D.W. v. V.W. (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any May 29 2020, 9:26 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.
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Duane Walker Sarah M. Wyatt
Jacksonville, Florida Ball Eggleston, PC
Lafayette, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.W., May 29, 2020
Appellant-Respondent, Court of Appeals Case No.
19A-PO-2095
v. Appeal from the Tippecanoe
Superior Court
V.W., The Honorable Kristen E. McVey,
Appellee-Petitioner. Judge
Trial Court Cause No.
79D05-1902-PO-90
Brown, Judge.
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[1] D.W. appeals the trial court’s August 15, 2019 order granting an ex parte order
of protection. D.W. raises three issues which we revise and restate as:
I. Whether the trial court had subject matter jurisdiction and personal
jurisdiction;
II. Whether the court erred in continuing the hearing; and
III. Whether there was sufficient evidence to issue the order.
We affirm.
Facts and Procedural History
[2] On February 19, 2019, V.W. filed a petition for an order for protection. She
alleged she was or had been a victim of stalking by her spouse, D.W, that the
“incident(s) of domestic or family violence, stalking, or the sex offense”
happened in Tippecanoe County, and that she lived in Tippecanoe County.
Appellant’s Appendix Volume II at 17.
[3] On March 1, 2019, the Tippecanoe Superior Court held a hearing at which
V.W. testified that she lived in Tippecanoe County, had been trying to divorce
D.W. for seven years, and that a divorce action was filed in Virginia Beach,
Virginia. She stated that D.W. left their house on April 20, 2012, and “ever
since then there’s just constant ways of harassment. Some of it’s very direct,
some of it is indirect.” Transcript Volume II at 3. She testified that he sent
letters to her family and friends saying she was a terrible wife and mother. She
indicated that she left Virginia Beach, moved to Indiana, and began working at
Purdue. She stated “in the first year that I was here [D.W.] began including my
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work email address on these emails,” she asked her department head what she
should do, and he told her to go to the police. Id. at 5. She testified that
Lieutenant Wisloski contacted D.W. in 2013 and told him that he need not
communicate with her during work hours or by email.
[4] When asked what happened in 2019, she answered that D.W. was attempting
to obtain access to her financial information, was harassing her and her
attorney, and was “constantly sending me documents and he says that I have to
charge you for all this.” Id. at 6. The court explained that it did not have the
authority to stop D.W. from exercising the legal process and its only authority
was to order D.W. not to have contact with her. It also stated: “[M]y authority
is very limited to just whether or not there’s an emergency basis to grant a no
contact order. Because after I grant it, I lost the authority entirely and it goes
back to the divorce. I’m out, this court doesn’t have any jurisdiction.” Id. at 8.
[5] V.W. testified that Lieutenant Jonathan Eager called her on February 13th and
said he thought D.W. was stalking her, that D.W. had sent him an email
accusing her of being in a bigamist marriage, and D.W. had sent him pictures of
her and her fiancé. She also stated that Lieutenant Eager told her “this was
something that [she] needed to follow up with the harassment case.” Id. at 9.
[6] The court found that “the active contacting the police and suggesting a bigamist
relationship is an attempt to harass . . . [a]nd including sending . . . photos and
personal items in an attempt to manipulate or harass” V.W. Id. It found there
was an emergency basis upon which to grant the order and prohibit D.W. from
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contacting her directly or indirectly. The court stated: “Alright, so I’ll grant the
order and my obligation further is to order that this order be transferred into the
CL-12-3893 case in Virginia Beach, Virginia, for any further proceedings.” Id.
at 10.
[7] That same day, the Tippecanoe Superior Court entered an ex parte order for
protection citing Ind. Code § 34-26-5-9; finding that V.W. had shown by a
preponderance of the evidence that domestic or family violence, stalking, or a
sex offense had occurred to justify the issuance of the order; enjoining D.W.
from threatening to commit or committing acts of domestic or family violence,
stalking or a sex offense against V.W.; prohibiting D.W. from harassing,
annoying, telephoning, contacting, or directly or indirectly communicating with
V.W.; and ordering him to stay away from V.W.’s residence, school, and place
of employment. The order indicated it expires on March 1, 2021.
