J.C., Appellant-Respondent v. A.R., Appellee-Petitioner (2025)

MEMORANDUM DECISION

Case Summary

[1] J.C. appeals from the trial court's order for protection against him in favor of A.R. (the “protective order”), arguing that there was insufficient evidence to support its issuance. Specifically, J.C. argues that A.R. failed to prove that domestic or family violence had occurred sufficient to justify the protective order. J.C. also argues that A.R. failed to establish that he represents a credible threat to either A.R.’s safety or to members of her household. Because we disagree, we affirm.

Facts and Procedural History

[2] J.C. and A.R. have been married twice, with their most recent marriage ending in annulment in August of 2024. On November 7, 2024, A.R. petitioned for a protective order against J.C. and requested a hearing on the matter. In the petition, A.R. alleged to be a “victim of repeated acts of harassment[,]” and indicated that J.C. had “threatened to cause physical harm” to her, “placed [her] in fear of physical harm” and “committed repeated acts of harassment against” her. Appellant's App. Vol. II p. 15. A.R. indicated in the petition “I am scared of [J.C.] and want him to leave myself and my family alone.” Appellant's App. Vol. II p. 16. A.R. further requested that the trial court “prohibit [J.C.] from committing, or threatening to commit, acts of domestic or family violence, stalking, or sex offenses against [her] family or household members[,]” prohibit J.C. from “harassing, annoying, telephoning, contacting, or directly or indirectly communicating with” her, and order J.C. to stay away from certain locations. Appellant's App. Vol. II p. 16. A.R. attached fourteen pages of copies of text messages between herself and J.C. to her petition.

[3] The same day, the trial court granted A.R.’s petition, entered an ex parte order for protection (the “Ex Parte Order”), and scheduled a hearing for the petition for November 27, 2024. In the Ex Parte Order, the trial court found that A.R. had shown by a preponderance of the evidence that “stalking has occurred sufficient to justify to issuance of this Order[,]” and that J.C. “represents a credible threat to the safety of [A.R.] or a member of [A.R.]’s household.” Appellant's App. Vol. II p. 12. The trial court ordered J.C. “enjoined from threatening to commit or committing acts of domestic or family violence or stalking against” A.R. and her household members. Appellant's App. Vol. II p. 12. J.C. was further “prohibited from harassing, annoying, telephoning, contacting,[ ]or directly or indirectly communicating with” A.R., and “ordered to stay away from the residence and place of employment of” A.R. Appellant's App. Vol. II p. 12.

[4] At the November 27, 2024 evidentiary hearing, A.R. testified that J.C. had “point[ed] a gun” at her several times in 2023 and had also pointed a gun at her ex-husband and her son. Tr. Vol. II p. 4–5. A.R. testified that when she and J.C. were married, “it was very toxic [․] We um, he's pointed a gun at me, I can't remember that exact specifics right now, or recall of the arguments, but our arguments got physical several times.” Tr. Vol. II p. 12. A.R. also testified that she is afraid of J.C. and wanted him away from her family, that J.C. is “scary” and that she is “afraid of him to some degree and it's now escalated to a fear of my life and my kids’ lives and their father's life.” Tr. Vol. II p. 16. A.R. testified that she had asked J.C. several times to stop texting her. A.R. testified that “there had been several times” where she and J.C. had reconciled but that, by November, she had “asked him to stop and he hasn't stopped.” Tr. Vol. II p. 17.

[5] A.R. admitted several exhibits “to show proof” of J.C.’s harassment and threats. Tr. Vol. II p. 5. These exhibits included emails and text messages between J.C. and A.R., which were dated from both before the annulment of their second marriage had been finalized and after. A.R. testified that the basis for petitioning for the protective order included the recent communications from J.C. and the fact that “it's continued to be more and more toxic as time went on and it got to the point where I was done and not wanting to communicate and he wouldn't stop texting and e-mailing.” Tr. Vol. II p. 15.

[6] J.C. testified that A.R. owed him “damages” related to incidents he described from April and May of 2024. Tr. Vol. II p. 22. J.C. also testified to the “context” for certain text messages “taken without full context.” Tr. Vol. II p. 23. J.C. also “did not recall” pointing a gun at A.R. and denied ever threatening A.R. Tr. Vol. II p. 25. J.C. testified that he had not intended to harass, stalk, or cause A.R. any physical harm as a result of any of his communications or actions and testified that A.R. had been physically violent with him. J.C. also admitted several exhibits into evidence, which included text messages between himself and A.R.

