Young v. Young

81 N.E.3d 250

Danny L. YOUNG, Appellant-Respondent,

v.Lu Ann S. YOUNG, Appellee-Petitioner

Court of Appeals Case No. 49A02-1606-DR-1365

Court of Appeals of Indiana.

August 1, 2017

Attorney for Appellant : R. Lee Money, Greenwood, Indiana

Attorneys for Appellee : Monty K. Woolsey, Andrew R. Bloch, Cross, Pennamped, Woolsey & Glazier, P.C., Carmel, Indiana

Mathias, Judge.

[1] Lu Ann Young ("Lu Ann") sought and obtained a modification of a protective order in her favor against her ex-husband, Danny Young ("Danny"), in Marion Superior Court. From this and collateral rulings, Danny now appeals.

[2] We reverse in part and remand.

Facts and Procedural Posture

[3] Danny and Lu Ann were married in 1997. On June 1, 2015, Lu Ann filed for divorce. Less than two months later, on July 29, 2015, Lu Ann sought and obtained a protective order in her favor against Danny ("the Protective Order").¹ On November 20, 2015, Danny and Lu Ann submitted a dissolution settlement agreement for the trial court's approval ("the Agreement"). The Agreement memorialized an agreed modification to the Protective Order whereby Danny could continue to attend services at his and Lu Ann's church "as long as he d[id] not harass, annoy, intimidate or attempt to directly communicate with [Lu Ann] during times they [were] both at the Church." Appellant's App. p. 11. The same day, November 20, 2015, the trial court issued a dissolution decree that incorporated the Agreement in full. Id. at 13–14.

[4] Almost immediately thereafter, Danny began to harass, annoy, and intimidate Lu Ann at church. Accordingly, on February 19, 2016, Lu Ann petitioned to have the Protective Order modified to prevent further harassment.² At a modification hearing on April 28, 2016, the court heard the testimony of Lu Ann and several church members in Lu Ann's favor; Danny testified on his own behalf without support. On May 23, 2016, the trial court entered an order finding that Danny had violated the Protective Order, modifying the Protective Order "so that [Danny] will not come within 100 feet of [Lu Ann] at all times he attends the church, whether intentional[ly] or unintentional[ly]," and awarding Lu Ann attorney's fees. Id. at 16.

[5] Danny timely appealed. After the appeal was perfected, on August 19, 2016, the trial court entered two further orders: one awarding Lu Ann appellate attorney's fees, and another "revok[ing]" the "prior modification" of the Protective Order and "reinstat[ing] in full with no limitations" the Protective Order as initially issued. Id. at 18.

Discussion and Decision

[6] Danny presents the following restated issues for our review: (1) whether the trial court had jurisdiction over the subject matter of its August 19, 2016, orders modifying the Protective Order and awarding Lu Ann appellate attorney's fees; (2) whether sufficient evidence supported the trial court's May 23, 2016, finding that Danny violated the Protective Order; (3) whether the May 23, 2016, modification of the Protective Order was appropriate absent the entry of special findings; (4) and whether the Agreement precluded award of attorney's fees to Lu Ann.

I. Jurisdiction Over the Subject Matter of the August 19, 2016, Orders

[7] Subject matter jurisdiction is the power to hear and decide the general class of actions to which a case belongs. K.S. v. State , 849 N.E.2d 538, 540 (Ind. 2006). The court on appeal acquires jurisdiction over a case when the notice of completion of clerk's record is entered in the chronological case summary ("CSS"). Ind. Appellate Rule 8 ; Falatovics v. Falatovics , 72 N.E.3d 472, 475 (Ind. Ct. App. 2017). When the court on appeal acquires jurisdiction, the court below loses it for most purposes. Falatovics , 72 N.E.3d at 479. A judicial act rendered without jurisdiction is void and without effect. Thomas v. Smith , 794 N.E.2d 500, 503 (Ind. Ct. App. 2003), trans. denied . We review purely legal jurisdictional questions de novo. Id.

A. Protective Order Modification

[8] In this case, the notice of completion of clerk's record was entered in the CCS on July 21, 2016. We acquired jurisdiction on that date. On August 19, 2016, the trial court entered an order "that the prior modification of the Protective Order allowing [Danny] to attend the [church] when [Lu Ann] was present is revoked and the prior Protective Order is reinstated in full with no limitations." Appellant's App. p. 18. The order was not entered in the CCS. See id. at 39.

[9] Both parties concede this order was rendered without jurisdiction and is therefore void. We agree. The trial court's August 19, 2016, order as to the Protective Order modification is void and of no force or effect.

