FILED
Feb 28 2024, 8:42 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana
M.W.,
Appellant-Respondent
v.
H.Y.,
Appellee-Petitioner
February 28, 2024
Court of Appeals Case No.
23A-PO-879
Appeal from the Lake Circuit Court
The Honorable Lisa A. Berdine, Magistrate
Trial Court Cause No.
45C01-2301-PO-000102
Opinion by Judge Felix
Judges Bailey and May concur.
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Felix, Judge.
Statement of the Case
[1] On March 21, 2023, following a hearing, the trial court entered a civil
protection order under Indiana Code chapter 34-26-5 against M.W.
(“Husband”) in favor of H.Y. (“Wife”). Husband appeals raising a single issue,
namely, whether the trial court held a hearing regarding Wife’s Petition for an
Order of Protection.1
[2] We affirm.
Facts and Procedural History
[3] Husband and Wife are parents to two children, one, “Z”, born June 8, 2021,
and the other, “R”, born January 30, 2023 (collectively, the “Children”). Since
August 2022, Husband and Wife had been engaged in divorce proceedings in
cause 45C01-2208-DC-477 (“DC-477”). Wife had requested a protection order
against Husband in the dissolution proceedings, but the trial court ultimately
approved an agreed provisional order on November 29, 2022 (“Provisional
Order”) that did not include a protection order. Instead, the Provisional Order
prohibited “negative contact” between Husband and Wife.2 Tr. Vol. II at 51.
1
Husband’s brief does not request review of the sufficiency of evidence to support the entry of the protection
order in this matter.
2
Under Indiana Appellate Rule 27, we take judicial notice of the Provisional Order entered in the parties’
dissolution matter, DC-477 on November 29, 2022, nunc pro tunc August 30, 2022. See also Horton v. State,
51 N.E.3d 1154, 1162 (Ind. 2016). We note that although the Provisional Order indicates that the terms were
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Specifically, the Provisional Order prohibited each party from harassing or
disturbing the peace of the other or making video or audio recordings of the
other party or their family. Wife had initially sought a protection order in the
divorce proceedings but agreed to forego the same because of the negative
consequences its entry would have had on Husband’s job as a physician.
[4] The parties’ relationship during the divorce was difficult and included the
parties making recordings when the other engaged in name-calling, sometimes
in front of Z, despite the Provisional Order’s prohibition on negative contact.
Wife testified that negative contact had been occurring “continuously,
repetitively, constant” since the entry of the Provisional Order. Tr. Vol. II at
51.
[5] On January 23, 2023, Wife met Husband at the designated Walgreens to pick
up Z at the end of Husband’s week of parenting time. At the time, Wife was
very far along in her pregnancy with R. As Wife was carrying Z to Wife’s car,
Husband followed and entered the back seat of her car. Wife testified:
“Essentially, his entire body was inside the car while I was putting Z in the car
seat.” Tr. Vol. II at 67. Wife’s mother (“Grandmother”) was also in the back
by agreement following a hearing, the order indicates that Husband refused to sign. Following is the relevant
portion:
Each party is prohibited from harassing or disturbing the peace of the other party.
Neither party shall appear at the other party’s home, place of employment or at the home
or employment of the other party’s family members. Neither party shall contact the other
party’s colleagues or friends regarding this dissolution action. Neither party shall stalk,
follow, video, or audio record the other party or the other party’s family.
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seat of Wife’s car at the time. Wife testified that Husband started calling
Grandmother a “whore” and “sticking up the middle finger.” Id. Wife testified
further that Grandmother “got scared because of [Wife’s] pregnant belly and
[Husband] being on top of me that he was going to do something, and basically
came around outside to protect me.” Id. at 68. Wife was afraid; she had to
“push [Husband] away from [her], essentially, because he was on top of [her].”
Tr. Vol. II at 69. Wife and Mother then “rushed back inside the car, and [Wife]
locked the car.” Id. at 67. Wife then called the police. While Wife and Mother
were in her locked car waiting for the police, Husband continued to “stand,
stare, and record” her from the front of her car. Id. at 68.
[6] On January 25, 2023, Wife filed a pro se petition for an order of protection and
request for hearing (“PO Cause”). The petition alleged domestic or family
violence, specifically regarding the January 23, 2023 incident, and harassment,
alleging multiple and “constant” instances, as the bases for the protection order.
