ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE                 FILED
Cara Schaefer Wieneke                                      William O. Harrington             Jul 20 2017, 8:33 am

Wieneke Law Office                                         Harrington Law, PC                    CLERK
                                                                                             Indiana Supreme Court
Brooklyn, Indiana                                          Danville, Indiana                    Court of Appeals
                                                                                                  and Tax Court


Christopher L. Arrington
Christopher L. Arrington, Attorney at
Law, PC
Danville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

P.S.,                                                      July 20, 2017
Appellant-Respondent,                                      Court of Appeals Case No.
                                                           32A01-1610-PO-2426
        v.                                                 Appeal from the Hendricks County
                                                           Superior Court
T.W.,                                                      The Honorable Mark Smith, Judge
Appellee-Petitioner                                        Trial Court Cause No.
                                                           32D04-1607-PO-336



May, Judge.




Court of Appeals of Indiana | Opinion 32A01-1610-PO-2426 | July 20, 2017               Page 1 of 8
[1]   P.S. appeals the trial court’s decision to place him on GPS monitoring

      following his violation of the protective order (“PO”) in place to protect T.W.

      from P.S. P.S. argues GPS monitoring is inappropriate for two reasons: (1) he

      was not on notice that GPS monitoring was a possible consequence of violating

      the PO; and (2) the evidence was insufficient to prove he violated the PO. We

      affirm.



                             Facts and Procedural History
[2]   P.S. and T.W. are married and in the process of a divorce. They also own a

      business together. On July 21, 2016, T.W. filed a petition for an order of

      protection against P.S. and a request for hearing. The trial court granted her

      petition, issued an ex parte PO, and scheduled a hearing on the matter for

      August 10, 2016. The hearing was continued until September 28, 2016.


[3]   At the hearing on September 28, 2016, T.W. testified P.S. abused illegal

      substances, was unsuccessful in his attempt at substance abuse rehabilitation,

      had indicated he would commit suicide or kill T.W. if she tried to leave, had

      thrown a candle at T.W. during an argument, and had locked T.W. in the

      garage when she threatened to leave him. T.W. testified these actions made her

      “afraid of him[,]” (Tr. at 14), and she “didn’t want him to do anything to

      [her].” (Id.) Based thereon, the trial court issued a PO against P.S., ordering:


              1. [P.S.] is hereby enjoined from threatening to commit or
              committing acts of domestic or family violence, stalking, or sex
              offenses against [T.W.] . . .


      Court of Appeals of Indiana | Opinion 32A01-1610-PO-2426 | July 20, 2017   Page 2 of 8
              2. [P.S.] is prohibited from harassing, annoying, telephoning,
              contacting, or directly or indirectly communicating with [T.W.].


              3. [P.S.] shall be excluded from [T.W.’s] residence.


              4. [P.S.] is ordered to stay away from the residence, school,
              and/or place of employment of [T.W.].


              5. [T.W.] shall have the possession and use of the residence[.]


              6. The Court orders the following additional relief to provide for
              the safety and welfare of [T.W.]. . . [P.S.] is not to interfere with
              the mailbox for [Parties’ business] located at [sic] Brownsburg.


                                                     *****


              8. [P.S.] is prohibited from using or possessing a firearm,
              ammunition, or deadly weapon.


      (Appellant’s App. Vol. II at 42-3.) The PO expires on September 28, 2018.


[4]   On October 12, 2016, T.W. filed an emergency verified motion to show cause

      and alleged P.S. committed multiple violations of the PO. On October 16,

      2016, the trial court held a hearing on the matter. At the hearing, T.W.

      presented evidence P.S. had been “watching [her],” (Tr. at 51), removed

      equipment from her property without her permission, directed others to remove

      items from T.W.’s property without her permission, and “hack[ed into her

      email account] and chang[ed] the password.” (Id. at 58.) The trial court also




      Court of Appeals of Indiana | Opinion 32A01-1610-PO-2426 | July 20, 2017        Page 3 of 8
      received evidence P.S. attempted to communicate with T.W. through a third

      party in violation of the PO.


