MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 28 2018, 10:10 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Matthew T. Albaugh Alcorn Sage Schwartz & Magrath, LLP Blayre E. Marley Madison, Indiana Faegre Baker Daniels LLP Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
S.H., November 28, 2018 Appellant-Respondent, Court of Appeals Case No. 18A-PO-1413 v. Appeal from the Bartholomew Superior Court D.W., The Honorable James D. Worton, Appellee-Petitioner Judge Trial Court Cause No. 03D01-1802-PO-626
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PO-1413 | November 28, 2018 Page 1 of 6 Case Summary [1] S.H. appeals the trial court’s order extending a protective order. The sole
restated issue presented for our review is whether sufficient evidence supports
the trial court’s order and whether the two-year extension is reasonable.
Finding the evidence sufficient and the extension reasonable, we affirm.
Facts and Procedural History [2] In January 2016, D.W. filed a petition for a protective order against her then
husband S.H. The parties were involved in contentious dissolution of marriage
proceedings, and her petition contained numerous allegations of domestic
abuse and threats of violence by S.H. The court held a hearing on February 11,
2016. During the hearing, S.H. agreed to have a protective order issued against
him. The trial court accepted that agreement and issued a protective order
against S.H.
[3] On February 5, 2018, D.W. again petitioned the trial court for a protective
order against S.H. The petition alleged that the prior protective order was set to
expire on February 11, 2018, and that S.H. had twice tried indirectly contacting
D.W. through a family member’s social media. The petition also reiterated
some of the details of the alleged domestic abuse and threats of violence that
had precipitated the prior protective order. On February 7, 2018, the trial court
issued an ex parte protective order. On February 15, 2018, S.H. appeared by
counsel and requested a hearing on D.W.’s petition. A hearing was held on the
petition on April 20, 2018. S.H. appeared by counsel, and D.W. appeared pro
Court of Appeals of Indiana | Memorandum Decision 18A-PO-1413 | November 28, 2018 Page 2 of 6 se. That same day, the trial court issued its order granting the petition and
extending the protective order for two years. The order contained the following
relevant findings:
1. That the testimony of [D.W.] was credible at the time of the original issuance of the order and remains credible today.
2. That [S.H.] continues to deny that any domestic violence has ever occurred.
3. The Court believes based on the totality of the circumstances in this case that there still exist[s] a current necessity to bring about a cessation to a threat of violence.
Appellant’s App. Vol. 2 at 48. S.H. filed a motion to correct error, which was
denied by the trial court. This appeal ensued.
Discussion and Decision [4] The Indiana Civil Protection Order Act (“CPOA”) “shall be construed to
promote the: (1) protection and safety of all victims of domestic or family
violence in a fair, prompt, and effective manner; and (2) prevention of future
domestic and family violence.” Ind. Code § 34-26-5-1. The CPOA authorizes
“a person who is or has been a victim of domestic ... violence” to file a petition
for a protective order. Ind. Code § 34-26-5-2. Domestic violence means “the
occurrence of” an act by the respondent “attempting to cause, threatening to
cause, or causing physical harm” to the petitioner, or placing the petitioner “in
fear of physical harm.” Ind. Code § 34-6-2-34.5.
Court of Appeals of Indiana | Memorandum Decision 18A-PO-1413 | November 28, 2018 Page 3 of 6 [5] A protective order lasts for two years, “unless another date is ordered by the
court.” Ind. Code § 34-26-5-9(e). “The fact that an order for protection is issued
under this chapter does not raise an inference or presumption in a subsequent
case or hearings between the parties.” Ind. Code § 34-26-5-9(h). This Court has
addressed the circumstances under which a trial court may properly order an
extension of a protective order’s length:
[B]ecause an extension is necessarily derived from the original protective order, the trial court’s determination must be viewed in light of the continuing harm or the threat of continuing harm that necessitated the issuance of the protective order in the first instance. As an order for protection can impose significant restrictions on a respondent’s freedom of movement and other rights, the extension must be equally supported by a court’s conclusion that such additional time … is necessary to protect the petitioner and to bring about a cessation of the violence or the threat of violence.
A.N. v. K.G., 10 N.E.3d 1270, 1272 (Ind. Ct. App. 2014). Any such extension
of an initial protective order must be reasonable. Id.
