Lisa Costello v. Wayne Zollman

Feb 16 2016, 9:26 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Mark J. Crandley John A. Kraft
Barnes & Thornburg LLP Young, Lind, Endres & Kraft
Indianapolis, Indiana New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lisa Costello,1 February 16, 2016
Appellant-Petitioner, Court of Appeals Case No.
10A04-1509-PO-1438
v. Appeal from the Clark Circuit
Court
Wayne Zollman, The Honorable William Dawkins,
Appellee-Respondent Jr., Magistrate
Trial Court Cause No. 10C02-
1507-PO-308
Crone, Judge.
1
18 U.S.C. § 2265(d)(3) applies only to parties who have received a protective order; because Costello is not
a party “protected under” a protective order, initials need not be used.
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Case Summary
[1] Lisa Costello appeals the dismissal of her petition for a protective order. The
trial court indicated that it dismissed her petition because she failed to carry her
burden of proof. On appeal, Costello argues that the trial court failed to make
findings pursuant to Indiana Trial Rule 52(A) and therefore remand is
necessary for such findings. In the alternative, she asserts that the trial court
abused its discretion in denying her petition. We conclude that the trial court’s
order is adequate for our review and thus remand for Trial Rule 52(A) findings
is unnecessary. We also conclude that the trial court did not abuse its discretion
in dismissing Costello’s petition. Accordingly, we affirm.
Facts and Procedural History
[2] Costello and Wayne Zollman are neighbors in rural Clark County. Their farms
share a common border, and they have been engaged in a boundary dispute.
Zollman often works at a barn that is 125 feet from Costello’s property. His
home and deck can be seen from Costello’s property. Costello’s farm
responsibilities require her to work near the boundary with Zollman’s property.
Because they both regularly work outside near the boundary, they are often
outside at the same time and within eyesight of each other.
[3] Costello filed a petition for a protective order, alleging that Zollman placed her
in fear of physical harm, committed stalking against her, and committed a sex
act against her. Specifically, she alleged that Zollman comes outside his barn
and urinates in her view and has also dropped his pants and exposed himself to
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her, that he stood in her path as she rode her motorcycle causing her to take
evasive action to avoid him, and that he approached her when her dirt bike was
stalled but her phone rang so he walked away. Appellant’s App. at 7, 11-20.
She also alleged that Zollman let his animals graze on her property.
[4] The trial court held a hearing on Costello’s petition. Costello testified that
when she works near Zollman’s home she usually has a “diesel tractor or
something that’s making noise” and Zollman will come out of his barn, face
her, and urinate in front of her. Tr. at 13. Costello testified that Zollman had
urinated in front of her or exposed himself to her at least twelve times. She said
that the last two times, he was “flashing” her and that “there wasn’t any
urinating involved.” Id. at 16. One of those times, he was on his deck and
dropped his swim trunks to his knees. Id. at 17. She also testified that she was
riding her motorcycle on her property and “he was actually standing on [her]
property” and she had to accelerate to quickly get by him. Id. at 19. She
described another instance in which her motorcycle had stalled and she saw
Zollman coming toward her, but when her phone rang he went away. Id. at 20-
21. Costello submitted blurry photographs of Zollman that she alleged show
that he is urinating outside. She testified that she had to get “a little sneaky” to
get the photographs, and she hid behind a tree when she took them. Id. at 24-
25.
[5] Zollman testified that Costello’s photographs show him talking on the phone,
not urinating. Id. at 48. He testified that he is regularly in and out of his barn
and that he does not come out to see Costello. Id. at 49. He also testified that
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he had never been on Costello’s property and never will be. Id. at 51-52.
Zollman denied urinating in front of Costello twelve times. Id. at 54. He
testified that he does not pay any attention to Costello. Id. at 55. He also
denied that he was stalking Costello. Id. at 45-46.
[6] At the conclusion of the hearing, the trial court informed the parties that it
would take the issue under advisement and offered the parties the opportunity
to submit “case authority.” Id. at 61. Both parties stated their desire to do so.
Thereafter, Costello filed a “Post-Hearing Memorandum of Law” and Zollman
filed findings of fact and conclusions of law. The trial court issued a form order
dismissing Costello’s petition for protective order because “[Costello] has not
shown, by a preponderance of the evidence, that stalking or a sex offense has
occurred sufficient to justify the issuance of an Order for Protection.”
Appellant’s App. at 3. This appeal ensued.
Discussion and Decision
Section 1 – The trial court is not required to make Trial Rule
52(A) findings when denying a petition for a protective order.
