A.M., Appellant-Respondent v. A.H., Appellee-Petitioner (2025)

MEMORANDUM DECISION

Statement of the Case

[1] A.M. (“Respondent”) and A.H. (“Petitioner”) were in a romantic relationship for several years. More than two years after the relationship ended, Petitioner filed for a protective order against Respondent, alleging Respondent had physically harmed her, placed her in fear of physical harm, stalked her, and repeatedly harassed her. After a hearing, the trial court granted Petitioner's protective order request. Respondent now appeals and raises several issues for our review that we revise and restate as the following two issues:

1. Whether the trial court denied Respondent due process at the protective order hearing; and

2. Whether the trial court's order granting Petitioner an order of protection is supported by sufficient evidence.

[2] We affirm.

Facts and Procedural History

[3] From 2017 to August 2022, while Petitioner was married to another person, Petitioner was in a romantic relationship with Respondent, and they were also in business together. After their relationship ended, Petitioner and Respondent did not have any contact with each other beginning in late spring 2023 until early July 2024, at which time Respondent attempted to contact Petitioner again, but Petitioner did not respond to these attempts and blocked Respondent's phone number and email address.

[4] On July 3, 2024, Respondent sent a lengthy email to Petitioner describing potential legal action regarding their prior business dealings; alleging Petitioner had committed multiple felonies; accusing Petitioner of infidelity, (id. at 11); and telling her that his family was ready to put a “machine ․ in place” that would be “scorched earth, media attention, getting right wing nuts worked up over this as they probably will - this is like crime show kind of stuff,” Tr. Vol. III at 12. Just a few days after sending this email, Respondent contacted the former spouse of Petitioner's current boyfriend and made disparaging remarks about Petitioner, calling Petitioner a “devil, a monster, an evil demon straight from hell,” Id. at 42. Respondent also contacted Petitioner's current boyfriend, the current boyfriend's brother, the Petitioner's ex-husband, and the Petitioner's former father-in-law. On appeal, Respondent states that he contacted these people “to warn” them about Petitioner's “dishonesty,” including her “infidelity, lying and cheating.” Appellant's Br. at 44.

[5] On July 9, Petitioner filed a petition for a protection order, claiming Respondent had physically harmed her, placed her in fear of physical harm, stalked her, and repeatedly harassed her.¹ After a hearing on September 27, the trial court granted Petitioner's protective order request (the “Original Order”). On October 4, Respondent sent a letter to the trial court asking it to clarify a provision of the Original Order concerning removal from the internet of content concerning Petitioner.² That same day, the trial court issued a new protective order (the “Revised Order”) that mirrored the Original Order except for a one-sentence clarification of the removal provision's scope.³ This appeal ensued.

Discussion and Decision

[6] Before we reach the merits of Respondent's appeal, we are compelled to address several procedural issues. First, the Statement of Facts section of Respondent's brief is rife with irrelevant facts and contains subjective argument.⁴ Indiana Appellate Rule 46(A)(6) “limits the statement of facts to a narrative description of the relevant facts stated in accordance with the appropriate standard of review.” Warriner Invs., LLC v. Dynasty Homeowners Ass'n, Inc., 189 N.E.3d 1119, 1122 n.1 (Ind. Ct. App. 2022) (citing Basic v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016)). “The statement of facts section of an appellate brief shall neither omit relevant facts nor contain subjective argument.” Id. (citing Basic, 58 N.E.3d at 984). Our appellate review was impeded by Respondent's disregard for our procedural rules as discussed above, but in light of our preference for deciding appeals on their merits, we choose to address the merits of Respondent's claims. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015).

[7] Second, throughout his briefing, Respondent relies on materials that were not admitted during the protective order hearing and are not otherwise part of the record. In particular, Respondent includes in his Appendix two exhibits that he claims to have offered into evidence during the protective order hearing, and along with those exhibits he includes narrative and argument about why we should consider them in our review. The Transcript shows that Respondent never offered these two exhibits into evidence. In fact, while cross-examining Petitioner about one of the exhibits, Respondent stated, “[W]e don't need to introduce all of it if you agree that you did ask for” certain things to occur in their sexual relationship. Tr. Vol. II at 39. And Respondent did not cross-examine Petitioner about the other exhibit. The plain text of Appellate Rule 50(A) requires materials included in the Appendix be part of the record. Accordingly, we do not rely on any citations, statements of fact, or argument regarding such materials.⁵

[8] Third, Respondent neither includes in his Appendix nor discusses in his briefing the Revised Order, which is the final judgment in this case, see Ind. Appellate Rule 2(H). Instead, Respondent exclusively focuses on the Original Order despite filing his Notice of Appeal after the trial court issued the Revised Order. Because the Revised Order is essentially the same as the Original Order—except for a one-sentence clarification in the Revised Order that Respondent does not challenge on appeal—we treat Respondent's appeal as though he appealed the Revised Order.

