2024, N.B. contacted L.B. via a phone number for which
caller identification was blocked and told her he was going to call the police on
her and she would be arrested. He told her “he was personally going to go to
the Courthouse and ensure that these things would be done[.]” (Id. at 8.) L.B.
believed he would do so because N.B. was a law enforcement officer.
[5] That same day, L.B. filed for a protective order against N.B. based on the 2023
incident and the two calls in February 2024. She alleged N.B. “placed [her] in
fear of physical harm . . . committed stalking against her . . . [and] committed
repeated acts of harassment against [her].” (App. Vol. II at 9.) On February
29, 2024, the trial court granted an ex parte order for protection that prohibited
N.B. from contacting L.B., after finding “stalking has occurred sufficient to
justify the issuance of this order.” (Id. at 21.) On March 8, 2024, N.B. filed a
motion for hearing on the ex parte protective order. The trial court set a
hearing regarding L.B.’s petition for an order of protection for April 9, 2024.
Court of Appeals of Indiana | Opinion 24A-PO-1856 | February 12, 2025 Page 3 of 11 [6] At the beginning of the hearing, during a discussion of the public nature of the
hearing, N.B. notified the trial court “this hearing is being held outside the
thirty-day limit.” (Tr. Vol. II at 5.) The trial court ruled on the public hearing
portion of the argument, but did not respond to N.B.’s statement about the
hearing’s timing. At the end of L.B.’s testimony, N.B. moved for a summary
dismissal and argued his comments did not meet the qualifications for
harassment and/or stalking. The trial court denied N.B.’s motion, took the
matter under advisement, and asked the parties to submit proposed findings. 1
On July 5, 2024, the trial court granted L.B.’s request for a permanent order of
protection against N.B. that would expire on February 28, 2026.
Discussion and Decision [7] As an initial matter, we note L.B. chose not to file an appellee’s brief. “Under
such circumstances, we will not develop an argument for the appellees but
instead will reverse the trial court’s judgment if the appellant’s brief presents a
case of prima facie error.” Inspire Outdoor Living v. Norris, 193 N.E.3d 428, 430
(Ind. Ct. App. 2022). Prima facie “means at first sight, on first appearance, or
on the face of it.” Id. (internal quotation marks omitted).
[8] N.B. argues he was denied due process when the trial court did not hold a
hearing within the time required by statute. “The fundamental requirement of
1 On July 3, 2024, the trial court held a status conference hearing. No transcript thereof has been provided, and the Chronological Case Summary does not indicate what was discussed at this hearing.
Court of Appeals of Indiana | Opinion 24A-PO-1856 | February 12, 2025 Page 4 of 11 due process is the opportunity to be heard at a meaningful time and in a
meaningful manner.” NOW Courier, Inc. v Review Bd. of Ind. Dept. of Workforce
Dev., 871 N.E.2d 384, 387 (Ind. Ct. App. 2007). As the issue of whether a party
was denied due process is a question of law, we review these arguments de
novo. Id.
[9] According to N.B., the trial court was required to hold a hearing on L.B.’s
petition for a protective order within thirty days pursuant to Indiana Code
section 34-26-5-9(b), which states, in relevant part:
(b) If it appears from a petition for an order for protection or from a petition to modify an order for protection that harassment has occurred, a court:
(1) may not, without notice and a hearing, issue an order for protection ex parte or modify an order for protection ex parte; but
(2) may, upon notice and after a hearing, whether or not a respondent appears, issue or modify an order for protection.
A court must hold a hearing under this subsection not later than thirty (30) days after the petition for an order for protection or the petition to modify an order for protection is filed.
