      MEMORANDUM DECISION
                                                                       Mar 26 2015, 9:01 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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
      Mark A. Bates                                            David Paul Allen
      Schererville, Indiana                                    Hammond, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

      A.A.,                                                    March 26, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               45A03-1409-PO-346
               v.                                              Appeal from the Lake Superior
                                                               Court
                                                               The Honorable Calvin D. Hawkins,
      A.S.,                                                    Judge
      Appellee-Plaintiff.                                      Cause No. 45D02-1406-PO-124




      Bradford, Judge.



                                             Case Summary
[1]   In 2014, Appellee-Plaintiff A.S. filed for and received a protective order against

      her former husband Appellant-Defendant A.A. A.A. appeals, arguing that A.S.

      previously petitioned for a protective order in 2013, which was denied, and her



      Court of Appeals of Indiana | Memorandum Decision 45A03-1409-PO-346 |March 26, 2015     Page 1 of 6
      2014 petition was barred by res judicata because she made no new allegations of

      misconduct. We reverse.



                            Facts and Procedural History
[2]   A.A. and A.S. (collectively “the parties”) were married for twelve years before

      separating in 2012. On September 24, 2013, the parties’ marriage was

      dissolved. On the same day, A.S. filed a petition for protective order against

      A.A. alleging that A.A. had committed multiple acts of domestic violence and

      stalking against her in 2012. The trial court granted an emergency ex parte

      order for protection. On October 22, 2013, the trial court dismissed the petition

      due to A.S.’s failure to show that domestic violence had occurred by a

      preponderance of the evidence.


[3]   On June 4, 2014, A.S. again petitioned for a protective order against A.A and

      appeared pro se at an ex parte hearing in front of the trial court. The only

      “incident” described in her petition was the short statement “to kill me.”

      Appellant’s App. p. 10. Due to a language barrier, the trial court had difficulty

      understanding A.S. and questioned why she needed an order for protection

      when she had already received no contact orders from the Hammond City

      Court.1 Regardless, the trial court granted an ex parte order for protection and




      1
        Criminal charges were filed against A.A. in Hammond City Court based on allegations of domestic abuse
      committed against A.S. during the marriage. As of August 28, 2014, the criminal cases relating to those
      allegations were pending.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1409-PO-346 |March 26, 2015           Page 2 of 6
      set a hearing on the motion. On July 3, 2014, A.A. filed a motion to dismiss

      the petition. The trial court denied the motion to dismiss at the outset of the

      August 28, 2014 hearing. At the hearing, A.S. recounted many incidents of

      domestic abuse which occurred prior to the parties’ divorce, the last of which

      occurred in January of 2013. When asked by counsel if there had been any

      other incidents since September 2013 (after the divorce was finalized), A.S.

      responded, “No, but I don’t want any more to happen.” Tr. p. 21. The trial

      court granted A.S. a one-year protective order against A.A. A.A. appeals.



                                Discussion and Decision
[4]           Protective orders are in the nature of injunctions. Therefore, in
              granting a protective order the trial court must sua sponte make special
              findings of fact and conclusions thereon. See Indiana Trial Rule 52(A);
              I.C. § 34-26-5-9(a), (f); Tisdial v. Young, 925 N.E.2d 783, 785 (Ind. Ct.
              App. 2010) (stating that the trial court may issue or modify an order
              for protection only upon a finding that domestic or family violence has
              occurred).
              Where, as here, the trial court entered findings of fact and conclusions
              thereon pursuant to Trial Rule 52(A), we apply a two-tiered standard
              of review. Mysliwy v. Mysliwy, 953 N.E.2d 1072, 1076 (Ind. Ct. App.
              2011), trans. denied.
                      [F]irst, we determine whether the evidence supports the
                      findings, and second, whether the findings support the
                      [order]. 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]. We do not reweigh the evidence, but
                      consider only the evidence favorable to the ... [order].
                      Those appealing the ... [order] must establish that the
                      findings are clearly erroneous. Findings are clearly
                      erroneous when a review of the record leaves us firmly
                      convinced that a mistake has been made. We do not
      Court of Appeals of Indiana | Memorandum Decision 45A03-1409-PO-346 |March 26, 2015   Page 3 of 6
                      defer to conclusions of law, however, and evaluate them
                      de novo.
              Id. (internal citations omitted).
      Hanauer v. Hanauer, 981 N.E.2d 147, 148-49 (Ind. Ct. App. 2013) (some

      citations omitted).


