Woman loses appeal of request for protective order

The Indiana Court of Appeals has denied the appeal of a woman seeking a protective order against a man who she claims allegedly committed a sex act against her.

Lisa Costello appealed the Clark Circuit Court’s decision based on Trial Rule 52A, that the trial court failed to make findings pursuant to that rule, and she said the trial court abused its discretion in denying her petition.

Costello and Wayne Zollman are neighbors, and Zollman often works at a barn 125 feet from Costello’s property.  They are often in sight of each other, and Costello alleged Zollman urinated in her view, has exposed himself to her and stood in her path as she was riding a motorcycle. She also alleges he has let his animals graze on her property.

Zollman denied those charges.

In her appellant’s brief, Costello relied on Hanauer v Hanauer, 981 N.E.2d 147 (Ind. Ct. App. 2013), in which another panel of the court likened protective orders to injunctions and said “when granting a protective order the trial court must sua sponte make special findings of fact and conclusions thereon.”

The Court of Appeals in Lisa Costello v. Wayne Zollman, 10A04-1509-PO-1438, said though findings are required to grant a petition, those findings need not be extensive, and those findings were sufficient in the Costello case.

Also, the court said Hanauer involved the appeal of a grant of a protective order, where Costello involves a protective order petition. The court did not think the rule requiring findings for the grant of a protective order should extend to the petition for a protective order.

The court also found that because the Clark Circuit Court dismissed the protective order petition because she failed to prove Zollman committed a sexual offense, further findings were unnecessary.

Also, the court found that since Costello appealed from a negative judgement,  it will only reverse if that evidence as a whole leads unerringly to a decision opposite that of the trial court. In this case, it does not.

Costello’s version of events was not undisputed, as she claimed. Zollman says he did not urinate in front of her and denied ever being on her property. The trial court judged the credibility of the witnesses and found Costello failed to carry her burden of proof.  

Judge L. Mark Bailey concurred in result without opinion.
 

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