T.S. v. D.S. (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
court except for the purpose of establishing Apr 28 2017, 9:19 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Shannon L. Robinson Seth M. Lahn
Shannon Robinson Law, P.C. Indiana University Maurer School of
Bloomington, Indiana Law
Bloomington, Indiana
Kelsie Breit
Justin Mei
Certified Legal Interns
Indiana University Maurer School
of Law
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
T.S., April 28, 2017
Appellant-Respondent, Court of Appeals Case No.
53A01-1608-PO-1817
v. Appeal from the
Monroe Circuit Court
D.S., The Honorable
Appellee-Petitioner. Valeri Haughton, Judge
Trial Court Cause No.
53C08-1606-PO-1129
Kirsch, Judge.
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[1] T.S. (“Husband”) appeals the trial court’s issuance of an order for protection
(“Protection Order”) against him and in favor of D.S. (“Wife”). Husband
raises the following issue for our review: whether there was sufficient evidence
to support the issuance of the Protection Order.
[2] We affirm.
Facts and Procedural History
[3] Husband and Wife are the married parents of an infant son, A.S. Wife also has
two older children of whom Husband is not the father. On November 15, 2015,
Sergeant Jeff Finer (“Sergeant Finer”) of the Monroe County Sheriff’s
Department responded to a call at the parties’ home. There, Sergeant Finer
found Husband intoxicated, belligerent, and walking around carrying A.S., who
at that time was less than two months old. Sergeant Finer was concerned for
A.S.’s safety and determined that removing A.S. from Husband’s arms was in
the baby’s best interest. Tr. at 29. Husband, however, ignored Sergeant Finer’s
request to put the baby down, and instead, he continued to walk around the
residence with A.S. in his arms. Wife explained to Sergeant Finer that
Husband had struck A.S.’s head on a doorframe while carrying the baby out of
the bedroom. As a precaution, and “as a way to get [Husband] to relinquish
the child and have it checked by medical professionals,” Sergeant Finer called
emergency medical services (“EMS”). Id. at 30.
[4] EMS personnel responded, and Husband “hovered over” them while they
examined A.S. Id. at 31. Once EMS workers completed their examination,
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finding A.S. uninjured, Husband “snatched the baby back up off the couch . . .
before [Sergeant Finer or] EMS were able to take possession of the child.” Id.
Sergeant Finer arrested Husband and charged him with neglect of a dependent
and resisting law enforcement.
[5] In April 2016, Husband filed a petition for dissolution of the parties’ marriage,
which remained pending throughout the proceedings in the instant case.
Appellant’s Br. at 6. Around the same time, Wife filed her first petition for an
order of protection against Husband. The Monroe Circuit Court issued an Ex
Parte Order of Protection which it later vacated.
[6] On June 1, 2016, Wife filed another petition (“Petition”) for civil order for
protection alleging that Husband was placing her “in fear of physical harm and
that he [had] been stalking [her].” Tr. at 15. She also set forth the incidents
that prompted her to file the Petition. Id.
[7] On July 20, 2016, the trial court held a hearing on the Petition, at which
Husband and Wife acted pro se. Wife testified that the first time the parties met
to exchange visitation of A.S. under the interim orders in the dissolution case,
Husband said nothing to Wife. Instead, he stood behind her taking pictures,
which Wife testified, “place[d her] in fear of physical harm, because of his
size.” Id. Wife also testified to an occasion when Husband appeared at
daycare as Wife arrived to pick up A.S. Husband followed Wife around,
videotaping her and asking, “Why are you keeping me from my son?” Id. at 16.
Husband’s behavior during that incident sufficiently alarmed A.S.’s daycare
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provider and prompted her to move the children under her care to a back room
of the building. Id. at 17. The following day, when Wife arrived at work, she
found an instant message on her computer from Husband stating “giddy- up”—
a phrase that he typically used to threaten consequences, indicating “game on.”
Id.
[8] Husband admitted that he videotaped Wife on more than one occasion,
including their exchanges for visitation at the Ellettsville Police Department or
the Woodbridge Bloomington Post Office. Id. at 49-50. Husband and Wife
worked for the same employer, in the same building, and when Wife went
outside for breaks at work, Husband would walk outside and stand or sit next to
her. Id. at 18-19. Wife testified that she was in physical fear of Husband,
stating, Husband’s “behavior to me is not normal. So then when he stands over
[the] top of me, it’s like he uses his presence . . . so he physically intimidates
me. And then he emotionally and mentally intimidates me also.” Id. at 19.