[8] On March 13, 2019, D.W. was served with the order in Florida. On March 15,
2019, the trial court entered an order stating this action should be transferred to
another court on the grounds that V.W. and D.W. are the parties to a
dissolution of marriage or a legal separation action that is pending. The court
ordered the proceeding be transferred to the “Virginia Beach, VA divorce case .
. . in connection with case number CL 12 3893.” Appellant’s Appendix
Volume II at 43.
[9] That same day, the Circuit Court of the City of Virginia Beach, Virginia,
entered an order: stating that the Tippecanoe Superior Court transferred the
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proceeding involving a petition for an ex parte protective order; declining “to
accept this case in this pending divorce case”; stating it was not aware of any
Virginia statute that permits it to acquire or have jurisdiction conferred to it by
an interstate transfer order; and ordering that its Clerk “return the case papers
to the issuing court.” Id. at 47.
[10] On April 9, 2019, D.W. filed an objection, a motion to dismiss, and a verified
request for a hearing in the Tippecanoe Superior Court. In his correspondence
with the court, D.W. stated:
[D.W.] respectfully requests that these be filed appropriately and
set on the Court’s docket in the above mentioned order for any
dates the Honorable Court is available from May 20, 2019 and
beyond. [D.W.] will defer to Court dates that are available at the
Court’s discretion. [D.W.] is currently unavailable for any court
date on these matters until after May 17, 2019 due to pre-existing
work obligations.
Please advise [D.W.] of any available dates and briefing
schedules that are needed with regards to these matters. If this
Honorable Court sets a hearing date on these matters, please
provide a minimum of 2 week notice for [D.W.] to notify his
employer of the time he needs to take off, please allow at least 2
weeks for correspondence between the Court and [D.W.] to be
received and acknowledged, and please allow a reasonable time
for [D.W.] to schedule transportation and lodging in Indiana due
to the long distance between our two states.
Id. at 48 (emphasis omitted). D.W. also alleged the court did not have personal
jurisdiction.
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[11] On April 18, 2019, the court scheduled a hearing for June 11, 2019. On May
24, 2019, the court rescheduled the hearing for July 9, 2019. On June 3, 2019,
D.W. filed an objection to the notice to appear arguing in part that the notice to
appear did not give any reason for the continuance that the court granted sua
sponte. On June 18, 2019, the court entered an order stating that the court set
the contested hearing at D.W.’s request and that “[w]hether or not [D.W.]
appears for the hearing, the Court will proceed to issue a ruling at that time.”
Id. at 195.
[12] On June 25, 2019, D.W. filed an “Objection to Failure to Acknowledge Receipt
of First Objection and Objection to Failure to Docket or Rule on Motion to
Dismiss in Violation of Indiana Rules of Court Rules of Trial Procedure Rule
53.1 Failure to Rule on a Motion”; an “Objection to Two Court Orders entered
on June 18, 2019”; an “Objection to three violations of ICPOA and violation of
Indiana Rules Of Court Rules of Trial Procedure Rule 53.5 Continuances”; and
a “Motion for Written Findings of Fact and Conclusions of Law.” Id. at 198.
On July 2, 2019, the court entered an order stating that D.W.’s additional
motions would be considered along with all other pending motions on July 9,
2019, and that “[b]ecause the Court set the hearing upon the previous request of
[D.W.], the Court does not require [D.W.’s] attendance, but will reserve that
time to consider all of the pending motions filed by [D.W.] in this matter, and
reserves that time in case [D.W.] does choose to attend and desires to be
heard.” Id. at 219.
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[13] On July 9, 2019, the court held the scheduled hearing and noted that neither
D.W. nor legal counsel for D.W. appeared and that it received correspondence
indicating D.W. might not appear. The court stated: “Given that it was
[D.W.’s] request for a hearing, he was given the opportunity to appear today.