That subsection precludes a trial court from entering an ex parte order and
requires a trial court to hold a hearing within thirty days of the filing of the
petition for protective order. It applies when a petition alleges only harassment,
which is not what happened herein. Court of Appeals of Indiana | Opinion 24A-PO-1856 | February 12, 2025 Page 5 of 11 [10] Instead, the trial court issued an ex parte protective order and enjoined further
threatening or stalking by N.B. “under the authority of Indiana Code § 34-26-5-
9(c)” because “stalking has occurred[.]” (App. Vol. II at 21.) Subsection 34-26-
5-9(c) lists forms of relief the trial court may grant “without notice and hearing
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IN THE
Court of Appeals of Indiana N.B., FILED Appellant-Respondent Feb 12 2025, 8:42 am
CLERK Indiana Supreme Court v. Court of Appeals and Tax Court
L.B., Appellee-Petitioner
February 12, 2025 Court of Appeals Case No. 24A-PO-1856 Appeal from the Daviess Circuit Court The Honorable Gregory Smith, Judge Tonya Hosford, Referee Trial Court Cause No. 14C01-2402-PO-173
Opinion by Judge May Judges Tavitas and DeBoer concur.
May, Judge.
Court of Appeals of Indiana | Opinion 24A-PO-1856 | February 12, 2025 Page 1 of 11 [1] N.B. appeals the trial court’s grant of a two-year order of protection to L.B.
under the Indiana Civil Protection Order Act (“CPOA”) based on a finding that
N.B. stalked and harassed L.B. He presents two arguments, which we restate
as:
1. Whether the trial court violated N.B.’s right to due process when it failed to hold a hearing within thirty days from the date his motion for hearing on the ex parte order of protection against him; and
2. Whether the record contains sufficient evidence to support the trial court’s grant of a two-year order of protection to L.B.
We affirm.
Facts and Procedural History [2] N.B. and L.B. began a romantic relationship in September 2022. In March
2023, the couple got engaged. However, in the midst of an argument on a trip
to Louisville in August or September 2023, N.B. told L.B. that he would kill
himself and her if she ended the relationship (hereinafter “the 2023 incident”).
L.B. felt “intimidated . . . scared . . . [and] threatened[.]” (Tr. Vol. II at 8.)
After the 2023 incident, the relationship was “pretty okay[.]” (Id. at 19.) In
November 2023, L.B. discovered she was pregnant. N.B. attended doctor’s
appointments with L.B. until January 2024. The couple took “pictures together
with the ultrasound picture[.]” (Id.) Also in January 2024, the couple went on
a nine-day cruise.
Court of Appeals of Indiana | Opinion 24A-PO-1856 | February 12, 2025 Page 2 of 11 [3] On February 15, 2024, L.B. told N.B. that she wanted to end the relationship.
After that date, N.B. called L.B. several times and messaged her on social
media. L.B. told N.B. she did not want to communicate with him. She
stopped responding around February 18, 2024. On February 18, 2024, N.B.
told L.B. he was going to call the Indiana Department of Child Services
(“DCS”), and DCS would place L.B. “on a three-day hold, a psych eval and
[her] baby would be taken out of [her].” (Id. at 8.) This call made L.B. feel
“terrorized[.]” (Id. at 21.) On February 19, 2024, L.B. blocked N.B.’s phone
number and his ability to contact her via social media.
[4] On February 28, 2024, N.B. contacted L.B. via a phone number for which
caller identification was blocked and told her he was going to call the police on
her and she would be arrested. He told her “he was personally going to go to
the Courthouse and ensure that these things would be done[.]” (Id. at 8.) L.B.
believed he would do so because N.B. was a law enforcement officer.
[5] That same day, L.B. filed for a protective order against N.B. based on the 2023
incident and the two calls in February 2024. She alleged N.B. “placed [her] in
fear of physical harm . . . committed stalking against her . . . [and] committed
repeated acts of harassment against [her].” (App. Vol. II at 9.) On February
29, 2024, the trial court granted an ex parte order for protection that prohibited
N.B. from contacting L.B., after finding “stalking has occurred sufficient to
justify the issuance of this order.” (Id. at 21.) On March 8, 2024, N.B. filed a
motion for hearing on the ex parte protective order. The trial court set a
hearing regarding L.B.’s petition for an order of protection for April 9, 2024.
