MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                           Sep 08 2015, 8:17 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Samuel L. Bolinger                                       Paul R. Sturm
Fort Wayne, Indiana                                      Shambaugh, Kast, Beck &
                                                         Williams, LLP
                                                         Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jon Richard Loomis,                                      September 8, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         02A03-1503-PO-80
        v.                                               Appeal from the Allen Superior
                                                         Court
Barbara Jean Loomis,                                     The Honorable Perry D. Shilts,
Appellee-Respondent                                      Judge Pro Tem
                                                         Trial Court Cause Nos.
                                                         02D07-0403-DR-124 and 02D02-
                                                         1410-PO-3065



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1503-PO-80 | September 8, 2015   Page 1 of 6
                                                 Case Summary
[1]   Jon Richard Loomis (“Father”) appeals the trial court’s denial of his petition for

      a protective order filed against his ex-wife, Barbara Jean Loomis (“Mother”). 1

      Father sought a protective order on behalf of the parties’ minor son, J.L.,

      claiming that domestic or family violence had occurred between Mother and

      J.L., such that Mother represents a credible threat to J.L.’s safety. Following a

      hearing, the trial court denied Father’s petition concluding that he had not met

      his burden of proving, by a preponderance of the evidence, that domestic

      violence had occurred. On appeal, Father claims that the trial court’s decision

      is clearly erroneous. Concluding that the trial court did not clearly err in

      denying Father’s petition and declining to issue a protective order, we affirm.


                                     Facts and Procedural History
[2]   Father and Mother’s marriage was dissolved in 2005 and they share joint legal

      and physical custody of their thirteen-year-old-son, J.L. On October 16, 2014,

      Father filed a petition for a protective order against Mother on behalf of J.L.

      Father claimed that Mother struck J.L. on one occasion and kicked J.L. on two

      occasions over a two-year period. An ex parte protective order was issued and

      the matter was set for an evidentiary hearing in the dissolution court on

      November 26, 2014. Both parties appeared at the hearing and presented




      1
          We note that portions of the record also refer to Mother as “Barbara J. Ruden.”


      Court of Appeals of Indiana | Memorandum Decision 02A03-1503-PO-80 | September 8, 2015   Page 2 of 6
      evidence and testimony. Following the hearing, 2 the trial court concluded that

      Father had not met his burden of proving by a preponderance of the evidence

      that domestic violence had occurred sufficient to justify the issuance of a

      protective order. Accordingly, the trial court denied Father’s petition and

      ordered the prior ex parte order terminated. This appeal ensued.


                                      Discussion and Decision
[3]   The Indiana Civil Protection Order Act (“CPOA”) provides that a protective

      order may be issued when a trial court finds, by a preponderance of the

      evidence, that the respondent represents a credible threat to the safety of the

      petitioner or a member of the petitioner’s household—that is, that domestic or

      family violence has occurred. See Maurer v. Cobb-Maurer, 994 N.E.2d 753, 756

      (Ind. Ct. App. 2013) (citing Ind. Code § 34-26-5-9). Except for an act of self-

      defense, “domestic or family violence” means 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.

              (3) Causing a family or household member to involuntarily
              engage in sexual activity by force, threat of force, or duress.



      2
       Father included large portions of the hearing transcript in his appellant’s appendix in contravention of
      Indiana Appellate Rule 50(F), which states, “Because the Transcript is transmitted to the Court on Appeal
      pursuant to Rule 12(B), parties should not reproduce any portion of the Transcript in the Appendix.”

      Court of Appeals of Indiana | Memorandum Decision 02A03-1503-PO-80 | September 8, 2015           Page 3 of 6
              (4) Beating [], torturing [], mutilating [], or killing a vertebrate
              animal without justification with the intent to threaten,
              intimidate, coerce, harass, or terrorize a family or household
              member.


      Ind. Code § 34-6-2-34.5.


[4]   “Generally, a trial court has discretion to grant protective relief according to the

      terms of the CPOA.” A.N. v. K.G., 10 N.E.3d 1270, 1271 (Ind. Ct. App. 2014).

      In reviewing the sufficiency of the evidence to support the trial court’s judgment

      regarding a protective order, we neither reweigh the evidence nor resolve

      questions of credibility. See Tons v. Bley, 815 N.E.2d 509, 511 (Ind. Ct. App.

