MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 31 2016, 8:38 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
Leanna Weissmann
Lawrenceburg, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.M., March 31, 2016
Appellant-Respondent, Court of Appeals Cause No.
81A01-1507-PO-922
v. Appeal from the Union Circuit
Court
H.H., The Honorable Matthew R. Cox,
Appellee-Petitioner. Judge
Trial Court Cause No.
81C01-1504-PO-58
Barnes, Judge.
Case Summary
[1] D.M. appeals the trial court’s grant of a protection order to H.H. We affirm.
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Issue
[2] D.M. raises two issues, which we restate as:
I. whether the trial court properly denied his
motion for a continuance; and
II. whether his due process rights were violated.
Facts
[3] D.M. and H.H. dated for several years. On April 14, 2015, H.H. filed a petition
for a protection order and alleged that the relationship had become abusive and
violent and that D.M. refused to return her personal possessions. On April 20,
2015, the trial court issued a notice to appear for a hearing on May 6, 2015.
There is no indication in the record that the trial court issued an ex parte
protection order. The Chronological Case Summary indicates that D.M. was
served with the notice to appear by the sheriff’s department on April 24, 2015.
The notice to appear stated that the trial court had issued “an Ex Parte Order
for Protection,” informed D.M. of the hearing date, and stated “Please bring all
documents and witnesses relating to this case with you to Court on your
hearing date.” App. p. 58(B). Both D.M. and H.H. appeared pro se for the
hearing on May 6, 2015.
[4] At the hearing, H.H. first testified regarding her allegations of D.M.’s abusive
and violent behavior during an April 7, 2015 incident. H.H. also testified
regarding her personal possessions that D.M. was refusing to return until she
reimbursed him for money that she had borrowed. The trial court then asked
for D.M.’s response to the allegations. D.M. stated:
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A . . . I do . . . a . . . there are a number of inaccuracies or a
untruths in which she has said. A . . . regarding the . . . the . . .
her attack on me on that day . . . a . . . regarding other items in
there. At this point in time I’ve not seen anything other than the
paper that was dropped off by the deputy that I signed. And I’ve
been advised to ask for a continuance so I have time to look at
the materials that she has submitted, because I’ve not seen
anything, and to seek legal counsel.
Tr. pp. 7-8. The trial court then denied D.M.’s motion for a continuance, and
D.M. testified extensively regarding his relationship with H.H. At the end of
the hearing, the trial court directed the parties to immediately exchange
personal possessions. If there was a disagreement over ownership of any
property, the trial court directed the parties to file a replevin action. The trial
court also directed D.M. to file legal action to collect the debt owed by H.H. if
he was concerned about receiving payment. The trial court took the petition for
protection order under advisement. After the hearing, D.M. filed a letter to the
trial court with attachments, which the trial court struck from the record and
returned to D.M. On May 19, 2015, the trial court granted the protection
order.
[5] On June 4, 2015, an attorney entered his appearance on behalf of D.M. On
June 16, 2015, D.M. filed a motion to correct error. D.M. argued that the trial
court should have granted his continuance so that he could have obtained
counsel to assist him at the hearing. The trial court denied D.M.’s motion to
correct error. D.M. now appeals.
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Analysis
[6] At the outset, we note that H.H. did not submit an appellee's brief. In such a
situation, we do not undertake the burden of developing arguments for the
appellee. Hill v. Ramey, 744 N.E.2d 509, 511 (Ind. Ct. App. 2001). Applying a
less stringent standard of review with respect to showings of reversible error, we
may reverse the lower court if the appellant can establish prima facie error. Id.
Prima facie, in this context, is defined as “at first sight, on first appearance, or
on the face of it.” Id. Where an appellant is unable to meet that burden, we
will affirm. Id.
I. Continuance
[7] D.M. first argues that the trial court abused its discretion by denying his motion
for a continuance. The decision to grant or deny a continuance is within the
sound discretion of the trial court, and we will not reverse that decision unless
the trial court has abused its discretion. Evans v. Thomas, 976 N.E.2d 125, 126-
27 (Ind. Ct. App. 2012), trans. denied. A trial court abuses its discretion when it
reaches a conclusion that is clearly against the logic and effect of the facts or the
reasonable and probable deductions that may be drawn therefrom. Id. at 127.
If good cause is shown for granting the motion, denial of a continuance will be
deemed to be an abuse of discretion. Id.; see Ind. Trial Rule 53.5. Among the
things to be considered on appeal from the denial of a motion for continuance,
we must consider whether the denial of a continuance resulted in the
deprivation of counsel at a crucial stage in the proceedings. Evans, 976 N.E.2d
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at 127. We must also consider whether a delay would have prejudiced the
opposing party to an extent sufficient to justify denial of the continuance. Id.