[5]   Based thereon, the trial court determined P.S. violated the PO. On October 18,

      2016, the trial court entered three orders. In the first, the trial court found P.S.

      in violation of the PO and ordered him to “wear a GPS tracking [device] under

      I.C. 34-26-5-9(i).” (Appellant’s App. Vol. II at 55.) Second, the trial court

      amended the original PO to include language that stated, “The Court [o]rdered

      [P.S.] to be hooked up to GPS monitoring per I.C.34-26-5-9(i). Mr. P.S. is

      ordered to stay away from [T.W.] and at least one (1) mile from the marital

      residence and any place where she resides.” (Id. at 53). The trial court also

      changed the PO’s expiration date to October 19, 2018. Finally, the trial court

      entered an order entitled, “Order for GPS Monitoring” in which it gave specific

      directions to P.S. about starting GPS monitoring as ordered. (Id. at 56.)



                                  Discussion and Decision
                                                   Due Process

[6]   P.S. claims “his right to due process was violated because he was never put on

      notice that a violation of the protective order could subject him to indefinite

      GPS monitoring at his own expense.” (Br. of Appellant at 10.) “Whether a

      party was denied due process is a question of law that we review de novo.”

      Miller v. Indiana Dept. of Workforce Dev., 878 N.E.2d 346, 351 (Ind. Ct. App.

      2007). Further, “notice of the issues to be addressed at a hearing is a

      fundamental requirement of a fair hearing.” Id.

      Court of Appeals of Indiana | Opinion 32A01-1610-PO-2426 | July 20, 2017     Page 4 of 8
[7]   P.S. argues the trial court was constrained to order him to pay a fine or to serve

      time in jail or prison, because the PO stated: “Violation of this order is

      punishable by confinement in jail, prison and/or a fine.” (Appellant’s App.

      Vol. II at 44.) However, Indiana Code § 34-26-5-9(i) (2010) 1 provides the trial

      court may, upon “finding a violation of an order for protection . . . (1) require a

      respondent to wear a GPS tracking device; and (2) prohibit the respondent from

      approaching or entering certain locations where the petitioner may be found.”

      P.S. acknowledges the existence of Indiana Code § 34-26-5-9(i) (2010), but

      contends “[T.W.] never requested such relief from the court, and P.S. was never

      given the opportunity to be heard by the court on this matter.” (Br. of

      Appellant at 10.)


[8]   P.S. cites no case law to support his argument the trial court was required to

      apprise him of all possible penalties for violating the PO. Further, it is well-

      established “[a]ll persons are charged with the knowledge of the rights and

      remedies prescribed by statute.” Middleton Motors, Inc. v. Indiana Dept. of State

      Revenue, Gross Income Tax Div., 380 N.E.2d 79, 81, 269 Ind. 282, 285 (1978). As

      P.S., like every person in Indiana, is charged with knowing the law of the state,

      we cannot say he lacked notice of the possibility he could be subject to GPS

      monitoring if he violated the PO. See, e.g., Tiplick v. State, 43 N.E.3d 1259, 1263

      (Ind. 2015) (person of ordinary intelligence charged with knowing list of



      1
       Despite the precedent treating a violation of a PO as an action in indirect contempt, Flash v. Holtsclaw, 789
      N.E.2d 955, 958 (Ind. Ct. App. 2003), reh’g denied, trans. denied, we note Indiana Code section 34-26-5-9(i) is
      specific in limiting GPS monitoring to situations involving the violation of a PO only.

      Court of Appeals of Indiana | Opinion 32A01-1610-PO-2426 | July 20, 2017                             Page 5 of 8
       prohibited synthetic drugs as prescribed by Pharmacy Board Emergency Rules

       referenced in the relevant criminal statute); see also Iterman v. Baker, 214 Ind.

       308, 317, 15 N.E.2d 365, 370 (1938) (“all have an equal opportunity to know

       the law, and are presumed to know it”).


