                                                                                       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


       Court of Appeals of Indiana | Opinion 49A02-1606-DR-1365 | August 1, 2017   Page 14 of 15
       for further proceedings consistent with this opinion to determine the

       appropriate remedy.


[31]   Reversed in part and remanded.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1606-DR-1365 | August 1, 2017   Page 15 of 15