      2004). We consider only the probative evidence and reasonable inferences that

      support the trial court’s judgment. Maurer, 994 N.E.2d at 755. We will reverse

      the trial court’s judgment regarding a protective order only if it is clearly

      erroneous—that is to say, when a review of the record leaves us firmly




      Court of Appeals of Indiana | Memorandum Decision 02A03-1503-PO-80 | September 8, 2015   Page 4 of 6
      convinced that a mistake has been made. 3 See Mysliwy v. Mysliwy, 953 N.E.2d

      1072, 1076 (Ind. Ct. App. 2011), trans. denied.


[5]   In seeking a protective order against Mother, Father bore the burden of proof by

      a preponderance of the evidence that Mother represents a credible threat to the

      safety of J.L. Father claimed that, over a two-year period, Mother struck J.L.

      in the back of the head on one occasion and kicked J.L. in the leg on two

      occasions. At the hearing, J.L. testified that Mother once used her bare hand to

      hit him in the back of the head, which caused him to feel “terrible.” Tr. at 63.

      J.L. also testified that Mother once kicked him in the leg, which caused him to

      feel “bad” and “fearful.” Id. at 64-65. J.L. then recalled that, during a

      contentious parenting-time exchange between his parents, Mother again kicked

      him in the leg. J.L. stated that Mother kicked him after he disobeyed her,

      shoved her, and refused to get in her car.




      3
        Father mentions briefly in the standard of review section of his appellant’s brief that the trial court failed to
      make findings of fact sufficient to facilitate our appellate review of the court’s decision and that remand is
      required. See Appellant’s Br. at 10 (citing Hanauer v. Hanauer, 981 N.E.2d 147, 148 (Ind. Ct. App. 2013)
      (protection orders are in the nature of injunctions, and therefore in granting a protective order, the trial court
      must sua sponte make special findings of fact and conclusion thereon) (emphasis added)). First, we note that
      while Father makes extensive arguments on this issue in his reply brief, we do not think that Father’s terse
      reference to the lack of special findings in his initial brief is adequate to preserve our consideration of those
      arguments. See Kelly v. Levandoski, 825 N.E.2d 850, 857 n.2 (Ind. Ct. App. 2005) (“Appellants are not
      permitted to present new arguments in their reply briefs, and any argument an appellant fails to raise in his
      initial brief is waived for appeal.”), trans. denied. Waiver notwithstanding, given that the trial court here
      denied the protective order for lack of credible evidence, we find the record before us sufficient for our
      review. Although we do not disagree that special findings would have been helpful, we conclude that
      remand is unnecessary under the circumstances presented. But see E.W. v. J.W., 20 N.E.3d 889, 899 (Ind. Ct.
      App. 2014) (relying on Hanauer and concluding that remand for special findings was necessary to facilitate
      appellate review), trans. denied (2015).

      Court of Appeals of Indiana | Memorandum Decision 02A03-1503-PO-80 | September 8, 2015                 Page 5 of 6
[6]   Much to the contrary, Mother testified that she had never struck J.L. in the

      back of the head or kicked him in the leg on any occasion. Mother testified that

      she believed that J.L. had been coached by Father to make these false claims.

      A witness who was present during the parenting-time exchange testified that,

      while she did see J.L. grab Mother’s shoulders and shove her, she did not see

      Mother ever kick J.L.


[7]   Based upon the conflicting evidence presented, the trial court determined that

      Father had not meet his burden to prove by a preponderance of the evidence

      that domestic or family violence had occurred sufficient to justify the issuance

      of a protective order. While Father urges us to conclude that J.L. is in need of

      protection because Mother’s disciplinary tactics are too harsh and

      disproportionate to J.L.’s behavior, we remind Father that Mother wholly

      denies ever attempting to cause, threatening to cause, or causing physical harm

      to J.L., and it was the trial court’s prerogative to assess the credibility of her

      testimony. Indeed, the entirety of Father’s argument on appeal is simply a

      request for us to reweigh the evidence and reassess witness credibility in his

      favor, which we will not do. Under the circumstances, we cannot say that the

      trial court clearly erred when it denied Father’s petition for a protective order.


[8]   Affirmed.


      Riley, J., and Brown, J., concur.




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