B. Award of Appellate Attorney's Fees

[10] Also on August 19, 2016, the trial court entered an order awarding Lu Ann appellate attorney's fees. In family law cases, trial courts retain jurisdiction to award attorney's fees, including appellate attorney's fees, even after perfection of an appeal. J.S. v. W.K. , 62 N.E.3d 1, 11 n.7 (Ind. Ct. App. 2016) ; Thompson v. Thompson , 811 N.E.2d 888, 929 (Ind. Ct. App. 2004), trans. denied ; Pierce v. Pierce , 702 N.E.2d 765, 769 (Ind. Ct. App. 1998), trans. denied ; see Ind. Code § 31-15-10-1(a) (in dissolution actions, permitting award of reasonable fee "after entry of judgment"). Thus, the trial court had jurisdiction to award Lu Ann appellate attorney's fees on August 19, 2016.

[11] We consider the propriety of the award below.

II. Sufficient Evidence Supported the Finding That Danny Violated the Protective Order

[12] When reviewing the sufficiency of the evidence supporting modification of a protective order, our standard is familiar. We neither reweigh the evidence nor assess witness credibility. A.G. v. P.G. , 974 N.E.2d 598, 598 (Ind. Ct. App. 2012). Considering only the probative evidence and reasonable inferences therefrom in support of modification, we ask whether a reasonable fact-finder could have found the petitioner's allegations proved by a preponderance of the evidence. Id. at 598-99. Here, Lu Ann alleged, and the trial court found, that Danny harassed, annoyed, and intimidated Lu Ann at church. Appellant's App. pp. 21 (petition), 15 (order). A reasonable fact-finder could have found these allegations proved by a preponderance of the evidence.

[13] The evidence and inferences favorable to the trial court's decision reveal that, on several occasions starting in January 2016, less than two months after the dissolution decree was issued, Danny intentionally followed and kept close to Lu Ann while both were at church. Danny would "wait outside of whatever room [Lu Ann] was in[,] including the women's restroom." Tr. p. 11. One Sunday, Lu Ann saw that Danny had arrived early for church and was waiting in his truck in the parking lot. Lu Ann waited for a while for Danny to go inside. When Danny remained in his truck, Lu Ann decided to go inside herself, whereupon Danny immediately got out of his truck and followed her in. Lu Ann started choosing a different seat during services from week to week to avoid Danny sitting near her. The next week, Lu Ann would find that Danny had chosen to sit wherever she had sat the previous week.

[14] Other members of the church testified that they observed Danny "lingering" near Lu Ann, "waiting for her to depart and maybe going out the same door[,]" Tr. pp. 22-23, as well as waiting in the parking lot until Lu Ann got out of her car to get out of his truck. One member observed Danny peering into Lu Ann's car in the parking lot and then hurrying away after checking to see if he had been noticed. Danny's conduct was repeatedly described as "lingering," Tr. p. 32, or "hover[ing]." Tr. p. 25. Members described Lu Ann's annoyance and distress at Danny's behavior.

[15] We appreciate that the church appears to be a small one, and that, particularly in this context, the line between intentional harassment and innocent chance run-ins may be difficult to draw. However, it is precisely for this reason that we defer to the trial court's proximity to the facts and the parties, and particularly to its ability to assess witness credibility. Sufficient evidence supported the trial court's finding that Danny violated the Protective Order by harassing, annoying, and intimidating Lu Ann at church.

[16] We next consider the propriety of the remedy ordered by the trial court for this violation.

III. The Trial Court Did Not Make the Findings Required Before Modifying the Protective Order As It Did

[17] In its order of May 23, 2016, the trial court found that Danny "caused [Lu Ann] to feel harassed, annoyed and intimidated by his actions[,]" and thereby violated the Protective Order. Appellant's App. p. 15. As a remedy for this violation, the court then ruled, "Due to [Danny's] violation of the protective order, ... [t]he Protective Order is modified ... so that [Danny] will not come within 100 feet of [Lu Ann] at all times he attends Grace Evangelical Church, whether intentional[ly] [or] unintentional[ly]." Id. at 16.

[18] The appropriate remedies for such violation were either a contempt order, S.W. by Wesolowski v. Kurtic , 950 N.E.2d 19, 22 (Ind. Ct. App. 2011), or modification of the Protective Order to "prohibit the respondent from approaching or entering certain locations where the petitioner may be found." I.C. § 34-26-5-9(i)(2). The latter remedy was also the one selected by the parties in the Agreement. Appellant's App. p. 13 (Danny "shall be banned from going to the Church in the future" if found to have violated Protective Order).

[19] However, a remedy beyond a contempt order or the modification called for in Section 34-26-5-9(i) required findings the trial court did not appear to make. Indiana's Civil Protective Order Act ("CPOA"), I.C. ch. 34-26-5, "allows a trial court to issue or modify a protective order only upon a finding ‘that domestic or family violence has occurred.’ " A.G. v. P.G. , 974 N.E.2d 598, 599 (Ind. Ct. App. 2012)(quoting I.C. § 34-26-5-9(...