P.S. v. T.W.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE FILED
Cara Schaefer Wieneke William O. Harrington Jul 20 2017, 8:33 am
Wieneke Law Office Harrington Law, PC CLERK
Indiana Supreme Court
Brooklyn, Indiana Danville, Indiana Court of Appeals
and Tax Court
Christopher L. Arrington
Christopher L. Arrington, Attorney at
Law, PC
Danville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
P.S., July 20, 2017
Appellant-Respondent, Court of Appeals Case No.
32A01-1610-PO-2426
v. Appeal from the Hendricks County
Superior Court
T.W., The Honorable Mark Smith, Judge
Appellee-Petitioner Trial Court Cause No.
32D04-1607-PO-336
May, Judge.
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[1] P.S. appeals the trial court’s decision to place him on GPS monitoring
following his violation of the protective order (“PO”) in place to protect T.W.
from P.S. P.S. argues GPS monitoring is inappropriate for two reasons: (1) he
was not on notice that GPS monitoring was a possible consequence of violating
the PO; and (2) the evidence was insufficient to prove he violated the PO. We
affirm.
Facts and Procedural History
[2] P.S. and T.W. are married and in the process of a divorce. They also own a
business together. On July 21, 2016, T.W. filed a petition for an order of
protection against P.S. and a request for hearing. The trial court granted her
petition, issued an ex parte PO, and scheduled a hearing on the matter for
August 10, 2016. The hearing was continued until September 28, 2016.
[3] At the hearing on September 28, 2016, T.W. testified P.S. abused illegal
substances, was unsuccessful in his attempt at substance abuse rehabilitation,
had indicated he would commit suicide or kill T.W. if she tried to leave, had
thrown a candle at T.W. during an argument, and had locked T.W. in the
garage when she threatened to leave him. T.W. testified these actions made her
“afraid of him[,]” (Tr. at 14), and she “didn’t want him to do anything to
[her].” (Id.) Based thereon, the trial court issued a PO against P.S., ordering:
1. [P.S.] is hereby enjoined from threatening to commit or
committing acts of domestic or family violence, stalking, or sex
offenses against [T.W.] . . .
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2. [P.S.] is prohibited from harassing, annoying, telephoning,
contacting, or directly or indirectly communicating with [T.W.].
3. [P.S.] shall be excluded from [T.W.’s] residence.
4. [P.S.] is ordered to stay away from the residence, school,
and/or place of employment of [T.W.].
5. [T.W.] shall have the possession and use of the residence[.]
6. The Court orders the following additional relief to provide for
the safety and welfare of [T.W.]. . . [P.S.] is not to interfere with
the mailbox for [Parties’ business] located at [sic] Brownsburg.
*****
8. [P.S.] is prohibited from using or possessing a firearm,
ammunition, or deadly weapon.
(Appellant’s App. Vol. II at 42-3.) The PO expires on September 28, 2018.
[4] On October 12, 2016, T.W. filed an emergency verified motion to show cause
and alleged P.S. committed multiple violations of the PO. On October 16,
2016, the trial court held a hearing on the matter. At the hearing, T.W.
presented evidence P.S. had been “watching [her],” (Tr. at 51), removed
equipment from her property without her permission, directed others to remove
items from T.W.’s property without her permission, and “hack[ed into her
email account] and chang[ed] the password.” (Id. at 58.) The trial court also
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received evidence P.S. attempted to communicate with T.W. through a third
party in violation of the PO.
[5] Based thereon, the trial court determined P.S. violated the PO. On October 18,
2016, the trial court entered three orders. In the first, the trial court found P.S.
in violation of the PO and ordered him to “wear a GPS tracking [device] under
I.C. 34-26-5-9(i).” (Appellant’s App. Vol. II at 55.) Second, the trial court
amended the original PO to include language that stated, “The Court [o]rdered
[P.S.] to be hooked up to GPS monitoring per I.C.34-26-5-9(i). Mr. P.S. is
ordered to stay away from [T.W.] and at least one (1) mile from the marital
residence and any place where she resides.” (Id. at 53). The trial court also
changed the PO’s expiration date to October 19, 2018. Finally, the trial court
entered an order entitled, “Order for GPS Monitoring” in which it gave specific
directions to P.S. about starting GPS monitoring as ordered. (Id. at 56.)
Discussion and Decision
Due Process
[6] P.S. claims “his right to due process was violated because he was never put on
notice that a violation of the protective order could subject him to indefinite
GPS monitoring at his own expense.” (Br. of Appellant at 10.) “Whether a
party was denied due process is a question of law that we review de novo.”
Miller v. Indiana Dept. of Workforce Dev., 878 N.E.2d 346, 351 (Ind. Ct. App.
2007). Further, “notice of the issues to be addressed at a hearing is a
fundamental requirement of a fair hearing.” Id.
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[7] P.S. argues the trial court was constrained to order him to pay a fine or to serve
time in jail or prison, because the PO stated: “Violation of this order is
punishable by confinement in jail, prison and/or a fine.” (Appellant’s App.
Vol. II at 44.) However, Indiana Code § 34-26-5-9(i) (2010) 1 provides the trial
court may, upon “finding a violation of an order for protection . . . (1) require a
respondent to wear a GPS tracking device; and (2) prohibit the respondent from
approaching or entering certain locations where the petitioner may be found.”