Tr. Vol. II at 51. Following an ex parte hearing on the same date, the trial court
issued an ex parte order of protection (“Ex Parte Protection Order”) against
Husband as to Wife. The following day, Husband’s counsel filed an
appearance in the PO Cause. On February 9, 2023, Husband filed his request
for a hearing in the PO Cause. The trial court set the PO Cause for a hearing.
[7] After Husband’s request for a continuance, the hearing date for the PO Cause
was set on the same date as that for a pending request for modification of the
Provisional Order in DC-477, March 21, 2023. At the start of the March 21
hearing, the trial court announced: “We are on the record In Re the Marriage
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of [Husband] and [Wife]; cause number [DC-477].” Tr. Vol. II at 3. After the
parties and their counsel acknowledged their presence on the record, the
following exchange occurred:
THE COURT: We have set today the issue of the order of
protection, as well as the modification of provisional orders. I’m
not sure what the parties[’] preferences were in terms of use of
the guardian ad litem, if she was going to be staying for the entire
length of the hearing, or which petition you all wanted to
proceed with first, given the fact that she’s here this morning. Or
is she going to be appearing on both causes?
[Husband’s Counsel]: Well, I don’t think she can testify as to the
protective order. I don’t really think she can testify as to the
divorce hearing, but I thought the divorce motion was set for 9:00
and the protective order was set for 11:00.
[Wife’s Counsel]: And your Honor, my --
THE COURT: Okay, even if the Court has slotted both of those
times, generally when I have two causes with the same parties,
I’ll ask how they want to proceed so the Court can change its
time of its calendar, so long as all parties are here. All right,
[Wife’s counsel]?
[Wife’s Counsel]: Your Honor, I would like to proceed with the
motion to modify first, just because I think it feeds into the
protection order issue. And I do definitely believe that the
guardian ad litem needs to be a part of both hearings. I would
call her as a witness in both.
THE COURT: All right. Then with regard -- are the parties
ready to proceed?
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[Wife’s Counsel]: Yes, your Honor.
Id. at 3–4.
[8] The first witness who testified at the hearing was the guardian ad litem (the
“GAL”). Tr. Vol. II at 5. The GAL’s testimony included descriptions of
behavior she saw on videos provided by Husband and by Wife, including
videos that showed Husband engaging in name-calling, foul language, and
similar repetitive behaviors toward Wife in the presence of Z during FaceTime
calls with Z. The GAL also testified about a video clip Husband provided of
the incident underlying the protection order petition. Wife testified about
Husband’s conduct to support her request for the protection order, and
Husband cross-examined Wife. Following the hearing, the trial court granted
Wife’s request for a protective order under Indiana Code chapter 34-26-5.
Husband now appeals.
Discussion and Decision
[9] Wife requested a protection order under the Indiana Civil Protection Order Act,
Ind. Code §§ 34-26-5 to -21, on two grounds: domestic or family violence and
repeated acts of harassment. To justify the entry of a protection order for
domestic or family violence, “the petitioner must show by a preponderance of
the evidence that the respondent committed an act of domestic or family
violence such that the ‘respondent represents a credible threat to the safety of’
the petitioner or a member of their household.” S.D. v. G.D., 211 N.E.3d 494,
497 (Ind. 2023) (quoting Ind. Code § 34-26-5-9(h)). Likewise, a petitioner
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alleging harassment must demonstrate by a preponderance of the evidence
“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. I.C. § 35-45-10-2; see also Fox v. Bonam, 45 NE3d 794 (App. 2015).
[10] “When, as here, a party appeals a trial court’s judgment entering a protective
order, we apply a two-tiered standard of review—we consider whether the
evidence supports the court’s findings and, if so, whether those findings support
the judgment.” S.D., 211 N.E.3d 497 (citing S.H. v. D.W., 139 N.E.3d 214,
220–21 (Ind. 2020); Ind. Trial Rule 52(A)). “In making these determinations,
we neither reweigh the evidence nor determine the credibility of witnesses, and
we consider only the evidence favorable to the trial court’s decision.” Id. (citing
Mason v. Mares, 188 N.E.3d 42, 44 (Ind. Ct. App. 2022), trans. denied). In close
cases, “‘the trial court is the one to make that call.’” S.D. v. G.D., 211 N.E.3d at
498 (quoting S.D. v. G.D., 195 N.E.3d 406, 411 (Ind. Ct. App. 2022) (Altice, J.,
dissenting)). “[O]ur trial courts are far better than appellate courts ‘at weighing
evidence and assessing witness credibility.’” S.D., 211 N.E.3d at 498 (quoting
Snow v. State, 77 N.E.3d 173, 177 (Ind. 2017)). “And this is particularly true in
protective order cases, where our trial judges see and hear the parties interact as
they relay details about intensely personal, traumatic events.” Id.
