Opinion
23A-PO-2947
06-28-2024
E.W., Appellant-Respondent v. L.W., Appellee-Petitioner
ATTORNEY FOR APPELLANT Michael C. Cunningham Baldwin, Perry &Wiley, P.C. Franklin, Indiana. ATTORNEY FOR APPELLEE R. Patrick Magrath Alcorn Sage Schwartz &Magrath, LLP Madison, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Ripley Circuit Court The Honorable Ryan King, Judge Trial Court Cause No. 69C01-1508-PO-000113
ATTORNEY FOR APPELLANT Michael C. Cunningham Baldwin, Perry &Wiley, P.C. Franklin, Indiana.
ATTORNEY FOR APPELLEE R. Patrick Magrath Alcorn Sage Schwartz &Magrath, LLP Madison, Indiana.
MEMORANDUM DECISION
FELIX, JUDGE.
Statement of the Case
[¶1] In 2015, the trial court issued a protective order against E.W. prohibiting him from having contact with L.W. and C.W. ("the Child"). The trial court extended this protective order in 2017, 2019, 2021, and 2023. E.W. appeals the 2023 extension and presents one issue on appeal, which we restate as follows: Whether the trial court erred by finding that E.W. remains a present credible threat to L.W.
[¶2] We affirm. Facts and Procedural History
[¶3] E.W. and L.W. are the parents of the Child, who was born in January of 2015. At the time, the parents were living together as boyfriend and girlfriend. A month after the Child was born, E.W. placed L.W. in a chokehold until she almost blacked out while he told her that "he was going to put her to sleep." Appellee's App. Vol. II at 4. In June 2015, E.W. threatened to kill L.W., choked her, slammed her to the ground, and kicked her in the chest when she tried to get up. The following month, E.W. again choked L.W., this time while she was holding the Child.
[¶4] Because of these incidents, L.W. broke up with E.W., moved out, and filed a petition for a protective order against E.W. on August 14, 2015. That same day, the trial court granted the petition and issued the order prohibiting E.W. from having contact with L.W. and the Child. E.W. violated this protective order twice in 2016 by texting L.W. and visiting the Child; E.W. pled guilty to two counts of invasion of privacy. On July 13, 2017, L.W. filed a petition for the extension of the protective order, citing E.W.'s violations as evidence of his continuing threat of harm. The trial court granted this petition, extending the protective order on August 31, 2017.
[¶5] The trial court extended the protective order again in 2019 and 2021. Both petitions cite E.W.'s past violations of the order and allege that the protective order was necessary for the safety of L.W. and the Child. The 2021 protective order was set to expire on August 4, 2023. On July 11, 2023, L.W. filed an additional petition to extend the protective order.
[¶6] Following a temporary extension of the 2021 protective order, the trial court held a hearing on the petition on November 15, 2023, where L.W. and E.W. testified. The evidence showed that E.W. had not contacted L.W. or the Child since he violated the protective order in 2016. But L.W. testified that she still needed the protective order because E.W. had made multiple threats on her life while they were dating. E.W. had threatened that he would kill L.W. "if he ever got his hands on [her]," Tr. Vol. II at 8, and she believed the protective order was the only thing keeping E.W. from acting on these threats. L.W. also presented evidence of E.W.'s ongoing violent behavior and criminal convictions, including 2018 convictions for strangulation and domestic battery; a 2022 allegation that E.W. threw his then girlfriend to the ground in front of a child; and pending charges against E.W. for resisting law enforcement and disorderly conduct. On November 16, 2023, the trial court extended the protective order for two years. E.W. now appeals.
L.W. has filed a motion to take judicial notice of court records. We deny this motion by separate order issued contemporaneously with this opinion.
[¶7] E.W. claims that the trial court erred in extending the protective order. "When, as here, a party appeals 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 reviewing the protective order, we will not reweigh the evidence or assess witness credibility, and we consider only the evidence favorable to the trial court's decision. Id. (citing T.M. v. T.M., 188 N.E.3d 42, 44 (Ind.Ct.App. 2022), trans. denied.). In close cases where evidence could support a decision to grant or deny a petition, we defer to the trial court's decision because "our trial courts are far better than appellate courts 'at weighing evidence and assessing witness credibility.'" Id. at 498 (quoting Snow v. State, 77 N.E.3d 173, 177 (Ind. 2017)).
[¶8] E.W. challenges the trial court's finding that he posed a present credible threat. "To justify an order, the petitioner must show by a preponderance of the evidence that the respondent committed an act of domestic or family violence such that the 'respondent represents a credible threat to the safety of' the petitioner or a member of their household." S.D., 211 N.E.3d at 497 (quoting Ind. Code § 34-26-5-9(h)). The extension of a protective order "must be based upon evidence that a protective order currently is 'necessary to bring about a cessation of the violence or the threat of violence' because of a continuing threat of harm.'" S.H. v. D.W., 139 N.E.3d 214, 220 (Ind. 2020) (emphasis in original) (quoting J.K. v. T.C., 25 N.E.3d 179, 181 (Ind.Ct.App. 2015)). "[T]he circumstances leading to entry of a prior order generally cannot be the sole basis for entering a new order or renewing or extending the previous one." Id.
[¶9] Although protective orders can be extended based on the current need to address a continuing threat, lapses in time or intervening events do not necessarily render a threat less credible. S.D. 211 N.E.3d at 499. Regardless of when it occurred, "a one-time perpetual threat" by the respondent can be sufficient to justify a trial court's finding of a current credible threat. Id. (citing S.H., 139 N.E.3d at 220). Our Supreme Court has provided an example of such a threat: "You'll never be safe. You'll never know when I'll show up. You'd better always be looking over your shoulder. Because one day-next week, next month, next year-I'll get you. I promise you that." S.H., 139 N.E.3d at 220. In weighing whether past actions justify the extension of a protective order, "our trial courts must consider the evidence and determine whether the respondent's actions-viewed objectively at the time the petitioner seeks relief-provide reasonable grounds to believe the threat of violence persists." S.D. 211 N.E.3d at 499. Along with the timing of events, trial courts also consider "the parties' history and relationship, the respondent's past behavior, the nature of the respondent's actions, or the respondent's demeanor in court." Id.
[¶10] Here, the trial court determined that E.W. represented a continuing credible threat to L.W. At the hearing, L.W. testified that, while they were dating, E.W. had threatened her multiple times saying that "if he ever got his hands on [her]" he would kill her. Tr. Vol. II at 8. Additionally, L.W. presented evidence that E.W. had maintained a pattern of violent behavior since the original protective order. In 2018, E.W. was convicted of domestic battery and strangulation for a 2017 incident where his then girlfriend was the victim. In 2022, E.W. allegedly threw a different girlfriend to the ground in front of her child. A few months prior to the hearing, E.W. had been arrested and charged with resisting law enforcement and disorderly conduct. In addition to the factors a trial court can consider as stated in S.D., we believe that reviewing a respondent's current aggressive and volatile behavior directed at other people can provide evidence sufficient to prove a petitioner's reasonable belief that a threat of violence persists. Therefore, L.W. established that E.W. had an intent to kill her if he ever had the chance and that E.W. exhibited a continued a pattern of violent and abusive behavior, including other incidents of domestic abuse to the extent that remained an on-going and current credible threat to L.W.'s safety. Further, E.W.'s other arguments are simply a request to reweigh the evidence, which we will not do. See S.D., 211 N.E.3d at 497. Thus, we conclude that the evidence supports the finding that E.W. posed a credible threat to L.W.
[¶11] Affirmed.
Riley, J., and Kenworthy, J., concur.