MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 09 2018, 8:38 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT David E. Baum David E. Baum Law Office, P.C. Chesterton, Indiana
IN THE COURT OF APPEALS OF INDIANA
S.B., May 9, 2018 Appellant-Respondent, Court of Appeals Case No. 17A-PO-3043 v. Appeal from the Porter Superior Court K.F., The Honorable Roger V. Bradford, Appellee-Petitioner. Judge Trial Court Cause No. 64D01-1703-PO-2845
Najam, Judge.
Statement of the Case [1] S.B. appeals the trial court’s issuance of an order for protection on behalf of
K.F. S.B. presents two issues for our review, which we restate as a single issue,
Court of Appeals of Indiana | Memorandum Decision 17A-PO-3043 | May 9, 2018 Page 1 of 7 namely, whether the trial court’s issuance of the order for protection was clearly
erroneous. We affirm.
Facts and Procedural History [2] On December 26, 2016, S.B.’s wife, K.B., told S.B. that she had to go to work,
and she left their home. S.B. thought it was strange that K.B. had to go to work
that day, and he suspected that she was having an affair, so he surreptitiously
followed her in his car. K.B. did not go to work, but went to the home of K.F.,
a man whom S.B. did not know. S.B. waited in his car outside the house for a
while before he went to the front door and rang the doorbell. K.F. opened the
door, and S.B. said, “Is my wife here?” Tr. at 9. K.F. answered, “If your wife’s
name is [K.B.,] then she’s here.” Id. K.F. let S.B. into the house, and S.B.
found K.B. in the kitchen. S.B. was “irate” and accused K.B. and K.F. of
having an affair, which they denied. Id. S.B. “started getting more threatening
and more intimidating,” at which point K.F. “moved to the other side of [a]
counter to put space in between” him and S.B. Id. at 9-10. K.F. then asked
S.B. and K.B. to leave, and they did.
[3] In March 2017, S.B. gained access to K.B.’s cell phone and discovered emails
and text messages revealing that K.B. and K.F. had had an affair that spanned
years. S.B. was “angry” and decided that he “needed answers” and “wanted to
look [K.F.] in the eye.” Id. at 39-40. Accordingly, S.B. drove to K.F.’s office to
confront him. When S.B. arrived, he asked a receptionist where he could find
K.F., and she told him that K.F. was in a meeting. S.B. barged past the
Court of Appeals of Indiana | Memorandum Decision 17A-PO-3043 | May 9, 2018 Page 2 of 7 receptionist and found K.F. in a conference room. K.F. described the ensuing
confrontation as follows:
[S.B.] came up and started pointing his finger at me, absolutely irate, body posture and look in his face. He started . . . yelling at me and said some vulgarities and indicated that he had proof that I was currently in a physical relationship with his Wife. He told me that I better stay away from her. He told me that he if gets a divorce from his wife over this, that he was coming back for me. I then instructed him in a stern manner to leave. He started to walk away, turned around, came back, didn’t exit the private area initially, but indicated he was headed out the door, came back towards me pointing his finger, continued to scream at me, and I told him again he had to leave, and so then he turned around, walked out.
Id. at 11-12. Thereafter, K.F. “called the police and requested advice on what
they thought I should do. They said that they felt that a personal protection
order was appropriate[.]” Id. at 13.
[4] On March 23, K.F. filed a petition for an order for protection alleging that S.B.
had stalked him. That same day, the trial court issued an ex parte order for
protection enjoining S.B. from threatening to commit or committing acts of
stalking against K.F. or his family members, J.S. and W.F. The order also
enjoined S.B. from “harassing, annoying, telephoning, contacting, or directly or
indirectly communicating” with K.F. Appellant’s App. Vol. II at 6. Finally,
the order required that S.B. “stay away” from K.F.’s residence and place of
employment. Id. at 7. Following an evidentiary hearing on October 5 and
Court of Appeals of Indiana | Memorandum Decision 17A-PO-3043 | May 9, 2018 Page 3 of 7 November 27, the trial court ordered that the ex parte order for protection “shall
remain in full force and effect.” Id. at 8. This appeal ensued.
