J.E., Appellant-Petitioner, v. A.E., Appellee-Respondent. (2023)

MEMORANDUM DECISION

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Petitioner, J.E., appeals the trial court's denial of his petition for an order for protection against Appellee-Respondent, A.E., and the trial court's grant of an order for protection in favor of A.E. and against J.E.

[2] We affirm.

ISSUE

[3] J.E. presents this court with two issues on appeal, which we consolidate and restate as: Whether the evidence is sufficient to support the trial court's grant of A.E.’s petition for an order for protection against J.E. and the denial of J.E.’s petition for an order for protection against A.E.

FACTS AND PROCEDURAL HISTORY

[4] J.E. and A.E. were married at the time of the proceedings and have two minor children together. A dissolution of marriage proceeding was filed by J.E. and is currently pending in the St. Joseph Circuit Court. On July 19, 2022, J.E. filed a petition for protective order and request for a hearing against A.E. That same day, the trial court granted an ex parte order for protection in favor of J.E. and against A.E. More than a month later, on August 29, 2022, A.E. filed a petition for an order for protection and request for a hearing against J.E. An ex parte order for protection in favor of A.E. and against J.E. was entered by the trial court that same day. Later that day, on August 29, 2022, prior to being served with A.E's ex parte order for protection, J.E. filed a verified information in contempt, alleging that A.E. had violated the ex parte order for protection he had been awarded against her. On September 3, 2022, J.E. again alleged that A.E. had violated the ex parte order for protection.

[5] Over the course of three days, September 19, 2022, September 22, 2022, and October 3, 2022, the trial court conducted a consolidated evidentiary hearing on both petitions for orders for protection and J.E.’s motion for contempt against A.E. During the proceeding, J.E. testified that he is currently a lieutenant with the Internal Affairs Division at the South Bend Police Department and was previously employed as a detective in the Special Victims Unit. In support of his petition for order for protection against A.E., J.E. alleged that he had been the victim of domestic violence by A.E., specifically referring to an incident that occurred on July 18, 2022 at the marital residence. On the morning of July 18, 2022, after A.E. had attended a court hearing in a Class C misdemeanor operating while intoxicated case filed against her in St. Joseph County, A.E. “turned to the bottle again” and became intoxicated before arriving at the marital residence. (Transcript Vol. II, p. 198). After J.E. observed A.E. almost dropping the parties’ infant child, he began using his phone to record A.E.’s actions. A.E. started “chasing him around the residence, trying to take the phone away from him while he was trying to call the police, and assaulting him while doing this.” (Appellant's App. Vol. II, p. 29). The recording stopped before the assault commenced. J.E. testified, “the reason the recording stopped is because she began assaulting me, you know, and almost knock[ed] the phone out of my hand, you know.” (Tr. Vol. II, p. 114). J.E. claimed that he sustained scratches on his left arm. After the police arrived, A.E. was taken into custody. Based on this incident, J.E. filed for a protective order online, which was granted the following morning, on July 19, 2022.

[6] J.E. maintained at the time of the hearing that A.E. violated the protective order by attempting to call him from the St. Joseph County Jail after she was arrested. In support of the alleged violation, J.E. submitted a screenshot showing that a call came in, but he did not introduce the voicemail recording that he claimed was left on his phone. J.E. also claimed that a second violation of the protective order occurred on August 26, 2022, when A.E. called the house phone late at night on that date.

[7] J.E. also testified to the violation of the protective order which occurred on September 3, 2022. On that day, the parties exchanged the children during a parenting time exchange pursuant to the order in the dissolution proceeding in which the parties had agreed that A.E.’s mother would collect the children for parenting time at a predetermined place and A.E. would not be present. J.E. arrived at the designated gas station early. When he noticed A.E.’s mother's vehicle at the gas station, he got the children out of his car and started loading their items into A.E.’s mother's vehicle. Following the exchange, J.E. testified that he was pumping gas into his vehicle when he observed A.E., along with her mother, getting the children out of A.E.’s mother's car. He “hurried up, finished getting gas, and left.” (Tr. Vol. II, p. 49). After taking a photograph of A.E.’s presence at the gas station, J.E. filed a police report, which resulted in A.E. being charged with a misdemeanor invasion of privacy.