As such, the protective order remains in place and the court will take under
advisement his choice not to appear and will consider further all the motions
that were filed by [D.W.].” Transcript Volume II at 11.
[14] On August 15, 2019, the court entered an order which found that it had subject
matter jurisdiction. The order addressed D.W.’s verified request for hearing
and stated: “This motion was previously granted, and the requested hearing
was scheduled.” Appellant’s Appendix Volume II at 222. As to D.W.’s
“Objection to Three Violations of IC 34-26-5 Chapter 5 Indiana Civil
Protection Order Acts and Objection to Violation of Indiana rules of Court
Rules of Trial Procedure Rule 53.5 Continuances,” the court’s order stated that
it initially set the hearing outside of thirty days at D.W.’s request in his
correspondence to the court on April 9, 2019. Id. It stated that, “[w]hile the
matter was initially set for June 11, 2019, the Court re-set the matter on its own
motion due to an unanticipated personal circumstance that arose for that date.”
Id. It also states that it “took notice of [D.W.’s] request for a minimum of two
weeks prior notice for any hearing date set, and as such re-set the matter for
July 9, 2019 in an effort to provide [D.W.] sufficient notice to make whatever
arrangements he desired in time for that date.” Id. at 222-223.
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[15] On August 26, 2019, D.W. filed a thirty-four page “Objection To Improper
Actions Taken By This Honorable Court Under The ‘Color of Law’ Against
Respondent Previously And In Their August 15, 2019 Order Which Violated
Constitutional Due Process Rights and Privacy Rights.” Appellant’s Appendix
Volume III at 2. On September 9, 2019, D.W. filed a notice of appeal listing
the court’s March 1, 2019 and August 15, 2019 orders as the appealed orders.
On September 23, 2019, the court entered an order in response to D.W.’s
August 26, 2019 motion and stated that D.W. waived any claim of error for
setting the contested hearing outside of thirty days where D.W. requested the
hearing on the 27th day after he was served with the ex parte order of
protection, requested a hearing date outside of thirty days, and requested no less
than two weeks advance notice. The court also found it had personal
jurisdiction and subject matter jurisdiction.
Discussion
[16] Initially, we note that a pro se litigant is held to the same standards as trained
attorneys and is afforded no inherent leniency simply by virtue of being self-
represented. Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). The court will
not indulge in any benevolent presumptions on his behalf. See Ballaban v.
Bloomington Jewish Cmty., Inc., 982 N.E.2d 329, 334 (Ind. Ct. App. 2013).
I.
[17] The first issue is whether the trial court had subject matter jurisdiction and
personal jurisdiction. D.W. asserts the court did not have subject matter
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jurisdiction because a pending divorce case existed in Virginia. He asserts he is
a resident of Florida and his Fourteenth Amendment right to due process was
violated when he was served with the ex parte order from Indiana without any
hearing on the matter.
[18] To the extent D.W. asserts that the trial court lacked subject matter jurisdiction,
the Indiana Supreme Court has held that “[s]ubject matter jurisdiction is the
power to hear and determine cases of the general class to which any particular
proceeding belongs.” K.S. v. State, 849 N.E.2d 538, 540 (Ind. 2006).
[19] Ind. Code Article 34-26 governs injunctions and restraining orders. Ind. Code §
34-26-1-3 is titled “Authority of circuit courts to grant” and provides in part that
“[r]estraining orders and injunctions may be granted by the circuit courts,
superior courts, or probate courts, or the judges of the circuit courts, superior
courts, or probate courts, in their respective counties.”
[20] At the time of the March 1, 2019 order for protection, Ind. Code § 34-26-5-4
provided:
(a) Any court of record has jurisdiction to issue a civil order for
protection.
(b) A petition for an order for protection must be filed in the
county in which the:
(1) petitioner currently or temporarily resides;
(2) respondent resides; or
(3) domestic or family violence occurred.
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(c) There is no minimum residency requirement to petition for an
order for protection.