Discussion and Decision [5] S.B. contends that K.F. presented insufficient evidence to support the trial
court’s issuance of the order for protection for S.B.’s alleged stalking. In
particular, S.B. maintains that K.F. did not prove either that S.B.’s conduct
constituted repeated or continuing harassment of K.F. or that K.F. felt
terrorized, frightened, intimidated or threatened by S.B.’s actions. We cannot
agree.
[6] Initially, we note that K.F. has not filed an appellee’s brief. As a result, we will
not undertake the burden of developing arguments on his behalf and will
reverse if S.B. establishes prima facie error. WindGate Properties, LLC v. Sanders,
93 N.E.3d 809, 813 (Ind. Ct. App. 2018). Prima facie, in this context, means at
first sight, on first appearance, or on the face of it. Id. This standard, however,
“does not relieve us of our obligation to correctly apply the law to the facts in
the record in order to determine whether reversal is required.” Id.
[7] As we have explained, orders for protection
are similar to injunctions, and therefore in granting an order the trial court must sua sponte make special findings of fact and conclusions thereon. Hanauer v. Hanauer, 981 N.E.2d 147, 148 (Ind. Ct. App. 2013) (citing, inter alia, Ind. Trial Rule 52(A) and Ind. Code § 34-26-5-9(a), (f)). We apply a two-tiered standard of review: we first determine whether the evidence supports the findings, and then we determine whether the findings support the
Court of Appeals of Indiana | Memorandum Decision 17A-PO-3043 | May 9, 2018 Page 4 of 7 order. Id. at 149. In deference to the trial court’s proximity to the issues, we disturb the order only where there is no evidence supporting the findings or the findings fail to support the order. Koch Dev. Corp. v. Koch, 996 N.E.2d 358, 369 (Ind. Ct. App. 2013), trans. denied (2014). We do not reweigh evidence or reassess witness credibility, and we consider only the evidence favorable to the trial court’s order. Id. The party appealing the order must establish that the findings are clearly erroneous. Id. “Findings are clearly erroneous when a 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.” Mysliwy v. Mysliwy, 953 N.E.2d 1072, 1076 (Ind. Ct. App. 2011) (citation omitted), trans. denied.
S.B. v. Seymour Cmty. Sch., ___ N.E.3d ___, No. 36A01-1710-PO-2252, 2018
WL 1463343, at *5 (Ind. Ct. App. Mar. 26, 2018) (quoting Fox v. Bonam, 45
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 09 2018, 8:38 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT David E. Baum David E. Baum Law Office, P.C. Chesterton, Indiana
IN THE COURT OF APPEALS OF INDIANA
S.B., May 9, 2018 Appellant-Respondent, Court of Appeals Case No. 17A-PO-3043 v. Appeal from the Porter Superior Court K.F., The Honorable Roger V. Bradford, Appellee-Petitioner. Judge Trial Court Cause No. 64D01-1703-PO-2845
Najam, Judge.
Statement of the Case [1] S.B. appeals the trial court’s issuance of an order for protection on behalf of
K.F. S.B. presents two issues for our review, which we restate as a single issue,
Court of Appeals of Indiana | Memorandum Decision 17A-PO-3043 | May 9, 2018 Page 1 of 7 namely, whether the trial court’s issuance of the order for protection was clearly
erroneous. We affirm.
Facts and Procedural History [2] On December 26, 2016, S.B.’s wife, K.B., told S.B. that she had to go to work,
and she left their home. S.B. thought it was strange that K.B. had to go to work
that day, and he suspected that she was having an affair, so he surreptitiously
followed her in his car. K.B. did not go to work, but went to the home of K.F.,
a man whom S.B. did not know. S.B. waited in his car outside the house for a
while before he went to the front door and rang the doorbell. K.F. opened the
door, and S.B. said, “Is my wife here?” Tr. at 9. K.F. answered, “If your wife’s
name is [K.B.,] then she’s here.” Id. K.F. let S.B. into the house, and S.B.
found K.B. in the kitchen. S.B. was “irate” and accused K.B. and K.F. of
having an affair, which they denied. Id. S.B. “started getting more threatening
and more intimidating,” at which point K.F. “moved to the other side of [a]
counter to put space in between” him and S.B. Id. at 9-10. K.F. then asked
S.B. and K.B. to leave, and they did.