[11] In the present case, Husband’s sole argument on appeal is that “[t]he trial court
failed to conduct a hearing on the petition for an order of protection.”
Appellant’s Br. at 7. We initially observe that Husband’s entire argument is
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contained within a single paragraph that cites only a few pages in the hearing
transcript and cites no case law. Husband argues “[t]here was no hearing held
regarding the petition for order of protection; therefore, there was no evidence
that M.W. committed an act of domestic or family violence or that M.W.
represented a credible threat to the safety of H.Y.” To be sure, the trial court
failed to announce the PO Cause number into the record at the start of the dual-
setting hearing. However, Husband fails to cite to any authority that requires
such an announcement or that suggests such a failure means that the trial court
failed to hear evidence on the PO Cause.3 In any event, Husband’s argument
does not convince us.
[12] The trial court had set two cases between the parties for consecutive hearings on
March 21, 2023: the request for modification of provisional orders in the
divorce matter and the protection order petition. Husband was aware of both
settings. When starting the proceedings, the trial court explained its practice of
setting two causes with the same parties for the same day and asked the parties
which matter they wished to proceed with first. The trial court also asked
whether the “GAL would be needed to testify for both matters.” Wife’s
counsel indicated that the GAL would be needed for both matters and
3
Outside of setting out the statutory bases for the entry of a protection order, Husband fails to cite any law
in support of his argument, which violates Indiana Appellate Rule 46(A)(8)(a). However, we exercise our
discretion to review Husband’s claim on the merits. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015).
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requested to proceed with the modification matter first; Husband’s attorney did
not object.
[13] The court had allotted a total of four hours for both hearings. During that time,
the GAL testified regarding parenting time exchanges generally, including the
GAL’s opinion after viewing a video of the parenting time exchange incident
underlying the protection order petition; communication problems and hostility
between the parties; the GAL’s opinion after viewing other videos of Husband’s
behavior with Wife; the GAL’s opinions regarding legal custody of the
Children; and issues that have arisen in parenting time and parenting time
exchanges. Also, regarding the incident underlying the protection order
petition, the GAL testified, “I think that last one was kind of unfortunately like
it was a ticking time bomb where that was eventually going to happen
anyway.” Tr. Vol. II at 29.
[14] Wife also testified regarding the events underlying her petition for a protection
order as well as other incidents evidencing hostility and communication and
parenting time issues between the parties, and Husband had the opportunity to
cross-examine her. At the conclusion of the hearing, the trial court took the
matter under advisement and then issued the protection order the same day.
[15] The record shows that the parties were aware that the hearing on March 21 was
to address the PO Cause, and the trial court heard evidence underlying Wife’s
request for a protection order. The trial court advised both parties at the start
that it had set both matters for consecutive hearings for a total of four hours.
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The GAL testified about Husband’s video of the incident underlying Wife’s PO
petition, and both Husband and Wife exercised the opportunity to cross
examine each other and the GAL. Additionally, Wife testified regarding
negative contact by Husband; the incident that prompted Wife to file the PO
petition; and Wife’s fear of Husband. On this record, Husband has failed to
meet his burden to show that the trial court failed to hold a hearing as required
by Indiana Code section 34-26-5-9(h) and to receive evidence to support Wife’s
petition for a protection order. The trial court was not required to announce the
cause number of the PO Cause at the beginning of the hearing, nor was it
required to announce at some point during the hearing, when the evidence
being presented was directed toward the PO Cause as opposed to the
dissolution proceedings. Husband’s argument to the contrary raises form over
substance, and we cannot condone such technicalities.
[16] Affirmed
Bailey, J., and May, J., concur.
ATTORNEY FOR APPELLANT
Russell W. Brown, Jr.
Merrillville, Indiana
ATTORNEY FOR APPELLEE
Debra L. Dubovich
Merrillville, Indiana
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M W v. H Y
Combined Opinion