D.G. v. R.G. (mem. dec.)
53A01-1603-PO-570
| Ind. Ct. App. | Sep 29, 2016Background
- R.G. (petitioner) sought a protective order alleging D.G. (respondent), owner of adjacent rental property, stalked and harassed him and his bedridden wife.
- Trial included testimony and surveillance evidence of repeated conduct: obscene gestures, verbal abuse, taunting, vandalism, placing a mannequin near the bedroom window, leaving animal excrement on R.G.’s property, and interference with an emergency medical alert power line.
- The trial court found stalking/domestic violence and issued a protective order ordering D.G. to “stay away from the residence of the Petitioner.”
- D.G. filed a post-judgment motion for clarification or to correct error seeking assurance he could access and perform maintenance on his own rental property without crossing R.G.’s property; the motion was deemed denied and D.G. appealed.
- The court affirmed, reasoning Paragraph 4’s plain language only bars D.G. from being at R.G.’s residence, while other paragraphs prohibit stalking and harassing conduct (e.g., excessive leaf-blowing) that would constitute continued harassment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the protective order is overbroad by preventing D.G. from accessing his own rental property adjacent to R.G.’s residence | R.G.: Order necessary to stop stalking/harassment | D.G.: He should be allowed reasonable access to his property and to perform maintenance so long as he does not cross R.G.’s property | Affirmed: Order’s stay-away language bars being at petitioner’s residence but does not necessarily bar access to respondent’s property; separate prohibitions on stalking/harassment prevent intrusive maintenance used as harassment |
| Whether the trial court abused its discretion in denying motion to clarify/narrow order | R.G.: Trial court appropriately tailored relief to stop stalking | D.G.: Trial court misinterpreted scope and infringed property access/raised takings/constitutional concerns (not fully developed below) | No abuse of discretion; D.G. failed to show prima facie error; speculative constitutional/taking claims not addressed on appeal |
Key Cases Cited
- Fox v. Bonam, 45 N.E.3d 794 (Ind. Ct. App. 2015) (standard of review and requirement for findings in protective order cases)
- Tisdial v. Young, 925 N.E.2d 783 (Ind. Ct. App. 2010) (prima facie error standard when appellee does not file brief)
- Parkhurst v. Van Winkle, 786 N.E.2d 1159 (Ind. Ct. App. 2003) (stalking can constitute domestic violence under the Act)