Danny L. Young v. Lu Ann S. Young , 81 N.E.3d 250 ( 2017 )


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  •                                                                                        FILED
    Aug 01 2017, 8:38 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
    R. Lee Money                                               Monty K. Woolsey
    Greenwood, Indiana                                         Andrew R. Bloch
    Cross, Pennamped, Woolsey &
    Glazier, P.C.
    Carmel, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Danny L. Young,                                            August 1, 2017
    Appellant-Respondent,                                      Court of Appeals Case No.
    49A02-1606-DR-1365
    v.                                                 Appeal from the Marion Superior
    Court
    Lu Ann S. Young,                                           The Honorable David J. Dreyer,
    Appellee-Petitioner                                        Judge
    Trial Court Cause Nos.
    49D10-1506-DR-17889
    49D10-1507-PO-25018
    Mathias, Judge.
    [1]   Lu Ann Young (“Lu Ann”) sought and obtained a modification of a protective
    order in her favor against her ex-husband, Danny Young (“Danny”), in Marion
    Superior Court. From this and collateral rulings, Danny now appeals.
    [2]   We reverse in part and remand.
    Court of Appeals of Indiana | Opinion 49A02-1606-DR-1365 | August 1, 2017                    Page 1 of 15
    Facts and Procedural Posture
    [3]   Danny and Lu Ann were married in 1997. On June 1, 2015, Lu Ann filed for
    divorce. Less than two months later, on July 29, 2015, Lu Ann sought and
    obtained a protective order in her favor against Danny (“the Protective
    Order”).1 On November 20, 2015, Danny and Lu Ann submitted a dissolution
    settlement agreement for the trial court’s approval (“the Agreement”). The
    Agreement memorialized an agreed modification to the Protective Order
    whereby Danny could continue to attend services at his and Lu Ann’s church
    “as long as he d[id] not harass, annoy, intimidate or attempt to directly
    communicate with [Lu Ann] during times they [were] both at the Church.”
    Appellant’s App. p. 11. The same day, November 20, 2015, the trial court
    issued a dissolution decree that incorporated the Agreement in full. 
    Id. at 13–14.
    [4]   Almost immediately thereafter, Danny began to harass, annoy, and intimidate
    Lu Ann at church. Accordingly, on February 19, 2016, Lu Ann petitioned to
    have the Protective Order modified to prevent further harassment.2 At a
    modification hearing on April 28, 2016, the court heard the testimony of Lu
    Ann and several church members in Lu Ann’s favor; Danny testified on his
    1
    The dissolution and protective-order petitions were filed under separate cause numbers and later
    consolidated.
    2
    This was styled as a motion to “revoke” the Protective Order, that is, to return to the status quo before the
    Protective Order was modified by the Agreement to permit Danny to attend church. See Appellant’s App. pp.
    21–22. But because Danny has not included the Protective Order as originally issued in the record on appeal,
    we cannot discern what the status quo actually was. In any event, however styled, Lu Ann’s action in
    substance was one to modify a protective order, and we take it as such. See Tr. pp. 8–9 (Court: “[S]o [this
    action is] to modify . . . the current protective order?” Lu Ann by counsel: “That’s correct.”).
    Court of Appeals of Indiana | Opinion 49A02-1606-DR-1365 | August 1, 2017                        Page 2 of 15
    own behalf without support. On May 23, 2016, the trial court entered an order
    finding that Danny had violated the Protective Order, modifying the Protective
    Order “so that [Danny] will not come within 100 feet of [Lu Ann] at all times
    he attends the church, whether intentional[ly] or unintentional[ly],” and
    awarding Lu Ann attorney’s fees. 
    Id. at 16.
    [5]   Danny timely appealed. After the appeal was perfected, on August 19, 2016,
    the trial court entered two further orders: one awarding Lu Ann appellate
    attorney’s fees, and another “revok[ing]” the “prior modification” of the
    Protective Order and “reinstat[ing] in full with no limitations” the Protective
    Order as initially issued. 
    Id. at 18.