[6] A petitioner who seeks either reissuance of a protective order that has expired,
or modification of an unexpired protective order, bears the burden of proving
by a preponderance of the evidence that a new protective order or extension of
an existing order is required. J.K. v. T.C., 25 N.E.3d 179, 182 (Ind. Ct. App.
2015). When considering the sufficiency of the evidence supporting a decision
to issue or modify a protective order, we do not reweigh the evidence or judge
the credibility of witnesses. A.G. v. P.G., 974 N.E.2d 598, 598 (Ind. Ct. App.
Court of Appeals of Indiana | Memorandum Decision 18A-PO-1413 | November 28, 2018 Page 4 of 6 2012). We look only to the evidence of probative value and reasonable
inferences that support the trial court’s judgment. Id.
[7] S.H. asserts that D.W. presented insufficient evidence to support an extension
of the protective order. We agree that the evidence presented by D.W. was
minimal; however, we believe that it was enough to satisfy her burden. During
the hearing, D.W. appeared pro se and testified on her own behalf. She
reiterated and elaborated on her 2016 allegations against S.H. of domestic
violence and threats of violence. She testified that she believed that S.H. had
very recently tried to contact her indirectly through social media in order to find
out where she was living. She considered this behavior to be a current threat to
her safety and conveyed to the trial court that she continues to be in great fear
for her physical well-being.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 28 2018, 10:10 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Matthew T. Albaugh Alcorn Sage Schwartz & Magrath, LLP Blayre E. Marley Madison, Indiana Faegre Baker Daniels LLP Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
S.H., November 28, 2018 Appellant-Respondent, Court of Appeals Case No. 18A-PO-1413 v. Appeal from the Bartholomew Superior Court D.W., The Honorable James D. Worton, Appellee-Petitioner Judge Trial Court Cause No. 03D01-1802-PO-626
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PO-1413 | November 28, 2018 Page 1 of 6 Case Summary [1] S.H. appeals the trial court’s order extending a protective order. The sole
restated issue presented for our review is whether sufficient evidence supports
the trial court’s order and whether the two-year extension is reasonable.
Finding the evidence sufficient and the extension reasonable, we affirm.
Facts and Procedural History [2] In January 2016, D.W. filed a petition for a protective order against her then
husband S.H. The parties were involved in contentious dissolution of marriage
proceedings, and her petition contained numerous allegations of domestic
abuse and threats of violence by S.H. The court held a hearing on February 11,
2016. During the hearing, S.H. agreed to have a protective order issued against
him. The trial court accepted that agreement and issued a protective order
against S.H.
[3] On February 5, 2018, D.W. again petitioned the trial court for a protective
order against S.H. The petition alleged that the prior protective order was set to
expire on February 11, 2018, and that S.H. had twice tried indirectly contacting
D.W. through a family member’s social media. The petition also reiterated
some of the details of the alleged domestic abuse and threats of violence that
had precipitated the prior protective order. On February 7, 2018, the trial court
issued an ex parte protective order. On February 15, 2018, S.H. appeared by
counsel and requested a hearing on D.W.’s petition. A hearing was held on the
petition on April 20, 2018. S.H. appeared by counsel, and D.W. appeared pro
Court of Appeals of Indiana | Memorandum Decision 18A-PO-1413 | November 28, 2018 Page 2 of 6 se. That same day, the trial court issued its order granting the petition and
extending the protective order for two years. The order contained the following
relevant findings:
1. That the testimony of [D.W.] was credible at the time of the original issuance of the order and remains credible today.
2. That [S.H.] continues to deny that any domestic violence has ever occurred.
3. The Court believes based on the totality of the circumstances in this case that there still exist[s] a current necessity to bring about a cessation to a threat of violence.
Appellant’s App. Vol. 2 at 48. S.H. filed a motion to correct error, which was
denied by the trial court. This appeal ensued.
Discussion and Decision [4] The Indiana Civil Protection Order Act (“CPOA”) “shall be construed to
promote the: (1) protection and safety of all victims of domestic or family
violence in a fair, prompt, and effective manner; and (2) prevention of future
domestic and family violence.” Ind. Code § 34-26-5-1. The CPOA authorizes
“a person who is or has been a victim of domestic ... violence” to file a petition
for a protective order. Ind. Code § 34-26-5-2. Domestic violence means “the
occurrence of” an act by the respondent “attempting to cause, threatening to
cause, or causing physical harm” to the petitioner, or placing the petitioner “in
fear of physical harm.” Ind. Code § 34-6-2-34.5.
