A.G. v. P.G. ( 2012 )

FOR PUBLICATION
FILED
Sep 21 2012, 9:13 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
DAVID W. STONE IV S. GREGORY ZUBEK
Stone Law Office & Legal Research Whitham Hebenstreit & Zubek LLP
Anderson, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
A.G., )
)
Appellant-Respondent, )
)
vs. ) No. 49A04-1201-PO-94
)
P.G., )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Barbara Cook Crawford, Judge
Cause No. 49G21-0909-PO-41818
September 21, 2012
OPINION - FOR PUBLICATION
MAY, Judge
A.G. (Father) appeals the extension of P.G.’s (Mother) protective order against him.
He presents three issues1 for our consideration, one of which we find dispositive: whether
there was sufficient evidence to support the extension of Mother’s protective order against
Father. We affirm.
FACTS AND PROCEDURAL HISTORY
On September 10, 2009, Mother filed for, and was granted, an ex parte order of
protection against Father. On March 8, 2010, the order was amended to allow Father certain
visitation and communication with the parties’ two children. On May 12, 2011, a Missouri
court dissolved the parties’ marriage.
On June 5, when Mother picked up the children from their scheduled visitation with
Father, their son reported Father indicated he desired to hurt Mother and her friend. The
parties’ daughter also told Mother that Father wished to harm Mother.
On June 6, Mother filed a petition for contempt against Father, alleging he violated the
protective order by communicating threats against Mother. The trial court did not find Father
in contempt, but it extended the protective order until October 21, 2020.
DISCUSSION AND DECISION
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
1
Two of the issues Father presents involve the admissibility of certain pieces of evidence. As this was a bench
trial, we need not consider those issues. See Berry v. State, 725 N.E.2d 939, 943 (Ind. Ct. App. 2000) (“In
bench trials, we presume that the court disregarded inadmissible evidence and rendered its decision solely on
the basis of relevant and probative evidence.”). Father offers nothing to overcome this presumption.
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witnesses. Andrews v. Ivie, 956 N.E.2d 720, 722 (Ind. Ct. App. 2011). “We look only to the
evidence of probative value and reasonable inferences that support the trial court’s
judgment.” Id. As we stated in Andrews:
The Indiana Civil Protection Order Act (“CPOA”) is to be construed to
promote (1) the protection and safety of all victims of domestic or family
violence in a fair, prompt, and effective manner and (2) the prevention of
future domestic and family violence. Ind.Code § 34-26-5-1 (2002); Moore v.
Moore, 904 N.E.2d 353, 357-58 (Ind. Ct. App. 2009). Pursuant to the CPOA,
a person who is or has been a victim of domestic or family violence may file a
petition for a protective order against (1) a family or household member who
commits an act of domestic or family violence or (2) a person who has
committed stalking under Indiana Code section 35-45-10-5 (2002) or a sex
offense under Indiana Code chapter 35-42-4 against the petitioner. Ind.Code §
34-26-5-2(a) (2002); Tisdial v. Young, 925 N.E.2d 783, 785 (Ind. Ct. App.
2010). The trial court may issue or modify a protective order only upon a
finding “that domestic or family violence has occurred.” Ind.Code § 34-26-5-
9(a), (f) (2009); Tisdial, 925 N.E.2d at 785. For purposes of the CPOA,
domestic and family violence also includes stalking as defined in Indiana Code
section 35-45-10-1 (1993) or a sex offense under Indiana Code chapter 35-42-
4, “whether or not the stalking or sex offense is committed by a family or
household member.” Ind.Code § 34-6-2-34.5 (2007); Tisdial, 925 N.E.2d at
785.
To obtain a protective order under the CPOA, the petitioner must
establish by a preponderance of the evidence at least one of the allegations in
the petition. A.S. [v. T.H., 920 N.E.2d 803, 806 (Ind. Ct. App. 2010)]. A trial
court generally has discretion to grant protective relief according to the terms
of the CPOA. Moore, 904 N.E.2d at 358. 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. Id. 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.
Id. at 722-23.
In her motion for contempt, Mother alleged Father, in violation of a protective order
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issued at the time of the parties’ dissolution of marriage, “made a death threat against me to
my daughter and a death threat against my friend to my son on 6-5-11.” (App. at 29.) During
the contempt hearing, Mother testified to statements made by both of her children concerning
Father’s desire to hurt Mother and her family and friends. The trial court found:
[W]hile I um, am inclined to believe that maybe these conversations did occur
with her children, and her children had some kind of information that they
received that upset them and -- and caused them to make these statements, I
cannot find there was clear and convincing evidence that contempt was found.
However, I do find that this protective order should be extended, and
the Court at this time, is going to extend the order for protection, and it will be
extended to October 21st of 2020.
(Tr. at 93.) To the extent Father’s arguments are premised on conflicting evidence, they are
invitations for us to reweigh the evidence, which we cannot do. Andrews, 956 N.E.2d at 722.
Accordingly, we affirm.
Affirmed.
KIRSCH, J., and NAJAM, J., concur.
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