Karen Myers v. M.S. (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Dec 20 2019, 7:58 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT Terry A. White Olsen & White, LLP Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA

Karen Myers, December 20, 2019 Appellant-Respondent, Court of Appeals Case No. 19A-PO-1043 v. Appeal from the Spencer Circuit Court M.S., The Honorable Jon A. Dartt, Appellee-Petitioner. Judge Trial Court Cause No. 74C01-1804-PO-152

Pyle, Judge.

Statement of the Case [1] Karen Myers (“Daughter”), who is the adult daughter of M.S. (“Mother”),

appeals the trial court’s issuance of an order of protection against her and in

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favor of Mother. Daughter argues that there was insufficient evidence to

support the issuance of the protective order. Concluding that the evidence is

sufficient, we affirm the trial court’s grant of the protective order to Mother. [2] We affirm.

Issue Whether there is sufficient evidence to support the trial court’s issuance of a protective order for Mother.

Facts1 [3] On April 5, 2018, Daughter went to Mother’s house, where there was an

argument between the two over physical property, including a record player

and a wheelchair. Mother, who was eighty-nine years old at that time, ran to

her neighbor’s house, and the neighbor called the police. Spencer County

Sheriff Deputy Michael Phillips (“Deputy Phillips”) responded to the scene and

spoke to Mother and Daughter. [4] On April 6, 2018, Mother filed a petition for a protective order against

Daughter. Apparently, Mother alleged that Daughter had engaged in domestic

or family violence under INDIANA CODE § 34-6-2-34.5(1) by attempting to

cause her physical harm or under INDIANA CODE § 34-6-2-34.5(2) by placing

1 We note that, contrary to Indiana Appellate Rule 50, Daughter has failed to include in her Appellant’s Appendix some of the “pleadings and other documents from the Clerk’s Record” that were part of this protective order proceeding. For example, she has failed to include a copy of Mother’s petition for a protective order that explained the basis or allegations supporting the petition. Additionally, she has failed to include the trial court’s ex parte protection order.

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Mother in fear of physical harm. That same day, the trial court issued an ex

parte order for the protection of Mother against Daughter. [5] After multiple continuances, the trial court held a hearing on Mother’s petition

on March 19, 2019. During the hearing, Mother and Daughter gave conflicting

testimonies regarding what had happened on April 5. Mother testified that

when Daughter went to Mother’s house, Daughter “looked real angry” and told

Mother that she was there “to get [her] stuff.” (Tr. Vol. 2 at 37). Mother

testified that she had told Daughter to get out of her house and had tried to

close the door but that Daughter put “her hand between the door so [Mother]

couldn’t shut it and then she kept on a pushin’ . . . until she got in.” (Tr. Vol. 2

at 37). Mother testified that she was “scared to death” and thought that

Daughter was going to “hurt” her. (Tr. Vol. 2 at 37, 39, 42). Mother further

testified that she ran to her neighbor’s house and asked the neighbor to call the

police because she “needed some help[.]” (Tr. Vol. 2 at 38). Mother testified

that she needed the protective order because Daughter had “pushed [her]”

during the April 5 incident and because Daughter had made Mother “scared to

death of her.” (Tr. Vol. 2 at 42, 43). [6] On the other hand, Daughter denied that she had ever touched Mother or that

she had pushed her way into Mother’s house. Daughter testified that Mother

had opened the door for her and let her in the house. According to Daughter,

she and Mother exchanged pleasantries and then Daughter showed Mother a

list of things that she wanted to take with her. Daughter testified that when she

walked back toward her bedroom to get a record player, Mother “started

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screaming” at her and telling her to get out of Mother’s house. (Tr. Vol. 2 at

68). Daughter also testified that Mother had accused her of stealing Mother’s

things and that Mother had told Daughter that she was going to call the police.

Daughter testified that she took the record player, saw Mother run to her

neighbor’s house, and then returned the record player when the deputy arrived. [7] During the hearing, Deputy Phillips testified that, on April 5, 2018, he had

received two dispatches to go to Mother’s house. The first dispatch was a

“[m]edical call” from a medical company that monitored a medical alert button

for Mother. (Tr. Vol. 2 at 11). The deputy testified that Mother had pressed

her medical alert button, and the medical company had heard Mother telling

someone to “get out of my house.” (Tr. Vol. 2 at 11). The second dispatch the

deputy had received was based on the call from Mother’s neighbor to the

police. Deputy Phillips testified that when he arrived at Mother’s house, she

was upset. The deputy spoke to both Mother and Daughter. Mother told the

deputy that Daughter had come into Mother’s house to take Mother’s property,

including a wheelchair and a record player, despite Mother’s warnings not to

take anything. Daughter told the deputy that she had gone to Mother’s house

to take property that her late father had left her in his will. Deputy Phillips told

