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Reversal: Wife’s protective order against husband lacks evidence

May 15, 2019

There wasn’t enough evidence to prove a woman in the middle of a divorce need a protective order, the Indiana Court of Appeals ruled, finding there was no evidence her husband was stalking her. 

In the process of their dissolution of marriage, D.O. filed a petition for an order of protection against her husband, L.O., alleging she was a victim of stalking. She accused him of threatening to take their children, and argued he threatened D.O. regarding money and erroneously told her to give him checks from Social Security.

D.O. requested the trial court prohibit L.O. from “harassing, annoying, telephoning, contacting, or directly or indirectly communicating with her.” But L.O. testified that he had only threatened her about the money and Social Security, not about running off with their children.

Regardless, the trial court found L.O. had committed stalking pursuant to Indiana Code 35- 45-10-1 and subsequently denied L.O.’s motion to correct error.

The Indiana Court of Appeals reversed the Wells Superior Court’s decision in L.O. v. D.O.,18A-PO-2118, finding insufficient evidence to support the order issued in favor of D.O., specifically in regard to stalking.

“The reality is that tensions and emotions during a dissolution often run high. Argumentative or annoying behavior is not uncommon, but it does not rise to the level of threatening behavior,” Judge Elizabeth Tavitas wrote. “Although D.O. referenced ‘threats’ in her petition and testimony, simply calling the interactions ‘threats’ does not make them so.

“The text messages between the parties reveal a contentious dissolution with multiple disagreements over money and time with the children. Both parties initiated text messages regarding the children and Social Security money. Our review of the testimony and the text messages, however, reveals no evidence that D.O. felt terrorized, frightened, intimidated, or threatened or that D.O. suffered emotional distress as a result of the text messages,” Tavitas continued.

Given the sparse record in the case, the appellate court concluded that there was insufficient evidence presented at the hearing to support a finding that the contacts would cause a reasonable person — and in fact D.O. — to feel terrorized, frightened, intimidated, or threatened or to suffer emotional distress. Thus, the order was reversed.

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