[7] Civil protective orders are governed by the Indiana Civil Protection Order Act
(“CPOA”), which we construe to promote “the protection and safety of all
victims of domestic or family violence in a fair, prompt, and effective manner”
and the “prevention of future domestic and family violence.” Ind. Code § 34-
26-5-1. Domestic violence includes stalking. Ind. Code § 34-6-2-34.5. Thus, a
person who is or has been a victim of domestic or family violence may file a
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petition for an order for protection against a person who has committed
stalking. Ind. Code § 34-26-5-2(a). Stalking is defined as “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” but does not include
statutorily or constitutionally protected activity. Ind. Code § 35-45-10-1.
Harassment is defined 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” but does not include statutorily or
constitutionally protected activity. Ind. Code § 35-45-10-2. Impermissible
contact “includes but is not limited to knowingly or intentionally following or
pursuing the victim.” Ind. Code § 35-45-10-3. Upon a showing of domestic
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.”
Id. A finding that domestic violence has occurred sufficient to justify the
issuance of a protective order “means that a respondent represents a credible
threat to the safety of a petitioner or a member of the petitioner's household.”
Ind. Code § 34-26-5-9(f).
[8] Costello argues that in denying a petition for a protective order, the trial court is
required to sua sponte make special findings of fact pursuant to Indiana Trial
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Rule 52(A), the trial court did not do so here, and therefore remand is necessary
for special findings. Trial Rule 52(A) provides in relevant part,
In the case of issues tried upon the facts without a jury or with an
advisory jury, the court shall determine the facts and judgment
shall be entered thereon pursuant to Rule 58. Upon its own
motion, or the written request of any party filed with the court
prior to the admission of evidence, the court in all actions tried
upon the facts without a jury or with an advisory jury (except as
provided in Rule 39[D]) shall find the facts specially and state its
conclusions thereon. The court shall make special findings of fact
without request
(1) in granting or refusing preliminary injunctions;
(2) in any review of actions by an administrative agency; and
(3) in any other case provided by these rules or by statute.
[9] In her appellant’s brief, Costello relies on Hanauer v. Hanauer, 981 N.E.2d 147
(Ind. Ct. App. 2013), in which another panel of this court likened protective
orders to injunctions and concluded that when “granting a protective order the
trial court must sua sponte make special findings of fact and conclusions
thereon.” Id. at 148 (citing Ind. Trial Rule 52(A), Ind. Code § 34-26-5-9(a) and
-(f), and Tisdial v. Young, 925 N.E.2d 783, 785 (Ind. Ct. App. 2010)). 2 See also
Fox v. Bonam, No. 55A01-1503-PO-112, 2015 WL 6087343, at *3 (Ind. Ct. App.
2
In Tisdial, we stated that the “trial court may issue or modify an order for protection only upon a finding
‘that domestic or family violence has occurred.’” 925 N.E.2d at 785 (citing Ind. Code § 34-26-5-9(a) and -(f)).
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Oct. 16, 2015) (citing Hanauer, 981 N.E.2d at 148). We observe that even
though findings are required to grant a petition for a protective order, the
findings need not be extensive. In Hanauer, the trial court’s “findings” were not
extensive but were adequate for appellate review of the trial court’s decision:
[T]he trial court found that domestic or family violence, or
stalking ... occurred sufficient to justify the issuance of the
Protective Order. The court further found that Husband
represents a credible threat to the safety of Wife ... or a member
of ... Wife’s household. And, with these findings, the court
concluded that Wife was a victim of domestic violence and
entitled to the issuance of a protective order.
Id. at 149 (citations, brackets, and quotation marks omitted). The Hanauer
court concluded that the husband had failed to establish that the findings were
clearly erroneous. Id. at 150. 3
[10] Moreover, we observe that Hanauer involved an appeal of the grant of a
protective order. 4 Indiana Code Section 34-26-5-9 requires a finding that
domestic or family violence has occurred in order to grant a protective order.
See also Tisdial, 925 N.E.2d at 785. The reason for requiring findings when a
protective order is granted is to establish the basis for restricting a person’s
rights. We are unpersuaded that Hanauer should be extended to require Trial
3
In Fox, the trial court found that the appellant had committed stalking against the appellee without
specifying which of the five allegations in the petition constituted stalking. 2015 WL 6087343, at *3. As in
Hanauer, extensive findings were not required for adequate appellate review.
4
We observe that Trial Rule 52(A) requires the trial court to make special findings of fact “in granting or
refusing preliminary injunctions.” (Emphasis added.)
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Rule 52(A) special findings when a trial court denies a petition for a protective
order. 5 Here, the trial court dismissed Costello’s petition for a protective order
because “[Costello] has not shown, by a preponderance of the evidence, that
stalking or a sex offense has occurred sufficient to justify the issuance of an
Order for Protection.” Appellant’s App. at 3. Thus, the trial court provided the
basis for its decision. Where the petitioner has failed to sustain her burden of
proof, an order like the one the trial court used here is adequate for appellate
review.
