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,                        Aug 14 2013, 5:30 am
collateral estoppel, or the law of the case.




ATTORNEYS FOR APPELLANT:                                   ATTORNEY FOR APPELLEE:

BRYAN LEE CIYOU                                            PHILIP C. SHEWARD
LORI B. SCHMELTZER                                         Allen Wellman McNew, LLP
Ciyou & Dixon, P.C.                                        Greenfield, Indiana
Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

JONI SEARS,                                        )
                                                   )
       Appellant-Respondent,                       )
                                                   )
               vs.                                 )   No. 33A01-1301-PO-31
                                                   )
RACHEL RUST-JOHNISEE,                              )
                                                   )
       Appellee-Petitioner.                        )


                        APPEAL FROM THE HENRY CIRCUIT COURT
                           The Honorable Kit C. Dean Crane, Judge
                               Cause No. 33C02-1210-PO-249


                                         August 14, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                             Case Summary

          Rachel Rust-Johnisee (“Rust-Johnisee”), who shares a child, A.J.R., with Wendell

Jaggers (“Jaggers”) obtained a protective order against Jaggers’ long-term girlfriend, Joni

Sears (“Sears”), pursuant to the Civil Protection Order Act1 (“the Act”). Sears appeals and

presents for review the issue of whether there was sufficient evidence to support the trial

court’s issuance of a protective order.2 Specifically, she claims that her conduct did not

constitute stalking. We affirm.

                                    Facts and Procedural History

          A.J.R. was born in 2007. Jaggers established his paternity of A.J.R. and exercises

parenting time pursuant to the Indiana Parenting Time Guidelines. When A.J.R. was an

infant, Jaggers began to include Sears during the exercise of his parenting time. Also during

A.J.R.’s infancy, Rust-Johnisee began to date Kevin Johnisee (“Johnisee”).                               They

subsequently married and had a child together.

          Each of the four adults has consistently been a part of A.J.R.’s life. They have each

purportedly enjoyed a congenial relationship with A.J.R. while participating in

extraordinarily contentious exchanges between themselves. At times, extended family

members have joined in the acrimony and on numerous occasions, law enforcement has been


1
    Ind. Code § 34-26-5-1 et seq.
2
 We need not address Sears’ claim that the petition should have been transferred to the court that has exercised
jurisdiction over paternity proceedings with regard to A.J.R. Sears made no request for transfer and the trial
court did not sua sponte transfer the matter. On appeal, although she alleges an abuse of discretion, Sears has
not provided any relevant authority for the proposition that the trial court was required to sua sponte transfer
the matter. See Appellate Rule 46(A)(8)(a) (requiring that each issue be supported by cogent reasoning and
citation to authority).

                                                       2
summoned to respond to allegations such as whether one individual unjustifiably followed

another in a vehicle on the roads of Henry County or whether Sears could be evicted from a

YMCA soccer game. While Jaggers was training at the Indiana Police Academy and unable

to attend A.J.R.’s soccer games, he requested that Sears attend some games and obtain

photographs for him. Most unfortunately, this provided renewed opportunities for family

members and friends to jockey for position near A.J.R. and spar, to the detriment of a six-

year-old child attempting to play a game.

          By all accounts, disputes arising from the parent/step-parent/significant other

interactions are a frequent source of litigation in the paternity court. The parents have also

engaged in mediation sessions. By agreement, A.J.R.’s parents are to communicate with

each other solely by text message and e-mail. Some parenting time exchanges are made, by

necessity, at the Henry County Sheriff’s office.

