      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any                             Oct 10 2019, 6:25 am
      court except for the purpose of establishing                              CLERK
      the defense of res judicata, collateral                               Indiana Supreme Court
                                                                               Court of Appeals
      estoppel, or the law of the case.                                          and Tax Court




      ATTORNEY FOR APPELLANT
      Robert R. Faulkner
      Faulkner Law Office
      Evansville, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Ryan Matthew Hart,                                       October 10, 2019
      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               19A-PO-579
              v.                                               Appeal from the
                                                               Vanderburgh Superior Court
      R.D.,                                                    The Honorable
      Appellee-Petitioner.                                     Robert J. Pigman, Judge
                                                               The Honorable
                                                               Jill R. Marcrum, Magistrate
                                                               Trial Court Cause No.
                                                               82D03-1812-PO-6746



      Kirsch, Judge.


[1]   Ryan Matthew Hart (“Hart”) appeals the trial court’s entry of a protective order

      issued against him and in favor of R.D. He raises several issues on appeal,


      Court of Appeals of Indiana | Memorandum Decision 19A-PO-579 | October 10, 2019               Page 1 of 9
      which we consolidate and restate as whether R.D. presented sufficient evidence

      to support the trial court’s issuance of a protective order against Hart.


[2]   We affirm.


                                 Facts and Procedural History
[3]   R.D. and Hart had been dating on and off from April 2017 to December 2018.

      On December 21, 2018, R.D. filed a petition for an order of protection against

      Hart and requested a hearing on the matter. Appellant’s App. Vol. 2 at 12-17.

      R.D. alleged that she had been the victim of domestic or family violence and

      stalking, and that Hart was the perpetrator. Id. at 12. She also alleged Hart had

      attempted to and did cause her physical harm and that he had placed her in fear

      of physical harm. Id. at 13. R.D. alleged that these incidents occurred in 2018

      on October 13, November 2, November 12, and December 4. Id. at 14-15.

      R.D. asked that the order for protection cover herself as well as three other

      family or household members. Id. at 15. On December 21, 2018, the trial court

      issued an ex parte protective order without notice to Hart.


[4]   On January 25, 2019, the trial court began a hearing regarding the imposition of

      a permanent protective order and heard the following testimony from R.D.:


              [Hart] and I dated for a period of about two years off and on, um,
              I previously filed a protected order. Um, it was only extended six
              months — ended up trying to date again, um, the situation that
              we had before when I had tried to break it off he had threatened
              suicide a couple of times, um, was aggressive, had intimidated
              me a couple times.


      Court of Appeals of Indiana | Memorandum Decision 19A-PO-579 |October 10, 2019   Page 2 of 9
              Um, so this time around after I tried to break it off, um, I cut off
              all communication and he started contacting me on my work
              email and reaching out to family and friends who he’s never even
              met. Um, and I’m just trying to put some distance between it
              and get no contact. This is the only way to do it.


      Tr. Vol. II at 4. R.D. testified that Hart “had his cousin message [her] on

      December twenty-first. He called [her] parents’ house; he had his mother call

      [her] parents’ house on New Year’s Eve.” Id. at 5. She also testified that “he

      reached out to a couple of friends on December fifteenth on social media, and

      then three more friends on December twenty-first on social media.” Id. At that

      time, the hearing was continued to February 22, 2019 to allow Hart to obtain

      counsel. The ex parte protective order was also continued.


[5]   The following evidence was introduced when the hearing continued on

      February 22, 2019. Focusing on specific incidents, R.D. testified that she

      “showed up” at Hart’s house on October 13, 2018, and “he had another woman

      in his bed.” Id. at 12. R.D. was upset and asked Hart to return her house key,

      but he refused. Id. R.D. “tried to get in [Hart’s] truck to get [her house key], he

      immediately hopped in the truck, [with R.D. in it,] took off down the road

      driving erratically, slapping [her]—physically assaulted [her] busting [her] lips.”

      Id. R.D. said that, even after that day, Hart still tried to get in touch with her.

      Id.


[6]   Hart’s version of events differed from R.D.’s version. He testified that he and

      R.D. had a mutual relationship until December 11, 2018, and although it was

      “off and on,” R.D. was the one who rekindled the relationship. Id. at 32.
      Court of Appeals of Indiana | Memorandum Decision 19A-PO-579 | October 10, 2019   Page 3 of 9
      Regarding the events of October 13, 2018, Hart testified that the woman R.D.

      found in his home was just a friend. Id. Hart said he was leaving in his truck

      when R.D. jumped in; he said he stopped multiple times to try and get her out

      of the truck. Id. Hart said that R.D. had taken back her house key in October

      2018, and that he was the one who had been punched in the face and neck by

      R.D. while he drove the truck. Id. at 34.


