L.O. v. D.O.

ATTORNEYS FOR APPELLANT FILED
Andrew Tyler Thomas May 15 2019, 8:14 am
Fort Wayne, Indiana CLERK
Indiana Supreme Court
Court of Appeals
Thomas M. Frohman and Tax Court
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
L.O., May 15, 2019
Appellant-Respondent, Court of Appeals Case No.
18A-PO-2118
v. Appeal from the Wells Superior
Court
D.O., The Honorable Andrew Antrim,
Appellee-Petitioner. Judge
Trial Court Cause No.
90D01-1806-PO-16
Tavitas, Judge.
Case Summary
[1] L.O. appeals the trial court’s grant of an order of protection filed by D.O. We
reverse.
Issue
[2] L.O. raises one issue, which we restate as whether the evidence is sufficient to
support the granting of an order of protection.
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Facts
[3] On June 7, 2018, D.O. filed a petition for an order for protection and a request
for a hearing. D.O. alleged that she had “been a victim of stalking” by her
spouse, L.O. Appellant’s App. Vol. II p. 14. D.O. alleged that L.O.: (1) had
threatened to his family members that he would take D.O.’s children (2) had
threatened D.O. regarding money that he thought D.O. took; and (3)
erroneously told D.O. to give him checks from Social Security. D.O. asked the
trial court to prohibit L.O. from harassing, annoying, telephoning, contacting,
or directly or indirectly communicating with her.
[4] The trial court held a hearing on the matter on June 20, 2018. The extent of
D.O.’s direct testimony at the hearing follows:
My only issue was he just kept texting me and texting me and
wouldn’t leave me alone when I asked him not to. And then his
family members started calling me, telling me things he was
doing down when he was staying in Kentucky and telling me that
he was planning on taking the kids and running off with them
and not bringing them back. So, I went to the Ossian Police
Department and told them what I was told and they told me to
come file a petition so that he couldn’t take off with the kids.
*****
I was completely willing to do everything 50/50. I just, when I,
you know, when his family members are calling me and telling
me that he has these plans and he’s doing these things, then, you
know, I don’t, I don’t want to, have to worry that I’m not going
to see the kids again when they go with you. We had all
intentions of doing everything fairly; he’d have them half the
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time, I’d have them half the time, everything was fine. And then
I started getting all these phone calls and these text messages
stating otherwise.
Tr. Vol. II pp. 5-6. On cross-examination, D.O. clarified that L.O. had not
threatened her regarding the children; rather, the only threats pertained to
money. D.O. testified that L.O. had never physically harmed or abused her.
[5] L.O. testified that he had never threated D.O. with violence or sexual crimes,
he never intended to threaten her with harm of any kind, and he did not intend
to harass her. L.O. testified that the only threats he made were to report D.O.
to the police and Social Security. L.O. introduced a copy of text messages
exchanged between D.O. and L.O. L.O.’s counsel argued that the petition for
an order of protection should be dismissed because the evidence failed to
establish that L.O. stalked D.O.
[6] At the end of the hearing, the trial court found:
The Court, in looking at the definition of stalk, Indiana Code 35-
45-10-1, that statute reads as used in this chapter, stalking is “a
knowing or an intentional course of conduct involving repeated
or continued 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.” Then it goes on to say
“the term does not include statutorily or constitutionally
protected activity.” The Court finds that the definition of
stalking has been met in this situation. I am going to continue
the Order for Protection.
Id. at 14.
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[7] The trial court issued a written order finding that D.O. “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.
Vol. II p. 6. The trial court then “enjoined” L.O. from “threatening to commit
or committing acts of domestic violence, stalking . . . against [D.O. and the
children].” Id. L.O. was “prohibited from harassing, annoying, telephoning,
contacting, or directly or indirectly communicating with [D.O.] except: as
permitted by the parenting time outlined in this Order.” Id. at 7. The order for
protection was due to expire two years after the date it was issued. L.O. filed a
motion to correct error, which the trial court denied. L.O. now appeals.
Analysis
[8] We begin by noting that D.O. has not filed an appellee’s brief. When an
appellee fails to submit a brief, we do not undertake the burden of developing
arguments for the appellee, and we apply a less stringent standard of review.