    Discussion and Decision
    [6]   Danny presents the following restated issues for our review: (1) whether the
    trial court had jurisdiction over the subject matter of its August 19, 2016, orders
    modifying the Protective Order and awarding Lu Ann appellate attorney’s fees;
    (2) whether sufficient evidence supported the trial court’s May 23, 2016, finding
    that Danny violated the Protective Order; (3) whether the May 23, 2016,
    modification of the Protective Order was appropriate absent the entry of special
    findings; (4) and whether the Agreement precluded award of attorney’s fees to
    Lu Ann.
    I. Jurisdiction Over the Subject Matter of the August 19, 2016, Orders
    [7]   Subject matter jurisdiction is the power to hear and decide the general class of
    actions to which a case belongs. K.S. v. State, 
    849 N.E.2d 538
    , 540 (Ind. 2006).
    Court of Appeals of Indiana | Opinion 49A02-1606-DR-1365 | August 1, 2017   Page 3 of 15
    The court on appeal acquires jurisdiction over a case when the notice of
    completion of clerk’s record is entered in the chronological case summary
    (“CSS”). Ind. Appellate Rule 8; Falatovics v. Falatovics, 
    72 N.E.3d 472
    , 475 (Ind.
    Ct. App. 2017). When the court on appeal acquires jurisdiction, the court below
    loses it for most purposes. 
    Falatovics, 72 N.E.3d at 479
    . A judicial act rendered
    without jurisdiction is void and without effect. Thomas v. Smith, 
    794 N.E.2d 500
    , 503 (Ind. Ct. App. 2003), trans. denied. We review purely legal
    jurisdictional questions de novo. 
    Id. A. Protective
    Order Modification
    [8]    In this case, the notice of completion of clerk’s record was entered in the CCS
    on July 21, 2016. We acquired jurisdiction on that date. On August 19, 2016,
    the trial court entered an order “that the prior modification of the Protective
    Order allowing [Danny] to attend the [church] when [Lu Ann] was present is
    revoked and the prior Protective Order is reinstated in full with no limitations.”
    Appellant’s App. p. 18. The order was not entered in the CCS. See 
    id. at 39.
    [9]    Both parties concede this order was rendered without jurisdiction and is
    therefore void. We agree. The trial court’s August 19, 2016, order as to the
    Protective Order modification is void and of no force or effect.
    B. Award of Appellate Attorney’s Fees
    [10]   Also on August 19, 2016, the trial court entered an order awarding Lu Ann
    appellate attorney’s fees. In family law cases, trial courts retain jurisdiction to
    award attorney’s fees, including appellate attorney’s fees, even after perfection
    Court of Appeals of Indiana | Opinion 49A02-1606-DR-1365 | August 1, 2017   Page 4 of 15
    of an appeal. J.S. v. W.K., 
    62 N.E.3d 1
    , 11 n.7 (Ind. Ct. App. 2016); Thompson v.
    Thompson, 
    811 N.E.2d 888
    , 929 (Ind. Ct. App. 2004), trans. denied; Pierce v.
    Pierce, 
    702 N.E.2d 765
    , 769 (Ind. Ct. App. 1998), trans. denied; see Ind. Code §
    31-15-10-1(a) (in dissolution actions, permitting award of reasonable fee “after
    entry of judgment”). Thus, the trial court had jurisdiction to award Lu Ann
    appellate attorney’s fees on August 19, 2016.
    [11]   We consider the propriety of the award below.
    II. Sufficient Evidence Supported the Finding That Danny Violated the
    Protective Order
    [12]   When reviewing the sufficiency of the evidence supporting modification of a
    protective order, our standard is familiar. We neither reweigh the evidence nor
    assess witness credibility. A.G. v. P.G., 
    974 N.E.2d 598
    , 598 (Ind. Ct. App.
    2012). Considering only the probative evidence and reasonable inferences
    therefrom in support of modification, we ask whether a reasonable fact-finder
    could have found the petitioner’s allegations proved by a preponderance of the
    evidence. 
    Id. at 598-99.
    Here, Lu Ann alleged, and the trial court found, that
    Danny harassed, annoyed, and intimidated Lu Ann at church. Appellant’s
    App. pp. 21 (petition), 15 (order). A reasonable fact-finder could have found
    these allegations proved by a preponderance of the evidence.
