                                                                        Feb 16 2016, 9:26 am




ATTORNEY FOR APPELLANT                                       ATTORNEY FOR APPELLEE
Mark J. Crandley                                             John A. Kraft
Barnes & Thornburg LLP                                       Young, Lind, Endres & Kraft
Indianapolis, Indiana                                        New Albany, Indiana



                                              IN THE
     COURT OF APPEALS OF INDIANA

Lisa Costello,1                                              February 16, 2016
Appellant-Petitioner,                                        Court of Appeals Case No.
                                                             10A04-1509-PO-1438
         v.                                                  Appeal from the Clark Circuit
                                                             Court
Wayne Zollman,                                               The Honorable William Dawkins,
Appellee-Respondent                                          Jr., Magistrate
                                                             Trial Court Cause No. 10C02-
                                                             1507-PO-308



Crone, Judge.




1
  18 U.S.C. § 2265(d)(3) applies only to parties who have received a protective order; because Costello is not
a party “protected under” a protective order, initials need not be used.

Court of Appeals of Indiana | Opinion 10A04-1509-PO-1438| February 16, 2016                        Page 1 of 11
                                              Case Summary
[1]   Lisa Costello appeals the dismissal of her petition for a protective order. The

      trial court indicated that it dismissed her petition because she failed to carry her

      burden of proof. On appeal, Costello argues that the trial court failed to make

      findings pursuant to Indiana Trial Rule 52(A) and therefore remand is

      necessary for such findings. In the alternative, she asserts that the trial court

      abused its discretion in denying her petition. We conclude that the trial court’s

      order is adequate for our review and thus remand for Trial Rule 52(A) findings

      is unnecessary. We also conclude that the trial court did not abuse its discretion

      in dismissing Costello’s petition. Accordingly, we affirm.


                                  Facts and Procedural History
[2]   Costello and Wayne Zollman are neighbors in rural Clark County. Their farms

      share a common border, and they have been engaged in a boundary dispute.

      Zollman often works at a barn that is 125 feet from Costello’s property. His

      home and deck can be seen from Costello’s property. Costello’s farm

      responsibilities require her to work near the boundary with Zollman’s property.

      Because they both regularly work outside near the boundary, they are often

      outside at the same time and within eyesight of each other.


[3]   Costello filed a petition for a protective order, alleging that Zollman placed her

      in fear of physical harm, committed stalking against her, and committed a sex

      act against her. Specifically, she alleged that Zollman comes outside his barn

      and urinates in her view and has also dropped his pants and exposed himself to


      Court of Appeals of Indiana | Opinion 10A04-1509-PO-1438| February 16, 2016   Page 2 of 11
      her, that he stood in her path as she rode her motorcycle causing her to take

      evasive action to avoid him, and that he approached her when her dirt bike was

      stalled but her phone rang so he walked away. Appellant’s App. at 7, 11-20.

      She also alleged that Zollman let his animals graze on her property.


[4]   The trial court held a hearing on Costello’s petition. Costello testified that

      when she works near Zollman’s home she usually has a “diesel tractor or

      something that’s making noise” and Zollman will come out of his barn, face

      her, and urinate in front of her. Tr. at 13. Costello testified that Zollman had

      urinated in front of her or exposed himself to her at least twelve times. She said

      that the last two times, he was “flashing” her and that “there wasn’t any

      urinating involved.” Id. at 16. One of those times, he was on his deck and

      dropped his swim trunks to his knees. Id. at 17. She also testified that she was

      riding her motorcycle on her property and “he was actually standing on [her]

      property” and she had to accelerate to quickly get by him. Id. at 19. She

      described another instance in which her motorcycle had stalled and she saw

      Zollman coming toward her, but when her phone rang he went away. Id. at 20-

      21. Costello submitted blurry photographs of Zollman that she alleged show

      that he is urinating outside. She testified that she had to get “a little sneaky” to

      get the photographs, and she hid behind a tree when she took them. Id. at 24-

      25.