[7]   R.D. described a second incident that occurred on November 2, 2018, when she

      went to Hart’s house to return some of his possessions. Id. at 13. R.D. testified

      that, after she dropped a bag of his things onto the lawn, he “ran out, stood in

      front of [her] vehicle, refused to get out from the front of [her] vehicle, um,

      [R.D.] threatened to call the cops; he said he would wait till the cops got there

      and run inside.” Id. R.D. had to drive through a cornfield to get out, and then

      Hart showed up at her house about ten minutes later beating on the doors and

      the windows trying to talk. Id. When Hart went to R.D.’s house, a friend of

      R.D.’s called the police. Id. at 37. After the police arrived, they “banned” Hart

      from R.D.’s residence. Id. at 13. Hart testified that he was in his home when

      he saw R.D. drive near his property and throw things onto his yard. Id. at 36.

      Hart said he stepped onto the driveway, and R.D. drove around him. Id. Hart

      said that R.D. did not drive through a cornfield, as she stated. Id.


[8]   Finally, R.D. testified about incidents that occurred in December. She said that

      Hart had downloaded an app that made it look like he was calling her from

      different phone numbers. Id. at 13. R.D. testified that he called and texted her

      “over and over” trying to get her to talk to him. Id. R.D. said that Hart
      Court of Appeals of Indiana | Memorandum Decision 19A-PO-579 | October 10, 2019   Page 4 of 9
      “threatened to kill himself several times when [she] tried to break off the

      relationship.” Id. R.D. changed her phone number due to these harassing calls

      and messages. Id. However, after R.D. cut off her phone, Hart began emailing

      R.D. “on her work email.” Id. She testified that she received four emails at her

      office on December 4, 2018 and one on each of December 7 and December 19.

      Id. at 17. R.D. testified that, during their relationship, Hart subjected her to

      emotional, verbal, and physical abuse. Id. Furthermore, Hart applied for a job

      at R.D.’s place of employment.


[9]   Again, the stories diverged. Hart said that even though R.D. changed her

      phone number, she repeatedly called him from a blocked number and tried to

      reach him through email and Instagram. Id. at 34. Hart conceded that he was

      in contact with R.D.’s father—a person covered by the protective order. Id. at

      37. Hart stated that the contact occurred only after R.D.’s father had sent Hart

      a message on Facebook. Id. In an effort to avoid violating the protective order,

      Hart had his mother reach out to R.D’s father. Id. Hart spoke only once to

      R.D.’s father, who “just wanted to let [Hart] know that he didn’t have any

      issues with [him] and he didn’t want . . . to be in this paperwork and told [Hart

      he ] was always welcome to come by.” Id. Hart said that R.D. continued to try

      and be in touch with him through December 11, 2018; Hart claimed that R.D.

      even said that she was going to get the ban dropped as a Christmas gift for Hart.

      Id. at 38. Hart testified that his job managing a strip club created some of the

      conflict between the two. Id. at 39. Two days before the protective order was




      Court of Appeals of Indiana | Memorandum Decision 19A-PO-579 | October 10, 2019   Page 5 of 9
       filed, Hart contacted R.D. and told her that he had quit the job at the strip club.

       Id. Hart testified that that was the last time he contacted R.D. Id.


[10]   During the hearing, the trial court admitted into evidence two exhibits proffered

       by Hart. Respondent’s Exhibit 1 was a copy of Instagram messages between

       Hart and R.D. during the period from November 23 through December 2,

       2018. Ex. Vol. I at 14-100. Respondent’s Exhibit 2 was a copy of emails

       between Hart and R.D. from December 2018 on the dates of December 10, 11,

       13, 14, and 19. Id. at 102-03. The exhibits reveal that the parties willingly

       corresponded with each other after each of these incidents. However, the

       exchanges also reflect that the parties had a complicated relationship.


[11]   On February 22, 2019, the trial court issued a protective order against Hart and

       in favor of R.D. The trial court found that “domestic or family violence has

       occurred sufficient to justify the issuance of this Order.” Appellant’s App. Vol. 2

       at 7. The trial court made no finding that stalking had occurred. Id. at 7-9.

       Hart now appeals.


                                      Discussion and Decision
[12]   We begin by noting that R.D. has not filed an appellee’s brief. When an

       appellee fails to file a brief, we need not undertake the burden of developing an

       argument on appellee’s behalf. C.V. v. C.R., 64 N.E.3d 850, 852 (Ind. Ct. App.

       2016). Instead, applying a less stringent standard of review, we may reverse the

       trial court’s judgment if the appellant can prove a case of prima facie error. Id.

       “Prima facie error in this context is defined as, ‘at first sight, on first appearance,

       Court of Appeals of Indiana | Memorandum Decision 19A-PO-579 | October 10, 2019   Page 6 of 9
       or on the face of it.’” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.

       2006) (quoting Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct. App. 1999)).