Court of Appeals of Indiana | Memorandum Decision 18A-PO-1413 | November 28, 2018 Page 3 of 6 [5] A protective order lasts for two years, “unless another date is ordered by the
court.” Ind. Code § 34-26-5-9(e). “The fact that an order for protection is issued
under this chapter does not raise an inference or presumption in a subsequent
case or hearings between the parties.” Ind. Code § 34-26-5-9(h). This Court has
addressed the circumstances under which a trial court may properly order an
extension of a protective order’s length:
[B]ecause an extension is necessarily derived from the original protective order, the trial court’s determination must be viewed in light of the continuing harm or the threat of continuing harm that necessitated the issuance of the protective order in the first instance. As an order for protection can impose significant restrictions on a respondent’s freedom of movement and other rights, the extension must be equally supported by a court’s conclusion that such additional time … is necessary to protect the petitioner and to bring about a cessation of the violence or the threat of violence.
A.N. v. K.G., 10 N.E.3d 1270, 1272 (Ind. Ct. App. 2014). Any such extension
of an initial protective order must be reasonable. Id.
[6] A petitioner who seeks either reissuance of a protective order that has expired,
or modification of an unexpired protective order, bears the burden of proving
by a preponderance of the evidence that a new protective order or extension of
an existing order is required. J.K. v. T.C., 25 N.E.3d 179, 182 (Ind. Ct. App.
2015). When considering the sufficiency of the evidence supporting a decision
to issue or modify a protective order, we do not reweigh the evidence or judge
the credibility of witnesses. A.G. v. P.G., 974 N.E.2d 598, 598 (Ind. Ct. App.
Court of Appeals of Indiana | Memorandum Decision 18A-PO-1413 | November 28, 2018 Page 4 of 6 2012). We look only to the evidence of probative value and reasonable
inferences that support the trial court’s judgment. Id.
[7] S.H. asserts that D.W. presented insufficient evidence to support an extension
of the protective order. We agree that the evidence presented by D.W. was
minimal; however, we believe that it was enough to satisfy her burden. During
the hearing, D.W. appeared pro se and testified on her own behalf. She
reiterated and elaborated on her 2016 allegations against S.H. of domestic
violence and threats of violence. She testified that she believed that S.H. had
very recently tried to contact her indirectly through social media in order to find
out where she was living. She considered this behavior to be a current threat to
her safety and conveyed to the trial court that she continues to be in great fear
for her physical well-being. She requested a two-year extension to help ensure
her “safety at least until [her] last child graduates [high school].” Tr. Vol. 2 at
50. Based upon this evidence, the trial court concluded that a two-year
extension of the protective order was necessary to protect D.W. and to bring
about the cessation of violence or threat of violence.
[8] S.H. denies that any domestic violence has ever occurred between the parties
and asserts that “there was no evidentiary basis for the Protective Order being
issued in the first instance,” much less any evidence to support an extension.
Appellant’s Br. at 16. We remind S.H. that he agreed to the issuance of the
initial protective order, which in effect was a tacit admission to the necessity of
the order due to violence or threat of violence. We find it incredibly significant
here that the trial judge is the same judge who presided over both the initial
Court of Appeals of Indiana | Memorandum Decision 18A-PO-1413 | November 28, 2018 Page 5 of 6 protective order proceedings and the parties’ contentious dissolution of
marriage proceedings. This judge was in the optimal position to determine the
credibility of the parties and whether, under the totality of the circumstances,
there is a continuing threat of harm. The trial court considered the testimony of
both parties, as well as an additional witness, and determined that there is a
current necessity to bring about the cessation of violence or threat of violence.
We decline S.H.’s invitation to second-guess that determination by
inappropriately reweighing the evidence and reassessing witness credibility.
[9] The trial court’s order is supported by sufficient evidence, and we cannot say
that a two-year extension is unreasonable based on the record before us.1
Accordingly, we affirm.
[10] Affirmed.
Najam, J., and Pyle, J., concur.
1 Indeed, our legislature has determined that a modification of a protective order is automatically effective for two years after the date of issuance unless another date is ordered by the court. Ind. Code § 34-26-5-9(e).
Court of Appeals of Indiana | Memorandum Decision 18A-PO-1413 | November 28, 2018 Page 6 of 6