Pursuant to Ind.Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before 

any court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

DAUN WELIEVER

Lewis Wagner, LLP

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

HEATH LORD, )

)

Appellant-Respondent, )

)

vs. ) No. 32A04-1208-PO-422

)

ASHLEY LORD, )

)

Appellee-Petitioner. )

APPEAL FROM THE HENDRICKS SUPERIOR COURT

The Honorable Mark A. Smith, Judge

Cause No. 32D04-1204-PO-207

March 14, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
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Case Summary

Heath Lord (“Heath”) appeals the trial court’s denial of his motion to correct error, 

which challenged the issuance of a protective order against him. He raises two issues for our 

review, which we revise and restate as the single issue of whether the trial court erred in 

denying his motion to correct error following its issuance of a protective order against him.

We reverse.

Facts and Procedural History

Heath and Ashley Lord (“Ashley”) married in February of 1997, and they resided in 

North Carolina. They separated in June of 2003, and Heath remained in the marital 

residence. They divorced on November 1, 2004. 

Between the separation and the divorce, several incidents occurred between Ashley 

and Heath. Heath followed Ashley to various locations, called her at work repeatedly, left 

multiple voicemails, called high school friends and family friends to inquire about her, and 

hacked into her computer to read her emails. While she was working as a paramedic in North

Carolina, he called various paramedic stations to find her. At one point, she caught him 

searching through her car in a parking garage. In August of 2003 she noticed that her car 

was running strangely, and in October of 2003 she noticed sand in the oil fill tube and in the 

oil filter. The sand in her oil system rendered her car inoperable, and she had to purchase a 

new car. On September 8, 2003, when Ashley visited the marital residence, Heath grabbed 

her in a bear hug, and she had to fight to get away from him. In addition, she alleges that he 

threatened multiple times to kill their three cats if she did not return to him.
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On October 27, 2003, Ashley filed a motion for a protective order, which a North 

Carolina trial court denied. Ashley reported Heath’s continuing, repeated phone calls to the 

police; on December 30, 2003, he was convicted in North Carolina of phone harassment, a 

misdemeanor, and ordered to have no contact with her for one year. 

During the approximately one-year period between Heath’s misdemeanor conviction 

and the finalization of their divorce, Ashley moved to Indiana and attempted to “drop off the 

face of the earth.” (Tr. at 20.) She asked utility companies not to share her contact 

information with Heath. She cancelled her landline phone service, changed cell phone 

companies, and switched from a North Carolina cell phone number to an Indiana cell phone 

number. She changed her email address three times, mostly avoided social media, and ended 

contact with most of the acquaintances she had shared with Heath.

In the meantime, Heath remained in North Carolina. He remarried on April 23, 2011, 

and he has one stepdaughter with his new wife. According to him, he has neither plans, nor 

reason to travel to Indiana. After his December 30, 2003 misdemeanor conviction, he and 

Ashley had no contact until April 19, 2012, when he sent her two text messages regarding 

Vivian, one of their cats, who had passed away that day. The first, sent at 6:05 p.m., stated: 

“I wanted to let you know that Vivian passed away today of congenital heart disease. She 

passed away very peacefully. We sat in the sun as she smelled flowers and watched the 

squirrels.” (Petitioner’s Ex. 2.) The second, sent at 7:03 p.m., stated: “Congestive Heart 

Failure.” (Petitioner’s Ex. 2.) Ashley felt threatened by the text messages, to the point where 

she felt she could not leave her home. 
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On April 20, 2012, the trial court granted Ashley an Ex-Parte Order for Protection 

(“the Protective Order”). On May 14, 2012, Heath filed a request for a hearing, which the 

Court granted and set for June 8, 2012. At the June 8, 2012 hearing, which Heath attended 

telephonically, the trial court granted Ashley’s oral motion to amend the Protective Order to 

include allegations that she was a victim of stalking. The same day, the trial court entered an 

Order upholding the Protective Order. On July 3, 2012, Heath filed a motion to correct error, 

which the trial court denied on July 24, 2012. This appeal ensued.