1. The Trial Court Did Not Violate Respondent's Constitutional Right to Procedural Due Process

[9] Respondent contends the trial court violated his constitutional right to procedural due process at the protective order hearing. Both the United States and Indiana Constitutions guarantee citizens the right to due process of law. U.S. Const. amend. XIV, § 1, cl. 3; Ind. Const. art. 1, § 12. “Procedural due process is the ‘opportunity to be heard at a meaningful time and in a meaningful manner.’ ” Hewitt v. Westfield Washington Sch. Corp., 46 N.E.3d 425, 433 (Ind. 2015) (quoting Perdue v. Gargano, 964 N.E.2d 825, 832 (Ind. 2012)). We review the alleged denial of procedural due process de novo. See Morales v. Rust, 228 N.E.3d 1025 (Ind.) (citing City of Hammond v. Herman & Kittle Props., Inc., 119 N.E.3d 70, 78 (Ind. 2019)), reh'g denied (Apr. 22, 2024), cert. denied, 145 S. Ct. 177 (2024).

[10] Respondent contends the trial court denied him procedural due process at the hearing because “he was not allowed to complete his cross-examination” of Petitioner, Appellant's Br. at 46, and because he had “no opportunity to testify or provide any direct testimony,” id. at 50. This court has previously held that “the minimum requirements for a hearing under the [Indiana Civil Protection Order Act] include the opportunity to testify, as well as call and cross-examine witnesses.” N.E. v. L.W., 130 N.E.3d 102, 106 (Ind. Ct. App. 2019) (citing Essany v. Bower, 790 N.E.2d 148, 152 (Ind. Ct. App. 2003)). “A trial court errs if it issues a protection order absent these safeguards.” Id. (citing Essany, 790 N.E.2d at 153).

[11] Respondent claims that “the court prioritized the schedule above [Respondent's] due process rights.” Appellant's Br. at 46. In particular, Respondent asserts that “[a]t the start of [his] cross-examination” of Petitioner, the trial court “was rushing the proceedings,” and “[l]ater the court interrupted [Respondent]’s questioning, without explanation, and moved directly to closing arguments.” Id. This allegedly resulted in Respondent not being able to complete his cross-examination of Petitioner and not being able to present evidence.

[12] The Transcript shows that several pages into Respondent's cross-examination of Petitioner, the trial court interrupted to warn the parties that there was not much time left:

THE COURT: You know, we've got about 12 more minutes on this hearing and then I've got another one so --

[RESPONDENT]: Okay, I'm sorry. Okay.

Tr. Vol. II at 31. Respondent then continued cross-examining Petitioner. Later on, the trial court again interrupted the cross-examination because of time constraints:

THE COURT: Okay, I'm just going to give you guys a heads up. We have another case set after yours and people are here for it so we're going to have to wind things up here.

[RESPONDENT]: Yes. Yes, Judge.

THE COURT: I'm willing to give you about four more minutes for argument on each side. If you want to split it two and two. Will that work?

[PETITIONER'S COUNSEL]: Yes, Your Honor. Thank you, Your Honor.

Id. at 47.

[13] Contrary to his assertions on appeal, Respondent did not object to the trial court ending the hearing when it did. Nor did Respondent ask the trial court to set a second hearing so he could continue his cross-examination and present evidence. Instead, during his closing argument, Respondent twice noted that he had more evidence he could present: (1) “All these things I have in my evidence package[,] but I guess we're not going to get to that right now,” Tr. Vol. II at 49; and (2) “ ․ I prefer if I had more time to get into this evidence here and explain things ․ ,” id. at 50. These statements are neither objections nor requests to continue the hearing.⁶