Jenkins v. Jenkins, 17 N.E.3d 350, 351 (Ind. Ct. App. 2014). Thus, we may
reverse if the appellant establishes prima facie error, which is error at first sight,
on first appearance, or on the face of it. Id. at 351-52.
[9] L.O. argues that the evidence was insufficient to support the issuance of an
order of protection in favor of D.O. When considering the sufficiency of the
evidence supporting a decision to issue or modify an order of protection, we do
not reweigh the evidence or judge the credibility of witnesses. A.G. v. P.G., 974
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N.E.2d 598 (Ind. Ct. App. 2012). “We look only to the evidence of probative
value and reasonable inferences that support the trial court’s judgment.” Id.[10] 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.
A finding that domestic or family violence has occurred sufficient
to justify the issuance of an order under this section means that a
respondent represents a credible threat to the safety of a
petitioner or a member of a petitioner’s household. Upon a
showing of domestic or family violence by a preponderance of
the evidence, the court shall grant relief necessary to bring about
a cessation of the violence or the threat of violence.
I.C. § 34-26-5-9(f). Under the CPOA, “[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) person who has committed stalking under IC 35-45-10-5
or a sex offense under IC 35-42-4 against the petitioner.” I.C. § 34-26-5-2(a).
[11] “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.
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(3) Causing a family or household member to involuntarily
engage in sexual activity by force, threat of force, or duress.
(4) Beating . . . , torturing . . . , mutilating . . . , or killing a
vertebrate animal without justification with the intent to threaten,
intimidate, coerce, harass, or terrorize a family or household
member.
I.C. § 34-6-2-34.5. For the purposes of the CPOA, the definition of “domestic
or family violence” also includes “stalking (as defined in IC 35-45-10-1) or a sex
offense under IC 35-42-4. . . .” Id.
[12] There is no evidence here of L.O. placing D.O. in fear of physical harm or
threatening physical harm to D.O. or another household member as described
in subsections (1) and (2). There is also no evidence of any actions described in
subsections (3) or (4). As such, we will only consider whether D.O. presented
sufficient evidence of stalking.
[13] Indiana Code Section 35-45-10-1 provides that 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.” Indiana Code Section 35-
45-10-2 defines harassment 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.” Harassment and stalking do “not
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include statutorily or constitutionally protected activity[.]” I.C. §§ 35-45-10-1;
35-45-10-2.
[14] The reality is that tensions and emotions during a dissolution often run high.
Argumentative or annoying behavior is not uncommon, but it does not rise to
the level of threatening behavior. Although D.O. referenced “threats” in her
petition and testimony, simply calling the interactions “threats” does not make
them so. The text messages between the parties reveal a contentious dissolution
with multiple disagreements over money and time with the children. Both
parties initiated text messages regarding the children and Social Security
money. Our review of the testimony and the text messages, however, reveals
no evidence that D.O. felt terrorized, frightened, intimidated, or threatened or
that D.O. suffered emotional distress as a result of the text messages. We
reached a similar result in Maurer v. Cobb-Maurer, 994 N.E.2d 753, 759 (Ind. Ct.
App. 2013), where the petitioner presented no testimony at the hearing
regarding the effects the respondent’s contacts had on her.
[15] Given the sparse record in this case, there was insufficient probative evidence
presented at the hearing to support a finding that the contacts would cause a
reasonable person and in fact caused D.O. to feel terrorized, frightened,
intimidated, or threatened or to suffer emotional distress. Accordingly, there
was insufficient evidence to support the trial court’s issuance of an order of
protection. See, e.g., Maurer, 994 N.E.2d at 759 (holding that the evidence was
insufficient to demonstrate that the petitioner for an order of protection felt
terrorized, frightened, intimidated, or threatened); cf. Andrews v. Ivie, 956 N.E.2d
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720, 723-25 (Ind. Ct. App. 2011) (holding that the evidence was sufficient
where the petitioner testified that the unwelcome messages, gifts, and contacts
were “very upsetting,” “disturbing,” caused her “emotional distress,” and made
her “very angry”).
Conclusion
[16] There was insufficient evidence presented at the hearing to support the trial
court’s issuance of an order of protection. Accordingly, we reverse.
[17] Reversed.
Baker, J., and May, J., concur.
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