[8] In support of her petition for an order for protection, A.E. testified to a history of emotional abuse dating back to the beginning of her relationship with J.E. in 2014 and physical abuse dating back to December 2018. She informed the court that on July 17, 2022, she had told J.E. that the relationship was “done.” (Tr. Vol. II, p. 196). After her misdemeanor case hearing on the morning of July 18, 2022, A.E. intended to go to Oaklawn, a mental health and addiction service center, to attend her outpatient treatment. J.E. did not want her to go and on her way home from Oaklawn, J.E. texted her repeatedly which caused her to relapse and drink alcohol to the point of inebriation. After she returned home intoxicated, A.E. and J.E. started arguing and J.E. began recording her. She testified that after the recording was turned off, J.E. started punching and slapping her on the side of her head, knocking her down, and kicking her. A.E. stated that while trying to defend herself, she scratched J.E. She was able to get away from J.E. by running outside. After police officers arrived, A.E. was arrested and taken to jail.

[9] With respect to the violation of the protective order on September 3, 2022, A.E. testified that after her mother picked her up, they arrived at the gas station fortyfive minutes early for the parenting exchange meeting. Because they were early, A.E. suggested that they go inside the gas station to use the restroom and to get refreshments. A.E.’s mother texted J.E. to let him know that she was early, and J.E. responded that he was already there as well. A.E. stated that she remained in the restroom to avoid any contact with J.E. After she noticed J.E.’s car drive away, she left the restroom, and went to her mother's vehicle to greet the children. The four of them then went inside the gas station to have lunch.

[10] On October 4, 2022, the day following the evidentiary hearing, the trial court issued its Memorandum, concluding, in pertinent part, that:

[J.E.’s] Petition against [A.E.]

For the reasons that follow, the [c]ourt is not persuaded and does not find by the greater weight of the evidence that [A.E.] committed domestic/family violence against [J.E.] as he alleged in his petition. The [c]ourt finds there are some logical gaps in [J.E.’s] case.

For example, and perhaps most tellingly, [J.E.’s] video recording of the minutes leading up to the alleged attack simply ends. [J.E.] had the presence of mind to use his smartphone to make a video recording of [A.E.’s] conduct while she was clearly intoxicated, yet he did not have the recording continue during the alleged attack. [J.E.] offered no explanation for why the video cuts off. He did not, for example, testify that [A.E.] grabbed the phone from him and hit the stop button. He did not testify that the phone fell and broke, thus stopping the recording. Even if he had set the smartphone down on the countertop, we might have heard the continued audio portion of the events occurring after the video ended. The [c]ourt was not given a single explanation why the recording did not continue. Indeed, [J.E.] appeared to not recognize that the abrupt end to the recording raised more questions than the recording answered.

In addition, the [c]ourt is bothered by [J.E.’s] casual approach to proving the alleged violations that occurred immediately after the [c]ourt issued the ex parte order of protection against [A.E.]. [ ] [J.E.] offered an iPhone screenshot of a voice mail message on his phone from an unknown caller that he says came from [A.E.] at the jail. [A.E.] produced her call records from the jail, and it revealed that [A.E.’s] only calls occurred between 2:00 A.M. and 2:45 A.M. —long before the order of protection was served on her. [J.E.] did not offer the voice mail recording itself, which is curious. Such a voice mail would be very persuasive evidence. And yet [J.E.] a trained police investigator, apparently did not save the evidence so it could be used in a court proceeding.

Finally, the [c]ourt is disturbed by [J.E.’s] complaint to the Indiana State Police regarding an alleged violation of the protection order when he was dropping off the parties’ children to [A.E.’s] mother so [A.E.] could exercise parenting time. [J.E.] testified that he made the complaint to the ISP because he is afraid of [A.E.], and she wasn't (to his understanding) supposed to be accompanying her mother to pick up the children. And yet [J.E.] made the report after he left the BP gas station along U.S. 31 in Miami County. He was no longer in danger, and he certainly could have waited to discuss the issue with his attorney. [A.E.’s] presence at the exchange might have been the basis for a contempt finding because by the photograph admitted into evidence she certainly seemed to be within 300 feet of [J.E.]. (Based on the testimony presented, this [c]ourt would not have made a finding of willful contempt.) Instead, [J.E.] called the ISP to file a complaint, knowing by virtue of his profession that the Miami County prosecuting attorney would review the report and might file invasion of privacy charges against [A.E.]. That is exactly what happened, and it was completely unnecessary.

The [c]ourt is often skeptical of accusations that police officers use the criminal justice system to gain leverage over their spouses when the marriages end. In this case, however, [A.E.] has presented more than just her own suspicions. She has been able to connect the dots and show that [J.E.] is more likely than not using his familiarity with the criminal justice system to his advantage. [ ]

[A.E.’s] Petition Against [J.E.]