[14] The record shows that the trial court had a limited amount of time for the protective order hearing and adhered to its schedule. The trial court was well within its discretion to do so. See Abed v. ElSharif, 234 N.E.3d 890, 901 (Ind. Ct. App. 2024) (quoting State v. Van Cleave, 681 N.E.2d 181, 182 (Ind. 1997)) (“Trial courts enjoy wide discretion in the management and conduct of trial proceedings.”), trans. not sought. The record shows that the parties were aware of the time limitations. In such situations, it is incumbent on the parties to prioritize their presentations. Parties, whether represented or not, must make decisions about what evidence is most important, least important, relevant and necessary, relevant and less necessary, and irrelevant. Here, it appears that even with the time limitations, Respondent failed to curtail his presentation in any way, instead choosing to plow forward with cross-examination questions that were arguably irrelevant as well as repeatedly and successfully objected to as asked-and-answered. By not objecting and not asking for a continuance, Respondent acquiesced to the limitations imposed by the trial court and thus failed to preserve his due process rights at the trial level and for our review. See Expert Pool Builders, LLC v. Vangundy, 224 N.E.3d 309, 313 (Ind. 2024) (citing Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E2d 49, 53 (Ind. 2013)) (“Generally, we limit appellate review to arguments the parties first presented to the trial court.”). Finally, Respondent was permitted time for closing arguments, which he used to provide his version of the facts and denied multiple times the Petitioner's allegations of abuse.

[15] Respondent also claims the alleged due process violations were fundamental error. “An error is fundamental if it ‘made a fair trial impossible’ or constituted a ‘clearly blatant violation of basic and elementary principles of due process that presented an undeniable and substantial potential for harm.’ ” Dunn v. State, 230 N.E.3d 910, 914 (Ind. 2024) (quoting Miller v. State, 188 N.E.3d 871, 874 (Ind. 2022)). In support of his fundamental error argument, Respondent cites to and discusses Indiana Evidence Rule 103(e), but that rule is inapposite here because that rule concerns only rulings on evidence, and he does not challenge any of the trial court's evidentiary rulings. Furthermore, the trial court's decision to stick to its schedule did not make a fair trial impossible, nor did this decision violate the basic and elementary principles of due process, especially when there is no indication in the record that the trial court would have refused to set a second hearing date. We therefore cannot say that the trial court denied Respondent procedural due process at the protective order hearing.

2. Petitioner Presented Sufficient Evidence to Support the Trial Court's Decision to Grant Her Protective Order Request

[16] Respondent argues that there was insufficient evidence to support the trial court's decision to grant Petitioner's protective order request. “When, as here, a party appeals a trial court's judgment entering a protective order, we apply a two-tiered standard of review—we consider whether the evidence supports the court's findings and, if so, whether those findings support the judgment.” S.D. v. G.D., 211 N.E.3d 494, 497 (Ind. 2023) (citing S.H. v. D.W., 139 N.E.3d 214, 220–21 (Ind. 2020); Ind. Trial Rule 52(A)). “In making these determinations, we neither reweigh the evidence nor determine the credibility of witnesses, and we consider only the evidence favorable to the trial court's decision.” Id. (citing Mason v. Mares, 188 N.E.3d 42, 44 (Ind. Ct. App. 2022), trans. denied). We are also mindful that in protective order cases “our trial judges see and hear the parties interact as they relay details about intensely personal, traumatic events,” id., so “[i]n close cases ․ when the evidence could lead a court to grant or deny a petition, ․ ‘the trial court is the one to make that call,’ ” id. (quoting S.D. v. G.D., 195 N.E.3d 406, 411 (Ind. Ct. App. 2022) (Altice, J., dissenting), trans. granted, opinion vacated, 208 N.E.3d 1246 (Ind. 2023), and vacated, 211 N.E.3d 494).

[17] In the Revised Order, the trial court found in relevant part that “Petitioner has shown, by a preponderance of the evidence, that domestic or family violence, stalking, or repeated acts of harassment has occurred sufficient to justify the issuance of this Order.” Respondent challenges this finding, claiming it is unsupported by the evidence. Even if we assume that Petitioner did not meet her burden for stalking or domestic or family violence, there was sufficient evidence to support the trial court's finding that Respondent had engaged in repeated acts of harassment.

[18] To obtain a protective order based on harassment under the Indiana Civil Protection Order Act, the petitioner must show by a preponderance of the evidence that the respondent has committed repeated acts of harassment against the petitioner. Ind. Code § 34-26-5-2(b). Harassment is “conduct directed toward a victim that includes, but is not limited to, repeated or continuing impermissible contact: (1) that would cause a reasonable person to suffer emotional distress; and (2) that actually causes the victim to suffer emotional distress.” Id. § 34-6-2-51.5(a). The harassment must objectively include a present and credible threat. S.H., 139 N.E.3d at 220. A credible threat is “plausible or believable.” Id. The petitioner bears the burden of demonstrating “that there are reasonable grounds to believe that the respondent presently intends to harm the petitioner or the petitioner's family.” Id. “Harassment” does not include “statutorily or constitutionally protected activity.” I.C. § 34-6-2-51.5(b).

