Split COA reverses protective order against father in ‘close case’

An Indiana woman who secured a protective order against her ex-husband stemming from an incident with their daughter was unable to convince the Court of Appeals of Indiana that the order was necessary. However, a dissenting judge opposed reversal, opining that the appellate court should not reweigh the evidence.

Issues relating to the protective order between S.D. and G.D. began in late December 2021, when G.D. alleged that her ex-husband, S.D., had attempted to take their daughter during his supervised parenting time visit.

In S.D. v. G.D., 22A-PO-521, G.D. filed for an order of protection against S.D. in Starke Circuit Court, alleging that she was a victim of domestic or family violence and that S.D. had caused physical harm to their daughter.

Specifically, G.D. alleged that while she was at the house of S.D.’s mother for S.D. to have supervised parenting time with the child, H.D., S.D. informed her that he was leaving with the child. When G.D. “told him no” and said his parenting time was almost over, S.D. allegedly screamed at her and “snatched [H.D.] up by her arm digging his nails into her arm.”

G.D. testified that she wedged herself between S.D. and H.D., so S.D. grabbed the child by the rib cage to take her, prompting G.D. to grab S.D. by the throat to make him release the child. The mother then testified that S.D. smacked H.D. in the mouth when the child cried but “let[] [H.D.] go” when G.D. “choked him.”

An ex parte order for protection was issued against S.D. in January, and the Starke Circuit Court later concluded that while both parents were engaging in acts of domestic violence as defined in the protective order statute, G.D. had more credibility then S.D.

The trial court also found that S.D. represented a credible threat to the safety of G.D. or a member of her household and that G.D. had shown by a preponderance of the evidence that domestic or family violence has occurred sufficient to justify the issuance of an order.

For his part, S.D. claimed that when he picked up the child, G.D. took her from him, pushed him and choked him. He also argued that G.D. was charged with domestic violence for the incident and that the protective order “is more or less a career ender” for his military career.

A majority of the Court of Appeals of Indiana reversed, finding it undisputed that S.D. had parenting time without incident after the December 2021 incident and before the issuance of the ex parte order of protection.

“Based on the record, we conclude that the altercation on December 26, 2021, as described by the testimony and for which Mother was charged, is insufficient to establish that S.D. represents a present, credible threat to her safety or the safety of H.D.,” Judge Elaine Brown wrote for the majority, joined by Judge Elizabeth Tavitas.

“There was insufficient evidence of any present intent by S.D. to harm the petitioner or the parties’ child,” Brown wrote. “… Further, there was no balancing of any need for protection against the burden imposed by the protective order as required by (S.H. v. D.W., 139 N.E.3d 214 (Ind. 2020)).”

But in a separate dissent, Judge Robert Altice wrote that while the issues at hand presented “a close case,” the trial court “is the one to make that call.”

“Father provided a differing account of the incident and denied grabbing Child by the arm or hitting her during the dispute with Mother, but the trial court expressly found Father’s testimony in this regard to lack credibility,” Altice wrote. “Based on the domestic violence, which occurred only about six weeks before the hearing, the trial court found that Father remained a present, credible threat to Mother and/or Child and, thus, issued the order of protection, at least for the time being.

“On this record, I cannot conclude that the trial court abused its discretion,” he concluded. “I would, therefore, affirm the trial court.”