Court of Appeals of Indiana | Opinion 24A-PO-1856 | February 12, 2025 Page 3 of 11 [6] At the beginning of the hearing, during a discussion of the public nature of the
hearing, N.B. notified the trial court “this hearing is being held outside the
thirty-day limit.” (Tr. Vol. II at 5.) The trial court ruled on the public hearing
portion of the argument, but did not respond to N.B.’s statement about the
hearing’s timing. At the end of L.B.’s testimony, N.B. moved for a summary
dismissal and argued his comments did not meet the qualifications for
harassment and/or stalking. The trial court denied N.B.’s motion, took the
matter under advisement, and asked the parties to submit proposed findings. 1
On July 5, 2024, the trial court granted L.B.’s request for a permanent order of
protection against N.B. that would expire on February 28, 2026.
Discussion and Decision [7] As an initial matter, we note L.B. chose not to file an appellee’s brief. “Under
such circumstances, we will not develop an argument for the appellees but
instead will reverse the trial court’s judgment if the appellant’s brief presents a
case of prima facie error.” Inspire Outdoor Living v. Norris, 193 N.E.3d 428, 430
(Ind. Ct. App. 2022). Prima facie “means at first sight, on first appearance, or
on the face of it.” Id. (internal quotation marks omitted).
[8] N.B. argues he was denied due process when the trial court did not hold a
hearing within the time required by statute. “The fundamental requirement of
1 On July 3, 2024, the trial court held a status conference hearing. No transcript thereof has been provided, and the Chronological Case Summary does not indicate what was discussed at this hearing.
Court of Appeals of Indiana | Opinion 24A-PO-1856 | February 12, 2025 Page 4 of 11 due process is the opportunity to be heard at a meaningful time and in a
meaningful manner.” NOW Courier, Inc. v Review Bd. of Ind. Dept. of Workforce
Dev., 871 N.E.2d 384, 387 (Ind. Ct. App. 2007). As the issue of whether a party
was denied due process is a question of law, we review these arguments de
novo. Id.
[9] According to N.B., the trial court was required to hold a hearing on L.B.’s
petition for a protective order within thirty days pursuant to Indiana Code
section 34-26-5-9(b), which states, in relevant part:
(b) If it appears from a petition for an order for protection or from a petition to modify an order for protection that harassment has occurred, a court:
(1) may not, without notice and a hearing, issue an order for protection ex parte or modify an order for protection ex parte; but
(2) may, upon notice and after a hearing, whether or not a respondent appears, issue or modify an order for protection.
A court must hold a hearing under this subsection not later than thirty (30) days after the petition for an order for protection or the petition to modify an order for protection is filed.
That subsection precludes a trial court from entering an ex parte order and
requires a trial court to hold a hearing within thirty days of the filing of the
petition for protective order. It applies when a petition alleges only harassment,
which is not what happened herein. Court of Appeals of Indiana | Opinion 24A-PO-1856 | February 12, 2025 Page 5 of 11 [10] Instead, the trial court issued an ex parte protective order and enjoined further
threatening or stalking by N.B. “under the authority of Indiana Code § 34-26-5-
9(c)” because “stalking has occurred[.]” (App. Vol. II at 21.) Subsection 34-26-
5-9(c) lists forms of relief the trial court may grant “without notice and hearing
in an ex parte order for protection . . . under subsection (a)[.]” Ind. Code § 34-
26-5-9(a). The court’s ex parte order stated N.B. was “restrained from
committing further acts of abuse or threats of abuse to [L.B.] . . . [and]
restrained from any contact with [L.B.].” (App. Vol. II at 20.) The order was
scheduled to last two years.
[11] When a trial court has entered a two-year ex parte protective order that enjoins
behavior under Subsection 9(c), the timing of any hearing that occurs thereafter
is determined by Indiana Code section 34-26-5-10(a). Pursuant thereto, the
court shall set a hearing “upon request by either party” and the hearing “must
be held not more than thirty (30) days after the request for a hearing is filed
unless continued by the court for good cause shown.” Ind. Code § 34-26-5-
10(a).
[12] N.B. filed his request for a hearing on the ex parte order on March 8, 2024.