[5]   Zollman testified that Costello’s photographs show him talking on the phone,

      not urinating. Id. at 48. He testified that he is regularly in and out of his barn

      and that he does not come out to see Costello. Id. at 49. He also testified that

      Court of Appeals of Indiana | Opinion 10A04-1509-PO-1438| February 16, 2016   Page 3 of 11
      he had never been on Costello’s property and never will be. Id. at 51-52.

      Zollman denied urinating in front of Costello twelve times. Id. at 54. He

      testified that he does not pay any attention to Costello. Id. at 55. He also

      denied that he was stalking Costello. Id. at 45-46.


[6]   At the conclusion of the hearing, the trial court informed the parties that it

      would take the issue under advisement and offered the parties the opportunity

      to submit “case authority.” Id. at 61. Both parties stated their desire to do so.

      Thereafter, Costello filed a “Post-Hearing Memorandum of Law” and Zollman

      filed findings of fact and conclusions of law. The trial court issued a form order

      dismissing Costello’s petition for protective order because “[Costello] has not

      shown, by a preponderance of the evidence, that stalking or a sex offense has

      occurred sufficient to justify the issuance of an Order for Protection.”

      Appellant’s App. at 3. This appeal ensued.


                                      Discussion and Decision

       Section 1 – The trial court is not required to make Trial Rule
      52(A) findings when denying a petition for a protective order.
[7]   Civil protective orders are governed by the Indiana Civil Protection Order Act

      (“CPOA”), which we construe to promote “the protection and safety of all

      victims of domestic or family violence in a fair, prompt, and effective manner”

      and the “prevention of future domestic and family violence.” Ind. Code § 34-

      26-5-1. Domestic violence includes stalking. Ind. Code § 34-6-2-34.5. Thus, a

      person who is or has been a victim of domestic or family violence may file a


      Court of Appeals of Indiana | Opinion 10A04-1509-PO-1438| February 16, 2016   Page 4 of 11
      petition for an order for protection against a person who has committed

      stalking. Ind. Code § 34-26-5-2(a). Stalking is defined 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” but does not include

      statutorily or constitutionally protected activity. Ind. Code § 35-45-10-1.

      Harassment is defined as “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” but does not include statutorily or

      constitutionally protected activity. Ind. Code § 35-45-10-2. Impermissible

      contact “includes but is not limited to knowingly or intentionally following or

      pursuing the victim.” Ind. Code § 35-45-10-3. Upon a showing of domestic

      violence “by a preponderance of the evidence, the court shall grant relief

      necessary to bring about a cessation of the violence or the threat of violence.”

      Id. 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).


[8]   Costello argues that in denying a petition for a protective order, the trial court is

      required to sua sponte make special findings of fact pursuant to Indiana Trial




      Court of Appeals of Indiana | Opinion 10A04-1509-PO-1438| February 16, 2016   Page 5 of 11
      Rule 52(A), the trial court did not do so here, and therefore remand is necessary

      for special findings. Trial Rule 52(A) provides in relevant part,

               In the case of issues tried upon the facts without a jury or with an
               advisory jury, the court shall determine the facts and judgment
               shall be entered thereon pursuant to Rule 58. Upon its own
               motion, or the written request of any party filed with the court
               prior to the admission of evidence, the court in all actions tried
               upon the facts without a jury or with an advisory jury (except as
               provided in Rule 39[D]) shall find the facts specially and state its
               conclusions thereon. The court shall make special findings of fact
               without request


                 (1) in granting or refusing preliminary injunctions;


                 (2) in any review of actions by an administrative agency; and


                 (3) in any other case provided by these rules or by statute.


[9]   In her appellant’s brief, Costello relies on Hanauer v. Hanauer, 981 N.E.2d 147

      (Ind. Ct. App. 2013), in which another panel of this court likened protective

      orders to injunctions and concluded that when “granting a protective order the

      trial court must sua sponte make special findings of fact and conclusions

      thereon.” Id. at 148 (citing Ind. Trial Rule 52(A), Ind. Code § 34-26-5-9(a) and

      -(f), and Tisdial v. Young, 925 N.E.2d 783, 785 (Ind. Ct. App. 2010)). 2 See also

      Fox v. Bonam, No. 55A01-1503-PO-112, 2015 WL 6087343, at *3 (Ind. Ct. App.