    [13]   The evidence and inferences favorable to the trial court’s decision reveal that,
    on several occasions starting in January 2016, less than two months after the
    dissolution decree was issued, Danny intentionally followed and kept close to
    Court of Appeals of Indiana | Opinion 49A02-1606-DR-1365 | August 1, 2017   Page 5 of 15
    Lu Ann while both were at church. Danny would “wait outside of whatever
    room [Lu Ann] was in[,] including the women’s restroom.” Tr. p. 11. One
    Sunday, Lu Ann saw that Danny had arrived early for church and was waiting
    in his truck in the parking lot. Lu Ann waited for a while for Danny to go
    inside. When Danny remained in his truck, Lu Ann decided to go inside
    herself, whereupon Danny immediately got out of his truck and followed her in.
    Lu Ann started choosing a different seat during services from week to week to
    avoid Danny sitting near her. The next week, Lu Ann would find that Danny
    had chosen to sit wherever she had sat the previous week.
    [14]   Other members of the church testified that they observed Danny “lingering”
    near Lu Ann, “waiting for her to depart and maybe going out the same door[,]”
    Tr. pp. 22-23, as well as waiting in the parking lot until Lu Ann got out of her
    car to get out of his truck. One member observed Danny peering into Lu Ann’s
    car in the parking lot and then hurrying away after checking to see if he had
    been noticed. Danny’s conduct was repeatedly described as “lingering,” Tr. p.
    32, or “hover[ing].” Tr. p. 25. Members described Lu Ann’s annoyance and
    distress at Danny’s behavior.
    [15]   We appreciate that the church appears to be a small one, and that, particularly
    in this context, the line between intentional harassment and innocent chance
    run-ins may be difficult to draw. However, it is precisely for this reason that we
    defer to the trial court’s proximity to the facts and the parties, and particularly
    to its ability to assess witness credibility. Sufficient evidence supported the trial
    Court of Appeals of Indiana | Opinion 49A02-1606-DR-1365 | August 1, 2017   Page 6 of 15
    court’s finding that Danny violated the Protective Order by harassing,
    annoying, and intimidating Lu Ann at church.
    [16]   We next consider the propriety of the remedy ordered by the trial court for this
    violation.
    III. The Trial Court Did Not Make the Findings Required Before
    Modifying the Protective Order As It Did
    [17]   In its order of May 23, 2016, the trial court found that Danny “caused [Lu Ann]
    to feel harassed, annoyed and intimidated by his actions[,]” and thereby
    violated the Protective Order. Appellant’s App. p. 15. As a remedy for this
    violation, the court then ruled, “Due to [Danny’s] violation of the protective
    order, . . . [t]he Protective Order is modified . . . so that [Danny] will not come
    within 100 feet of [Lu Ann] at all times he attends Grace Evangelical Church,
    whether intentional[ly] [or] unintentional[ly].” 
    Id. at 16.
    [18]   The appropriate remedies for such violation were either a contempt order, S.W.
    by Wesolowski v. Kurtic, 
    950 N.E.2d 19
    , 22 (Ind. Ct. App. 2011), or modification
    of the Protective Order to “prohibit the respondent from approaching or
    entering certain locations where the petitioner may be found.” I.C. § 34-26-5-
    9(i)(2). The latter remedy was also the one selected by the parties in the
    Agreement. Appellant’s App. p. 13 (Danny “shall be banned from going to the
    Church in the future” if found to have violated Protective Order).
    [19]   However, a remedy beyond a contempt order or the modification called for in
    Section 34-26-5-9(i) required findings the trial court did not appear to make.
    Court of Appeals of Indiana | Opinion 49A02-1606-DR-1365 | August 1, 2017    Page 7 of 15
    Indiana’s Civil Protective Order Act (“CPOA”), I.C. ch. 34-26-5, “allows a trial
    court to issue or modify a protective order only upon a finding ‘that domestic or
    family violence has occurred.’” A.G. v. P.G., 
    974 N.E.2d 598
    , 599 (Ind. Ct. App.
    2012) (quoting I.C. § 34-26-5-9(a)) (emphasis added).