          On October 16, 2012, Rust-Johnisee filed a petition for an order of protection,

alleging that Sears had stalked her. More specifically, Rust-Johnisee alleged that Sears had

requested to photograph A.J.R. at a soccer game, Rust-Johnisee had denied permission, and

Sears had “blocked” her path; Sears drove by the Rust-Johnisee home and had honked and

waved;3 while driving behind the Rust-Johnisees on Highway 3 (with Jaggers as a passenger),

Sears had honked “for about 15 seconds”; Sears held up a cell phone at a soccer game and

asked A.J.R. to “say hi to your dad” and then photographed or videotaped the Rust-Johnisees

getting into their van; at a classroom open house Sears instructed Rust-Johnisee “don’t grab


3
    Sears lived in the same neighborhood, a few streets away.

                                                      3
[A.J.R.’s] hand” employing a tone that caused Rust-Johnisee to feel “threatened and scared”;

Sears had encountered A.J.R. and her maternal grandfather in a hardware store and “parked

at Arby’s facing Goodwill” to watch them; at parenting time exchanges, Sears had expressed

anger toward Rust-Johnisee; Sears sought or obtained some preschool information; Sears had

paid preschool fees; and Sears caused A.J.R.’s dentist to forward a handwritten note from

Sears detailing A.J.R.’s visit and “follow-up.” (App. 16-20.)

        The trial court issued an ex parte order of protection and set the matter for a hearing.

A hearing was conducted on December 28, 2012, at which the trial court heard testimony

from Rust-Johnisee, Johnisee, Jaggers, Sears, and several family members and friends. The

trial court entered requisite findings, upheld the ex parte protective order and specified that it

was to include both of Rust-Johnisee’s children. Sears now appeals.

                                       Discussion and Decision

        The Act is to be construed “to promote the protection and safety of all victims of

domestic or family violence … and prevent … future domestic and family violence.” I.C. §

34-26-5-1. Indiana Code section 34-26-5-2(a) provides that 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[.]4

         “A finding that domestic or family violence has occurred sufficient to justify the

issuance of [a protective order] … means that a respondent represents a credible threat to the

4
 Pursuant to I.C. § 34-26-5-2(b), if a child is the victim of domestic or family violence, stalking, or a sex
offense, the parent, guardian, or other representative may file a petition on the child’s behalf.

                                                     4
safety of a petitioner or a member of a petitioner’s household.” I.C. § 34-26-5-9(f).

“Domestic or family violence” is defined in relevant part as:

       The occurrence of at least one (1) of the following acts committed by a family
       or household member:
       (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[;]
       (3)    Causing a family or household member to involuntarily engage in
              sexual activity by force, threat of force, or duress[; or]
       (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.

       “The trial court may issue or modify an order for protection only upon a finding ‘that

domestic or family violence has occurred.’” Tisdial v. Young, 925 N.E.2d 783, 785 (Ind. Ct.

App. 2010) (quoting I.C. §§ 34-26-5-9(a), (f)). However, for purposes of the Act, stalking

and sex offenses need not be committed by a family or household member to constitute

“domestic or family violence.” Parkhurst v. Van Winkle, 786 N.E.2d 1159, 1161 (Ind. Ct.

App. 2003).

       Indiana Code section 35-45-10-1 defines stalking 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.” For the

purposes of stalking, harassment is “conduct directed toward a victim that includes but is not

limited to repeated or continuing impermissible contact that would cause a reasonable person



                                              5
to suffer emotional distress and that actually causes the victim to suffer emotional distress.”

I.C. § 35-45-10-2.

       To obtain a protective order, 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). When considering the sufficiency of the evidence supporting a

decision to issue or modify a protective order, we neither reweigh the evidence nor judge the

credibility of witnesses. Id. We look only to the evidence of probative value and reasonable

inferences drawn therefrom that support the trial court’s judgment.

       Rust-Johnisee presented evidence that Sears had spoken angrily to Rust-Johnisee after

Rust-Johnisee took her daughter’s hand at a school open house, had blocked her path at a

soccer game, had driven past her house (once slowly), had – in Facebook conversations –

been critical of Rust-Johnisee’s parenting skills or minimized her maternal role, had traveled

behind the Rust-Johnisee vehicle on Highway 3 while blowing her horn for fifteen seconds,

and had followed the Rust-Johnisees to their van after a soccer game and then “held her

phone a certain way” causing the Rust-Johnisees to believe they were being videotaped or

photographed. (Tr. 79.) Rust-Johnisee testified that she had felt threatened.

       There is sufficient evidentiary support for the trial court’s order for protection issued

under Indiana Code chapter 34-26-5.

       Affirmed.

MAY, J., and BRADFORD, J., concur.




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