Mysliwy v. Mysliwy
2011 Ind. App. LEXIS 1315
| Ind. Ct. App. | 2011Background
- Marriage between Dennis and Teresa dissolved February 24, 2010; Teresa had physical custody of their two children.
- Teresa was out of town May 10–11, 2010; Dennis cared for the children during that period.
- Teresa returned to discover water in the basement, a damaged water heater area, and a slit in a sofa cushion.
- Tiger Plumbing found a hole drilled in the PVC drain pipe; a ladder had been in the basement; no forced entry or theft was evident.
- Furnace damage, bleach spots, and bleach-sprayed clothing with slashes were observed; a prior 2008 protective order existed.
- Teresa petitioned for a protective order; the trial court granted it, finding sufficient domestic violence and issuing restrictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there sufficient evidence of domestic violence to support the order? | Teresa: Dennis placed her in fear and committed domestic violence. | Dennis: insufficient evidence of violence or threat. | Yes; sufficient evidence to support protective order under domestic violence. |
| Was there sufficient evidence of stalking to support the order? | Teresa: repeated acts of harassment evidenced by multiple incidents. | Dennis: no evidence of repeated or continuous stalking. | No; stalking not proven due to lack of repeated/continuous acts. |
Key Cases Cited
- AS, v. T.H., 920 N.E.2d 803 (Ind.Ct.App.2010) (stalking requires repeated acts of harassment; evidence here insufficient)
- Aiken v. Stanley, 816 N.E.2d 427 (Ind.Ct.App.2004) (CPOA aims to protect victims and prevent future violence)
- Johnson v. State, 721 N.E.2d 327 (Ind.Ct.App.1999) (definition of 'repeated' in stalking and harassment)
- Tisdal v. Young, 925 N.E.2d 783 (Ind.Ct.App.2010) (standard for reviewing sufficiency of evidence under CPOA)
- Davis v. Davis, 889 N.E.2d 374 (Ind.Ct.App.2008) (two-tiered standard for Rule 52 findings and judgment)