      ATTORNEYS FOR APPELLANT                                                       FILED
      Andrew Tyler Thomas                                                      May 15 2019, 8:14 am

      Fort Wayne, Indiana                                                           CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
      Thomas M. Frohman                                                              and Tax Court

      Bloomington, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      L.O.,                                                     May 15, 2019
      Appellant-Respondent,                                     Court of Appeals Case No.
                                                                18A-PO-2118
              v.                                                Appeal from the Wells Superior
                                                                Court
      D.O.,                                                     The Honorable Andrew Antrim,
      Appellee-Petitioner.                                      Judge
                                                                Trial Court Cause No.
                                                                90D01-1806-PO-16



      Tavitas, Judge.


                                              Case Summary
[1]   L.O. appeals the trial court’s grant of an order of protection filed by D.O. We

      reverse.


                                                      Issue
[2]   L.O. raises one issue, which we restate as whether the evidence is sufficient to

      support the granting of an order of protection.



      Court of Appeals of Indiana | Opinion 18A-PO-2118 | May 15, 2019                                  Page 1 of 8
                                                      Facts
[3]   On June 7, 2018, D.O. filed a petition for an order for protection and a request

      for a hearing. D.O. alleged that she had “been a victim of stalking” by her

      spouse, L.O. Appellant’s App. Vol. II p. 14. D.O. alleged that L.O.: (1) had

      threatened to his family members that he would take D.O.’s children (2) had

      threatened D.O. regarding money that he thought D.O. took; and (3)

      erroneously told D.O. to give him checks from Social Security. D.O. asked the

      trial court to prohibit L.O. from harassing, annoying, telephoning, contacting,

      or directly or indirectly communicating with her.


[4]   The trial court held a hearing on the matter on June 20, 2018. The extent of

      D.O.’s direct testimony at the hearing follows:


              My only issue was he just kept texting me and texting me and
              wouldn’t leave me alone when I asked him not to. And then his
              family members started calling me, telling me things he was
              doing down when he was staying in Kentucky and telling me that
              he was planning on taking the kids and running off with them
              and not bringing them back. So, I went to the Ossian Police
              Department and told them what I was told and they told me to
              come file a petition so that he couldn’t take off with the kids.


                                                    *****


              I was completely willing to do everything 50/50. I just, when I,
              you know, when his family members are calling me and telling
              me that he has these plans and he’s doing these things, then, you
              know, I don’t, I don’t want to, have to worry that I’m not going
              to see the kids again when they go with you. We had all
              intentions of doing everything fairly; he’d have them half the

      Court of Appeals of Indiana | Opinion 18A-PO-2118 | May 15, 2019            Page 2 of 8
              time, I’d have them half the time, everything was fine. And then
              I started getting all these phone calls and these text messages
              stating otherwise.


      Tr. Vol. II pp. 5-6. On cross-examination, D.O. clarified that L.O. had not

      threatened her regarding the children; rather, the only threats pertained to

      money. D.O. testified that L.O. had never physically harmed or abused her.


[5]   L.O. testified that he had never threated D.O. with violence or sexual crimes,

      he never intended to threaten her with harm of any kind, and he did not intend

      to harass her. L.O. testified that the only threats he made were to report D.O.

      to the police and Social Security. L.O. introduced a copy of text messages

      exchanged between D.O. and L.O. L.O.’s counsel argued that the petition for

      an order of protection should be dismissed because the evidence failed to

      establish that L.O. stalked D.O.


[6]   At the end of the hearing, the trial court found:


              The Court, in looking at the definition of stalk, Indiana Code 35-
              45-10-1, that statute reads as used in this chapter, stalking is “a
              knowing or an intentional course of conduct involving repeated
              or continued 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.” Then it goes on to say
              “the term does not include statutorily or constitutionally
              protected activity.” The Court finds that the definition of
              stalking has been met in this situation. I am going to continue
              the Order for Protection.


      Id. at 14.
      Court of Appeals of Indiana | Opinion 18A-PO-2118 | May 15, 2019              Page 3 of 8
[7]   The trial court issued a written order finding that D.O. “has shown, by a

      preponderance of the evidence, that domestic or family violence, . . . or stalking

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

      Vol. II p. 6. The trial court then “enjoined” L.O. from “threatening to commit

      or committing acts of domestic violence, stalking . . . against [D.O. and the

      children].” Id. L.O. was “prohibited from harassing, annoying, telephoning,

      contacting, or directly or indirectly communicating with [D.O.] except: as

      permitted by the parenting time outlined in this Order.” Id. at 7. The order for

      protection was due to expire two years after the date it was issued. L.O. filed a

      motion to correct error, which the trial court denied. L.O. now appeals.


                                                   Analysis
[8]   We begin by noting that D.O. has not filed an appellee’s brief. When an

      appellee fails to submit a brief, we do not undertake the burden of developing

      arguments for the appellee, and we apply a less stringent standard of review.