[19] The evidence most favorable to the trial court's decision to grant the protective order shows that Respondent repeatedly contacted Petitioner,⁷ leading her to block his number and his email address; at least one of Respondent's communications to Petitioner included threats of a “scorched earth” campaign that would include “media attention” and “getting right wing nuts worked up over this” and would be “like crime show kind of stuff,” Tr. Vol. III at 12; Respondent contacted several other people who knew Petitioner and made disparaging remarks about her;⁸ all these contacts made Petitioner feel intimated, fearful, harassed, and stalked. From this and other evidence, the trial court found that “Respondent represents a credible threat to the safety of the Petitioner or a member of the Petitioner's household,” and “repeated acts of harassment [have] occurred.” We cannot say these findings are unsupported by the record, and Respondent's arguments to the contrary are requests for us to reweigh the evidence and reassess witness credibility, which we will not do, see S.D., 211 N.E.3d at 497 (citing Mason, 188 N.E.3d at 44). For instance, Respondent attempts to discredit Petitioner's testimony about alleged physical abuse in their relationship. The trial court heard the evidence regarding this alleged abuse and gave it the weight the trial court deemed appropriate; we will not interfere with such a determination, see id. (citing Mason, 188 N.E.3d at 44). Based on the foregoing, we cannot say the trial court erred by granting Petitioner's protective order request.

Conclusion

[20] In sum, Respondent was not denied procedural due process at the protective order hearing, and there was sufficient evidence to support the trial court's decision to issue the protective order. We therefore affirm the trial court on all issues raised.

[21] Affirmed.

FOOTNOTES

1.   Respondent fails to include an official copy of this petition in his Appendix. See Ind. Appellate Rule 50(A). We have taken judicial notice of it pursuant to Indiana Appellate Rule 27.

2.   Respondent fails to include a copy of this letter in his Appendix. See App. R. 50(A). We have taken judicial notice of it pursuant to Appellate Rule 27.

3.   Respondent fails to include a copy of the Revised Order in his Appendix. See App. R. 50(A). We have taken judicial notice of it pursuant to Appellate Rule 27.

4.   Respondent chose to proceed pro se on appeal. This choice “afford[s] him no inherent leniency simply by virtue of being self-represented,” and Respondent is “held to the same standards as a trained attorney.” Auto. Fin. Corp. v. Liu, 250 N.E.3d 406, 410 (Ind. 2025) (quoting Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014)).

5.   Simultaneously with this decision, we have issued an order granting Petitioner's motion to strike these materials from the Respondent's Appendix and any references thereto in Respondent's briefing.

6.   Respondent chose to proceed pro se at the trial level. Again, a pro se litigant like Respondent is not “afforded ․ inherent leniency simply by virtue of being self-represented” and is “held to the same standards as a trained attorney.” Liu, 250 N.E.3d at 410 (quoting Zavodnik, 17 N.E.3d at 266).

7.   On appeal, Respondent focuses on his July 3 email to Petitioner, claiming it was only in regard to protected activity, namely, his and Petitioner's prior business dealings. This is a gross mischaracterization of the July 3 email. In the email, Respondent does describe potential legal action regarding their prior business dealings, but he also repeatedly and aggressively attacks her character:[Y]ou are beyond belief evil․ The machine they are going to put in place is one you are familiar with, scorched earth, media attention, getting right wing nuts worked up over this as they probably will - this is like crime show kind of stuff. I don't any of that and have been between you and the wolves. You are a remarkably horrible human. How does a spoiled carmel soccer mom ever become such so terrible, it is unreal․* * *That you think I'd go to this trouble to be WITH YOU is․ priceless․ You are a demon from hell and I THANK GOD everyday for taking you out of my life, it happens every time.* * *At any rate, I've said way too much here, supposed to be one line but man you are just so evil it is hard to digest for anybody and the latest stuff is just too much even for you ․Tr. Vol. III at 12–14 (errors in original).

8.   On appeal, Respondent not only concedes that he contacted Petitioner's ex-husband, her former father-in-law, and her current boyfriend's ex-wife, but he also states that he did so “to warn” them about Petitioner's “dishonesty,” including her “infidelity, lying and cheating.” Appellant's Br. at 44. In fact, Respondent claims, without citation to the record, that he “did not say anything untrue about” Petitioner and that Petitioner's current boyfriend's ex-wife “was very happy to hear from [Respondent] and asked for more information.” Id.

Felix, Judge.

Judges Mathias and Foley concur. Mathias, J., and Foley, J., concur.