      2
         In Tisdial, we stated that the “trial court may issue or modify an order for protection only upon a finding
      ‘that domestic or family violence has occurred.’” 925 N.E.2d at 785 (citing Ind. Code § 34-26-5-9(a) and -(f)).

      Court of Appeals of Indiana | Opinion 10A04-1509-PO-1438| February 16, 2016                       Page 6 of 11
       Oct. 16, 2015) (citing Hanauer, 981 N.E.2d at 148). We observe that even

       though findings are required to grant a petition for a protective order, the

       findings need not be extensive. In Hanauer, the trial court’s “findings” were not

       extensive but were adequate for appellate review of the trial court’s decision:

                [T]he trial court found that domestic or family violence, or
                stalking ... occurred sufficient to justify the issuance of the
                Protective Order. The court further found that Husband
                represents a credible threat to the safety of Wife ... or a member
                of ... Wife’s household. And, with these findings, the court
                concluded that Wife was a victim of domestic violence and
                entitled to the issuance of a protective order.


       Id. at 149 (citations, brackets, and quotation marks omitted). The Hanauer

       court concluded that the husband had failed to establish that the findings were

       clearly erroneous. Id. at 150. 3


[10]   Moreover, we observe that Hanauer involved an appeal of the grant of a

       protective order. 4 Indiana Code Section 34-26-5-9 requires a finding that

       domestic or family violence has occurred in order to grant a protective order.

       See also Tisdial, 925 N.E.2d at 785. The reason for requiring findings when a

       protective order is granted is to establish the basis for restricting a person’s

       rights. We are unpersuaded that Hanauer should be extended to require Trial



       3
         In Fox, the trial court found that the appellant had committed stalking against the appellee without
       specifying which of the five allegations in the petition constituted stalking. 2015 WL 6087343, at *3. As in
       Hanauer, extensive findings were not required for adequate appellate review.
       4
         We observe that Trial Rule 52(A) requires the trial court to make special findings of fact “in granting or
       refusing preliminary injunctions.” (Emphasis added.)

       Court of Appeals of Indiana | Opinion 10A04-1509-PO-1438| February 16, 2016                        Page 7 of 11
       Rule 52(A) special findings when a trial court denies a petition for a protective

       order. 5 Here, the trial court dismissed Costello’s petition for a protective order

       because “[Costello] has not shown, by a preponderance of the evidence, that

       stalking or a sex offense has occurred sufficient to justify the issuance of an

       Order for Protection.” Appellant’s App. at 3. Thus, the trial court provided the

       basis for its decision. Where the petitioner has failed to sustain her burden of

       proof, an order like the one the trial court used here is adequate for appellate

       review.


[11]   In her reply brief, Costello relies on E.W. v. J.W., 20 N.E.3d 889, 899 (Ind. Ct.

       App. 2014), trans. denied (2015), in which this Court stated that Trial Rule 52(A)

       special findings were required for a denial of a protective order. E.W. is

       distinguishable. In that case, the trial court found as follows:

               [T]here was no evidence to suggest that any continuing problems
               have occurred between the parties for several months even if at
               one time there might have been issues. Assuming that there were
               issues in the past, [F]ather does not have clean hands in this
               matter, as he was inappropriately denying the mother visitation
               rights to her son at that time, which could have contributed to the
               issues between them.




       5
         Zollman cites Reed v. Ashcraft, No. 02A03-1301-PO-23 (Ind. Ct. App. Sept. 24, 2013), and Loomis v. Loomis,
       No. 02A03-1503-PO-80 (Ind. Ct. App. Sept. 8, 2015), to support his argument that the dismissal of a petition
       for a protective order does not require Trial Rule 52(A) findings. Both are memorandum decisions and
       therefore are noncitable pursuant to Indiana Appellate Rule 65(D).

