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

MEMORANDUM DECISION

Case Summary

[1] T.M. appeals the trial court's grant of a protective order to Appellee, M.M. He raises six issues for our review, which we consolidate and restate as the following four issues: (1) whether the doctrine of judicial estoppel barred M.M.’s pursuit of the current protective order; (2) whether the trial court abused its discretion in issuing the protective order; (3) whether the issuance of the protective order violated his constitutional rights; and (4) whether Appellant was prejudiced by judicial bias. We affirm.

Facts and Procedural History

[2] T.M. and M.M. were married in October 2021. In October 2022, T.M. and M.M. separated and petitioned for dissolution of marriage, which remains pending. In March 2025, M.M. petitioned for a civil protective order, and the trial court held a hearing on March 18. M.M. testified about several incidents which she described in her petition.

[3] The first incident occurred in December 2021. After having an argument at their home, M.M. retreated to a bedroom, and T.M. texted her about the argument. In their basement, M.M. approached T.M. to discuss the text messages. T.M. grabbed M.M. by her arms, began yelling at her, and told her that he hated her. M.M., who was “scared” and “shaking[,]” went back upstairs. Tr. Vol. II p. 11. Then, T.M. confronted M.M. in their kitchen and threw a bag of biscuits across the room, which hit M.M. in the face. When M.M. retreated into a bedroom to call her mother, T.M. cornered her and yelled that “if [M.M.] ever called cops and reported false statements against him, ․ he was going to kill [M.M.] and [her] family.” Id. at 12.

[4] In October 2022, M.M. was moving out of her home with T.M. While she was inside waiting for movers to arrive, she saw T.M. remove a black box from her car. She asked T.M. if it was a tracker. In response to why it was on the car, T.M. told M.M., “I don't know what you do while you go to work and while you're out running errands.” Id. at 13.

[5] The next month, M.M. was driving to a store and saw a yellow Jeep enter the store parking lot. Recognizing the vehicle as T.M.’s, M.M. left the store. T.M. followed her onto the highway and off at another exit. M.M. pulled her vehicle into a gas station and called the police because she “felt uncomfortable and unsafe.” Id. at 14. The police arrived and directed her to drive off in another direction. However, when she entered her apartment complex about an hour later, the yellow Jeep was there. See id. at 22. She took a photo of the Jeep's license plate and with “no doubt” recognized that it was T.M. Id. She called the police again, and T.M. drove out of the apartment complex.

[6] In the spring of 2023, M.M. successfully petitioned for a protective order against T.M. based on these incidents. After he violated the protective order, T.M. was charged with and pleaded guilty to invasion of privacy. As part of his plea agreement, a criminal no-contact order was issued that said, “[T.M.] shall have no contact with [M.M.] for 360 days with the exception of future civil legal proceedings and settlement negotiations between the parties[.]” App. Vol. II p. 106. At the time the criminal no-contact order was issued, the only pending legal proceeding between parties was the dissolution matter. At the advice of her victim advocate, M.M. cooperated with the plea agreement and agreed to dismiss the 2023 civil protective order because a criminal no-contact order was issued.

[7] Finally, in January 2025, T.M. filed a civil tort claim against M.M. Through this process, T.M. located M.M.’s home address, which she had not provided to him and never wanted him to have. M.M. testified that she believed T.M. was trying to harass her using the discovery process to obtain “very private information” about her. Tr. Vol. II p. 17. She was also concerned that T.M. would have direct contact with her through civil litigation, like he had for the protective order hearing, because he was not represented by counsel. See id. at 56. M.M. requested that the court issue a protective order that “goes above and beyond” the civil litigation exception to the criminal no-contact order and would stop T.M. from contacting her directly in any way except through her lawyer. Id. at 58.

[8] Then, T.M., who proceeded pro se in the present protective order matter, cross examined M.M. Initially, T.M. questioned M.M. about protective orders she filed previously and challenged whether M.M. could now accuse T.M. of continuing harassment.¹ M.M. responded to T.M. that she currently felt a protective order was necessary because “you are harassing me.” Id. at 30. T.M. also questioned M.M. about his civil tort claim. M.M. reiterated her concerns that he was asking for sensitive information through discovery and had obtained her home address.

[9] T.M. next turned to questioning M.M. to reveal inconsistencies between some of her current and prior statements. Throughout T.M.’s cross-examination of M.M., the trial court asked questions of T.M. and M.M. to guide the hearing and ensure T.M. was questioning M.M. rather than testifying. See e.g., id. at 42-43. The court repeatedly explained that it wanted T.M. to have a “fair shake” and be able to present his case. Id. at 36; see id. at 33. However, the court did not permit T.M. to ask questions about the marriage such as “why a spouse would want to keep the contents of their phone secret, the contents of their financial information secret, file their taxes separately,” and so on. Id. at 45. The court clearly explained those issues were “not in [its] lane right now” and that it would only consider the protective order during the hearing. Id.