Discussion and Decision

We initially observe that Ashley failed to file an appellee’s brief. Under such a 

circumstance, we do not undertake to develop an argument on her behalf, and we may 

reverse upon Heath’s prima facie showing of reversible error. See Carter v. Grace Whitney 

Props., 939 N.E.2d 630, 633 (Ind. Ct. App. 2010). In this context, prima facie error means 

“at first sight, on first appearance, or on the face [of] it.” Id. at 633-34 (internal quotation 

marks omitted). This standard prevents two evils that otherwise would undermine the 

judicial process. Pala v. Loubser, 943 N.E.2d 400, 407 (Ind. Ct. App. 2011), trans. denied. 

By requiring the appellant to show some error, we ensure that the court, not the parties, 

decides the law. Id. By allowing the appellant to prevail upon a showing simply of prima 

facie error, we avoid the improper burden of having to act as advocate for the absent 

appellee. Id.

We generally review the denial of a motion to correct error for an abuse of discretion. 

Kornelik v. Mittal Steel USA, Inc., 952 N.E.2d 320, 324 (Ind. Ct. App. 2011), trans. denied. 
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An abuse of discretion occurs when the trial court’s decision is against the logic and effect 

of the facts and circumstances before the court, or if the court has misinterpreted the law. 

Hawkins v. Cannon, 826 N.E.2d 658, 661 (Ind. Ct. App. 2005), trans. denied.

A person who is or who has been a victim of domestic or family violence may file a 

petition for a protective order against a:

(1) family or household member who commits an act of domestic or family 

violence; or

(2) person who has committed stalking under IC 35-45-10-5[.]

Ind. Code § 34-26-5-2(a). To obtain a protective order, the petitioner must establish by a 

preponderance of the evidence at least one of the allegations in the petition. A.S. v. T.H., 

920 N.E.2d 803, 806 (Ind. Ct. App. 2010). Heath contends there was insufficient evidence to 

support the trial court’s issuance of the Protective Order against him because: (1) no 

evidence was presented establishing domestic or family violence; and (2) no evidence was 

presented establishing stalking.

When considering the sufficiency of the evidence supporting a decision to issue or 

modify a protective order, we neither reweigh the evidence nor judge the credibility of 

witnesses. See id. We look only to the evidence of probative value and reasonable 

inferences drawn therefrom that support the trial court’s judgment. Id.

Protective orders are in the nature of injunctions. See I.C. § 34-26-5-9(b) (authorizing 

the trial court to enjoin or prohibit action on the part of the respondent); see also Black’s Law 

Dictionary 788 (7th ed. 1999) (defining “injunction” as “[a] court order commanding or 

preventing an action[]”); Black’s 1239 (referring to “restraining order” for the definition of 
6

“protection order”); Black’s 1315 (defining “restraining order” as “[a] court order prohibiting 

or restricting a person from harassing, threatening, and sometimes even contacting or 

approaching another specified person[]”). Therefore, in granting a protective order the trial 

court must sua sponte make special findings of fact and conclusions thereon. See Ind. Trial 

Rule 52(A); I.C. §§ 34-26-5-9(a), (f); Tisdial v. Young, 925 N.E.2d 783, 785 (Ind. Ct. App. 

2010) (stating that the trial court may issue or modify an order for protection only upon a 

finding that domestic or family violence has occurred). Here, the trial court failed to enter 

findings of fact or conclusions thereon. Because Heath does not address this matter on 

appeal, and because we favor addressing the merits of cases before us, Thacker v. Wentzel, 

797 N.E.2d 342, 345 (Ind. Ct. App. 2003), we turn to the record to review whether there was 

sufficient evidence to support the issuance of a protective order.

Evidence of Domestic Violence

“A finding that domestic or family violence has occurred sufficient to justify the 

issuance of [a protective order] . . . means that a respondent represents a credible threat to the 

safety of a petitioner or a member of a petitioner’s household.” I.C. § 34-26-5-9(f). 

“Domestic or family violence” is defined in relevant part as:

the occurrence of at least one (1) of the following acts committed by a family 

or household member: 

(1) Attempting to cause, threatening to cause, or causing physical harm 

to another family or household member[;]

(2) Placing a family or household member in fear of physical harm[; or]

. . . 
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(4) Beating . . . , torturing . . . , mutilating . . . , or killing a vertebrate 

animal without justification with the intent to threaten, intimidate, 

coerce, harass, or terrorize a family or household member.

I.C. § 34-6-2-34.5. A trial court may not deny a petition for a protective order solely because 

of a lapse of time between an act of violence and the filing of the petition. I.C. § 34-26-5-13. 