       Court of Appeals of Indiana | Opinion 10A04-1509-PO-1438| February 16, 2016                     Page 8 of 11
       Id. The E.W. court concluded that the trial court’s findings were not sufficient

       to facilitate appellate review and remanded for further findings. Id. The E.W.

       court explained,

               It is entirely possible that the trial court believed that Father did
               not prove by a preponderance of the evidence that he truly felt
               harassed by Mother’s alleged conduct. Alternatively, one might
               infer from the trial court’s order that the trial court believed every
               word of Father’s story, but because Father already received a full
               year’s benefit of a protection order and because Mother’s conduct
               was a product of Father’s refusal to allow visitation, further
               extension of the protection order was unnecessary to protect
               Father after resolution of the visitation issue. Of course, all of this
               is pure speculation[.]


       Id. Here, in contrast, we know that the trial court dismissed Costello’s petition

       because Costello failed to prove by a preponderance of the evidence that

       Zollman committed stalking or a sexual offense. Accordingly, further findings

       are unnecessary.


[12]   Costello also argues that Trial Rule 52 “compelled the trial court to enter

       findings of fact and conclusions of law” because the parties requested it.

       Appellant’s Br. at 9. This argument is unavailing for two reasons. First, the

       parties did not request special findings; rather, at the conclusion of the hearing,

       the trial court offered the parties the opportunity to submit “case authority.”

       Second, even if the parties had orally requested special findings at the

       conclusion of the hearing, as Costello claims, Trial Rule 52(A) would not have

       been triggered. Trial Rule 52(A) specifically requires a party to make a “written


       Court of Appeals of Indiana | Opinion 10A04-1509-PO-1438| February 16, 2016   Page 9 of 11
       request … prior to the admission of evidence.” Neither Costello nor Zollman

       made a written request for special findings prior to the admission of evidence.

       Therefore, the trial court was not required by Trial Rule 52 to enter special

       findings. See E.W.R. v. T.L.C., 528 N.E.2d 106, 108 (Ind. Ct. App. 1988)

       (“Where no written request for special findings is filed with the court, the trial

       judge is under no obligation to make such findings.”), trans. denied (1989).


            Section 2 – The trial court did not abuse its discretion in
               denying Costello’s petition for a protective order.
[13]   “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).

       “To obtain an order of protection under the [CPOA], the petitioner must

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

       the petition.” A.S. v. T.H., 920 N.E.2d 803, 806 (Ind. Ct. App. 2010). In

       assessing the sufficiency of the evidence, we neither reweigh the evidence nor

       judge witness credibility. Id. We consider only the evidence of probative value

       and reasonable inferences that support the judgment. Id. Here, the trial court

       dismissed the protective order after a hearing, effectively denying Costello’s

       petition, and therefore she is appealing from a negative judgment. When the

       appeal is from a negative judgment, we will reverse only if we are convinced

       that the evidence as a whole leads unerringly and unmistakably to a decision

       opposite that reached by the trial court. Flash v. Holtsclaw, 789 N.E.2d 955, 959

       (Ind. Ct. App. 2003), trans. denied.



       Court of Appeals of Indiana | Opinion 10A04-1509-PO-1438| February 16, 2016   Page 10 of 11
[14]   Costello claims that her version of events was undisputed. We disagree.

       During the hearing, Zollman’s counsel began direct examination of Zollman by

       asking him, “[Y]ou’ve heard the events that have been described by [Costello]

       Do you take issue with those?” Tr. at 43. Zollman answered, “No.” Id.

       However, when Zollman was asked about specific allegations, he denied them.

       He denied that he was urinating in the photographs submitted by Costello; he

       denied urinating in front of Costello twelve times; and he denied ever being on

       her property. The trial court weighed the conflicting evidence, judged the

       credibility of the witnesses, and found that Costello failed to carry her burden of

       proof. We conclude that the evidence does not lead unerringly and

       unmistakably to a decision opposite that reached by the trial court.

       Accordingly, we affirm the dismissal of Costello’s petition for a protective

       order.


[15]   Affirmed.


       Vaidik, C.J., concurs.


       Bailey, J., concurs in result without opinion.




       Court of Appeals of Indiana | Opinion 10A04-1509-PO-1438| February 16, 2016   Page 11 of 11