[13]   Hart contends that there was insufficient evidence to support the issuance of a

       protective order against him and in favor of R.D., both because the trial court

       disregarded the testimony of his two witnesses and because the incidents upon

       which the order was issued were remote in time. “Protective orders are similar

       to injunctions and, therefore, in granting such an order the trial court must sua

       sponte make special findings of fact and conclusions thereon.” Fox v. Bonam, 45

       N.E.3d 794, 798 (Ind. Ct. App. 2015) (citing Hanauer v. Hanauer, 981 N.E.2d

       147, 148 (Ind. Ct. App. 2013)). We apply a two-tiered standard of review: we

       first determine whether the evidence supports the findings, and then we

       determine whether the findings support the order. Id. at 149. 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.

       Koch Dev. Corp. v. Koch, 996 N.E.2d 358, 369 (Ind. Ct. App. 2013), trans. denied.

       We do not reweigh evidence or reassess witness credibility, and we consider

       only the evidence favorable to the trial court’s order. Id. The party appealing

       the order must establish that the findings are clearly erroneous. Id. “Findings

       are clearly erroneous when a review of the record leaves us firmly convinced

       that a mistake has been made.” Mysliwy v. Mysliwy, 953 N.E.2d 1072, 1076

       (Ind. Ct. App. 2011) (citation omitted), trans. denied.


[14]   Pursuant to the Indiana Civil Protection Order Act (“CPOA”), “[a] person who

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

       Court of Appeals of Indiana | Memorandum Decision 19A-PO-579 | October 10, 2019   Page 7 of 9
       order for protection against a . . . family or household member who commits an

       act of domestic or family violence[.]” Ind. Code § 34-26-5-2(a); M.R. v. B.C.,

       120 N.E.3d 220, 223 (Ind. Ct. App. 2019). “An individual is a ‘family or

       household member’ of another person if the individual . . . is dating or has

       dated the other person . . . .” Ind. Code § 34-6-2-44.8(a)(2). A finding that

       domestic violence has occurred sufficient to justify the issuance of a protective

       order means that a respondent represents a credible threat to the safety of a

       petitioner or a member of the petitioner’s household. Ind. Code § 34-26-5-9(f)

       (West 2018).


[15]   Here, R.D. testified that she and Hart had been dating for over a year. R.D.

       then raised the following three incidents in support of her request for a

       protective order: (1) that Hart had hit and harmed her in October 2018; (2) that

       he had blocked the driveway when she tried to leave Hart’s home in November

       2018; and (3) that he had repeatedly made unwanted calls to R.D. and sent her

       unwanted emails. “To obtain an order of protection, the petitioner must

       establish at least one of the allegations in the petition by a preponderance of the

       evidence.” M.R., 120 N.E.3d at 223. Ignoring the latter two incidents, the trial

       court found that, “[R.D.] has shown, by a preponderance of the evidence, that

       domestic or family violence has occurred sufficient to justify the issuance of this

       Order.” Appellant’s App. Vol. 2 at 7. R.D. testified that on October 13, 2018,

       R.D. “tried to get in [Hart’s] truck to get [her house key], he immediately

       hopped in the truck, [with R.D. in it,] took off down the road driving

       erratically, slapping [her]—physically assaulted [her] busting [her] lips.” Id. at


       Court of Appeals of Indiana | Memorandum Decision 19A-PO-579 | October 10, 2019   Page 8 of 9
       12. Hart testified that he did not hit R.D.; instead, she had hit him. Tr. Vol. II

       at 34. The evidence presented to the trial court was contradictory and could

       have supported a finding of the need for a protective order or a finding that no

       protective order was warranted. The decision rested on the interpretation of the

       weight of the evidence and the credibility of the witnesses.


[16]   We recognize that trial courts must exercise judgment, particularly as to

       credibility of witnesses, and “we defer to that judgment because the trial court

       views the evidence firsthand and we review a cold documentary record.”

       MacLafferty v. MacLafferty, 829 N.E.2d 938, 941 (Ind. 2005); see In re Adoption of

       O.R., 16 N.E.3d 965, 973 (Ind. 2014) (trial judge is in best position to judge the

       facts, determine witness credibility, and “get a feel for the family dynamics”).

       Thus, to the extent credibility or inferences are to be drawn, we give the trial

       court’s conclusions substantial weight. MacLafferty, 829 N.E.2d at 941. Hart

       has not shown that the trial court committed prima facie error when it entered

       an order of protection in favor or R.D. We affirm the trial court’s issuance of

       the protective order, finding that there was sufficient evidence for the trial court

       to conclude by a preponderance of the evidence that “domestic or family

       violence has occurred sufficient to justify the issuance of this Order.”

       Appellant’s App. Vol. 2 at 7.


[17]   Affirmed.


[18]   Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PO-579 | October 10, 2019   Page 9 of 9
