51 N.E.3d 362
Ind. Ct. App.2016Background
- Lisa Costello and Wayne Zollman are rural neighbors engaged in a boundary dispute; they frequently work outdoors within sight of each other.
- Costello petitioned for a civil protective order alleging stalking and sexual offense conduct (urinating in view, exposing himself, blocking her path on a motorcycle, approaching a stalled dirt bike).
- At hearing Costello testified to multiple incidents and submitted blurry photos; Zollman denied the specific allegations and denied ever entering her property.
- The trial court heard testimony, allowed post-hearing submissions, and issued a form order dismissing Costello’s petition for failure to prove stalking or a sex offense by a preponderance of the evidence.
- Costello appealed, arguing the trial court erred by not making Trial Rule 52(A) special findings and by abusing its discretion in denying relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Trial Rule 52(A) required the trial court to sua sponte make special findings when denying a protective order | Costello: denial requires special findings under T.R. 52(A) and Hanauer; remand needed for findings | Zollman: no written request was made; findings required only when granting orders or when rule/statute compels | Court: No—52(A) not triggered here; the form order stating failure to prove claims is adequate for appellate review |
| Whether the trial court abused its discretion in denying the protective order | Costello: evidence (testimony, photos) undisputed and proves stalking/sex offense by preponderance | Zollman: disputed specific facts; credibility conflicted; trial court entitled to weigh evidence | Court: No abuse—credibility and conflicting evidence support dismissal; negative judgment affirmed |
| Whether oral requests for findings suffice to trigger T.R. 52(A) | Costello: parties asked for opportunity to submit authority (implied request) | Zollman: no written pre-evidence request as Rule requires | Court: Oral statements insufficient; rule requires written request before evidence; no obligation to make findings |
| Whether Hanauer compels findings on denial as well as grant of protective orders | Costello: Hanauer treated protective orders like injunctions requiring findings | Zollman: Hanauer concerned grants; findings justify restricting rights and are not required on denial | Court: Hanauer not extended—findings required to support grants, but dismissal order here was sufficient |
Key Cases Cited
- Hanauer v. Hanauer, 981 N.E.2d 147 (Ind. Ct. App. 2013) (discusses need for findings when trial court grants protective order)
- Tisdial v. Young, 925 N.E.2d 783 (Ind. Ct. App. 2010) (protective order may issue only upon finding that domestic or family violence occurred)
- E.W. v. J.W., 20 N.E.3d 889 (Ind. Ct. App. 2014) (insufficient findings on denial can require remand where order is ambiguous)
- A.S. v. T.H., 920 N.E.2d 803 (Ind. Ct. App. 2010) (petitioner must prove allegations by a preponderance to obtain protection)
- A.N. v. K.G., 10 N.E.3d 1270 (Ind. Ct. App. 2014) (trial court has discretion to grant protective relief under CPOA)
- Flash v. Holtsclaw, 789 N.E.2d 955 (Ind. Ct. App. 2003) (standard for reversing negative judgment: evidence must lead unerringly to opposite result)