[10] Finally, T.M. presented his direct testimony. He asserted he had no direct contact with M.M. since the no-contact order was issued, but felt it was his right to be able to proceed in a civil action against M.M. To challenge M.M.’s position on the protective order, T.M. admitted several of his therapy records wherein he told his therapist he was a victim of abuse during his marriage. T.M. concluded “[t]here was no reason for [sic] to be fearful of me, I have not had any contact.” Id. at 64.

[11] At the conclusion of the hearing, the trial court granted the protective order, stating:

I believe, I believe your actions taken in total constitute harassment․ I am going to order, sir, that for a period of two years, you not have contact with her. That you only contact her through her lawyer, and that, that other actions under the various civil matters, will now be viewed through a lense [sic] of is this, is this harassing, and does this constitute an abuse of process, I will have to look at that. And in, in the divorce as well. But yes, it is a low burden, and I believe that she has met that burden and has shown me that it is more likely than not there has been harassment.

Id. at 70. T.M. asked for clarification on how he should participate in discovery for other proceedings. The trial court clearly responded that “[e]verything goes through him[,]” referring to M.M.’s attorney. Id. at 71. In the court's subsequent written order, the court found that T.M. “represents a credible threat to the safety of [M.M.] or a member of [her] household” and M.M. “has shown, by a preponderance of the evidence, that repeated acts of harassment ha[ve] occurred sufficient to justify the issuance of this Order.” App. Vol. II p. 3. This appeal ensued.

Discussion and Decision

I. Judicial Estoppel

[12] As a preliminary matter, T.M. alleges that the doctrine of judicial estoppel barred M.M. from filing the protective order.  ² He claims that “[b]y voluntarily dismissing her protective order with full knowledge of the alleged incidents from 2021-2023, and accepting a no-contact order with an exception for civil proceedings, [M.M.] took a clear position that these past incidents did not necessitate the broader protections of a protective order[.]” Appellant's Br. pp. 18-19. T.M. goes on, asserting M.M.’s current position is “directly contrary” to her previous position and M.M. wants to “effectively nullif[y]” the civil proceedings exception to the no-contact order. Id. at 19. Finally, T.M. alleges M.M. benefited from her previous position because T.M. pleaded guilty to invasion of privacy. We disagree.

[13] Our Supreme Court recently summarized the application of judicial estoppel:

Judicial estoppel is a judicially crafted doctrine deriving from courts’ inherent authority to protect the judiciary's integrity by prohibiting litigants from playing fast and loose with the judicial process. The doctrine does that by preventing litigants from prevailing on contradictory positions in the same or subsequent proceedings. The rule is: Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.

Red Lobster Rest. LLC v. Fricke, 234 N.E.3d 159, 169-70 (Ind. 2024) (citations and quotations omitted). In reviewing whether a party is judicially estopped from proceeding, courts tend to focus on three factors: (1) “whether a litigant's argument is clearly inconsistent with its earlier argument[,]” (2) “whether the litigant successfully persuaded a court to accept its earlier argument, which means accepting the later inconsistent position would create the perception that either the first or the second court was misled[,]” and (3) “whether the litigant's actions would result in an unfair advantage or levy an unfair detriment on the opposition if the court did not apply estoppel.” Id. at 170.

[14] None of these factors are present here. M.M.’s position has been clear and consistent in every relevant proceeding: that the courts should grant her protection from T.M. based on her fear of his prior and current unwanted contact. M.M. first made that argument when the 2023 protective order was granted, and she supported her position with several incidents involving T.M. She then cooperated with a victim advocate to obtain the continuing protection of a criminal no-contact order after T.M. violated the 2023 protective order. Finally, M.M.’s position in the current protective order proceeding remained consistent: based on the same previous incidents and additional, recent incidents, M.M. argued the court should grant her protection from T.M. Because M.M.’s argument has been consistent, no court has accepted a contrary position, and T.M. has not been unfairly disadvantaged. Nothing in the record supports T.M.’s assertion that M.M. took a clear position that she did not need the broader protection of a protective order. Judicial estoppel does not apply.