Thirty days after March 8 would be April 7, 2024. See Ind. Trial Rule 6(A) (“In
computing any period of time . . . the day of the act . . . from which the
designated period of time begins to run shall not be included.”). However,
April 7, 2024, was a Sunday, and Trial Rule 6(A) further explains that if the last
day of the computed period is a Saturday, Sunday, legal holiday, or “a day the
office in which the act is to be done is closed during regular business hours[,]”
Court of Appeals of Indiana | Opinion 24A-PO-1856 | February 12, 2025 Page 6 of 11 then the time period runs until the “end of the next day” that the office is open.
Routinely, the court would have been open on Monday, April 8, but Monday
April 8, 2024, was not a routine day. Instead, all Daviess County offices were
closed that day for the total solar eclipse that occurred over Indiana. See
https://www.daviess.org/calendar.aspx?PREVIEW=YES&EID=660
[https://perma.cc/42B5-4YLW]. Thus, the time period for holding the hearing
on N.B.’s request ended at the close of business on April 9, 2024. His hearing
occurred on April 9, 2024, and he has not demonstrated that he was denied due
process.
2. Sufficiency of the Evidence N.B. argues L.B. did not present sufficient evidence to justify the issuance of a
two-year order of protection. When we review the trial court's entry of a
protective order, our review
is two-tiered: we first determine whether the evidence supports the findings and then whether the findings support the protective order. In deference to the trial court’s proximity to the issues and the witnesses, we will only reverse where there is no evidence supporting the findings or the findings fail to support the order. In addition, we do not reweigh the evidence or reassess the credibility of the witnesses. The appellant bears the burden of establishing that the trial court’s findings are clearly erroneous.
P.D. v. D.V., 172 N.E.3d 306, 310 (Ind. Ct. App. 2021) (internal citations
omitted). Findings are clearly erroneous when our review of the record “leaves
us firmly convinced that a mistake has been made. We do not defer to
conclusions of law, however, and evaluate them de novo.” Fox v. Bonam, 45 Court of Appeals of Indiana | Opinion 24A-PO-1856 | February 12, 2025 Page 7 of 11 N.E.3d 794, 798 (Ind. Ct. App. 2015) (quoting Mysliwy v. Mysliwy, 953 N.E.2d
1072, 1076 (Ind. Ct. App. 2011), trans. denied).
[13] L.B. petitioned for an order of protection under the CPOA, “which exists to
promote the protection and safety of all victims of domestic or family violence
and harassment in a fair, prompt, and effective manner.” P.D., 172 N.E.3d at
310 (citing Ind. Code § 34-26-5-1(1-2)). The CPOA also aims to prevent “future
domestic violence, family violence, and harassment.” Ind. Code § 34-26-5-1(3).
At the same time, we must remember that “an improperly granted protective
order may pose a considerable threat to the respondent’s liberty[.]” Barger v.
Barger, 887 N.E.2d 990, 994 (Ind. Ct. App. 2008). Therefore, “a court faced
with a request for a protective order must balance, on the one hand, the need to
protect actual and threatened victims against, on the other, the onerous burden
borne by those erroneously subject to such an order.” S.H. v. D.W., 139 N.E.3d
214, 219 (Ind. 2020).
[14] For an order of protection to be granted, a petitioner “must establish at least
one of the allegations in the petition by a preponderance of the evidence.” M.R.
v. B.C., 120 N.E.3d 220, 223 (Ind. Ct. App. 2019). In addition, “the petitioner
must prove the respondent is a “present, credible threat to the petitioner or
someone in the petitioner’s household.” P.D., 172 N.E.3d at 310. “The threat
posed by the respondent is viewed objectively, and the threat must be credible,
meaning plausible or believable.” Id. “Thus, the petitioner must prove, by a
preponderance of the evidence, that there are reasonable grounds to believe that
the respondent presently intends to harm the petitioner or the petitioner’s
Court of Appeals of Indiana | Opinion 24A-PO-1856 | February 12, 2025 Page 8 of 11 family.” Id. If the petitioner meets their burden, the trial court “must issue a
protective order and ‘grant relief necessary to’ end the violence or threat of
violence.” S.D. v. G.D., 211 N.E.3d 494, 498 (Ind. 2023) (quoting Ind. Code §
34-26-5-9(h)). When entering a protective order, because such orders are
similar to injunctions, “a trial court must make special findings of fact and
conclusions thereon.” P.D., 172 N.E.3d at 310.