[3] In March 2017, S.B. gained access to K.B.’s cell phone and discovered emails
and text messages revealing that K.B. and K.F. had had an affair that spanned
years. S.B. was “angry” and decided that he “needed answers” and “wanted to
look [K.F.] in the eye.” Id. at 39-40. Accordingly, S.B. drove to K.F.’s office to
confront him. When S.B. arrived, he asked a receptionist where he could find
K.F., and she told him that K.F. was in a meeting. S.B. barged past the
Court of Appeals of Indiana | Memorandum Decision 17A-PO-3043 | May 9, 2018 Page 2 of 7 receptionist and found K.F. in a conference room. K.F. described the ensuing
confrontation as follows:
[S.B.] came up and started pointing his finger at me, absolutely irate, body posture and look in his face. He started . . . yelling at me and said some vulgarities and indicated that he had proof that I was currently in a physical relationship with his Wife. He told me that I better stay away from her. He told me that he if gets a divorce from his wife over this, that he was coming back for me. I then instructed him in a stern manner to leave. He started to walk away, turned around, came back, didn’t exit the private area initially, but indicated he was headed out the door, came back towards me pointing his finger, continued to scream at me, and I told him again he had to leave, and so then he turned around, walked out.
Id. at 11-12. Thereafter, K.F. “called the police and requested advice on what
they thought I should do. They said that they felt that a personal protection
order was appropriate[.]” Id. at 13.
[4] On March 23, K.F. filed a petition for an order for protection alleging that S.B.
had stalked him. That same day, the trial court issued an ex parte order for
protection enjoining S.B. from threatening to commit or committing acts of
stalking against K.F. or his family members, J.S. and W.F. The order also
enjoined S.B. from “harassing, annoying, telephoning, contacting, or directly or
indirectly communicating” with K.F. Appellant’s App. Vol. II at 6. Finally,
the order required that S.B. “stay away” from K.F.’s residence and place of
employment. Id. at 7. Following an evidentiary hearing on October 5 and
Court of Appeals of Indiana | Memorandum Decision 17A-PO-3043 | May 9, 2018 Page 3 of 7 November 27, the trial court ordered that the ex parte order for protection “shall
remain in full force and effect.” Id. at 8. This appeal ensued.
Discussion and Decision [5] S.B. contends that K.F. presented insufficient evidence to support the trial
court’s issuance of the order for protection for S.B.’s alleged stalking. In
particular, S.B. maintains that K.F. did not prove either that S.B.’s conduct
constituted repeated or continuing harassment of K.F. or that K.F. felt
terrorized, frightened, intimidated or threatened by S.B.’s actions. We cannot
agree.
[6] Initially, we note that K.F. has not filed an appellee’s brief. As a result, we will
not undertake the burden of developing arguments on his behalf and will
reverse if S.B. establishes prima facie error. WindGate Properties, LLC v. Sanders,
93 N.E.3d 809, 813 (Ind. Ct. App. 2018). Prima facie, in this context, means at
first sight, on first appearance, or on the face of it. Id. This standard, however,
“does not relieve us of our obligation to correctly apply the law to the facts in
the record in order to determine whether reversal is required.” Id.
[7] As we have explained, orders for protection
are similar to injunctions, and therefore in granting an order the trial court must sua sponte make special findings of fact and conclusions thereon. Hanauer v. Hanauer, 981 N.E.2d 147, 148 (Ind. Ct. App. 2013) (citing, inter alia, Ind. Trial Rule 52(A) and Ind. Code § 34-26-5-9(a), (f)). We apply a two-tiered standard of review: we first determine whether the evidence supports the findings, and then we determine whether the findings support the
Court of Appeals of Indiana | Memorandum Decision 17A-PO-3043 | May 9, 2018 Page 4 of 7 order. Id. at 149. In deference to the trial court’s proximity to the issues, we disturb the order only where there is no evidence supporting the findings or the findings fail to support the order. Koch Dev. Corp. v. Koch, 996 N.E.2d 358, 369 (Ind. Ct. App. 2013), trans. denied (2014). We do not reweigh evidence or reassess witness credibility, and we consider only the evidence favorable to the trial court’s order. Id. The party appealing the order must establish that the findings are clearly erroneous. Id. “Findings are clearly erroneous when a 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.” Mysliwy v. Mysliwy, 953 N.E.2d 1072, 1076 (Ind. Ct. App. 2011) (citation omitted), trans. denied.