(Subsequently amended by Pub. L. No. 266-2019, § 7 (eff. July 1, 2019)). 1
V.W.’s petition alleged that the “incident(s) of domestic or family violence,
stalking, or the sex offense” happened in Tippecanoe County, and that she lived
in Tippecanoe County. Appellant’s Appendix Volume II at 17.
[21] At the time of the March 1, 2019 hearing, Ind. Code § 34-26-5-6(1) provided
that “[a]n order for protection is in addition to, and not instead of, another
available civil or criminal proceeding.” Ind. Code § 34-26-5-6(2) provided that
“[a] petitioner is not barred from seeking an order because of another pending
proceeding.” However, Ind. Code § 34-26-5-6(4) provided that “[i]f a person
who petitions for an ex parte order for protection also has a pending case
involving: (A) the respondent . . . the court that has been petitioned for relief
shall immediately consider the ex parte petition and then transfer that matter to
the court in which the other case is pending.” The record reveals that the
Tippecanoe Superior Court, pursuant to Ind. Code § 34-26-5-6(4), considered
the petition and then transferred the matter to the Circuit Court of the City of
Virginia Beach, Virginia, in which the divorce case was pending. The Circuit
1
Pub. L. No. 266-2019, § 7 amended the statute such that subsection (b)(3) now provides: “A petition for an
order for protection must be filed in the county in which the . . . (3) domestic or family violence or
harassment occurred.” It also added subsection (d), which provides: “If a court has jurisdiction over an
action that relates to the subject matter of the requested civil order for protection under section 2(b) or 2(c)(3)
of this chapter, either because of an action pending in that court or in the exercise of the court’s continuing
jurisdiction, the petitioner must file the petition for an order for protection in that court.”
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Court of the City of Virginia Beach transferred the proceeding involving the
petition for the protective order back to the Tippecanoe Superior Court. Under
these circumstances, we cannot say that the Tippecanoe Superior Court erred or
that it lacked subject matter jurisdiction. 2
[22] To the extent D.W. asserts he was not provided notice of the March 1, 2019
hearing, we observe that the Indiana Civil Protection Order Act (“CPOA”) is
codified at Ind. Code Chapter 34-26-5 and that Ind. Code § 34-26-5-9 stated at
the time of the March 1, 2019 hearing:
(a) If it appears from a petition for an order for protection or from
a petition to modify an order for protection that domestic or
family violence has occurred or that a modification of an order
for protection is required, a court may:
(1) without notice or hearing, immediately issue an order for
protection ex parte or modify an order for protection ex parte; or
(2) upon notice and after a hearing, whether or not a
respondent appears, issue or modify an order for
protection.
(b) A court may grant the following relief without notice and
hearing in an ex parte order for protection or in an ex parte order
for protection modification:
(1) Enjoin a respondent from threatening to commit or
committing acts of domestic or family violence against a
2
To the extent D.W. cites Ind. Code §§ 31-14-16-1, 31-15-4-1, and 31-15-5-1, these statutes relate to
protective orders in the context of the establishment of paternity or in the context of dissolution under
Indiana law. Given the dissolution is pending in Virginia, we do not find these statutes to be instructive.
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petitioner and each designated family or household
member.
(2) Prohibit a respondent from harassing, annoying,
telephoning, contacting, or directly or indirectly
communicating with a petitioner.
*****
(4) Order a respondent to stay away from the residence,
school, or place of employment of a petitioner or a
specified place frequented by a petitioner and each
designated family or household member.
*****
(8) Order other relief necessary to provide for the safety
and welfare of a petitioner and each designated family or
household member.
Ind. Code § 34-26-5-9 (subsequently amended by Pub. L. No. 266-2019, § 9 (eff.
July 1, 2019)) (emphases added).
[23] V.W.’s petition alleged stalking by D.W. Stalking, for purposes of the CPOA,
is included in the definition of “domestic or family violence” pursuant to Ind.