[A.E.’s] petition for an order for protection contains some very disturbing allegations. Given [J.E.’s] position in the community, initially the [c]ourt had a hard time believing the allegations. While domestic or family violence survivors come in a wide range of spouses of corporate executives, lawyers, judges, physicians, police officers, bank tellers, construction workers, and other professions, having a specific police officer accused of such conduct comes as a shock.

The [c]ourt decided to grant [A.E.’s] request for an ex parte order of protection because her written allegations had a ring of truth to them. The [c]ourt realizes that it is hard for any person in [J.E.’s] shoes to prove that something did not happen. After having the opportunity to view [A.E.’s] testimony alongside [J.E.’s] testimony, the [c]ourt concludes that [A.E.] is more believable than [J.E.] is at times. [ ]

This is not to say that [A.E.] has proven any allegations beyond a reasonable doubt or even by clear and convincing evidence. The [c]ourt's conclusion does not mean that [J.E.] should face criminal charges. The [c]ourt has some doubts about the truthfulness of some of [A.E's] allegations (such as being forced to perform sexual acts while a DCS case worker was present in the home). However, the [c]ourt does not need to decide the allegations of sexual battery made by [A.E.]. The [c]ourt finds that [A.E's] testimony about the attack on July 18, 2022, alone justifies the order of protection in her favor. She had timely photographs of her injuries (the bruised wrist) to support her testimony. [J.E.’s] case, as noted above, has too many unanswered questions for the [c]ourt to conclude his version of events is more believable.

(Appellant's App. Vol. II, pp. 20-22) (emphasis in original). The trial court dismissed J.E.’s petition for an order for protection and terminated the July 19, 2022 ex parte order for protection. The trial court entered an order for protection in favor of A.E. and against J.E.

[11] J.E. now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

[12] J.E. contends that the trial court erred by granting A.E. an order for protection against J.E. as the trial court's findings did not support the conclusion that J.E. is a present and credible threat to A.E. Continuing his argument, J.E. also maintains that the trial court erred in denying his petition for protective order against A.E. because it ignored the applicable statutory provisions and was based on evidence unrelated to the July 18, 2022 incident.

[13] Protective orders are similar to injunctions, and therefore in granting an order the trial court must make special findings of fact and conclusions thereon. See Hanauer v. Hanauer, 981 N.E.2d 147, 148 (Ind. Ct. App. 2013) (citing Ind. Trial Rule 52(A) and Ind. Code §§ 34-26-5-9(a), -(f)). We apply a two-tiered standard of review: we first determine whether the evidence supports the findings, and then we determine whether the findings support the order. Id. at 149. “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.” C.S. v. T.K., 118 N.E.3d 78, 81 (Ind. Ct. App. 2019) (quoting Fox v. Bonam, 45 N.E.3d 794, 798-799 (Ind. Ct. App. 2015)).

[14] The Indiana Supreme Court recently considered for the first time the meaning and application of Indiana's Civil Protection Order Act (Act) in S.H. v. D.W., 139 N.E.3d 214 (Ind. 2020). While this case dealt with the issuance of a second, subsequent two-year protective order, its words are instructive here. The supreme court noted that, “[b]ecause of the potentially severe limitations on a restrained person's liberty, the petitioner must prove the respondent is a present, credible threat to the petitioner or someone in the petitioner's household,” and instructed:

[T]he Act has the express purpose of promoting the:

(1) protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner; and

(2) prevention of future domestic and family violence.

Ind. Code § 34-26-5-1 (2017). Aimed at combating the scourge of domestic and family violence, the Act protects both past and present victims and their children: “[A] person who is or has been a victim of domestic or family violence may file a petition for an order of protection”. I.C. § 34-26-5-2(a).

* * * * *

[A] court faced with a request for protective order must balance, on the one hand, the need to protect actual and threatened victims against, on the other, the onerous burden borne by those erroneously subject to such an order.

* * * * *

Indeed, as our court of appeals has observed, “an improperly granted protective order may pose a considerable threat to the respondent's liberty.” Barger v. Barger, 887 N.E.2d 990, 994 (Ind. Ct. App. 2008). For example, under state law, violating a protective order is punishable by confinement in jail, prison, or a fine, I.C. § 34-26-5-3(c), and subjects the offender to criminal prosecution for criminal stalking and invasion of privacy. I.C. §§ 35-45-10-5 (criminal stalking), 35-46-1-15.1 (invasion of privacy). And, under federal law, once a protective order has been entered against the respondent, he may commit a crime if he buys, receives, or possesses a firearm. I.C. § 34-26-5-3(c).