      Jenkins v. Jenkins, 17 N.E.3d 350, 351 (Ind. Ct. App. 2014). Thus, we may

      reverse if the appellant establishes prima facie error, which is error at first sight,

      on first appearance, or on the face of it. Id. at 351-52.


[9]   L.O. argues that the evidence was insufficient to support the issuance of an

      order of protection in favor of D.O. When considering the sufficiency of the

      evidence supporting a decision to issue or modify an order of protection, we do

      not reweigh the evidence or judge the credibility of witnesses. A.G. v. P.G., 974




      Court of Appeals of Indiana | Opinion 18A-PO-2118 | May 15, 2019              Page 4 of 8
       N.E.2d 598 (Ind. Ct. App. 2012). “We look only to the evidence of probative

       value and reasonable inferences that support the trial court’s judgment.” Id.


[10]   The Indiana Civil Protection Order Act (“CPOA”) is to be construed to

       promote (1) the protection and safety of all victims of domestic or family

       violence in a fair, prompt, and effective manner and (2) the prevention of future

       domestic and family violence. Ind. Code § 34-26-5-1.


               A finding that domestic or family violence has occurred sufficient
               to justify the issuance of an order under this section means that a
               respondent represents a credible threat to the safety of a
               petitioner or a member of a petitioner’s household. Upon a
               showing of domestic or family 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.


       I.C. § 34-26-5-9(f). Under the CPOA, “[a] person who is or has been a victim

       of domestic or family violence may file a petition for an order for protection

       against a: (1) family or household member who commits an act of domestic or

       family violence; or (2) person who has committed stalking under IC 35-45-10-5

       or a sex offense under IC 35-42-4 against the petitioner.” I.C. § 34-26-5-2(a).


[11]   “Domestic or family violence” is defined as the occurrence of at least one of the

       following acts by the respondent:


               (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.

       Court of Appeals of Indiana | Opinion 18A-PO-2118 | May 15, 2019             Page 5 of 8
               (3) Causing a family or household member to involuntarily
               engage in sexual activity by force, threat of force, or duress.


               (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.


       I.C. § 34-6-2-34.5. For the purposes of the CPOA, the definition of “domestic

       or family violence” also includes “stalking (as defined in IC 35-45-10-1) or a sex

       offense under IC 35-42-4. . . .” Id.


[12]   There is no evidence here of L.O. placing D.O. in fear of physical harm or

       threatening physical harm to D.O. or another household member as described

       in subsections (1) and (2). There is also no evidence of any actions described in

       subsections (3) or (4). As such, we will only consider whether D.O. presented

       sufficient evidence of stalking.


[13]   Indiana Code Section 35-45-10-1 provides that stalking is “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.” Indiana Code Section 35-

       45-10-2 defines harassment 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.” Harassment and stalking do “not


       Court of Appeals of Indiana | Opinion 18A-PO-2118 | May 15, 2019            Page 6 of 8
       include statutorily or constitutionally protected activity[.]” I.C. §§ 35-45-10-1;

       35-45-10-2.


[14]   The reality is that tensions and emotions during a dissolution often run high.

       Argumentative or annoying behavior is not uncommon, but it does not rise to

       the level of threatening behavior. Although D.O. referenced “threats” in her

       petition and testimony, simply calling the interactions “threats” does not make

       them so. The text messages between the parties reveal a contentious dissolution

       with multiple disagreements over money and time with the children. Both

       parties initiated text messages regarding the children and Social Security

       money. Our review of the testimony and the text messages, however, reveals

       no evidence that D.O. felt terrorized, frightened, intimidated, or threatened or

       that D.O. suffered emotional distress as a result of the text messages. We

       reached a similar result in Maurer v. Cobb-Maurer, 994 N.E.2d 753, 759 (Ind. Ct.

       App. 2013), where the petitioner presented no testimony at the hearing

       regarding the effects the respondent’s contacts had on her.


[15]   Given the sparse record in this case, there was insufficient probative evidence

       presented at the hearing to support a finding that the contacts would cause a

       reasonable person and in fact caused D.O. to feel terrorized, frightened,

       intimidated, or threatened or to suffer emotional distress. Accordingly, there

       was insufficient evidence to support the trial court’s issuance of an order of

       protection. See, e.g., Maurer, 994 N.E.2d at 759 (holding that the evidence was

       insufficient to demonstrate that the petitioner for an order of protection felt

       terrorized, frightened, intimidated, or threatened); cf. Andrews v. Ivie, 956 N.E.2d

       Court of Appeals of Indiana | Opinion 18A-PO-2118 | May 15, 2019            Page 7 of 8
       720, 723-25 (Ind. Ct. App. 2011) (holding that the evidence was sufficient

       where the petitioner testified that the unwelcome messages, gifts, and contacts

       were “very upsetting,” “disturbing,” caused her “emotional distress,” and made

       her “very angry”).


                                                  Conclusion
[16]   There was insufficient evidence presented at the hearing to support the trial

       court’s issuance of an order of protection. Accordingly, we reverse.


[17]   Reversed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 18A-PO-2118 | May 15, 2019         Page 8 of 8