However, we may consider remoteness in determining whether a sufficient threat exists to 

warrant the issuance of a protective order. Tons v. Bley, 815 N.E.2d 508, 511 (Ind. Ct. App. 

2004). For example, in Tons, another panel of this court concluded that “unspecified acts of 

violence occurring eight years previously are not a sufficient basis for the issuance of a 

protective order.” Id.

Here, no evidence was presented to the trial court that would permit an inference that 

Heath represents a credible threat to the safety of Ashley or a member of her household. The 

evidence indicates only that any physical contact between Heath and Ashley last occurred in 

North Carolina, in late 2003, and that Heath lives in North Carolina and has neither plans nor 

reason to travel to Indiana. Furthermore, no evidence was presented to the trial court that 

would indicate that Heath beat, tortured, mutilated, or killed their cat, Vivian. As such, there 

was insufficient evidence of domestic violence to support the issuance of a protective order.

Evidence of Stalking

To evaluate whether a person committed stalking under Indiana Code section 35-45-

10-5, we turn to Indiana Code section 35-45-10-1, which defines stalking as “a knowing or 

an intentional course of conduct involving repeated or continuing harassment of another 

person that would cause a reasonable person to feel terrorized, frightened, intimidated, or 
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threatened and that actually causes the victim to feel terrorized, frightened, intimidated, or 

threatened.” For the purposes of stalking, harassment is “conduct directed toward a victim 

that includes but is not limited to repeated or continuing impermissible contact that would 

cause a reasonable person to suffer emotional distress and that actually causes the victim to 

suffer emotional distress.” I.C. § 35-45-10-2. Stalking requires proof that the perpetrator 

entertained the intent to cause the other person to feel terrorized, frightened, intimidated, or 

threatened. Burton v. State, 665 N.E.2d 924, 927 (Ind. Ct. App. 1996). Stalking further 

involves a knowing or an intentional course of conduct of repeated or continuing harassment 

of another person. Johnson v. State, 648 N.E.2d 666, 670 (Ind. Ct. App. 1995). Such 

conduct must not only cause the victim to feel terrorized, frightened, intimidated, or 

threatened, but must also be such that would cause a reasonable person to feel so. I.C. § 35-

45-10-1; Johnson, 648 N.E.2d at 670.

Here, we acknowledge that the two text messages in question actually made Ashley 

feel terrorized, frightened, intimidated, or threatened. The two text messages are sufficient to 

constitute a repeated or continuing course of conduct. See, e.g., Mysliwy v. Mysliwy, 953 

N.E.2d 1072, 1077 (Ind. Ct. App. 2011), trans. denied (the term “repeated” in Indiana’s antistalking laws means more than once); Johnson v. State, 721 N.E.2d 327, 333 (Ind. Ct. App. 

1999), trans. denied (evidence that, on three separate occasions over the course of a five-hour 

period on the same night, defendant had banged on victim’s door and window, requested to 

be let in, and berated victim, was sufficient to establish that defendant had engaged in 

“repeated” acts of harassing conduct under Indiana’s anti-stalking laws). However, no 
9

evidence was presented to the trial court that would permit an inference that Heath intended 

to cause Ashley to feel terrorized, frightened, intimidated, or threatened by sending the two 

text messages. The only evidence presented at trial regarding Heath’s intent in sending the 

text messages indicates that he wished to notify Ashley of the death of a pet cat, formerly 

beloved by both Heath and Ashley. 

Furthermore, no evidence was presented to the trial court that would permit an 

inference that a reasonable person would feel terrorized, frightened, intimidated, or 

threatened by receipt of the two text messages. The evidence presented at trial indicates only 

that, after 81⁄2 years of no contact, Heath sent Ashley two text messages in the early evening 

within a period of one hour. The text messages contain nothing a reasonable person would 

consider ominous or intimidating. The first text message apprises the reader that someone or 

something named Vivian passed away of congenital heart disease. The second text message 

appears to correct the cause of death stated in the first text message to “Congestive Heart 

Failure.” (Petitioner’s Ex. 2.) As such, there was insufficient evidence of stalking to support 

the issuance of a protective order.

Conclusion

There was insufficient evidence of either domestic or family violence, or stalking to 

support the issuance of a protective order. The trial court therefore abused its discretion 

when it denied Heath’s motion to correct error.

Reversed.

NAJAM, J., and BROWN, J., concur.