[11] In her reply brief, Costello relies on E.W. v. J.W., 20 N.E.3d 889, 899 (Ind. Ct.
App. 2014), trans. denied (2015), in which this Court stated that Trial Rule 52(A)
special findings were required for a denial of a protective order. E.W. is
distinguishable. In that case, the trial court found as follows:
[T]here was no evidence to suggest that any continuing problems
have occurred between the parties for several months even if at
one time there might have been issues. Assuming that there were
issues in the past, [F]ather does not have clean hands in this
matter, as he was inappropriately denying the mother visitation
rights to her son at that time, which could have contributed to the
issues between them.
5
Zollman cites Reed v. Ashcraft, No. 02A03-1301-PO-23 (Ind. Ct. App. Sept. 24, 2013), and Loomis v. Loomis,
No. 02A03-1503-PO-80 (Ind. Ct. App. Sept. 8, 2015), to support his argument that the dismissal of a petition
for a protective order does not require Trial Rule 52(A) findings. Both are memorandum decisions and
therefore are noncitable pursuant to Indiana Appellate Rule 65(D).
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Id. The E.W. court concluded that the trial court’s findings were not sufficient
to facilitate appellate review and remanded for further findings. Id. The E.W.
court explained,
It is entirely possible that the trial court believed that Father did
not prove by a preponderance of the evidence that he truly felt
harassed by Mother’s alleged conduct. Alternatively, one might
infer from the trial court’s order that the trial court believed every
word of Father’s story, but because Father already received a full
year’s benefit of a protection order and because Mother’s conduct
was a product of Father’s refusal to allow visitation, further
extension of the protection order was unnecessary to protect
Father after resolution of the visitation issue. Of course, all of this
is pure speculation[.]
Id. Here, in contrast, we know that the trial court dismissed Costello’s petition
because Costello failed to prove by a preponderance of the evidence that
Zollman committed stalking or a sexual offense. Accordingly, further findings
are unnecessary.
[12] Costello also argues that Trial Rule 52 “compelled the trial court to enter
findings of fact and conclusions of law” because the parties requested it.
Appellant’s Br. at 9. This argument is unavailing for two reasons. First, the
parties did not request special findings; rather, at the conclusion of the hearing,
the trial court offered the parties the opportunity to submit “case authority.”
Second, even if the parties had orally requested special findings at the
conclusion of the hearing, as Costello claims, Trial Rule 52(A) would not have
been triggered. Trial Rule 52(A) specifically requires a party to make a “written
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request … prior to the admission of evidence.” Neither Costello nor Zollman
made a written request for special findings prior to the admission of evidence.
Therefore, the trial court was not required by Trial Rule 52 to enter special
findings. See E.W.R. v. T.L.C., 528 N.E.2d 106, 108 (Ind. Ct. App. 1988)
(“Where no written request for special findings is filed with the court, the trial
judge is under no obligation to make such findings.”), trans. denied (1989).
Section 2 – The trial court did not abuse its discretion in
denying Costello’s petition for a protective order.
[13] “Generally, a trial court has discretion to grant protective relief according to the
terms of the CPOA.” A.N. v. K.G., 10 N.E.3d 1270, 1271 (Ind. Ct. App. 2014).
“To obtain an order of protection 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). In
assessing the sufficiency of the evidence, we neither reweigh the evidence nor
judge witness credibility. Id. We consider only the evidence of probative value
and reasonable inferences that support the judgment. Id. Here, the trial court
dismissed the protective order after a hearing, effectively denying Costello’s
petition, and therefore she is appealing from a negative judgment. When the
appeal is from a negative judgment, we will reverse only if we are convinced
that the evidence as a whole leads unerringly and unmistakably to a decision
opposite that reached by the trial court. Flash v. Holtsclaw, 789 N.E.2d 955, 959
(Ind. Ct. App. 2003), trans. denied.
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[14] Costello claims that her version of events was undisputed. We disagree.
During the hearing, Zollman’s counsel began direct examination of Zollman by
asking him, “[Y]ou’ve heard the events that have been described by [Costello]
Do you take issue with those?” Tr. at 43. Zollman answered, “No.” Id.
However, when Zollman was asked about specific allegations, he denied them.
He denied that he was urinating in the photographs submitted by Costello; he
denied urinating in front of Costello twelve times; and he denied ever being on
her property. The trial court weighed the conflicting evidence, judged the
credibility of the witnesses, and found that Costello failed to carry her burden of
proof. We conclude that the evidence does not lead unerringly and
unmistakably to a decision opposite that reached by the trial court.
Accordingly, we affirm the dismissal of Costello’s petition for a protective
order.
[15] Affirmed.
Vaidik, C.J., concurs.
Bailey, J., concurs in result without opinion.
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