MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Nov 28 2018, 10:10 am

regarded as precedent or cited before any                                CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                      Matthew T. Albaugh
Alcorn Sage Schwartz & Magrath, LLP                     Blayre E. Marley
Madison, Indiana                                        Faegre Baker Daniels LLP
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

S.H.,                                                   November 28, 2018
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        18A-PO-1413
        v.                                              Appeal from the Bartholomew
                                                        Superior Court
D.W.,                                                   The Honorable James D. Worton,
Appellee-Petitioner                                     Judge
                                                        Trial Court Cause No.
                                                        03D01-1802-PO-626



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PO-1413 | November 28, 2018            Page 1 of 6
                                             Case Summary
[1]   S.H. appeals the trial court’s order extending a protective order. The sole

      restated issue presented for our review is whether sufficient evidence supports

      the trial court’s order and whether the two-year extension is reasonable.

      Finding the evidence sufficient and the extension reasonable, we affirm.


                                 Facts and Procedural History
[2]   In January 2016, D.W. filed a petition for a protective order against her then

      husband S.H. The parties were involved in contentious dissolution of marriage

      proceedings, and her petition contained numerous allegations of domestic

      abuse and threats of violence by S.H. The court held a hearing on February 11,

      2016. During the hearing, S.H. agreed to have a protective order issued against

      him. The trial court accepted that agreement and issued a protective order

      against S.H.


[3]   On February 5, 2018, D.W. again petitioned the trial court for a protective

      order against S.H. The petition alleged that the prior protective order was set to

      expire on February 11, 2018, and that S.H. had twice tried indirectly contacting

      D.W. through a family member’s social media. The petition also reiterated

      some of the details of the alleged domestic abuse and threats of violence that

      had precipitated the prior protective order. On February 7, 2018, the trial court

      issued an ex parte protective order. On February 15, 2018, S.H. appeared by

      counsel and requested a hearing on D.W.’s petition. A hearing was held on the

      petition on April 20, 2018. S.H. appeared by counsel, and D.W. appeared pro


      Court of Appeals of Indiana | Memorandum Decision 18A-PO-1413 | November 28, 2018   Page 2 of 6
      se. That same day, the trial court issued its order granting the petition and

      extending the protective order for two years. The order contained the following

      relevant findings:


              1. That the testimony of [D.W.] was credible at the time of the
              original issuance of the order and remains credible today.

              2. That [S.H.] continues to deny that any domestic violence has
              ever occurred.

              3. The Court believes based on the totality of the circumstances
              in this case that there still exist[s] a current necessity to bring
              about a cessation to a threat of violence.


      Appellant’s App. Vol. 2 at 48. S.H. filed a motion to correct error, which was

      denied by the trial court. This appeal ensued.


                                     Discussion and Decision
[4]   The Indiana Civil Protection Order Act (“CPOA”) “shall be construed to

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

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

      domestic and family violence.” Ind. Code § 34-26-5-1. The CPOA authorizes

      “a person who is or has been a victim of domestic ... violence” to file a petition

      for a protective order. Ind. Code § 34-26-5-2. Domestic violence means “the

      occurrence of” an act by the respondent “attempting to cause, threatening to

      cause, or causing physical harm” to the petitioner, or placing the petitioner “in

      fear of physical harm.” Ind. Code § 34-6-2-34.5.



      Court of Appeals of Indiana | Memorandum Decision 18A-PO-1413 | November 28, 2018   Page 3 of 6
[5]   A protective order lasts for two years, “unless another date is ordered by the

      court.” Ind. Code § 34-26-5-9(e). “The fact that an order for protection is issued

      under this chapter does not raise an inference or presumption in a subsequent

      case or hearings between the parties.” Ind. Code § 34-26-5-9(h). This Court has

      addressed the circumstances under which a trial court may properly order an

      extension of a protective order’s length:


              [B]ecause an extension is necessarily derived from the original
              protective order, the trial court’s determination must be viewed
              in light of the continuing harm or the threat of continuing harm
              that necessitated the issuance of the protective order in the first
              instance. As an order for protection can impose significant
              restrictions on a respondent’s freedom of movement and other
              rights, the extension must be equally supported by a court’s
              conclusion that such additional time … is necessary to protect the
              petitioner and to bring about a cessation of the violence or the
              threat of violence.