Code § 34-6-2-34.5. Stalking is defined in Ind. Code § 35-45-10-1 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. The term does
not include statutorily or constitutionally protected activity.”
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[24] Ind. Code § 34-26-5-9(a) gives authority to the trial courts to issue ex parte
orders for protection without notice. Ind. Code § 34-26-5-9(b) gives trial courts
authority to issue certain relief without the requirement of notice and hearing in
an ex parte order for protection. The relief the trial court granted in the March
1, 2019 order included: (A) enjoining D.W. from threatening to commit or
committing acts of domestic or family violence, stalking or a sex offense against
V.W.; (B) prohibiting D.W. from harassing, annoying, telephoning, contacting,
or directly or indirectly communicating with V.W.; and (C) ordering him to
stay away from V.W.’s residence, school, and place of employment. This relief
is permitted by the ex parte statute. See Ind. Code § 34-26-5-9(b).
[25] With respect to personal jurisdiction, such a determination presents a question
of law we review de novo. Boyer v. Smith, 42 N.E.3d 505, 508 (Ind. 2015). “But
whether personal jurisdiction exists can depend upon factual determinations
concerning a defendant’s contacts with the forum state – in which case the
challenger bears the burden of disproving personal jurisdiction.” Id.
Accordingly, when the trial court issues findings of jurisdictional facts, we
review those findings for clear error. Id. at 509. In so doing, we consider
whether the evidence supports the findings and whether the findings support the
judgment. Id. We will reverse the trial court’s factual findings only when the
record contains no facts to support them either directly or indirectly. Id.
[26] Personal jurisdiction refers to a court’s power to impose judgment on a
particular defendant. Id. In Indiana, personal jurisdiction analysis begins with
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Indiana Trial Rule 4.4(A), which sets out examples of activities that often
support jurisdiction. Id. Ind. Trial Rule 4.4 provides:
Any person or organization that is a nonresident of this state, a
resident of this state who has left the state, or a person whose
residence is unknown, submits to the jurisdiction of the courts of
this state as to any action arising from the following acts
committed by him or her or his or her agent:
(1) doing any business in this state;
*****
(8) abusing, harassing, or disturbing the peace of, or violating a
protective or restraining order for the protection of, any person
within the state by an act or omission done in this state, or
outside this state if the act or omission is part of a continuing
course of conduct having an effect in this state.
In addition, a court of this state may exercise jurisdiction on any
basis not inconsistent with the Constitutions of this state or the
United States.
[27] The Indiana Supreme Court has interpreted “this catchall ‘any basis’ provision
to ‘reduce analysis of personal jurisdiction to the issue of whether the exercise
of personal jurisdiction is consistent with the federal Due Process Clause.’”
Boyer, 42 N.E.3d at 509 (quoting LinkAmerica Corp. v. Cox, 857 N.E.2d 961, 967
(Ind. 2006)). “More specifically, before an Indiana court can properly assert
personal jurisdiction over a defendant, the Due Process Clause of the
Fourteenth Amendment mandates that the defendant have ‘certain minimum
contacts with the state such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice.’” Id. (quoting
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LinkAmerica Corp., 857 N.E.2d at 967) (citing Int’l Shoe Co. v. Wash., 326 U.S.
310, 316, 66 S. Ct. 154 (1945)). Minimum contacts include acts defendants
themselves initiate within or without the forum state that create a substantial
connection with the forum state itself. Id. (citing Burger King Corp. v. Rudzewicz,
471 U.S. 462, 475, 105 S. Ct. 2174 (1985)).
[28] In his April 9, 2019 motion to dismiss, D.W. asserted that he contacted West
Lafayette Police Lieutenant Jonathan Eager on January 22, 2019, February 4,
2019, and February 11, 2019 regarding investigating V.W. with respect to
bigamy. He also asserted he contacted Tippecanoe County Sheriff’s Lieutenant
Travis Dowell on February 14, 2019, who responded that D.W. had provided
no evidence of a crime being committed by V.W. and suggested that D.W.