[7] At the conclusion of the hearing, the trial court found that A.R. “has shown by a preponderance of the evidence that repeated acts of harassment have occurred sufficient for this Court to issue an order for protection.” Tr. Vol. II p. 31. The trial court found, in relevant part, that J.C. “represents a credible threat to the safety of [A.R.] or a member of [A.R.]’s household[,]” and that A.R. had “shown, by a preponderance of the evidence, that domestic or family violence has occurred sufficient to justify the issuance of this Order.” Appellant's App. Vol. II p. 8. The trial court also found that J.C. had “had notice and an opportunity to be heard[,]” and that the order “is necessary to bring about a cessation of the violence or the threat of violence.” Appellant's App. Vol. II p. 8.

[8] The trial court ordered the following:

1. [J.C.] is hereby enjoined from threatening to commit or committing acts of domestic or family violence, stalking, or harassment against [A.R.] and the following designated family or household members, if any: [Ba.J]; [Be.J]; [M.J.]; [K.S.]

2. [J.C.] is prohibited from harassing, annoying, telephoning, contacting, or directly or indirectly communicating with [A.R.]

[***]

4. [J.C.] is ordered to stay away from the residence and/or place of employment of [A.R.]

Appellant's App. Vol. II p. 8. The protective order is set to expire on November 27, 2026. On December 23, 2024, J.C. filed a motion to correct error, which motion the trial court denied on December 30, 2024.

Discussion and Decision

[9] J.C. appeals from the trial court's denial of his motion to correct error, which we review for an abuse of discretion. Kobold v. Kobold, 121 N.E.3d 564, 570 (Ind. Ct. App. 2019), trans. denied. An abuse of discretion occurs where the decision is against the logic and effect of the facts and circumstances before the court or where the court has erred on a matter of law. Id.

[10] J.C. argues that the trial court's protective orders were issued in error. “[I]n granting a protective order the trial court must sua sponte make special findings of fact and conclusions thereon.” Hanauer v. Hanauer, 981 N.E.2d 147, 148 (Ind. Ct. App. 2013). We apply a two-tiered standard of review to these findings and conclusions:

[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 defer to conclusions of law, however, and evaluate them de novo.

Id. at 149 (bracketed and omitted material in Hanauer).

I. Ex Parte Order

[11] J.C. contends that the trial court erred in issuing the Ex Parte Order because A.R. had “based her petition upon harassment alone[.]” Appellant's Br. p. 18. Specifically, J.C. contends that under Indiana Code section 34-26-5-9(b), the trial court was prohibited from issuing an ex parte order for protection without notice and hearing because A.R.’s petition was based upon allegations of harassment. Even assuming, arguendo, that the Ex Parte Order was issued in error, any such error could only be considered harmless. A “trial court's error is harmless when ‘its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.’ ” B.N. v. Health & Hosp. Corp., 199 N.E.3d 360, 365 (Ind. 2022) (quoting Ind. App. R. 66(A)). The basic premise of the harmless error doctrine is that the result should stand “when the error had no bearing on the outcome of the case.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018). Considering the fact that the trial court did issue notice to J.C. upon entering the Ex Parte Order, conducted a hearing on A.R.’s petition well within the thirty-day requirement of Indiana Code section 34-26-5-9(b), and ultimately entered a protective order upon conducting the hearing, which order not only expires later than the Ex Parte Order, but also contains the exact same general provisions and essentially the same findings as the Ex Parte Order, any error in the issuance of the Ex Parte Order was harmless.

II. Indiana Civil Protection Order Act (“CPOA”)

[12] J.C. also contends that the evidence is insufficient to support the protective order.¹ J.C. appears only to challenge the trial court's findings that J.C. “represents a credible threat to the safety of [A.R.] or a member of [A.R.]’s household” and that A.R. had shown by a preponderance of the evidence “that domestic or family violence has occurred sufficient to justify” the issuance of the order. Appellant's Br. p. 23.

