S.D. v. G.D., 22A-PO-521

Citation22A-PO-521
Case DateSeptember 21, 2022
CourtCourt of Appeals of Indiana

S.D., Appellant,
v.

G.D., Appellee.

No. 22A-PO-521

Court of Appeals of Indiana

September 21, 2022


Appeal from the Starke Circuit Court The Honorable Micah P. Cox, Magistrate Trial Court Cause No. 75C01-2201-PO-1

Attorney for Appellant Alexander N. Moseley Ciyou and Dixon, P.C. Indianapolis, Indiana

Appellee Pro Se G.D. North Judson, Indiana

Brown, Judge

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[¶1] S.D. appeals from the trial court's order of protection and claims the evidence is insufficient to support the order. We agree that the evidence is insufficient to find that S.D. is a present, credible threat, and that the trial court erred in not balancing any need for protection against the burden imposed by the protective order.

Facts and Procedural History

[¶2] On January 6, 2022, G.D. filed a petition for an order for protection against S.D. in Starke Circuit Court. G.D. alleged that she had been a victim of domestic or family violence, S.D. used to be her spouse, she and S.D. have a child in common, she lived in Starke County, and S.D. caused physical harm to her daughter, H.D. G.D. alleged that, on December 26, 2021, she was in South Haven, Michigan, at the house of S.D.'s mother for S.D. to have supervised parenting time with H.D. from 1:00 p.m. to 4:00 p.m., at about 2:30 p.m. S.D. informed her that he was leaving with H.D., she "told him no" and that his parenting time was almost over, and S.D. screamed at her and "snatched [H.D.] up by her arm digging his nails into her arm." Appellant's Appendix Volume II at 16. She stated that she wedged herself between S.D. and H.D., S.D. grabbed H.D. by the ribcage to take her, she grabbed S.D. by the throat to make him release H.D., and S.D. smacked H.D. in the mouth and "let[] [H.D.] go when I choked him." Id. at 18.

[¶3] On January 7, 2022, the court issued an ex parte order for protection against S.D. S.D. submitted a letter to the court requesting a hearing and stating that

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G.D.'s allegations were false and that G.D. had been charged with domestic violence as a result of the incident in Allegan County, Michigan.

[¶4] On February 9, 2022, the court held a hearing at which G.D. and S.D.

appeared pro se. G.D. indicated the factual scenario in her petition was true. She testified "on that day [S.D.] tried to take [H.D.] and he is not allowed to go -- he was for supervised visitation," he "grabbed her by the arm to take her and picked her up by the arm and he dug his nail into her," "I tried to wedge myself in between him and her, and he still was trying to grab her, then grabbed her by the ribs, and he did pick her up," and "I did choke him to let her go, and I grabbed [H.D.] and then we left." Transcript Volume II at 6. She indicated that she called the police, S.D. filed a report with child services, "it's been a mess, all because he can't keep his hands to himself and decides that he's going to put his hands on my child," "[t]his isn't the first angry outburst that he has had, so I just -- I mean, he cusses me out almost every single time in front of my daughter and tells me to get the f--- out of his house," and "[s]ince the incident, he only saw her once, and that was before the protection order was put in place." Id. at 7. She stated that S.D. lived in Michigan, she and S.D. were divorced, she was charged with domestic violence as a result of the incident, a hearing was scheduled in the divorce case for the end of March, and S.D. had supervised visits with H.D.[1]

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[¶5] S.D. testified:

I do have court-ordered visitation with my daughter, it is supposed to be supervised by my mother, due to the fact that I was deployed for a full year, which was most of [H.D.'s], you know, learning who I was supposed to be type of timeframe, and [G.D.] and my daughter lived with my mother during this time. So the Court ordered my mother to be the common ground between me and my daughter, because she had spent so much time living with my mom that I would slowly be integrated back into [H.D.'s] life, four hours a week for a few months, and then working into two days a week over a few months, and then working into overnights as time progressed and the relationship was built between me and [H.D.]. The issue that we have continued to have the entire time with [G.D.] is that these are supposed -- she's not supposed to be on the premises or allowed to be physically present during the visitations, which doesn't happen. She just stays present during the visitation, so on this day in December, my mother and I were going to take [H.D.] from the house to go see my mom's fiancé at his work, and we were going to go get something to eat, and [G.D.] said we could not leave the house with [H.D.], even though I have my hours that I can do whatever, you know, I want to with my daughter as long as I bring her back at exit time. I never grabbed my daughter by the arm. I did pick her up and [G.D.] took her from me to not let us leave. She pushed me once and choked me twice. The police report that was cited, . . . I talked to the deputy, and he wrote me in the report as the victim of domestic violence. I am in contact with (inaudible) prosecuting office, and they are pressing charges -- criminal charges against her for domestic violence, and out of the blue I get this, you know, PPO against me in a completely different state that all of our cases are involved in with [H.D.]. On the 25th of March, [G.D.] is facing contempt of court charges for all the -- not following the parenting time thing set up in the divorce decree.

Id. at 12-13. S.D. also testified "with this PPO thing in place, if [G.D.] does go to jail for either or any of the contempt of court charges, the domestic violence,

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this court order will -- is preventing me from having custody of [H.D.], and also with me being in the military and the box here is checked that I am prohibited from using or possessing a firearm is more or less a career ender for me in my military career." Id. at 16.

[¶6] The trial court stated:

So I guess here's how I kind of see it. . . . [Y]ou've created a very unusual situation here.
I think it's very clear to me, one, that you're both engaging in acts of domestic violence as it's defined in the protective order statute. [G.D.], you're the one that applied for the order of protection here, and you live here, so that gives me the authority to issue it. You know, [S.D.] seems to present this version of events that says you just strangled him for no reason, that doesn't make any sense. Everyone that's ever been in a fight knows you strangle and hit people in reaction to something else. I mean, it's pretty clear I think [G.D.] owned up to what was going on and admitted to strangling him. She has more credibility than [S.D.].
...

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