[8] D.M. argues the trial court should have granted his motion for a continuance
because he was not served with a copy of the petition for a protection order and
because he was unaware of the allegations against him at the time of the
hearing. According to D.M., he was unable to secure counsel in the eleven
days between the time he was served and the time of the hearing despite
contacting two attorneys. He contends that the denial of his motion for
continuance resulted in the possibility that H.H. “gamed the system to
accomplish [the] speedy return of her possessions.” Appellant’s Br. p. 13.
Finally, D.M. argues that he was “ill prepared to counter H.H.’s accusations”
at the hearing. Id. at 12.
[9] We addressed a similar issue in Evans, 976 N.E.2d at 127. There, we held that
the trial court did not abuse its discretion by denying a motion to continue in a
protection order proceeding where the dispute between the parties was
escalating, the respondent had five days to secure counsel, the trial court was
willing to consider a modification of the protection order after respondent
secured counsel, and a continuance could have significantly prejudiced the
petitioner.
[10] Here, H.H. alleged that D.M. had become abusive and violent with her on
April 7, 2015, and she filed her petition for a protection order shortly thereafter
on April 14, 2015. It was clear from H.H.’s and D.M.’s testimony that the
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animosity between them was escalating. H.H. also alleged that D.M. was
refusing to return her personal possessions, which she needed to earn an
income.
[11] D.M. argues that he only had eleven days to obtain counsel, but we rejected a
similar argument in Evans, where the respondent had only five days to obtain
counsel. Further, although D.M. alleges that H.H. was “gaming” the system to
obtain possession of her personal property, Indiana Code Section 34-26-5-9(c)
specifically allows a trial court to address the possession and use of essential
personal effects in a protection order. A delay in the proceedings would have
prejudiced H.H., who was unable to obtain her personal possessions, which she
used to earn income, despite police intervention in the matter.
[12] Finally, with regard to D.M.’s argument that he was unaware of H.H.’s
allegations until the time of the hearing, we note that the order to appear
specifically provided that H.H. was the petitioner and directed D.M. to bring
his witnesses and documents related to the case. Given the short amount of
time between the incident between the parties, H.H.’s ongoing efforts to retrieve
her personal property, and the time of the hearing, D.M. should have been able
to anticipate the subject of the hearing, and, in fact, he testified extensively
about his relationship with H.H. Under these circumstances, we cannot say
that the trial court abused its discretion by denying D.M.’s motion for a
continuance.
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II. Due Process
[13] D.M. next contends that his due process rights under the United States and
Indiana Constitutions were violated because he was not served with a copy of
the petition for a protection order. The Due Process Clause of the Fourteenth
Amendment, “‘requires notice, an opportunity to be heard, and an opportunity
to confront witnesses.’” Evans, 976 N.E.2d at 128 (quoting Ind. State Bd. of
Educ. v. Brownsburg Cmty. Sch. Corp., 842 N.E.2d 885, 889 (Ind. Ct. App. 2006)).
Article I, Section 12 of the Indiana Constitution provides that “every person,
for injury done to him in his person, property, or reputation, shall have remedy
by due course of law.” “The same analysis is applicable to both the federal and
state claims.” Id.
[14] D.M., however, did not make a due process argument below. “Due process
rights are subject to waiver, and claims are generally waived if raised for the
first time on appeal.” Pigg v. State, 929 N.E.2d 799, 803 (Ind. Ct. App. 2010)
(citing In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001)), trans. denied.
D.M. did not make a due process argument during the May 6, 2015 hearing or
in his motion to correct error. Consequently, he cannot raise his due process
claim for the first time on appeal. The claim is waived.
[15] Waiver notwithstanding, D.M. argues that he was not served with a copy of
H.H.’s petition for a protection order, and he was unaware of the claims against
him. D.M. had eleven days prior to the hearing to request a continuance or
obtain a copy of the petition, but he failed to do so. D.M. did not request a
continuance until the hearing had already started and H.H. had already testified
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regarding her allegations. Further, as we have discussed, given the short
amount of time between the incident between the parties, H.H.’s ongoing
efforts to retrieve her personal property, and the time of the hearing, D.M.
should have been able to anticipate the subject of the hearing, and, in fact, he
testified extensively about his relationship with H.H. D.M. has not established
that his due process rights were violated. See, e.g., Evans, 976 N.E.2d at 128
(rejecting the respondent’s argument that his due process rights were violated).
Conclusion
[16] The trial court did not abuse its discretion by denying D.M.’s motion for a
continuance, and D.M. has not established that his due process rights were
violated. We affirm.
[17] Affirmed.
Robb, J., and Altice, J., concur.
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D.M. v. H.H. (mem. dec.)
Combined Opinion