II. Protective Order

[15] In reviewing 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). “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.” J.T. v. A.H., 255 N.E.3d 512, 517 (Ind. Ct. App. 2025) (citing Fox v. Bonam, 45 N.E.3d 794, 798 (Ind. Ct. App. 2015)), trans. denied. “[W]e neither reweigh the evidence nor determine the credibility of witnesses, and we consider only the evidence favorable to the trial court's decision.” S.D., 211 N.E.3d at 497 (citation omitted). Our Supreme Court further explained:

Indeed, our trial courts are far better than appellate courts at weighing evidence and assessing witness credibility. And this is particularly true in protective order cases, where our trial judges see and hear the parties interact as they relay details about intensely personal, traumatic events. Our review of this evidence on appeal is far less clear from our vantage point in the far corner of the upper deck.

J.T., 255 N.E.3d at 517 (citing S.D., 211 N.E.3d at 497). In addition, the appellant must establish that the trial court's findings are clearly erroneous, “meaning a review of the record leaves us firmly convinced that a mistake has been made.” Id.

[16] The Indiana Civil Protection Order Act (CPOA) provides that “[a] person who is or has been subjected to harassment may file a petition for an order for protection against a person who has committed repeated acts of harassment against the petitioner.” Ind. Code § 34-26-5-2(b) (2021). Our legislature has defined “harassment” as “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.” Ind. Code. § 34-6-2-51.5(a) (repealed).³ But harassment “does not include statutorily or constitutionally protected activity[.]” Ind. Code § 34-6-2-51.5(b) (repealed).

[17] Finally, “[t]o justify the issuance of a protective order, the harassment must objectively include a present and credible threat.” J.T., 255 N.E.3d at 517 (citing S.H. v. D.W., 139 N.E.3d 214, 220 (Ind. 2020)). “A credible threat is plausible or believable.” Id. (internal quotations omitted). “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. (internal quotations omitted).

[18] T.M. contends the trial court abused its discretion in granting a protection order because there is insufficient evidence to support the court's finding that his conduct constituted harassment of M.M. Specifically, T.M. alleges: (1) the evidence supporting that finding was “largely stale[,]” (2) his filing of a civil action was legitimate and did not constitute harassment, and (3) the court “failed to properly weigh significant impeachment evidence[.]”⁴ Appellant's Br. pp. 20, 34. We disagree.

[19] Our review of the record reveals M.M. testified that T.M.’s conduct and interactions with her have placed her in fear and caused her emotional distress. She painstakingly recounted the details of several incidents with T.M.: T.M. threatened to kill M.M. and her family following an argument; T.M. removed a tracker from M.M.’s car, of which she was not previously aware; T.M. followed M.M. in his car to various locations including to her then-current apartment complex. After these incidents, M.M. sought a protective order to end the harassment, and T.M. ultimately pleaded guilty to violating that protective order. Then, although a no-contact order permitted contact for civil litigation proceedings, T.M. obtained M.M.’s home address against her wishes, utilizing the justice system as an avenue for contact.

[20] That M.M. relied on some of these incidents in obtaining a previous protective order is of no moment. These contacts occurred repeatedly over several years and established a pattern in T.M.’s behavior. T.M.’s contact did not stop despite M.M.’s efforts to seek or accept protective relief through previous civil and criminal proceedings. This Court has previously held that lapses in time do not necessarily render a threat less credible. See S.D., 211 N.E.3d at 499 (noting that lapses in time or intervening events do not necessarily render a threat less credible). The CPOA itself provides that a “court may not deny a petitioner relief ․ solely because of a lapse of time between an act of ․ harassment and the filing of a petition.” Ind. Code § 34-26-5-13 (2019). We are not inclined to hold that a petitioner may not reiterate incidents of prior unwanted contact to establish a history of harassing behavior where evidence of ongoing unwanted contact is also provided.

[21] T.M. also contends that “a legitimate exercise of legal rights, such as filing a civil lawsuit through proper channels, cannot constitute harassment under Indiana law absent evidence of objective baselessness or malicious intent.” Appellant's Br. p. 21. However, T.M. provides no authority to support his assertion and has, therefore, waived appellate review of that issue. See e.g., Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015) (“A litigant who fails to support his arguments with appropriate citations to legal authority and record evidence waives those arguments for our review.”). In any event, T.M.’s assertion is incorrect: this court has previously stated that a claim is frivolous if it is taken primarily for the purpose of harassment—hence, some claims can constitute harassment. See Bertucci v. Bertucci, 177 N.E.3d 1211, 1225 (Ind. Ct. App. 2021) (citing Ind. Code § 34-52-1-1 (1998) and explaining that a claim or defense is frivolous if taken primarily for the purpose of harassment); see also J.T., 255 N.E.3d at 518 (where misuse of civil litigation can constitute harassment within the meaning of the CPOA).

