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Court ordered to make required findings before modifying protective order

August 1, 2017

An Indianapolis man violated the terms of a protective order when he harassed his ex-wife at church, but the trial court erred in modifying the order without making required findings, Indiana Court of Appeals ruled Tuesday.

Less than two months after filing for divorce from her husband, Danny Young, Lu Ann Young obtained a protective order against her estranged husband. The Marion Superior Court then issued a dissolution decree and settlement agreement that memorialized an agreed PO modification that allowed Danny Young to continue attending his ex-wife’s church as long as he did not harass, intimidate or attempt to communicate with her.

But almost immediately after the decree was issued, Danny Young began harassing her at church, prompting her to petition for a modification of the protective order. Both parties testified, as well as Lu Ann Young’s friends, and the trial court entered an order on May 23, 2016, finding Danny Young had violated the order. The court modified it to prevent him from coming within 100 feet of his ex-wife when at church. The order also awarded attorney fees to Lu Ann Young.

Danny Young appealed, and after the appeal was perfected, the trial court entered a second order on Aug. 19, 2016, awarding Lu Ann Young appellate attorney fees, revoking the modification to the protective order and reinstating it in its full original form with no limitations. Danny Young appealed again, arguing first that the trial court did not have jurisdiction over the subject matter of its Aug. 19, 2016, orders.

The Indiana Court of Appeals agreed, with Judge Paul Mathias writing Tuesday that the appellate court acquired jurisdiction of the Youngs’ case on July 21, 2016, after Danny Young’s first appeal. Thus, the Aug. 19, 2016, order was rendered without jurisdiction and is therefore void, he wrote.

Though the appellate court did find sufficient evidence to support the Marion Superior Court’s finding that Danny Young violated the protective order at church, the lower court failed to “enter a finding that ‘domestic or family violence’ had occurred,” as is required by the Indiana Civil Protective Order Act. As a result, the appellate court could not “discern whether the trial court applied the correct legal standard under Section 34-26-5-9(a),” Mathias wrote.

Instead, the court remanded the case for further proceedings on that issue. On remand, Mathias wrote Lu Ann Young can seek to hold her ex-husband in contempt or can seek a modification of the protective order under I.C. 34-26-5-9(i). Any other modification must satisfy I.C. 34-26-5-9(a).

Finally, the appellate court determined that the settlement agreement required each party to bear their own attorney fees, so the Aug. 19 order awarding attorney fees to Lu Ann Young was vacated, as was the portion of the May 23 order that related to attorney fees.

The case is Danny L. Young v. Lu Ann S. Young, 49A02-1606-DR-1365.
 

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