To obtain a protective order, the petitioner must show the respondent “represents” – present tense – “a credible threat to the safety of a petitioner or a member of a petitioner's household.” I.C. § 34-26-5-9(f). Thus, the respondent must pose a threat to a protected person's safety when the petitioner seeks relief. If the petitioner meets this burden, “the court shall grant relief necessary to bring about a cessation of the violence or the threat of violence.” Id. See also Costello v. Zollman, 51 N.E.3d 361, 365 (Ind. Ct. App. 2016).

In addition to focusing on the parties’ present situation, the Act requires that the threat posed by the respondent be viewed objectively. Not only must there be a present threat, but the threat must be credible – meaning plausible or believable. Thus, the petitioner must prove, 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. By focusing on the parties’ present situation, the Act not only allows courts to intervene as the parties’ circumstances warrant, but also contemplates that the parties’ relationship can change over time.

S.H., 139 N.E.3d at 220.

[15] Faced with each of the parties making specific allegations against the other regarding very serious abusive conduct while denying the allegations made against them, the trial court recognized that “[o]ne of the parties is testifying truthfully, and the other is not” and made a careful assessment. (Appellant's App. Vol. II, p. 20). The trial court explained that it considered a number of factors in deciding who it found to be more credible. The trial court set forth several factors that caused it to question J.E.’s credibility, finding that the explanation of why the video ended before any alleged assault took place was questionable, his casual approach to preserving credible evidence of his allegations in light of the fact he is a trained police officer was concerning, as well as the timing of J.E.’s call to the ISP after he had left the gas station and was no longer in danger. In light of the evidence before it, the trial court determined A.E. to be more believable than J.E. at times. Based on the evidence of her injuries and A.E.’s testimony about the attack on July 18, 2022—which the trial court determined to be credible—the trial court found sufficient evidence which supported the grant of an order for protection in her favor.

[16] In support of his argument that we do not need to reweigh A.E.’s credibility to conclude that the trial court abused its discretion by finding that J.E. posed a present threat to A.E., J.E. references S.D. v. G.D., 195 N.E.3d 406, 411 (Ind. Ct. App. 2022), in which this court reversed an order for protection granted in favor of wife and against husband because there was insufficient evidence to establish that husband presented a credible present threat. In S.D., like in the case before us, the trial court was confronted with two contradictory testimonies about physical abuse during a parenting time exchange. Id. at 408-09. Finding that wife had more credibility than husband because she “owned up to what was going on,” the trial court imposed a protective order in favor of wife and against husband. Id. at 409. This court reversed. Id. at 411. We concluded that “[i]t is undisputed that [husband] had parenting time without incident after the [physical altercation] incident and before the issuance of the ex parte order of protection. Based on the record, we conclude that the altercation [ ] is insufficient to establish that [husband] represents a present, credible threat to [wife's] safety or the safety of [child].” Id.

[17] S.D. is distinguishable from the situation at hand. Not only did A.E. present physical evidence of an injury sustained during the altercation on July 18, 2022, but the situation between A.E. and J.E. further escalated by A.E. filing her own petition for order for protection against J.E. and by J.E.’s several allegations of A.E. violating the protective order, one of which resulted in criminal charges against A.E. after he noticed A.E.’s presence during the parenting exchange, even though A.E. did not make any advances to get anywhere near him.

[18] The trial court attended three days of testimony during which it carefully listened to the contradictory testimonies and observed the parties’ demeanor. Finding that A.E.’s testimony had a “ring of truth” to it, the trial court set forth several factors that caused it to question J.E.’s credibility. (Appellant's App. Vol. II, p. 20). While J.E. clearly disagreed with the trial court's assessment, the trial court concluded that “J.E. represents a credible threat to the safely of [A.E.] or a member of [A.E.’s] household” based on the altercation on July 18, 2022. (Appellant's App. Vol. II, p. 25). J.E.’s argument requesting a reversal of the trial court's decision, is merely an invitation to reassess the credibility of A.E., which we cannot do. See Hanauer, 981 N.E.2d at 149. Accordingly, we affirm the trial court's order for protection in favor of A.E. and against J.E. and its denial of an order for protection in favor of J.E. and against A.E.

CONCLUSION

[19] Based on the foregoing, we hold that the trial court did not err in granting an order for protection in favor of A.E. and against J.E. and in denying J.E.’s motion for an order for protection against A.E.

Affirmed.

Memorandum Decision by Judge Riley.

Chief Judge Altice and Judge Pyle concur. Altice, C. J. and Pyle, J. concur