[22] In addition, T.M.’s arguments about the staleness of his contact with M.M., the method of his most recent contact, and the alleged impeachment evidence of M.M., go to the weight the trial court gave the evidence rather than to its sufficiency. T.M. asks us to reweigh the evidence and judge M.M.’s credibility, which we will not do. See J.T., 255 N.E.3d at 517. From this evidence, the court could reasonably conclude that T.M.’s contacts with M.M. constituted harassment. The court did not abuse its discretion by issuing a protective order against T.M.

III. Constitutionality

[23] T.M. also contends the protective order violates his First Amendment right to petition the courts and impairs his ability to gather evidence, conduct discovery, and present his case. In support of his argument, T.M. reiterates alleged inconsistencies by M.M. and discusses his belief that her pursuit of a protective order was retaliation for his pursuit of a civil tort against her. But we need not undertake analysis of this argument.

[24] When granting the protective order, the trial court clearly stated that T.M. may “only contact [M.M.] through her lawyer” and “other actions under the various civil matters, will now be viewed through a [lens] of is this, is this harassing, and does this constitute an abuse of process[.]” Tr. Vol. II p. 70. When T.M. asked for clarification, the court again responded clearly and told T.M. that “[e]verything goes through him[,]” referring to M.M.’s attorney. Id. at 71. Neither this statement nor the written order prohibit T.M. from engaging in legitimate civil litigation via communication with M.M.’s attorney. Rather, T.M. is “enjoined from threatening to commit or committing acts of harassment against [M.M.]” and “prohibited from harassing, annoying, telephoning, contacting or directly or indirectly communicating with [M.M.]” App. Vol. II p. 3. Whether T.M.’s actions in any civil matter constitute frivolity or harassment is left for determination in the trial court with jurisdiction over such matters. T.M.’s constitutional rights have not been violated.

IV. Judicial Bias

[25] Finally, T.M. alleges the trial court “exhibited prejudicial bias” that deprived him of due process by interrupting him while he was cross-examining M.M. and by prejudging the issues. Appellant's Br. p. 23. Specifically, T.M. points to the court's following remarks: that the court was “trying not to catch [its] foot on the first hurdle of what you are doing in these other cases[,]” Tr. Vol. II p. 69, and “it's going to be an ugly divorce[,]” Id. at 70. T.M. also alleges the court's decision to give less weight to his evidence than to M.M.’s constituted judicial bias. We cannot agree.

[26] Because T.M. failed to object to the trial judge's comments, he has waived the issue for our review. Woods v. State, 98 N.E.3d 656, 664 (Ind. Ct. App. 2018) (the issue of bias is waived for our review where a defendant fails to object to a judge's comments), trans. denied. To overcome waiver, an appellant must demonstrate fundamental error, “which is a blatant error that denies the defendant due process.” Id.

[27] Judges are presumed to be unbiased and, to rebut this presumption, a mere assertion of judicial bias is insufficient. Rochefort v. State, 177 N.E.3d 113, 118 (Ind. Ct. App. 2021), trans. denied. Rather, one “must establish from the judge's conduct actual bias or prejudice that places the defendant in jeopardy.” Id. (citation omitted). Such bias or prejudice exists only “where there is an undisputed claim or where the judge expressed an opinion of the controversy over which the judge was presiding.” Id. In reviewing allegations of judicial bias, “we examine both the judge's actions and demeanor.” Id. at 118-19.

[28] Here, T.M. cannot rebut the presumption. There was no undisputed claim at issue, and the court did not express an opinion on the merits of the case before it. In fact, the court's comment about T.M.’s other cases indicates that the court was carefully ensuring it did not determine whether actions in the other cases constituted harassment. Its remark about the divorce case is inconsequential, as the divorce was not before the court. And, as we stated above, it is well within the court's discretion to determine the weight and credibility it applies to the evidence. T.M. has failed to carry his burden of proof and is not entitled to relief on this claim.

V. Conclusion

[29] The court's actions and issuance of the protective order neither violated T.M.’s constitutional rights nor constituted judicial bias. Because the evidence supports the court's finding that T.M.’s contacts with M.M. constituted harassment and the credible threat finding is unchallenged, there is sufficient evidence to support the court's issuance of the protective order to M.M. We affirm the trial court's judgment.⁵

[30] Affirmed.

FOOTNOTES

1.   Without objection, T.M. admitted several protective order petitions filed by M.M. However, the only previously granted protective order that is discussed in the record was the 2023 protective order. Supra ¶ 6.

