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Young v. Young

Court of Appeals of Indiana

August 1, 2017

Danny L. Young, Appellant-Respondent,
v.
Lu Ann S. Young, Appellee-Petitioner

         Appeal from the Marion Superior Court The Honorable David J. Dreyer, Judge Trial Court Cause Nos. 49D10-1506-DR-17889 49D10-1507-PO-25018

          ATTORNEY FOR APPELLANT R. Lee Money Greenwood, Indiana

          ATTORNEYS FOR APPELLEE Monty K. Woolsey Andrew R. Bloch Cross, Pennamped, Woolsey & Glazier, P.C. Carmel, Indiana

          Mathias, Judge.

         [¶1] Lu Ann Young ("Lu Ann") sought and obtained a modification of a protective order in her favor against her ex-husband, Danny Young ("Danny"), in Marion Superior Court. From this and collateral rulings, Danny now appeals.

         [¶2] We reverse in part and remand.

         Facts and Procedural Posture

         [¶3] Danny and Lu Ann were married in 1997. On June 1, 2015, Lu Ann filed for divorce. Less than two months later, on July 29, 2015, Lu Ann sought and obtained a protective order in her favor against Danny ("the Protective Order").[1] On November 20, 2015, Danny and Lu Ann submitted a dissolution settlement agreement for the trial court's approval ("the Agreement"). The Agreement memorialized an agreed modification to the Protective Order whereby Danny could continue to attend services at his and Lu Ann's church "as long as he d[id] not harass, annoy, intimidate or attempt to directly communicate with [Lu Ann] during times they [were] both at the Church." Appellant's App. p. 11. The same day, November 20, 2015, the trial court issued a dissolution decree that incorporated the Agreement in full. Id. at 13-14.

         [¶4] Almost immediately thereafter, Danny began to harass, annoy, and intimidate Lu Ann at church. Accordingly, on February 19, 2016, Lu Ann petitioned to have the Protective Order modified to prevent further harassment.[2] At a modification hearing on April 28, 2016, the court heard the testimony of Lu Ann and several church members in Lu Ann's favor; Danny testified on his own behalf without support. On May 23, 2016, the trial court entered an order finding that Danny had violated the Protective Order, modifying the Protective Order "so that [Danny] will not come within 100 feet of [Lu Ann] at all times he attends the church, whether intentional[ly] or unintentional[ly], " and awarding Lu Ann attorney's fees. Id. at 16.

         [¶5] Danny timely appealed. After the appeal was perfected, on August 19, 2016, the trial court entered two further orders: one awarding Lu Ann appellate attorney's fees, and another "revok[ing]" the "prior modification" of the Protective Order and "reinstat[ing] in full with no limitations" the Protective Order as initially issued. Id. at 18.

         Discussion and Decision

         [¶6] Danny presents the following restated issues for our review: (1) whether the trial court had jurisdiction over the subject matter of its August 19, 2016, orders modifying the Protective Order and awarding Lu Ann appellate attorney's fees; (2) whether sufficient evidence supported the trial court's May 23, 2016, finding that Danny violated the Protective Order; (3) whether the May 23, 2016, modification of the Protective Order was appropriate absent the entry of special findings; (4) and whether the Agreement precluded award of attorney's fees to Lu Ann.

         I. Jurisdiction Over the Subject Matter of the August 19, 2016, Orders

         [¶7] Subject matter jurisdiction is the power to hear and decide the general class of actions to which a case belongs. K.S. v. State, 849 N.E.2d 538, 540 (Ind. 2006). The court on appeal acquires jurisdiction over a case when the notice of completion of clerk's record is entered in the chronological case summary ("CSS"). Ind. Appellate Rule 8; Falatovics v. Falatovics, 72 N.E.3d 472, 475 (Ind.Ct.App. 2017). When the court on appeal acquires jurisdiction, the court below loses it for most purposes. Falatovics, 72 N.E.3d at 479. A judicial act rendered without jurisdiction is void and without effect. Thomas v. Smith, 794 N.E.2d 500, 503 (Ind.Ct.App. 2003), trans. denied. We review purely legal jurisdictional questions de novo. Id.

         A. Protective Order Modification

         [¶8] In this case, the notice of completion of clerk's record was entered in the CCS on July 21, 2016. We acquired jurisdiction on that date. On August 19, 2016, the trial court entered an order "that the prior modification of the Protective Order allowing [Danny] to attend the [church] when [Lu Ann] was present is revoked and the prior Protective Order is reinstated in full with no limitations." Appellant's App. p. 18. The order was not entered in the CCS. See id. at 39.

         [¶9] Both parties concede this order was rendered without jurisdiction and is therefore void. We agree. The trial court's August 19, 2016, order as to the Protective Order modification is void and of no force or effect.

         B. Award of Appellate Attorney's Fees

         [¶10] Also on August 19, 2016, the trial court entered an order awarding Lu Ann appellate attorney's fees. In family law cases, trial courts retain jurisdiction to award attorney's fees, including appellate attorney's fees, even after perfection of an appeal. J.S. v. W.K., 62 N.E.3d 1, 11 n.7 (Ind.Ct.App. 2016); Thompson v. Thompson, 811 N.E.2d 888, 929 (Ind.Ct.App. 2004), trans. denied; Pierce v. Pierce, 702 N.E.2d 765, 769 (Ind.Ct.App. 1998), trans. denied; see Ind. Code § 31-15-10-1(a) (in dissolution actions, permitting award of reasonable fee "after entry of judgment"). Thus, the trial court had jurisdiction to award Lu Ann appellate attorney's fees on August 19, 2016.

         [¶11] We consider the propriety of the award below.

         II. Sufficient Evidence Supported the Finding That Danny Violated the Protective Order

         [¶12] When reviewing the sufficiency of the evidence supporting modification of a protective order, our standard is familiar. We neither reweigh the evidence nor assess witness credibility. A.G. v. P.G., 974 N.E.2d 598, 598 (Ind.Ct.App. 2012). Considering only the probative evidence and reasonable inferences therefrom in support of modification, we ask whether a reasonable fact-finder could have found the petitioner's allegations proved by a preponderance of the evidence. Id. at 598-99. Here, Lu Ann alleged, and the trial court found, that Danny harassed, annoyed, and intimidated Lu Ann at ...


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