[9] Between November 2015 and July 2016, Husband called the Department of
Child Services (“DCS”) on nine occasions. Id. at 14. Husband testified at the
hearing that there “were times I was not afforded my visitation, and so my
assessment of the possible mental and emotional inflictions that may be
occurring to my son [A.S.] in regards to jerking a father in and out of the child’s
life, [led] me to call DCS and only report on my mental and emotional
concerns of that action by [Wife].” Id. at 42. Wife testified that: (1) Husband
had “threatened to have [Wife’s] children taken away”; (2) Husband’s
statement regarding calling DCS was a threat; and (3) Husband had called the
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police on Wife two times, admitting to her that he did so to gain an advantage
in family court, specifically related to the custody of A.S. Id. at 11,12 and 16.
[10] DCS performed a welfare check on A.S. on May 28, 2016. Family case
manager Yunika Jackson (“FCM Jackson”) observed, and later testified, that
Wife was in fear of Husband. Id. at 34. Three days later, DCS convened a
child and family team meeting. Wife brought to the meeting two “co-workers
and friends” and one family member, all of whom expressed concern for the
safety of Wife, A.S., and Wife’s other children at the hands of Husband. Id. at
34, 36. The DCS team worked out a safety plan to protect Wife and all her
children. Id. at 34
[11] Husband attempted to intimidate Wife into dropping or altering allegations
against him in both the protection order case and the criminal case against him
resulting from the confrontation with law enforcement at the couple’s home in
November 2015. Id. at 18, 55, 64. Husband also threatened that if something
happened to Wife’s teenage son, she would not have control over that situation.
Id. at 18. Husband suggested he could file a paper with the court to change
custody. When Wife suggested that Husband was threatening her, Husband
stated, “[N]o, I’m just asking, we can all make mistakes . . . so you remember
that.” Id. Husband wanted Wife to see that “mistakes are made that could lead
to things that are uncontrollable.” Id. at 55-56.
[12] The trial court entered its Protection Order on July 20, 2016. Husband now
appeals.
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Discussion and Decision
[13] Husband contends there was insufficient evidence to support the issuance of the
Protection Order. When a trial court enters findings of fact and conclusions
thereon pursuant to Indiana Trial Rule 52(A), we apply a two-tiered standard of
review: first, we determine whether the evidence supports the findings, and
then, we determine whether the findings support the order. Fox v. Bonam, 45
N.E.3d 794, 798 (Ind. Ct. App. 2015); Mysliwy v. Mysliwy, 953 N.E.2d 1072,
1075-76 (Ind. Ct. App. 2011), trans. denied. We do not reweigh evidence or
reassess witness credibility, and we consider only the evidence favorable to the
trial court’s order. Montgomery v. Montgomery, 59 N.E.3d 343, 350 (Ind. Ct.
App. 2016), trans. denied; Mysliwy, 953 N.E.2d at 1076. 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. Id.
[14] Civil orders for protection are governed by the Civil Protection Order Act (“the
CPOA”), codified at Indiana Code chapter 34-26-5. “Our legislature has
dictated that the 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.”
Mysliwy, 953 N.E.2d at 1076 (citing Aiken v. Stanley, 816 N.E.2d 427, 430 (Ind.
Ct. App. 2004)). “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)
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person who has committed stalking under IC 35-45-10-5 . . . against the
petitioner[.]” Hanauer v. Hanauer, 981 N.E.2d 147, 149 (Ind. Ct. App. 2013)
(citing Ind. Code § 34-26-5-2(a)).
[15] As relevant here, “Domestic or family violence” is defined as the occurrence of
at least one of the following acts by the respondent:
(1) Attempting to cause, threatening to cause, or causing
physical harm to another family or household member.
(2) Placing a family or household member in fear of
physical harm.
....
Ind. Code § 34-6-2-34.5.
[16] For the purposes of the CPOA, the definition of “domestic or family violence
also includes stalking . . . .” Id. Stalking is “a knowing or an 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. “Harassment” is defined
as “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.” Ind. Code § 35-45-10-2. “Impermissible contact” is contact that
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“includes but is not limited to knowingly or intentionally following or pursuing
the victim.” Ind. Code § 35-45-10-3.
[17] A trial court has discretion over whether to grant an order of protection.