[5]   Indiana Code section 34-26-5-2 provides as follows:

              (a) 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.
      Indiana Code section 34-26-5-9 provides:

              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.
[6]   A.A. argues that his motion for dismissal should have been granted, or that

      A.S.’s petition should have been denied, because A.S. made no allegations of

      any new instances of misconduct since her prior petition seeking a protective

      order was denied on October 22, 2013. We agree. Absent any new allegations

      of misconduct, the trial court was essentially re-ruling on the same issue which

      had previously been addressed by another court.

              The doctrine of res judicata bars the litigation of a claim after a final
              judgment has been rendered in a prior action involving the same claim
      Court of Appeals of Indiana | Memorandum Decision 45A03-1409-PO-346 |March 26, 2015   Page 4 of 6
              between the same parties or their privies. Small v. Centocor, Inc., 731
              N.E.2d 22, 26 (Ind. Ct. App. 2000), reh’g denied, trans. denied. The
              principle behind this doctrine, as well as the doctrine of collateral
              estoppel, is the prevention of repetitive litigation of the same dispute.
              Id. The following four requirements must be satisfied for a claim to be
              precluded under the doctrine of res judicata: 1) the former judgment
              must have been rendered by a court of competent jurisdiction; 2) the
              former judgment must have been rendered on the merits; 3) the matter
              now in issue was, or could have been, determined in the prior action;
              and 4) the controversy adjudicated in the former action must have
              been between the parties to the present suit or their privies. Id.
      MicroVote Gen. Corp. v. Indiana Election Comm’n, 924 N.E.2d 184, 191 (Ind. Ct.

      App. 2010).


[7]   In response to A.A.’s res judicata argument, A.S. argues that the previous order

      denying A.S.’s first petition for protective order was not rendered “on the

      merits,” as is required by the second element of the res judicata doctrine.

      Appellee’s Br. 11. We find this argument unpersuasive. The order dismissing

      A.S.’s 2013 petition for protection states, “The Petitioner has not shown, by a

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

      sex offense has occurred sufficient to justify the issuance of an Order for

      Protection.” Appellant’s App. p. 36. We think this is clearly a judgment on the

      merits. Accordingly, A.S. was barred from attempting to gain a subsequent

      protection order based on any allegations of domestic abuse prior to the

      September 24, 2013 motion for protective order. To find otherwise would

      encourage forum shopping and redundant litigation by permitting parties who

      had been denied a protective order to re-petition in different courts. Under such

      circumstances, there would be no finality to a denial of a protective order and


      Court of Appeals of Indiana | Memorandum Decision 45A03-1409-PO-346 |March 26, 2015   Page 5 of 6
       respondents could be required to defend themselves repeatedly against the same

       claims.


[8]    A.S. conceded that A.A. had not committed any misconduct after September

       24, 2013, and that the last reported instance of abuse/stalking occurred in

       January of 2013. In its August 28, 2014 order, the trial court found that “The

       Petitioner has shown by a preponderance of the evidence that domestic or

       family violence has occurred sufficient to justify the issuance of this Order [for

       Protection].” Appellant’s App. p. 21. The trial court was precluded, under the

       doctrine of res judicata, from granting a protective order based on incidents that

       occurred prior to September 24, 2013, and there were no alleged incidents of

       misconduct which occurred after that date. Therefore, the trial court’s grant of

       the order for protection was clearly erroneous.


[9]    We note that as of the June 4, 2014 ex parte hearing, A.S. had valid no contact

       orders against A.A. This decision in no way limits the effectiveness of those

       orders, and, assuming they are still valid, A.S. is required to abide by the

       guidelines therein.


[10]   The judgment of the trial court is reversed.


       Vaidik, C.J., and Kirsch, J., concur.




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