Daughter to return the record player, and she did. The deputy also testified

that, on the day of the incident, Mother had not reported that Daughter had

physically touched Mother during their encounter. [8] Mother and Daughter also testified about their difficult relationship and the fact

that they had no contact for eleven years from 2006 to 2017. Mother testified

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that her relationship with Daughter had become strained in 2006 when

Daughter had a newspaper article published. In that article, Daughter alleged

that she had been sexually abused when she was a child. Mother testified that

Daughter had made accusations against Mother’s husband and son, had

“threatened” to “put [Mother] in jail[,]” and had written “letters to the

neighbors and [had] belittled [Mother] and [her] husband.” (Tr. Vol. 2 at 34).

According to Mother, Daughter showed up at her house in 2017 and made

amends with Mother and her husband before he had died. Mother testified,

however, that she had not seen Daughter since the end of 2017 or beginning of

2018 until she showed up at Mother’s house on April 5. [9] At the end of the hearing, the trial court took the matter under advisement.

Thereafter, the trial court issued an order, granting Mother’s petition for a

protective order. The trial court determined that Mother had met her burden of

proving domestic or family violence under INDIANA CODE § 34-6-2-34.5(2) but

not under INDIANA CODE § 34-6-2-34.5(1), and it made the following relevant

findings:

1. This is a dispute between a mother and a daughter[,] and the Court earlier granted an emergency, Ex Parte Order of Protection[,] which has now been in place for over one (1) year.

2. [Mother] alleges that [Daughter] attempted to cause physical harm to [Mother] and that [Daughter] placed [Mother] in fear of physical harm.

3. [Mother] alleges in her Protection Order Petition that [Daughter] pushed her and forced her out of the way at her home on April 5, 2018. [Daughter] denies any touching and the officer

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who responded to the scene testified that [Mother] did not tell him [Daughter] had touched her in any way on that date. [Mother] testified she must have forgotten to tell the officer the information.

4. Everyone agrees that [Mother] was very upset on April 5, 201[8] as she left her home and jogged to a neighbor’s house where she called 9-1-1 for law enforcement assistance while her daughter . . . was in her home taking certain items of property.

5. [Daughter] admitted to arguing with [Mother] and to taking a record player that used to be hers out of [Mother’s] house without [Mother’s] permission. Law enforcement made [Daughter] return the record player from [Daughter’s] car back to [Mother] on that day of April 5, 2018.

*****

7. In this case, there was conflicting and insufficient evidence for [Mother] to prove I.C. [§] 34-6-2-34.5(1). [Mother] failed to meet her burden of proof that [Daughter] was attempting to cause, threatening to cause, or causing physical harm to her mother on April 5, 2018. After reviewing the evidence, the Court does not find that was [Daughter’s] intention on that date and that the officer’s testimony was most persuasive on this issue which said touching was never reported.

8. However, [Mother] did prove I.C. [§] 34-6-2-34.5(2). [Mother] met her burden of proof that she was placed in fear of physical harm. The totality of the circumstances including [Daughter] going in [Mother’s] home, demanding certain property, taking it without [Mother’s] permission, and causing [Mother], an 89 year old woman to jog to a neighbor’s house to call 9-1-1 for law enforcement assistance against her daughter, established by a preponderance of the evidence that [Mother] was in fear of physical harm. Her advanced age, condition, and strained relationship with her daughter over the years further

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supports [Mother’s] fear as being real to her, whether or not it was [Daughter’s] intention to place her in said fear.

(App. Vol. 2 at 7-8). Because the ex parte protective order had already been in

effect for one year, the trial court granted the protective order against Daughter

for one year. Daughter now appeals.

Decision [10] Before we address Daughter’s argument that there was insufficient evidence to

support the issuance of the protective order, we note that Mother did not file an

Appellee’s brief. When an appellee fails to submit an appellate brief, “‘we need

not undertake the burden of developing an argument on the [A]ppellee’s

behalf.’” Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014) (quoting

Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)). Rather, “‘we

will reverse the trial court’s judgment if the appellant’s brief presents a case of

prima facie error.’” Id. (quoting Trinity Homes, 848 N.E.2d at 1068). “Prima

facie error in this context is defined as, at first sight, on first appearance, or on

the face of it.” Id. (internal quotation marks and citation omitted). [11] When reviewing the sufficiency of the evidence supporting a decision to issue a

protective order, we do not reweigh the evidence or judge the credibility of

witnesses. A.G. v. P.G., 974 N.E.2d 598, 598 (Ind. Ct. App. 2012). “We look

only to the evidence of probative value and reasonable inferences that support

the trial court’s judgment.” Id.