[13] Under the CPOA, “[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 [․] family or household member who commits an act of domestic or family violence[.]” Ind. Code § 34-26-5-2(a)(1). Pursuant to Indiana Code section 34-6-2-34.5, “domestic or family violence” includes stalking as defined in section 35-45-10-1, which is, “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.” “Harassment” is defined as “conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress.” Ind. Code § 35-45-10-2. Impermissible contact includes “communicating with the victim.” Ind. Code § 35-45-10-3(a). Neither harassment nor stalking include “statutorily or constitutionally protected activity.” Ind. Code §§ 35-45-10-1; -2.²

[14] “A finding that domestic or family violence or harassment has occurred sufficient to justify the issuance of an order” means that a respondent “represents a credible threat to the safety of a petitioner or a member of a petitioner's household.” Ind. Code § 34-26-5-9(h). A “credible threat” is objective and “plausible or believable.” S.H. v. D.W., 139 N.E.3d 214, 220 (Ind. 2020). In proving a credible threat exists, the burden is on the petitioner to show, by a preponderance of the evidence, “that there are reasonable grounds to believe that the respondent presently intends to harm the petitioner or the petitioner's family.” Id.

[15] The evidence supporting the trial court's order is as follows: A.R. testified that she had asked J.C. several times to stop texting her but he had not stopped. (Tr. Vol. II p. 16–17) A.R. testified that by November, she had “asked him to stop and he hasn't stopped.” Tr. Vol. II p. 16. Included in A.R.’s exhibits at the hearing were several pages of text messages and emails from J.C. to A.R., including messages such as “[h]e belongs six feet underground, and the world would be better off without him[,]” and “kiss your currently sh[***]y life goodbye and say hello to a sh[*****]r one.” Ex. Vol. III pp. 13, 24. J.C. had also texted A.R., “[k]eep f[***]ing f[****]ts and living at Mommy and Daddy's like the dream you pictured lol not having a car, about to lose your job, losing insurance,” and “[w]ay to prove how trash you are. This will be relentless[.]” Ex. Vol. III p. 18. J.C. texted A.R. “I hope you're happy because [it] sure as f[***] isn't going to last much longer. Take that however the f[***] you want, but you involved my child and now you're done[.]” Ex. Vol. III p. 23. J.C. also texted A.R., “You will regret this, and I absolutely cannot wait. Goodbye dumb[***.]” Ex. Vol. III p. 22. Attached to A.R.’s petition for the protective order was a text from J.R., sent on October 28, which read

[y]ou f[***]ed me over too many times bug, any judge will see that. So buckle the f[***] up because it's over and there's nothing that anyone can do about it. Your job is done. Your house is gone. Your children are gone. You will be committed since my attorney already said a psych eval was coming. Consider your life over.

Appellant's App. Vol. II p. 31.

[16] Even the exhibits that J.C. submitted supported the trial court's determination that J.C. was a threat to A.R., with one exchange reading as follows:

[A.R.]: Changing my number right now[․] You will never speak to me again.

[J.C.]: As if I give a f[***] lol dirty a[**] whore

[J.C.]: My only wish is that you could've kept your pants on and your mouth shut. Maybe you'll learn how to do that this time lol probably not.

[J.C.]: Since you've got the time to do to me what you should've been able to do to that worthless piece of s[***], change your god[****] name and address and get the f[***] out of my life completely. God[****].

[J.C.]: And HURRY THE F[***] UP TOO. Wasted half my life with your bulls[***] and you're about to see what pissed off actually looks like. Glad you got that promotion today, just in time for your upcoming payment plan lol byeee[.]

Ex. Vol. III p. 50–51. After sending four more unanswered messages, J.C. concluded with, “Please say goodbye so I can let this go, go back home, and go to sleep! Or I'll be outside in about 5 minutes․” Ex. Vol. III p. 52.

[17] J.C. relies on R.H. v. S.W., 142 N.E.3d 1010, 1016 (Ind. Ct. App. 2020), to support the proposition that A.R. has failed to establish that he posed a credible threat to her. However, the facts of this case are easily distinguished from those in R.H. A.R. testified that J.C. had pointed a gun at her “several times within 2023” and that their arguments had turned physical in the past. Tr. Vol. II p. 5. Nothing in the record indicated that J.C. and A.R. had reconciled immediately afterwards, as was the case in R.H., and we cannot say that pointing a gun at someone on several occasions or engaging in multiple physical altercations is in any way similar to the incident of wrist-grabbing at issue in R.H. See R.H. 142 N.E.3d at 1016. Furthermore, A.R.’s testimony that J.C. had pointed a gun at her several times within the past year is neither as dated nor as “unspecified” as the acts in Tons v. Bley, 815 N.E.2d 508, 511 (Ind. Ct. App. 2004).

