S.H. v. D.W.

• Decision Date: 31 January 2020
• Docket Number: Supreme Court Case No. 19S-PO-118
• Citation: 139 N.E.3d 214
• Parties: S.H., Appellant, v. D.W., Appellee.
• Court: Indiana Supreme Court

139 N.E.3d 214

S.H., Appellant,

v.D.W., Appellee.

Supreme Court Case No. 19S-PO-118

Supreme Court of Indiana.

Argued: April 11, 2019

Decided: January 31, 2020

On Petition to Transfer from the Indiana Court of Appeals, Case No. 18A-PO-1413

Slaughter, Justice.

Domestic violence accounts for more than one-fifth of all violent crime in the United States, Bureau of Justice Statistics, Nonfatal Domestic Violence, 2003–2012 , 1 (2014), and is widely recognized as a public-health crisis that harms both the victim and those within the victim's household. Children exposed to domestic violence are more likely to suffer significant psychological and developmental issues. And they are more likely, as adults, to continue the cycle of violence by becoming either victims or abusers themselves. UNICEF, Behind Closed Doors: The Impact of Domestic Violence on Children , 7 (2006).

To protect victims and curb the vicious cycle of domestic violence, our legislature enacted the Indiana Civil Protection Order Act. The Act empowers those threatened with domestic violence to turn to the courts for urgent relief against those who would carry out such threats. But the Act is not one-sided. It balances the need to protect victims of domestic violence against the interests of those against whom a protective order is sought. Because 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.

Here, Respondent, S.H., consented to the trial court's entry of an initial two-year protective order against him. But he challenged the later request of Petitioner, D.W., for another two-year protective order. Over S.H.'s objection, the trial court issued the new order. On this record, we hold there was insufficient evidence to support the court's entry of another two-year protective order and thus reverse its judgment and remand with instructions.

Factual and Procedural History

In 2016, with divorce proceedings pending, D.W. sought an order for protection against S.H., then her husband. In her petition, "Diane" (not her real name) alleged that three days earlier, she returned to the marital house in Bartholomew County where she once lived with "Sam" (also a pseudonym). Believing Sam was away, Diane drove into the attached garage to collect some belongings. To her surprise, he was home. He grabbed her neck, forced her from her car, and slammed her face into the car door. She tried to escape, but he grabbed her shoulders and threw her onto the concrete floor. She got to her feet and quickly entered the house. But he followed her and threw a table and printer at her. Fearing for her life, she called the police. Once the police arrived, the situation de-escalated.

The day after Diane filed her petition, Sam sought his own order for protection against her. Soon after that, the trial court held a hearing on both petitions. At the hearing, Sam disputed the allegations of her petition but did not object to the entry of a two-year protective order against him. He voluntarily dismissed his own petition in exchange for Diane's agreeing to a restraining order against her in their separate dissolution-of-marriage action. Under the parties' agreement, the trial court entered a two-year protective order against Sam and a restraining order against Diane. The parties introduced no exhibits or testimony supporting either the protective order or the restraining order.

After the trial court entered these orders, the parties went their separate ways. They had no children together, and neither party had reason to be involved in the other's life. Although Sam occasionally visited some relatives who still lived in the Columbus area, he had moved from Bartholomew County to Chicago—more than two-hundred miles away—and started a new relationship.

Fast forward two years to 2018. Just days before the 2016 protective order was set to expire, Diane petitioned the trial court for another protective order against Sam, alleging he had tried to contact her indirectly through relatives' social-media accounts. She claimed the initial protective order "kept him away physically" and said she "would like him to continue to stay away." Initially, the trial court issued a protective order against Sam without notice, in accord with the statute, and scheduled a hearing where it would hear testimony from both parties.

At that hearing, Diane detailed her allegations of Sam's attack from two years earlier. She also recounted that since then Sam twice might have tried to contact her indirectly through social media—once through his adult child to her; and once through his adult daughter-in-law to her. Both social-media exchanges involved Sam's relatives searching for toys that had belonged to Sam's son. The daughter-in-law explained she had a three-year-old son of her own and thought it would be meaningful for her son to play with the same toys her husband—Sam's son—had played with as a child. When Sam learned of this exchange, he told his daughter-in-law not to contact Diane. Diane explained at the hearing that Sam's daughter-in-law was not a threat and was "one of the sweetest people" she knew. After that first exchange, the daughter-in-law had no further contact with Diane. Diane provided no additional facts to support the other conversation she alleged between her adult child and Sam's.

Diane believed these social-media exchanges could be Sam's attempts to find out where she lived. She told the trial court she continued to fear for her physical well-being and sought an extension of the 2016 protective order to ensure her "safety at least until [her] last child graduates [high school]." She explained that she would not feel any different after a second order expired in 2020. And she admitted that during the protective order's two-year term, Sam had not:

• violated the order;

• visited her residence;

• visited her place of employment; or

• contacted her directly.

After hearing the parties' testimony, the trial court issued another two-year protective order—through 2020—finding as follows:

1. That the testimony of the petitioner [Diane] was credible at the time of the original issuance of the order and remains credible today.

2. That respondent [Sam] continues to deny that any domestic violence has ever occurred.

3. The Court believes based on the totality of the circumstances in this case that there still exist [sic] a current necessity to bring about a cessation to a threat of violence.

After the trial court denied his motion to correct error, Sam appealed.

The court of appeals affirmed. Although acknowledging that "the evidence presented by [Diane] was minimal", the court held that she had satisfied her burden. S.H. v. D.W. , 114 N.E.3d 898, 900 (Ind. Ct. App. 2018), trans. granted, 123 N.E.3d 143 (Ind. 2019). "This judge was in the optimal position to determine the credibility of the parties and whether, under the totality of the circumstances, there is a continuing threat of harm." S.H. , 114 N.E.3d at 901. The appellate court based its conclusion on the standard of review and the fact that the same trial judge had presided over the 2016 protective order, the 2018 protective order, and the couple's divorce case. Id.

Sam then sought transfer, which we granted, thus vacating the appellate decision.

Discussion and Decision

Applying the governing legal standard, we hold there was insufficient evidence that Sam posed a present, credible threat to Diane to justify the 2018 protective order.

A. Substantive and procedural requirements of Civil Protection Order Act

This is the first time we have considered the meaning and application of Indiana's Civil Protection Order Act. Enacted in 2002, the 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". Id. § 34-26-5-2(a).

Under the Act, a trial court has several, non-exclusive options for affording the "relief necessary to provide for the safety and welfare of a petitioner and each designated family or household member." Id. § 34-26-5-9(b)(8), 9(f). One option is to prohibit the respondent "from harassing, annoying, telephoning, contacting," or otherwise communicating with the petitioner. Id. § 34-26-5-9(b)(2). Another option is to require the respondent to surrender all firearms, ammunition, and deadly weapons to a law-enforcement officer or agency. Id. § 34-26-5-9(f). The court can also "[r]emove and exclude a respondent from the residence of a petitioner, regardless of ownership of the residence." Id. § 34-26-5-9(b)(3). And a fourth option is to subject the respondent to constant supervision by requiring that he be entered into a law-enforcement database and face real-time GPS (global-positioning-system) tracking. Id. §§ 34-26-5-18(7), 34-26-5-9(i). These court-ordered measures may "impose significant restrictions on a respondent's freedom of movement and other rights". A.N. v. K.G. , 10 N.E.3d 1270, 1272 (Ind. Ct. App. 2014). Thus, 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...