[15] In her petition, L.B. alleged N.B. was stalking her and committed repeated acts
of harassment against her. Stalking requires the alleged perpetrator engages in a
“knowing or intentional course of conduct involving repeated or continuing
harassment of another person that would cause a reasonable person to feel
terrorized, frightened, intimidated, or threatened and that actually causes the
victim to feel terrorized, frightened, intimidated, or threatened.” Ind. Code §
35-45-10-1. The term “repeated” as used in that definition means “more than
once.” M.R., 120 N.E.3d at 224. “Harassment” means
conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include statutorily or constitutionally protected activity, such as lawful picketing pursuant to labor disputes or lawful employer- related activities pursuant to labor disputes.
Ind. Code § 35-45-10-2. As relevant herein, “[i]mpermissible contact” includes
“[f]ollowing or pursuing the victim” and “[c]ommunicating with the victim[,]”
Court of Appeals of Indiana | Opinion 24A-PO-1856 | February 12, 2025 Page 9 of 11 Ind. Code § 35-45-10-3(a), but that list is “nonexclusive.” Ind. Code § 35-45-10-
3(b).
[16] N.B. argues L.B. did not present sufficient evidence that, at the time she filed
the petition for a protective order against N.B, there was a “credible threat to
her safety.” (Br. of Appellant at 15.) He notes he lives two and a half hours
away from L.B. and contends there was no evidence he intended to visit the
area in which L.B. lived. He also claims that in the phone calls on February 18,
2024, and February 28, 2024, he did not threaten L.B. with violence.
Therefore, he asserts, the trial court should not have issued an order of
protection against him.
[17] However, L.B. testified to three acts perpetrated during which she felt in
danger. First, L.B. testified regarding the 2023 incident, during which N.B.
threatened to kill her and himself. L.B. then told the trial court that on
February 18, 2024, N.B. told her he would call the DCS and that DCS would
place L.B. “on a three-day hold, a psych eval and [her] baby would be taken out
of [her].” (Tr. Vol. II at 8.) This call made L.B. feel “terrorized[.]” (Id. at 21.)
Finally, on February 28, 2024, N.B. contacted L.B. via a number with caller
identification blocked and told her he was going to call the police on her and
she would be arrested. He told her “he was personally going to go to the
Courthouse and ensure that these things would be done[.]” (Id. at 8.) L.B.
believed he would do so because N.B. was a law enforcement officer. N.B.’s
argument is an invitation to reweigh the evidence, which we cannot do. See
P.D., 172 N.E.3d at 310 (appellate court cannot reweigh evidence or judge the
Court of Appeals of Indiana | Opinion 24A-PO-1856 | February 12, 2025 Page 10 of 11 credibility of witnesses). L.B. provided sufficient evidence to support the trial
court’s grant of her request for a protective order against N.B. See, e.g., M.R.,
120 N.E.3d at 224 (sufficient evidence to support the issuance of a protective
order based on repeated communication with the victim that made her feel
threatened).
Conclusion [18] The trial court did not violate N.B.’s due process rights because it held a
hearing on its ex parte order of protection within thirty days of N.B.’s request
for a hearing pursuant to Indiana Code section 34-26-5-10(a). Additionally,
there existed sufficient evidence to support the trial court’s grant of L.B.’s
request for a protective order against N.B. Accordingly, we affirm.
[19] Affirmed.
Tavitas, J., and DeBoer, J., concur.
ATTORNEY FOR APPELLANT Tiffany A. McCoy The Law Office of Melissa Winkler-York Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-PO-1856 | February 12, 2025 Page 11 of 11