“finalize your divorce with [V.W.] in Virginia and move on.” Appellant’s
Appendix Volume II at 63. D.W. also contacted Purdue University, V.W.’s
employer. An exhibit attached to D.W.’s motion to dismiss consists of a letter
from a licensed investigator based in Indianapolis, Indiana, which indicates he
was hired to research V.W. and to locate information about her marrying
another man and details his surveillance of V.W. in Indiana and his
communication with her. Based upon the record, we cannot say the trial court
erred in concluding it possessed personal jurisdiction.
II.
[29] The next issue is whether the trial court erred in its sua sponte issuance of a
continuance on May 24, 2019. D.W. cites Ind. Code § 34-26-5-10 and asserts
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that the court improperly continued the June 11, 2019 hearing without showing
good cause.
[30] At the time of the May 24, 2019 continuance, Ind. Code § 34-26-5-10 provided
in part that “upon a request by either party not more than thirty (30) days after
service of the [ex parte order for protection] or modification, the court shall set
a date for a hearing on the petition” and that “[t]he hearing must be held not
more than thirty (30) days after the request for a hearing is filed unless
continued by the court for good cause shown.” (Subsequently amended by
Pub. L. No. 266-2019, § 10 (eff. July 1, 2019)).
[31] D.W. asserts that he was deprived of due process under the federal and state
constitutions because the court continued the hearing beyond the thirty days
specified in the statute. We observe that, following the service of the court’s
March 1, 2019 order on D.W. on March 13, 2019, D.W. did not request a
hearing until April 9, 2019. In his April 9, 2019 correspondence, D.W.
requested notice of a minimum of two weeks and requested that the matters be
“set on the Court’s docket . . . from May 20, 2019 and beyond” due to his
unavailability due to work obligations. Appellant’s Appendix Volume II at 48.
Thus, D.W. requested the trial court to schedule the hearing beyond thirty days
of his request. Further, while the court scheduled a hearing for June 11, 2019,
and continued the hearing on May 24, 2019, to July 9, 2019, D.W. did not
appear at the July 9, 2019 hearing. We do not find D.W.’s assertion that he
was deprived of due process persuasive. Further, a deprivation of due process
may amount to harmless error. See, e.g., U.S. Outdoor Adver. Co., Inc. v. Ind. Dep’t
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of Transp., 714 N.E.2d 1244, 1261 (Ind. Ct. App. 1999) (appellant’s due process
claim did not require reversal where it did not show it was prejudiced), trans.
denied. We cannot say that D.W. has demonstrated he was prejudiced by the
date of the hearing or that reversal is warranted on this basis.
III.
[32] The next issue is whether there was sufficient evidence to issue the protective
order. “Under our traditional two-tiered standard of review, see Ind. Trial Rule
52(A), we ask whether the evidence supports the trial court’s findings and
whether its findings support the judgment.” S.H. v. D.W., 139 N.E.3d 214, 220-
221 (Ind. 2020). In deference to the trial court’s proximity to the issues, we
disturb the order only where there is no evidence supporting the findings or the
findings fail to support the order. Fox v. Bonam, 45 N.E.3d 794, 798 (Ind. Ct.
App. 2015); Mysliwy v. Mysliwy, 953 N.E.2d 1072, 1076 (Ind. Ct. App. 2011),
trans. denied. We do not reweigh evidence or reassess witness credibility. Fox,
45 N.E.3d at 798. We consider only the probative evidence and reasonable
inferences supporting the order. Tisdial v. Young, 925 N.E.2d 783, 785 (Ind. Ct.
App. 2010).
[33] “To obtain a protective order, the petitioner must show the respondent
‘represents’ – present tense – ‘a credible threat to the safety of a petitioner or a
member of a petitioner’s household.’” S.H. v. D.W., 139 N.E.3d 214, 219 (Ind.