2.   We note that T.M. cites to incorrect cases to support his contentions about judicial estoppel. For example, the quotation T.M. provides on judicial estoppel is not found at Morgan County v. Ferguson, 712 N.E.2d 1038, 1043 (Ind. Ct. App. 1999) nor anywhere in that case, Appellant's Br. p. 17.T.M.’s brief is rife with other significant errors. For example: (1) the introduction contains quotations with no citations, Appellant's Br. p. 7; (2) the citation to Ind. Code § 33-25-1-2 establishes our Court's districts, not our jurisdiction over appeals, Appellant's Br. p. 8; (3) Galloway v. State, 938 N.E.2d 699 (Ind. 2010), does not provide authority on judicial bias, Appellant's Br. p. 9; (4) Reynolds v. State, 61 N.E.3d 1283 (Ind. Ct. App. 2016) does not exist, Appellant's Br. p. 9; (5) many of T.M.’s citations to the transcript do not provide a basis for the assertion he cites to (see e.g., Appellant's Br. p. 9, where citation Transcript page 31 does not discuss initiation of the parties’ divorce proceeding; Transcript page 37 does not discuss the number of petitions for protection that M.M. has filed; the quote “future civil legal proceedings and settlement negotiations between the parties” is not on page 25, 26, or 63 of the Transcript); (6) Robison v. Orthopedic & Sports Medicine Center, 3 N.E.3d 1027 (Ind. Ct. App. 2014) does not exist, Appellant's Br. p. 17; (7) Bill v. Bill, 755 N.E.2d 1144 (Ind. Ct. App. 2001) does not exist, Appellant's Br. p. 19; (8) Wann v. Wann, 716 N.E.2d 612 (Ind. Ct. App. 1999) does not exist, Appellant's Br. p. 19; (9) the definition of harassment is not located at Ind. Code § 34-26-5-2(c)(2), Appellant's Br. p. 20; and (10) A.H.L. v. C.Y.L., 180 N.E.3d 281 (Ind. Ct. App. 2021) does not exist, Appellant's Br. p. 21.We remind T.M. that pro se litigants are held to the same standard as licensed attorneys, bound to follow the procedural rules, and must be prepared to accept the consequences of their failure to do so—including waiver for failure to present a cogent argument. Basic v. Amouri, 58 N.E.3d 980, 981-82 (Ind. Ct. App. 2016). Ind. Appellate Rule 46 provides the form and content that is required of each brief submitted to our court, including that the argument must contain Appellant's contentions supported by cogent reasoning and citations to authorities, statutes, and the Record. At some point, incorrect and invented citations like the examples above makes a meritorious review of a case impossible. They may also result in reprimand or sanction. See e.g., Williams v. Kirch, 25A-SC-196, 2025 WL 2383623 (Ind. Ct. App. August 18, 2025) (self-represented litigant admonished for use of citations to fictitious cases); Mid Cent. Operating Eng'rs Health & Welfare Fund v. HoosierVac LLC, No. 2:24-cv-326, 2025 WL 1511211 (S.D. Ind. May 28, 2025) (attorney fined $6,000 for filing briefs with citations to non-existent cases on three occasions).

3.   Effective July 1, 2025, the definition of harassment was moved from Ind. Code § 34-6-2-51.5 to Ind. Code § 34-6-2.1-80, but the language did not change.

4.   T.M. does not challenge the court's finding that he posed a credible threat to the safety of M.M. or a member of her household. In his reply brief, T.M. mentions for the first time, in an issue heading, that there is “No Present Threat[.]” An issue raised for the first time in a reply brief is waived. Felsher v. Univ. of Evansville, 755 N.E.2d 589, 593 n.6 (Ind. 2001); see also Ind. Appellate Rule 46(C) (“No new issues shall be raised in the reply brief.”).

5.   T.M. has filed three notices of subsequent events, one motion for oral argument, three motions to supplement the record, one motion for leave to supplement the record, one motion to stay the protective order pending the outcome of this appeal, one motion to expedite this appeal, and one motion to expedite consideration of his motion to stay the protective order, or in the alternative, to expedite this appeal. T.M.’s motions to supplement seek to admit evidence that was not admitted before the trial court and request that we weigh that evidence in favor of reversal. His motions to stay do not comply with Ind. Appellate Rule 39. And his motions to expedite are now moot. Each of T.M.’s notices, to the extent that they request relief, and each of his motions is denied.

Scheele, Judge.

Judges Foley and Kenworthy concur. Foley, J., and Kenworthy, J., concur.