P.S. acknowledges the existence of Indiana Code § 34-26-5-9(i) (2010), but
contends “[T.W.] never requested such relief from the court, and P.S. was never
given the opportunity to be heard by the court on this matter.” (Br. of
Appellant at 10.)
[8] P.S. cites no case law to support his argument the trial court was required to
apprise him of all possible penalties for violating the PO. Further, it is well-
established “[a]ll persons are charged with the knowledge of the rights and
remedies prescribed by statute.” Middleton Motors, Inc. v. Indiana Dept. of State
Revenue, Gross Income Tax Div., 380 N.E.2d 79, 81, 269 Ind. 282, 285 (1978). As
P.S., like every person in Indiana, is charged with knowing the law of the state,
we cannot say he lacked notice of the possibility he could be subject to GPS
monitoring if he violated the PO. See, e.g., Tiplick v. State, 43 N.E.3d 1259, 1263
(Ind. 2015) (person of ordinary intelligence charged with knowing list of
1
Despite the precedent treating a violation of a PO as an action in indirect contempt, Flash v. Holtsclaw, 789
N.E.2d 955, 958 (Ind. Ct. App. 2003), reh’g denied, trans. denied, we note Indiana Code section 34-26-5-9(i) is
specific in limiting GPS monitoring to situations involving the violation of a PO only.
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prohibited synthetic drugs as prescribed by Pharmacy Board Emergency Rules
referenced in the relevant criminal statute); see also Iterman v. Baker, 214 Ind.
308, 317, 15 N.E.2d 365, 370 (1938) (“all have an equal opportunity to know
the law, and are presumed to know it”).
Violation
[9] In Flash v. Holtsclaw, we noted our standard of review when considering the trial
court’s determination a party is in violation of a PO:
[10] Indiana Code section 34-47-3-1 provides as follows:
A person who is guilty of any willful disobedience of any process,
or any order lawfully issued:
(1) by any court of record, or by the proper officer of the
court;
(2) under the authority of law, or the direction of the court;
and
(3) after the process or order has been served upon the
person;
is guilty of an indirect contempt of the court that issued the
process or order.
[11] Indirect contempt proceedings require due process protections,
including notice and the opportunity to be heard. Carter v.
Johnson, 745 N.E.2d 237, 241 (Ind. Ct. App. 2001).
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[12] Civil contempt is failing to do something that a court in a civil
action has ordered to be done for the benefit of an opposing
party. Cowart v. White, 711 N.E.2d 523, 530 (Ind. 1999). A party
who has been injured or damaged by the failure of another to
conform to a court order may seek a finding of contempt. Id.
Whether a party is in contempt is a matter left to the discretion of
the trial court. Id. We reverse a trial court’s finding of contempt
only if there is no evidence or inferences drawn therefrom that
support it. Id.
789 N.E.2d 955, 958 (Ind. Ct. App. 2003), reh’g denied, trans. denied.
[13] Here, the trial court found P.S. violated the PO after T.W. presented evidence
P.S. violated the PO by removing items from the marital property without her
permission and contacting her through a third party, among other possible
violations. P.S. argues “the trial court failed to issue specific written findings
explaining how P.S. violated the protective order,” (Br. of Appellant at 11), and
thus “it appears that the court’s determination that P.S. violated the protective
order was based on a finding that P.S. entered the property and removed several
items.” (Id.) Therefore, P.S. contends, T.W. did not present sufficient evidence
he violated the PO because he claims he did not enter the property and instead
“directed a third party to remove equipment from an outbuilding on the
property.” (Id. at 14.) P.S.’s argument ignores the other evidence presented at
trial concerning other violations of the PO, such as P.S.’s attempt to
communicate with T.W. via her sister-in-law and the fact P.S. changed T.W.’s
email password.
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[14] P.S.’s argument is essentially a request that we judge T.W.’s credibility, which
we cannot do. See Flash, 789 N.E.2d 959-60 (appellate court defers to trial
court’s determination of witness credibility). T.W. presented evidence P.S.
removed equipment from the marital property without her consent, changed her
email password, and attempted to contact her through her sister-in-law. T.W.
testified P.S.’s actions, including sitting in his vehicle across from her property,
made her feel “very harassed.” (Tr. at 63.) T.W. presented sufficient evidence
P.S. violated the terms of the PO, and the trial court did not abuse its discretion
when so concluding. See, e.g., Smith v. State, 999 N.E.2d 914, 916 (Ind. Ct. App.
2013) (Smith violated protective order when he entered protected person’s
house without her consent to remove property), trans. denied; see also, e.g., Kelly v.
State, 13 N.E.3d 902 (Ind. Ct. App. 2014) (Kelly violated protective order when
he sent a message to the protected person through a third party).
Conclusion
[15] P.S. had notice he could be placed on GPS monitoring if he violated the PO
and T.W. presented sufficient evidence he violated the PO. Thus, the trial court
did not abuse its discretion in concluding P.S. violated the PO and it did not err
when it ordered him to submit to GPS monitoring as a penalty for that
violation. Accordingly, we affirm.
[16] Affirmed.
Brown, J., and Pyle, J., concur.
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