                                                      Violation

[9]    In Flash v. Holtsclaw, we noted our standard of review when considering the trial

       court’s determination a party is in violation of a PO:


[10]           Indiana Code section 34-47-3-1 provides as follows:


               A person who is guilty of any willful disobedience of any process,
               or any order lawfully issued:


                        (1) by any court of record, or by the proper officer of the
                        court;


                        (2) under the authority of law, or the direction of the court;
                        and


                        (3) after the process or order has been served upon the
                        person;


               is guilty of an indirect contempt of the court that issued the
               process or order.


[11]           Indirect contempt proceedings require due process protections,
               including notice and the opportunity to be heard. Carter v.
               Johnson, 745 N.E.2d 237, 241 (Ind. Ct. App. 2001).



       Court of Appeals of Indiana | Opinion 32A01-1610-PO-2426 | July 20, 2017       Page 6 of 8
[12]           Civil contempt is failing to do something that a court in a civil
               action has ordered to be done for the benefit of an opposing
               party. Cowart v. White, 711 N.E.2d 523, 530 (Ind. 1999). A party
               who has been injured or damaged by the failure of another to
               conform to a court order may seek a finding of contempt. Id.
               Whether a party is in contempt is a matter left to the discretion of
               the trial court. Id. We reverse a trial court’s finding of contempt
               only if there is no evidence or inferences drawn therefrom that
               support it. Id.


       789 N.E.2d 955, 958 (Ind. Ct. App. 2003), reh’g denied, trans. denied.


[13]   Here, the trial court found P.S. violated the PO after T.W. presented evidence

       P.S. violated the PO by removing items from the marital property without her

       permission and contacting her through a third party, among other possible

       violations. P.S. argues “the trial court failed to issue specific written findings

       explaining how P.S. violated the protective order,” (Br. of Appellant at 11), and

       thus “it appears that the court’s determination that P.S. violated the protective

       order was based on a finding that P.S. entered the property and removed several

       items.” (Id.) Therefore, P.S. contends, T.W. did not present sufficient evidence

       he violated the PO because he claims he did not enter the property and instead

       “directed a third party to remove equipment from an outbuilding on the

       property.” (Id. at 14.) P.S.’s argument ignores the other evidence presented at

       trial concerning other violations of the PO, such as P.S.’s attempt to

       communicate with T.W. via her sister-in-law and the fact P.S. changed T.W.’s

       email password.




       Court of Appeals of Indiana | Opinion 32A01-1610-PO-2426 | July 20, 2017       Page 7 of 8
[14]   P.S.’s argument is essentially a request that we judge T.W.’s credibility, which

       we cannot do. See Flash, 789 N.E.2d 959-60 (appellate court defers to trial

       court’s determination of witness credibility). T.W. presented evidence P.S.

       removed equipment from the marital property without her consent, changed her

       email password, and attempted to contact her through her sister-in-law. T.W.

       testified P.S.’s actions, including sitting in his vehicle across from her property,

       made her feel “very harassed.” (Tr. at 63.) T.W. presented sufficient evidence

       P.S. violated the terms of the PO, and the trial court did not abuse its discretion

       when so concluding. See, e.g., Smith v. State, 999 N.E.2d 914, 916 (Ind. Ct. App.

       2013) (Smith violated protective order when he entered protected person’s

       house without her consent to remove property), trans. denied; see also, e.g., Kelly v.

       State, 13 N.E.3d 902 (Ind. Ct. App. 2014) (Kelly violated protective order when

       he sent a message to the protected person through a third party).



                                                 Conclusion
[15]   P.S. had notice he could be placed on GPS monitoring if he violated the PO

       and T.W. presented sufficient evidence he violated the PO. Thus, the trial court

       did not abuse its discretion in concluding P.S. violated the PO and it did not err

       when it ordered him to submit to GPS monitoring as a penalty for that

       violation. Accordingly, we affirm.


[16]   Affirmed.


       Brown, J., and Pyle, J., concur.

       Court of Appeals of Indiana | Opinion 32A01-1610-PO-2426 | July 20, 2017     Page 8 of 8
