Mackall v. Stuart, 22A-PO-981

Case DateSeptember 27, 2022
CourtCourt of Appeals of Indiana

Timothy Mackall, Appellant-Respondent,

Kathryn Stuart, Appellee-Petitioner.

No. 22A-PO-981

Court of Appeals of Indiana

September 27, 2022

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, collateral estoppel, or the law of the case.

Appeal from the Marion Superior Court The Honorable Marie L. Kern, Magistrate Trial Court Case No. 49D14-2111-PO-38606


Timothy Mackall Pavia, Italy


Cynthia A. Marcus Marcus Law Firm, LLC Carmel, Indiana


Friedlander, Senior Judge.

[¶1] Timothy Mackall appeals from the trial court's orders denying his motion to correct error and motion to dismiss for lack of subject matter jurisdiction in this


action involving an order of protection granted in favor of Kathryn Stuart. We affirm.

[¶2] Mackall and Stuart were engaged in a three-month romantic relationship ending on November 4, 2021. On November 18th, Stuart filed a petition for protective order. A hearing was set for December 22nd, but no temporary protective order was issued. On December 21st, Mackall filed a Motion to Dismiss Petition for Failure to Hold Timely Hearing. That same day, Mackall also filed a Motion to Dismiss Hearing as Moot or, in the Alternative, to Continue.

[¶3] The court held the hearing as scheduled, Stuart and her counsel attended, while Mackall did not, and the court issued its permanent order of protection. The court also denied Mackall's December 21st motions. A copy of the protective order was served on Mackall on January 4, 2022.

[¶4] Next, on February 2, 2022, Mackall filed a Verified Motion to Set Aside Protective Order(s), including exhibits. Stuart filed Petitioner's Motion to Strike Respondent's Verified Motion to Set Aside Protective Order(s) on February 8, 2022. The court granted Stuart's motion under Indiana Trial Rule 12(F).[1]


[¶5] Mackall then filed a notice of appeal under Cause Number 22A-PO-490, challenging the court's December 22nd Order of Protection, the February 9th Order Striking Respondent's Motion to Set Aside Protective Order and the February 2nd Denial of the Verified Motion to Set Aside Protective Order(s).

[¶6] The trial court clerk filed a Notice of Completion of the Clerk's Record on March 14th after which Mackall filed a Motion to Dismiss and to Compel Clerk to Correct the Record. The trial court denied Mackall's motion.

[¶7] On April 4th, this Court dismissed with prejudice Mackall's appeal brought under Cause Number 22A-PO-490. The next day, Mackall filed a Motion to Correct Error in the trial court, challenging the court's decision to deny his March 16th Motion to Dismiss and to Compel Clerk to Correct the Record without holding a hearing. Mackall also filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction, arguing that the protective order petition should have been dismissed because the hearing was held beyond the thirty days provided for by Indiana Code section 34-26-5-9(b) (2019). He maintained that the order was void on the same grounds. The court denied Mackall's motions and this appeal ensued.


[¶8] The first issue we address is Mackall's argument that the trial court erred by denying his Motion to Dismiss for Lack of Subject Matter Jurisdiction. Indiana Code section 34-26-9(b) provides as follows:

(b) If it appears from a petition for an order for protection or from a petition to modify an order for protection that harassment has occurred, a court
(1) may not, without notice and a hearing, issue an order for protection ex parte or modify an order for protection ex parte; but
(2) may, upon notice and after a hearing, whether or not a respondent appears, issue or modify an order for protection.
A court must hold a hearing under this subsection not later than thirty (30) days after the petition for an order for protection or the petition to modify an order for protection is filed.

(emphasis added).

[¶9] Stuart's petition for protective order was filed on November 18, 2021 and a hearing was set for and held on December 22, 2021. Thus, the hearing was scheduled for and held on the 34th day after the petition was filed.

[¶10] Mackall argues that the court lacked subject matter jurisdiction to hear the petition because its "jurisdiction is strictly limited to 30- days[sic] following filing of the petition for an order for protection on a claim of harassment." Appellant's Br. p. 10. He also claims that Stuart "waived her right to be heard on the petition" because she did not object to the trial court's scheduling of the hearing outside of the thirty-day window. Id. He alleges that the "protection


order is void because the manner in which it was obtained violated" his liberty interests and an assortment of statutory and constitutional protections he cites by requiring him to object to the hearing date within the thirty-day period required by statute, while allowing Stuart to be heard on her petition after the expiration of the thirty-day statutory period. See generally, id. at 35-48.

[¶11] In its order denying Mackall's motion alleging a lack of subject matter jurisdiction, the court concluded as follows:

The Court finds that Respondent waives any objection to the setting of this matter outside of the 30 days, as the objection was not timely. Further, the Court finds good cause to have set the matter beyond the 30 days, due to the Court's dockets and ability to schedule the matter. Any harm to Respondent associated with the delay is de minimus. Additionally, Respondent also requested as alternative relief, a continuance from the Court, thereby waiving any objection to the setting of the matter beyond 30 days. Respondent has demonstrated that he did not suffer any prejudice as a result of the 4 day delay when he requested a continuance as alternate relief, as such action by the Court would only have further delayed the proceeding. Respondent incorrectly assigns the burden of objecting to the setting of the matter to Petitioner; the objection was his to raise. Instead, Respondent attempted to ambush the Petitioner by filing his motion to dismiss, after the expiration of 30 days. Respondent had notice of the hearing, the motion was not ruled upon before the hearing. Respondent voluntarily waived his right to appear and present argument on his motion and evidence on the petition. For all the foregoing, the Court denies the motion.

Appellee's App. Vol. 2, p. 71.


[¶12] We conclude that the trial court did not lose jurisdiction of the matter by scheduling and hearing the matter outside the thirty-day window set out in the statute under the facts of this case. First, "[j]urisdiction involves three elements: jurisdiction of the subject matter, jurisdiction of the...

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