    “Domestic or family violence” means, except for an act of self-
    defense, the occurrence of at least one of the following acts
    committed by a family or household member:
    (1) Attempting to cause, threatening to cause, or causing physical
    harm to another family or household member.
    (2) Placing a family or household member in fear of physical
    harm.
    ...
    For purposes of [CPOA], domestic and family violence also
    includes stalking (as defined in [the criminal code]) . . . . 3
    I.C. § 34-6-2-34.5. Such a finding “means that a respondent represents a
    credible threat to the safety of a petitioner” and requires the court to “grant
    relief necessary to bring about a cessation of the violence or the threat of
    violence.” I.C. § 34-26-5-9(f).
    3
    Stalking is defined in the criminal code 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.” I.C. § 35-45-10-1. “‘[H]arassment’ means 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.” 
    Id. § 2.
    Finally, “‘impermissible contact’ includes but is not limited to knowingly or intentionally following or
    pursuing the victim.” 
    Id. § 3.
    Court of Appeals of Indiana | Opinion 49A02-1606-DR-1365 | August 1, 2017                          Page 8 of 15
    [20]   We have said before that, in order to grant a protective order, entry of findings
    of fact and conclusions thereon under Indiana Trial Rule 52(A) is required, so
    as to “establish the basis for restricting a person’s rights.” Costello v. Zollman, 
    51 N.E.3d 361
    , 366 (Ind. Ct. App. 2016) (distinguishing denial of a protective
    order), trans. denied. To the extent that a protective order modification makes
    the underlying order more restrictive rather than less, we require the same
    compliance with Trial Rule 52(A).
    [21]   Here, the trial court found that Danny “caused [Lu Ann] to feel harassed,
    annoyed and intimidated by his actions[,]” and thereby violated the agreed
    modification to the Protective Order. Appellant’s App. p. 15. However, the trial
    court did not enter a finding that “domestic or family violence” had occurred as
    defined by statute. I.C. § 34-6-2-34.5. Specifically, while, among other bases, a
    finding of family or domestic violence may be predicated on a threat or fear of
    physical harm, or on stalking as defined in the criminal code, the trial court
    made no findings as to physical harm, nor as to the objective components of
    criminal stalking. See I.C. § 35-45-10-1 (conduct constituting stalking must be
    such as would “cause a reasonable person” to feel stalked), 
    id. § 2
    (conduct
    constituting harassment must be such as would “cause a reasonable person” to
    feel harassed); see also Appellant’s Br. at 10-18 (complaining that trial court only
    found subjective harassment).
    [22]   We conclude that these “are not findings sufficient to facilitate appellate review
    on this issue.” E.W. v. J.W., 
    20 N.E.3d 889
    , 899 (Ind. Ct. App. 2014)
    (remanding for entry of findings and conclusions under T.R. 52(A)), trans.
    Court of Appeals of Indiana | Opinion 49A02-1606-DR-1365 | August 1, 2017    Page 9 of 15
    denied. More specifically, the trial court made one, but not all, of the “findings
    of fact relevant” to the modification of the Protective Order on a basis other
    than Section 34-26-5-9(i), 
    E.W., 20 N.E.3d at 899
    , and thus we cannot discern
    whether the trial court applied the correct legal standard under Section 34-26-5-
    9(a). We therefore remand for further proceedings on this issue.
    [23]   On remand, solely on the basis of the Protective Order violation affirmed
    above, Lu Ann may seek to have Danny held in contempt. Alternatively or
    additionally, Lu Ann may ask the trial court for a modification of the Protective
    Order prohibiting Danny from entering or approaching the church under
    Section 34-26-5-9(i). But if Lu Ann seeks a modification of the Protective Order
    other than under Section 34-26-5-9(i), the trial court must find that Section 34-
    26-5-9(a) has been satisfied, subject to the requirements of Trial Rule 52.4
    IV. The Agreement Precluded Award of Attorney’s Fees in This Case
    [24]   Indiana’s Dissolution of Marriage Act, I.C. art. 31-15, does not expressly allow
    for allocation of attorney’s fees by dissolution settlement agreement. See 
    id. § 2
    -
    17(a). Nevertheless, a provision for attorney’s fees in a dissolution settlement
    agreement is enforceable according to its terms unless contrary to law or public
    4
    The trial court’s order of May 23, 2016, prohibited Danny from coming “within 100 feet of [Lu Ann] at all
    times he attends Grace Evangelical Church, whether intentional[ly] [or] unintentional[ly].” Appellant’s App.