      A.N. v. K.G., 10 N.E.3d 1270, 1272 (Ind. Ct. App. 2014). Any such extension

      of an initial protective order must be reasonable. Id.


[6]   A petitioner who seeks either reissuance of a protective order that has expired,

      or modification of an unexpired protective order, bears the burden of proving

      by a preponderance of the evidence that a new protective order or extension of

      an existing order is required. J.K. v. T.C., 25 N.E.3d 179, 182 (Ind. Ct. App.

      2015). When considering the sufficiency of the evidence supporting a decision

      to issue or modify a protective order, we do not reweigh the evidence or judge

      the credibility of witnesses. A.G. v. P.G., 974 N.E.2d 598, 598 (Ind. Ct. App.


      Court of Appeals of Indiana | Memorandum Decision 18A-PO-1413 | November 28, 2018   Page 4 of 6
      2012). We look only to the evidence of probative value and reasonable

      inferences that support the trial court’s judgment. Id.


[7]   S.H. asserts that D.W. presented insufficient evidence to support an extension

      of the protective order. We agree that the evidence presented by D.W. was

      minimal; however, we believe that it was enough to satisfy her burden. During

      the hearing, D.W. appeared pro se and testified on her own behalf. She

      reiterated and elaborated on her 2016 allegations against S.H. of domestic

      violence and threats of violence. She testified that she believed that S.H. had

      very recently tried to contact her indirectly through social media in order to find

      out where she was living. She considered this behavior to be a current threat to

      her safety and conveyed to the trial court that she continues to be in great fear

      for her physical well-being. She requested a two-year extension to help ensure

      her “safety at least until [her] last child graduates [high school].” Tr. Vol. 2 at

      50. Based upon this evidence, the trial court concluded that a two-year

      extension of the protective order was necessary to protect D.W. and to bring

      about the cessation of violence or threat of violence.


[8]   S.H. denies that any domestic violence has ever occurred between the parties

      and asserts that “there was no evidentiary basis for the Protective Order being

      issued in the first instance,” much less any evidence to support an extension.

      Appellant’s Br. at 16. We remind S.H. that he agreed to the issuance of the

      initial protective order, which in effect was a tacit admission to the necessity of

      the order due to violence or threat of violence. We find it incredibly significant

      here that the trial judge is the same judge who presided over both the initial

      Court of Appeals of Indiana | Memorandum Decision 18A-PO-1413 | November 28, 2018   Page 5 of 6
       protective order proceedings and the parties’ contentious dissolution of

       marriage proceedings. This judge was in the optimal position to determine the

       credibility of the parties and whether, under the totality of the circumstances,

       there is a continuing threat of harm. The trial court considered the testimony of

       both parties, as well as an additional witness, and determined that there is a

       current necessity to bring about the cessation of violence or threat of violence.

       We decline S.H.’s invitation to second-guess that determination by

       inappropriately reweighing the evidence and reassessing witness credibility.


[9]    The trial court’s order is supported by sufficient evidence, and we cannot say

       that a two-year extension is unreasonable based on the record before us.1

       Accordingly, we affirm.


[10]   Affirmed.


       Najam, J., and Pyle, J., concur.




       1
        Indeed, our legislature has determined that a modification of a protective order is automatically effective for
       two years after the date of issuance unless another date is ordered by the court. Ind. Code § 34-26-5-9(e).

       Court of Appeals of Indiana | Memorandum Decision 18A-PO-1413 | November 28, 2018                   Page 6 of 6