Court of Appeals of Indiana | Memorandum Decision 19A-PO-1043 | December 20, 2019 Page 7 of 10 [12] “Civil protective orders are governed by the Indiana Civil Protection Order Act

(“CPOA”)[.]” Costello v. Zollman, 51 N.E.3d 361, 364 (Ind. Ct. App. 2016),

trans. denied. See IND. CODE §§ 34-26-5-1 et seq. Our legislature has explained

that the CPOA “shall be construed to promote the . . . (1) protection and safety

of all victims of domestic or family violence in a fair, prompt, and effective

manner; and (2) prevention of future domestic and family violence.” I.C. § 34-

26-5-1. Pursuant to INDIANA CODE § 34-26-5-2(a)(1), “[a] person who is or has

been a victim of domestic or family violence may file a petition for an order for

protection against a . . . family or household member who commits an act of

domestic or family violence.” I.C. § 34-26-5-2(a)(2). 2 An individual is a “family

or household member” of another person if the individual is “related by blood

or adoption to the other person[.]” I.C. § 34-6-2-44.8(a)(4). Relevant to this

case on appeal, “domestic or family violence” includes the occurrence of at

least one act of “[p]lacing a family or household member in fear of physical

harm.” I.C. § 34-6-2-34.5(2). [13] Daughter contends that the trial court erred by determining that Mother had

established domestic or family violence under subsection (2) of INDIANA CODE

§ 34-6-2-34.5 (i.e., placing a family or household member in fear of physical

harm). Specifically, she contends that the evidence was insufficient because

2 This statute also provides that a petition for an order of protection may be filed by “[a] person who is or has been a victim of domestic or family violence . . . against a . . .person who has committed stalking under IC [§] 35-45-10-5 or a sex offense under IC [§] 35-42-4 against the petitioner[,]” see I.C. § 34-26-5-2(a)(1), or by “[a] person wo is or has been subjected to harassment . . . against a person who has committed repeated acts of harassment against the petitioner.” See I.C. § 34-26-5-2(b). Here, these stalking and harassment subsections are not at issue.

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there was no evidence that Daughter had made “any threats of physical injury”

to Mother. (Daughter’s Br. 13). Daughter also asserts that the trial court

should have reviewed the evidence regarding whether Daughter had placed

Mother in fear of physical harm by applying an “objective point of view” or by

determining whether her act would have caused “a reasonable person to

experience fear.” (Daughter’s Br. 11). Daughter cites to no legal authority to

support such an assertion. Instead, she cites to the standard of review for the

issuance of a protective order based on stalking. [14] First, we reject Daughter’s argument that a finding of domestic or family

violence under subsection (2) of INDIANA CODE § 34-6-2-34.5 required evidence

of threats because Daughter “is reading requirements into the statutory

definition of ‘domestic or family violence’ [that] do not exist.” See Aiken v.

Stanley, 816 N.E.2d 427, 432 (Ind. Ct. App. 2004). As we have previously

explained, “[u]nder subsection (2) of that statute, [a petitioner] need only prove

by a preponderance of the evidence that [the respondent] placed her in fear of

physical harm.” Id. (citing I.C. § 34-6-2-34.5(2)). Indeed, “[i]f our legislature

had intended to define ‘domestic or family violence’ in terms of specific threats

or actions, it could have done so.” Id. [15] Additionally, we reject Daughter’s argument that the trial court should have

applied the standard of review for obtaining a protective order based on

stalking. Stalking is defined, in relevant part, as “a knowing or intentional

course of conduct involving repeated or continuing harassment of another

person that would cause a reasonable person to feel terrorized, frightened,

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intimidated, or threatened and that actually causes the victim to feel terrorized,

frightened, intimidated, or threatened.” IND. CODE § 35-45-10-1. [16] Here, Mother’s petition for a protective order was based on domestic or family

violence, not stalking. Specifically, Mother alleged that Daughter had placed

her in fear of physical harm. Our legislature has set forth that when a person

files a petition for an order of protection based on an act of domestic or family

violence under subsection (2), that petitioner must show the occurrence of at

least one act where the respondent placed the petitioner in fear of physical

harm. See I.C. § 34-6-2-34.5(2)). There is no requirement that a petitioner is

required to show repeated harassment that would cause a reasonable person to

feel frightened. Again, if our legislature had intended to define domestic or

family violence in such a manner, it could have done so. See Aiken, 816 N.E.2d

at 432. It did not, nor will we. [17] Ultimately, Daughter’s arguments on appeal amount to nothing more than a

request to reweigh the evidence and the trial court’s credibility determinations.

We decline to do so and affirm the trial court’s issuance of an order of

protection in favor Mother. [18] Affirmed.

May, J., and Crone, J., concur.

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