HK v. SC (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 18 2017, 10:29 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Kevin McShane Richard L. Norris
Indianapolis, Indiana Norris Choplin Schroeder, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
H.K., April 18, 2017
Appellant, Court of Appeals Case No.
49A04-1606-PO-1466
v. Appeal from the Marion Superior
Court
S.C., The Honorable Cynthia Ayers,
Appellee. Judge
Trial Court Cause No.
49G21-1603-PO-7943
Barnes, Judge.
Case Summary
[1] H.K. appeals the trial court’s order granting an order for protection to S.C. We
remand with instructions.
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Issue
[2] H.K. raises one issue, which we restate as whether the trial court entered special
findings of fact and conclusions thereon in its order for protection.
Facts
[3] On March 4, 2016, S.C. filed a petition for an order for protection. The trial
court granted an ex parte order. H.K. requested an evidentiary hearing, and, on
May 19, 2016, the trial court held a hearing in this matter. On June 3, 2016, the
trial court issued a permanent order of protection. The entirety of that order
states:
Comes now the Court after having conducted a hearing on
Respondent, [H.K.]’s, Petition for an Evidentiary Hearing on the
Entry of an Ex Parte Order of Protection . . . [and] now finds as
follows:
On March 4, 2016 an Ex Parte Order of Protection
(“Order”) was entered in the matter of [S.C.] v. [H.K.]. The
findings in that order were:
The Petitioner has shown, by a preponderance of the evidence,
that stalking has occurred sufficient to justify the issuance of the Order.
This order does not protect an intimate partner or child.
The Respondent represents a credible threat to the safety of the
Petitioner or a member of the Petitioner’s household.
The following relief is necessary to bring about a cessation of the
violence or the threat of violence.
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Order
The Respondent, [H.K.], is hereby enjoined from threatening to
commit or committing acts of domestic or family violence, stalking or a
sex offense against the Petitioner [S.C.], and [her] family or household
members . . . .
The Respondent is prohibited from harassing, annoying,
telephoning, contacting, or directly or indirectly communicating with the
Petitioner.
The Respondent is ordered to stay away from the residence, school
and place of employment of the Petitioner.
The Court having heard the evidence on the motion, the
testimony of the parties and their arguments and having been
duly advised in the premises finds that the Respondent’s request
to vacate the Ex Parte Order of Protection is hereby denied. The
March 4, 2016 Order will now be made permanent in its entirety
and will expire in one (1) calendar year or on June 2, 2017.
Violation of the order is punishable by confinement in jail,
prison, and/or a fine.
App. pp. 6-7 (emphases in original). H.K. now appeals.
Analysis
[4] The Indiana Civil Protection Order Act was designed to promote protection
and safety for all victims of domestic or family violence in a fair, prompt, and
effective manner and to prevent future domestic and family violence. Ind.
Code § 34-26-5-1. “Protective orders are similar to injunctions, and therefore in
granting an order the trial court must sua sponte make special findings of fact
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and conclusions thereon.” Fox v. Bonam, 45 N.E.3d 794, 798 (Ind. Ct. App.
2015). Similarly, Indiana Rule of Trial Procedure 52(A) states, “[t]he court
shall make special findings of fact without request (1) in granting or refusing
preliminary injunctions . . . .”
[5] Here, the trial court merely quoted the sparse findings from an earlier
temporary, ex parte order of protection. It did not issue its own findings based
on the evidence presented during the contested hearing, nor did it adopt the
earlier findings. As such, we conclude the trial court’s May 19, 2016, order
does not comply with the requirements of Indiana Rule of Trial Procedure
52(A) or Indiana case law. We therefore remand this matter and instruct the
trial court to issue findings of fact and conclusions thereon consistent with that
authority.
Conclusion
[6] The trial court did not make findings required by Indiana Rule of Trial
Procedure 52(A) or Indiana case law. We remand and instruct the trial court to
issue findings of fact and conclusions thereon. We remand.
[7] Remanded with instructions.
Kirsch, J., and Robb, J., concur.
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