Clovis Smith v. Alexandra Ryan ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
FILED
estoppel, or the law of the case.
May 25 2012, 9:18 am
ATTORNEY FOR APPELLANT:
CLERK
of the supreme court,
JOHN R. McKAY court of appeals and
tax court
Hickam & Lorenz, P.C.
Spencer, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CLOVIS SMITH, )
)
Appellant-Respondent, )
)
vs. ) No. 07A01-1111-PO-518
)
ALEXANDRA RYAN, )
)
Appellee-Petitioner. )
APPEAL FROM THE BROWN CIRCUIT COURT
The Honorable Douglas E. Van Winkle, Magistrate
Cause No. 07C01-1109-PO-441
May 25, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Clovis Smith (“Smith”) appeals from the trial court’s issuance of an order for
protection. Smith presents the following issue for our review: whether the trial court erred
by finding and concluding that Smith was Brady disqualified.1
We affirm.
FACTS AND PROCEDURAL HISTORY
Smith and Alexandra Ryan (“Ryan”) lived together in Owen County and are the
parents of one child. On September 16, 2011, Smith and Ryan engaged in a verbal
altercation during the course of which Smith waved a firearm and blocked Ryan’s exit from
the house. The parties summoned Smith’s father, who lived next door. Smith’s father spoke
with both Smith and Ryan and arranged for Ryan to leave the house with the parties’ minor
child.
On September 20, 2011 Ryan filed a petition for order of protection against Smith. A
hearing was held at the conclusion of which the trial court granted the order of protection and
determined that Smith was Brady disqualified. Smith now appeals.
DISCUSSION AND DECISION
We note at the outset that Ryan has not filed an appellee’s brief. When the appellee
fails to file a brief, we need not undertake the burden of developing an argument on the
appellee’s behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). We will
reverse the trial court’s judgment if the appellant’s brief presents a case of prima facie error.
“Brady disqualified” means that a person is disqualified under criteria set forth in the Brady Handgun
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Violence Prevention Act from purchasing a firearm. 18 U.S.C. § 921.
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Id. “Prima facie error in this context is defined as, at first sight, on first appearance, or on the
face of it.” Id. (citation and quotation marks omitted). Where an appellant does not meet this
burden, we will affirm. Id.We have stated the following about proceeding under the Indiana Civil Protection
Order Act (“CPOA”):
The Indiana Legislature has indicated 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.” Ind. Code § 34-26-5-1; Aiken v. Stanley, 816
N.E.2d 427, 430 (Ind. Ct. App. 2004). Indiana Code section 34-26-5-2(a)
provides “A person who is or has been a victim of domestic or family violence
may file a petition for an order of protection against a: (1) family or household
member who commits an act of domestic or family violence.” “Domestic or
family violence” means “[a]ttempting to cause, threatening to cause, or causing
physical harm to another family or household member” or “[p]lacing a family
or household member in fear of physical harm.” Ind. Code § 34-6-2-34.5 (1),
(2).
Generally, a trial court has discretion to grant protective relief according to the
terms of the CPOA. See Ind. Code § 34-26-5-9. However, a finding by the
trial court that domestic or family violence has occurred sufficient to justify the
issuance of an order for protection means that the respondent represents a
credible threat to the safety of the petitioner. Ind. Code § 34-26-5-9(f).
Therefore, upon a showing of domestic or family violence by a preponderance
of the evidence, the trial court “shall grant relief necessary to bring about a
cessation of the violence or the threat of violence.” Id.Moore v. Moore, 904 N.E.2d 353, 357-58 (Ind. Ct. App. 2009).
In the present case, particular attention was given to Smith’s and Ryan’s testimony
about the incident giving rise to the filing of the petition for order of protection. The trial
court indicated to the parties that Ryan’s testimony was the more credible of the two. Ryan
and Smith were the parents of an infant and resided together. The two began a verbal
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altercation that escalated to the point that Smith waved his handgun. Viewed consistently
with our standard of review, the evidence supports the trial court’s decision to order the
Brady disqualification. In granting the “relief necessary to bring about a cessation of the
violence or the threat of violence,” the trial court was within its discretion to impose the
Brady disqualification where the act of domestic violence giving rise to the protective order
involved the use of a handgun by the respondent. Smith argues that the order is overbroad in
that Ryan did not specifically request that Smith be Brady disqualified. However, the trial
court exercised its discretion based upon the evidence presented at the hearing. We find no
abuse of that discretion here.
Affirmed.
BAKER, J., and BROWN, J., concur.
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