    p. 16. We note that a protective order purporting to prohibit “unintentional” conduct is to that extent
    unenforceable, both civilly, Deel v. Deel, 
    909 N.E.2d 1028
    , 1032 (Ind. Ct. App. 2009) (“In order to be held in
    contempt for failing to comply with a court order, a party must have willfully disobeyed the order.” (emphasis
    added)), and criminally. Thomas v. State, 
    936 N.E.2d 339
    , 340 (Ind. Ct. App. 2010) (noting person commits
    invasion of privacy by “knowingly or intentionally” violating protective order issued under CPOA), trans.
    denied.
    Court of Appeals of Indiana | Opinion 49A02-1606-DR-1365 | August 1, 2017                       Page 10 of 15
    policy, or unless the settlement agreement is vitiated by fraud, duress, lack of
    consent, or unconscionability. Pond v. Pond, 
    700 N.E.2d 1130
    , 1136 (Ind. 1998).
    Because the parties before us contest only the scope of the fee provision in the
    Agreement, we assume without deciding that such a provision, once accepted
    by the trial court and incorporated into a dissolution decree, is not subject to
    later unilateral judicial modification. See 
    id. at 1337.5
    [25]   Dissolution settlement agreements are construed like contracts. Pohl v. Pohl, 
    15 N.E.3d 1006
    , 1009 (Ind. 2014). As question of law, we review their
    construction de novo. 
    Id. Our task
    is to discern and give effect to the intent of
    the parties. Johnson v. Johnson, 
    920 N.E.2d 253
    , 256 (Ind. 2010). If the terms of
    the agreement are unambiguous, we give the words their plain and ordinary
    meanings. 
    Pohl, 15 N.E.3d at 1009
    . We construe ambiguities against the drafter
    of the agreement, Deel v. Deel, 
    909 N.E.2d 1028
    , 1035 (Ind. Ct. App. 2009) —
    here, Lu Ann by counsel. Appellant’s Br. at 22, Appellant’s App. p. 11.
    [26]   The Agreement provided as follows:
    5
    While this proposition has not been squarely established by our supreme court, we think it flows naturally
    from the precedents of that court and this, as well as from the relevant statutes. Critically, in Pond, our
    supreme court held that the trial court lacked authority to reject a limited fee-shifting provision in a valid
    dissolution settlement agreement that the trial court had otherwise 
    accepted. 700 N.E.2d at 1337
    . The Pond
    court reversed the trial court “[t]o the extent that the judgment of dissolution rejects and refuses to enforce” the
    fee-shifting provision. 
    Id. (emphasis added).
    We cannot perceive how a trial court could lack discretionary
    authority to reject an agreed fee provision like that at bar, but still retain discretionary authority to modify or
    enforce it. We note that the Agreement provided that it “may not be altered, changed, or modified except in
    writing, signed by each of the Parties and approved by a court of competent jurisdiction.” Appellant’s App. p.
    10.
    Court of Appeals of Indiana | Opinion 49A02-1606-DR-1365 | August 1, 2017                             Page 11 of 15
    ARTICLE 1
    SCOPE OF AGREEMENT
    1.01. Issues Settled. The subject matter of this Agreement is the
    settlement of all issues which exist between Wife and Husband
    attendant upon the dissolution of their marriage, including
    without limiting the generality thereof, the following: . . .
    b. Any and all claims Husband and Wife may have against
    each other or arising out of the marital relationship or the
    circumstances of that relationship. . . .