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2020) (quoting Ind. Code § 34-26-5-9(f)).3 “Thus, the respondent must pose a
threat to a protected person’s safety when the petitioner seeks relief.” Id. “If
the petitioner meets this burden, ‘the court shall grant relief necessary to bring
about a cessation of the violence or the threat of violence.’” Id. at 219-220
(quoting Ind. Code § 34-26-5-9(f)).
[34] The August 15, 2019 order states:
4. The Petition in this matter, and [V.W.’s] testimony at the ex
parte hearing indicated [D.W.] has relentlessly pursued [V.W.]
by contacting her places of employment, her associates, her legal
counsel, and the Purdue Police Department not with legitimate
efforts to communicate, but with accusations and allegations
intended to cause [V.W.] difficulties at her job, to endure
criminal investigations of bigamy or criminal behavior or have
her privacy and peace of mind invaded by requests for personal
information or her email communications.
5. The Court observes that the nature and tone of the
Defendant’s lengthy filings (some of which are dozens of pages in
length) evince the same behavior and include allegations that
[V.W.] is a bigamist and a liar that has engaged in efforts to rally
the Purdue Police Department and this Court into “believing”
[V.W.] over [D.W.].
a. An example of one of many such assertions includes an
allegation that [V.W.] “lied” to the Court and asserted that
[D.W.] lived in Tippecanoe County – when in fact [V.W.]
makes clear [D.W.] lives in Florida. The Court finds the
box checked in Section 5 of the petition is an obvious
scrivener’s error considering the Petition makes clear on
3
The quoted language of Ind. Code § 34-26-5-9 can now be found in subsection (g).
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the first page that [D.W.’s] address is in Florida. This
over-reaction of [D.W.’s] to any tiny insignificant detail,
error or fact is indicative of an obsessive stalking behavior
toward [V.W.] and/or anything to do with her.
6. [D.W.’s] own filings further detail lengthy surveillance of
[V.W.] conducted at [D.W.’s] direction. The documents include
a transcript of an interaction between a private investigator and
[V.W.] and her partner. The transcript details an event in which
the investigator gained access to [V.W.’s] home under false
pretenses, and audio-recorded the interaction between the
investigator and [V.W.]. Further, the questions asked by the
investigator of [V.W.] and her partner clearly evince an attempt
to gain information about the nature of [V.W.] and her partner’s
relationship and the size and layout of the residence. Additional
materials provided by [D.W.] include “reports” made by the
private investigator and sent to [D.W.] that detail surveillance
conducted of [V.W.] and included information about her
whereabouts, habits, social media activity, places she frequented,
and the associates or persons with whom she interacted. The
information further included photographs of [V.W.] and other
associates, and the make, model and license plate numbers of
vehicles believed to be associated with her. At times, more than
one investigator was involved in the surveillance.
7. Based on the foregoing, there exists proof by a preponderance
of the evidence that [D.W.] has engaged in a pattern of conduct
that constitutes stalking and which justifies the continued
issuance of the previously granted ex parte Order for Protection.
Appellant’s Appendix Volume II at 223-224.
[35] At the March 1, 2019, hearing, V.W. testified regarding the “constant ways of
harassment.” Transcript Volume II at 3. Based upon the record, we conclude
that V.W. presented evidence of probative value to establish by a
Court of Appeals of Indiana | Memorandum Decision 19A-PO-2095 | May 29, 2020 Page 19 of 20
preponderance of the evidence that D.W.’s actions would cause a reasonable
person to feel “terrorized, frightened, intimidated, or threatened.” Ind. Code §
35-45-10-1. Further, the trial court could reasonably infer that V.W. did feel
“terrorized, frightened, intimidated, or threatened.” Id.
[36] For the foregoing reasons, we affirm the trial court’s order. 4
[37] Affirmed.
Najam, J., and Kirsch, J., concur.
4
In her conclusion of her appellee’s brief, V.W. requests “an award of costs and attorneys’ fees related to this
action.” Appellee’s Brief at 19. We decline to award attorney fees.
Court of Appeals of Indiana | Memorandum Decision 19A-PO-2095 | May 29, 2020 Page 20 of 20