[18] J.C. cites to two isolated incidents of purported reconciliation between J.C. and A.R. since their divorce: (1) that A.R. texted J.C. that she “love[s]” him in September of 2024 and (2) that A.R. admitted to spending the night at J.C.’s house on October 13, 2024. Tr. Vol. II p. 16. Indeed, A.R. testified that “we did go back and forth a lot and I fully admit that I loved him deeply and I would fall right back[.]” Tr. Vol. II p. 17. However, A.R. also testified that she is afraid of J.C. and wanted him away from her family, that J.C. is “scary” and that she is “afraid of him to some degree and it's now escalated to a fear of my life and my kids’ lives and their father's life.” Tr. Vol. II p. 16. A.R. testified that, during their relationship, J.C. had stated that “if I ever left him and got back with [M.J.], who is the father of my sons, that he would ruin moth [(sic)] of our lives[,]” and that on several occasions, J.C. had said that M.J. “needs to be in jail or dead.” Tr. Vol. II p. 4.

[19] We conclude that the record here amply supports the trial court's finding that A.R. had shown by a preponderance of the evidence “that domestic or family violence has occurred sufficient to justify” the issuance of the protective order. Appellant's App. Vol. II p. 8. A.R. presented evidence demonstrating an intentional course of conduct involving repeated or continuing harassment on J.C.’s part, even after A.R. had asked him to stop. Moreover, the record contains evidence that A.R. actually did feel terrorized, frightened, intimidated, or threatened by J.C.’s actions. A.R. testified that she is afraid of J.C. and wanted him away from her family, that he is “scary” and that she is “afraid of him to some degree and it's now escalated to a fear of my life and my kids’ lives and their father's life.” Tr. Vol. II p. 16. Finally, we have little trouble concluding that a reasonable person would feel, at a minimum, intimidated or threatened by J.C.’s behavior.

[20] Furthermore, we cannot say, based on the record, that the trial court erred in determining that J.C.’s behavior represented a present, “credible threat to the safety of [A.R.] or a member of [A.R.]’s household.” Appellant's App. Vol. II p. 8. A.R. testified that “all of the text messages that [she] submitted were around the time of filing.” Tr. Vol. II p. 7. A.R. further testified that she was afraid for her family and testified to who was a member of her household. Tr. Vol. II p. 6, 17–18.

[21] In sum, J.C. has failed to establish that the findings are clearly erroneous. The trial court's findings support the trial court's conclusion that the protective order was necessary to bring about a cessation of the violence or the threat of violence. Therefore, the issuance of the protective order was not in error. As for evidence of the various “contexts” in which J.C. had sent his emails and messages, Appellant's Br. p. 26, the trial court was under no obligation to credit J.C.’s testimony and apparently did not.  ³ J.C.’s argument is nothing more than an invitation to reweigh the evidence, which we will not do. See Hanauer, 981 N.E.2d at 149.

[22] We affirm the judgment of the trial court.

FOOTNOTES

1.   J.C. argues that the trial court's findings were inadequate or insufficiently detailed. We disagree. The trial court's findings were sufficient to support the order. See Costello v. Zollman, 51 N.E.3d 361, 365 (Ind. Ct. App. 2016), (providing that “even though findings are required to grant a petition for a protective order, the findings need not be extensive”), trans. denied.

2.   To the extent that J.C. contends his communications constituted “statutorily or constitutionally protected activity” under section 35-45-10-1 or -2, he does not point to anything in the record to suggest that he raised these assertions below, and he has therefore waived this argument. See State v. Allen, 187 N.E.3d 221, 228 (Ind. Ct. App. 2022) (“Arguments raised for the first time on appeal, even ones based upon constitutional claims, are waived for appeal.”), trans. denied.

3.   For instance, J.C. contends that he had sent some messages in the context of a claim for damages he had filed against A.R., and requests that we take judicial notice of this other case, under Cause Number 32D04-2411-PL-000170 (“Cause 170”). While we take judicial notice of Cause 170 pursuant to Indiana Evidence Rule 201(c)(2), we do not find Cause 170 relevant to the case. J.C.’s assertion to the contrary effectively amounts to a request to reweigh the evidence, which, again, we will not do.

Bradford, Judge.

Judges May and Mathias concur. May, J., and Mathias, J., concur.