Costello v. Zollman, 51 N.E.3d 361, 367 (Ind. Ct. App. 2016) (citing A.N. v. K.G.,
10 N.E.3d 1270, 1271 (Ind. Ct. App. 2014)), trans. denied sub nom. L.C. v. W.Z.,
51 N.E.3d 371 (Ind. 2016). A “protective order may be issued when a trial
court finds, by a preponderance of the evidence, that the respondent represents
a credible threat to the safety of petitioner—that is, that domestic or family
violence [including stalking] has occurred.” Maurer v. Cobb-Maurer, 994 N.E.2d
753, 756 (Ind. Ct. App. 2013) (citing Ind. Code § 34-26-5-9(f)). Here, the trial
court found, “[Wife] has shown, by a preponderance of the evidence, that
domestic or family violence or stalking has occurred sufficient to justify the
issuance of this Order.” Appellant’s App. at 13.
[18] Husband contends that Wife presented insufficient evidence to support the
Protection Order. We disagree.
[19] Wife testified that, during the November 2015 incident, Husband drunkenly
and belligerently paced around the home with two-month-old A.S. in his arms
and repeatedly refused the instruction of Sergeant Finer to relinquish the baby.
Tr. at 21, 28. Husband had “smacked” the baby’s head while carrying him
through a doorway. Id. at 28. Sergeant Finer called the EMS and, when they
arrived, Husband allowed EMS personnel to determine whether A.S. had
sustained any injuries. Once the examination was complete, Husband quickly
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grabbed A.S. before anyone else could. Thereafter, Husband did not hand A.S.
to Sergeant Finer until the officer threatened to arrest Husband. Id. at 31-32.
[20] Around April 2016, after Husband filed a petition for dissolution of the parties’
marriage, Husband displayed troubling behavior, including actions such as: (1)
shutting off Wife’s phone and flattening her tires, when the parties were having
a dispute, so that Wife could not leave or summon help; (2) taking photographs
of Wife while she slept; and (3) attempting to intimidate Wife into changing her
statement to police after Husband was arrested and charged with resisting law
enforcement and neglect of a dependent. Id. at 13.
[21] Wife testified that, after she filed the Petition in June 2016, Husband threatened
her, saying: “you have three days to drop the protection order, to work out a
deal, . . . or my fight’s on.” Id. at 18. Husband asked her, “What if something
happens with [your] teenage son, that’s not in your control?” Id. Husband
suggested he could file a paper with the court to change custody. When Wife
told Husband that his statements sounded like a threat, Husband said, “[N]o,
I’m just asking, we can all make mistakes . . . so you remember that.” Id. By
his own admission, Husband gave Wife this ultimatum to make her see that
“mistakes are made that could lead to things that are uncontrollable.” Id. at 55-
56.
[22] Husband photographed and videotaped Wife without her permission more than
once. Id. at 49-50. During those occasions, Husband engaged in no
conversation, but only asked Wife why she was keeping A.S. from him. Id. at
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16. These incidents occurred during parenting time exchanges and when
Husband unexpectedly appeared at A.S.’s daycare. Id. at 17. Husband’s
actions seemed threatening enough that the daycare provider moved the
children in her care to the back of the daycare. Id. at 16-17. Wife also testified
that Husband used his physical size to intimidate her. Id. at 15.
[23] FCM Jackson testified that Wife’s fears and those fears of co-workers,
concerning the risk Husband posed to Wife and A.S., were significant enough
to warrant a family team meeting. FCM Jackson learned from Wife’s co-
worker that Husband and Wife worked for the same employer, and Husband
would follow Wife outside on breaks, standing or sitting close to Wife. Id. at
36. Husband would also park his car next to her car at work. Id. At the May
2016 child and family team meeting, FCM Jackson formed a safety plan to
protect Wife and A.S. from possible harm by Husband. Id.
[24] Considered in the light most favorable to the trial court’s order, the record
shows that Husband committed multiple harassing acts against Wife, which
both frightened her and would cause a reasonable person to feel frightened,
especially in the context of the parties’ ongoing contentious divorce. The trial
judge was in the best position to listen to the testimony of the parties and other
witnesses, assess the parties’ credibility, intentions, and emotional responses,
and determine what would best protect Wife and A.S. Viewed consistently
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with our standard of review, the evidence was sufficient to support the trial
court’s issuance of the Protection Order.1
[25] Affirmed.
[26] Robb, J., and Barnes, J., concur.
1
The Protection Order pertains to Wife, A.S., and two other individuals. Husband makes no separate claim
as to any individual; instead, he argues that there is insufficient evidence for the Protection Order.
Accordingly, we proceed under the assumption that the Protection Order is considered as a whole, and,
therefore, we affirm as to all persons named in the Protection Order.
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