    ARTICLE III
    MARITAL DEBTS AND OBLIGATIONS
    3.01. Debts and Obligations of Husband. Husband shall be solely
    responsible for the debts and obligations in his individual name
    and all debts and obligations incurred by him in the Parties’
    names since the date of separation. Husband represents that there
    are no other marital debts or obligations. Husband agrees to
    defend, indemnify and hold harmless Wife from and against any
    and all liability, expense, attorney’s fees, loss or damage which
    may be incurred or sustained by Wife, directly or indirectly,
    arising out of, founded upon, or resulting from the failure of
    Husband to perform, satisfy, or pay debts and obligations
    imposed by this Agreement including, but not limited to, all
    obligations under Article II [“Settlement of Property Rights”] . . .
    .
    ARTICLE IV
    ATTORNEY’S FEES AND LITIGATION EXPENSES
    4.01. Payment of Attorney’s Fees and Litigation Expenses. Each
    Party shall be responsible and pay any and all attorney’s fees and
    litigation expenses incurred by each Party without contribution
    from the other Party.
    Court of Appeals of Indiana | Opinion 49A02-1606-DR-1365 | August 1, 2017   Page 12 of 15
    ARTICLE V
    MISCELLANEOUS PROVISIONS
    ...
    5.15. Protective Order. The court issued a Protective Order under
    Cause No. 49D10-1507-PO-025018 which was consolidated with
    this action. Wife agrees to modify the Protective Order to allow
    Husband to attend Grace Evangelical Free Church located at
    Arlington and Southport Road as long as he does not harass,
    annoy, intimidate or attempt to directly communicate with Wife
    during times they are both at the Church. In the event Husband
    does so he shall be banned from going to the Church in the
    future.
    Appellant’s App. pp. 3, 6–7, 9–11.
    [27]   The Agreement includes within its scope any claim “arising out of the marital
    relationship or the circumstances of that relationship.” § 1.01, Appellant’s App.
    p. 3. The Protective Order clearly arose out of the circumstances of Danny and
    Lu Ann’s marital relationship — indeed, apparently out of the dissolution
    proceedings themselves — and proceedings on the Protective Order were
    clearly in their contemplation when they memorialized the modification of the
    Protective Order in the Agreement. Thus, the provision in Section 4.01 that
    each party bear her own attorney’s fees applied to proceedings on the Protective
    Order.
    [28]   Lu Ann argues that Section 3.01 provided for attorney’s fees in this case
    because it was an action “arising out of, founded upon, or resulting from the
    failure of [Danny] to perform . . . [an] obligation[] imposed by this agreement.”
    Court of Appeals of Indiana | Opinion 49A02-1606-DR-1365 | August 1, 2017   Page 13 of 15
    § 3.01, Appellant’s App. p. 6. However, compliance with the Protective Order
    issued under CPOA was not an obligation imposed by the Agreement;
    compliance was an obligation imposed by the trial court on statutory authority
    according to statutory criteria. Were this otherwise, this action would have been
    one to enforce the Agreement, not one to modify the Protective Order. See Tr.
    pp. 8-9 (Court: “[S]o [this action is] to modify . . . the current protective order?”
    Lu Ann by counsel: “That’s correct.”). Even without this language, we think
    Section 3.01 clearly refers not to disputes between Danny and Lu Ann, but to
    disputes involving Danny or Lu Ann and a third party. Lu Ann of course has
    not demanded, nor could she demand, that Danny “defend [and] indemnify”
    her in this case. 
    Id. [29] The
    Agreement provided that each party should bear her own attorney’s fees in
    this case. We therefore vacate the trial court’s order of August 19, 2016,
    awarding attorney’s fees to Lu Ann, and its order of May 23, 2016, to the extent
    it did the same.
    Conclusion
    [30]   The trial court’s August 19, 2016, order purporting to modify the Protective
    Order was entered without jurisdiction and is therefore void. The trial court’s
    award of attorney’s fees to Lu Ann was contrary to the Agreement. Its August
    19, 2016, order awarding attorney’s fees is therefore vacated, as is its May 23,
    2016, order to the extent it awards attorney’s fees. Sufficient evidence supported
    the trial court’s finding that Danny violated the protective order, but we remand
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    for further proceedings consistent with this opinion to determine the
    appropriate remedy.
    [31]   Reversed in part and remanded.
    Kirsch, J., and Altice, J., concur.
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