S.B. v. Seymour Cmty. Sch., ___ N.E.3d ___, No. 36A01-1710-PO-2252, 2018
WL 1463343, at *5 (Ind. Ct. App. Mar. 26, 2018) (quoting Fox v. Bonam, 45
N.E.3d 794, 798-99 (Ind. Ct. App. 2015)).
[8] As relevant here, “stalking” requires “repeated or continuing harassment” that
would cause a reasonable person to feel threatened and that actually caused a
person to feel threatened. I.C. § 35-45-10-1. Without question, “the term
‘repeated’ in Indiana’s anti-stalking law means ‘more than once.’” Johnson v.
State, 721 N.E.2d 327, 332-33 (Ind. Ct. App. 1999), trans. denied. “Continuing”
is commonly defined as “[u]ninterrupted; persisting.” Black’s Law Dictionary
388 (10th ed. 2014). And we have held that “continuing” requires not just
current but future activity. S.B., 2018 WL 1463343, at *5. Here, the evidence
before the trial court sufficiently demonstrates both a current threat and a future
threat. See id. Finally, we construe the Indiana Civil Protection Order Act to
Court of Appeals of Indiana | Memorandum Decision 17A-PO-3043 | May 9, 2018 Page 5 of 7 promote the prevention of violence on which a petition is based. See I.C. § 34-
26-5-1.
[9] The evidence most favorable to the trial court’s judgment supports its finding
that S.B. had committed stalking against K.F. At the evidentiary hearing, K.F.
testified that on December 26, 2016, S.B. was “irate” and “started getting more
threatening and more intimidating,” at which point K.F. “moved to the other
side of [a] counter to put space in between” him and S.B. Tr. at 9-10. K.F. also
testified that when S.B. subsequently showed up at K.F.’s office, S.B. told K.F.
that he had “better stay away from K.B.” and that if he were to get divorced
from K.B. as a result of the affair, he “was coming back” for K.F. Id. at 12.
That evidence is sufficient to prove that S.B. was engaged in a course of
conduct involving both repeated and continuing harassment.1
[10] Still, S.B. contends that K.F. did not present evidence that he actually felt
terrorized, frightened, intimidated, or threatened as a result of the harassment.
See I.C. § 35-45-10-1. Rather, S.B. maintains that the evidence, as well as
K.F.’s argument at the evidentiary hearing, shows only that K.F. felt
embarrassed by S.B.’s conduct. But, again, the evidence shows that, during the
December 26, 2016, incident, K.F. described S.B.’s conduct as “threatening”
and “intimidating,” and he testified that that conduct caused K.F. to move
away from S.B. and behind a kitchen counter. Tr. at 9. And, immediately
1 S.B.’s characterization of his confrontations with K.F. as “mutual communication between two parties” is not well taken. Appellant’s Br. at 10-11.
Court of Appeals of Indiana | Memorandum Decision 17A-PO-3043 | May 9, 2018 Page 6 of 7 following the incident at K.F.’s office, K.F. contacted law enforcement for
advice on what to do about S.B. That evidence supports a reasonable inference
that K.F. felt threatened as a result of S.B.’s harassment. See, e.g., A.S. v. T.H.,
920 N.E.2d 803, 807-08 (Ind. Ct. App. 2010) (holding evidence supported
reasonable inference that victims felt terrorized by harassment).
[11] In sum, K.F. presented sufficient evidence to show that S.B. engaged in
repeated and continuing harassment that would cause a reasonable person to
feel threatened and that actually caused K.F. to feel threatened. S.B.’s
arguments to the contrary are merely requests that we reweigh the evidence,
which we cannot do. We hold that the trial court’s issuance of the order for
protection is not clearly erroneous.
[12] Affirmed.
Robb, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 17A-PO-3043 | May 9, 2018 Page 7 of 7