Court of Appeals of Indiana | Memorandum Decision 45A03-1409-PO-346 |March 26, 2015 Page 1 of 6

MEMORANDUM DECISION

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

Mark A. Bates 

Schererville, Indiana 

ATTORNEY FOR APPELLEE

David Paul Allen

Hammond, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

A.A.,

Appellant-Defendant,

v.

A.S.,

Appellee-Plaintiff.

March 26, 2015

Court of Appeals Case No.

45A03-1409-PO-346

Appeal from the Lake Superior 

Court

The Honorable Calvin D. Hawkins, 

Judge

Cause No. 45D02-1406-PO-124

Bradford, Judge.

Case Summary 

[1] In 2014, Appellee-Plaintiff A.S. filed for and received a protective order against 

her former husband Appellant-Defendant A.A. A.A. appeals, arguing that A.S. 

previously petitioned for a protective order in 2013, which was denied, and her 
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2014 petition was barred by res judicata because she made no new allegations of 

misconduct. We reverse. 

Facts and Procedural History 

[2] A.A. and A.S. (collectively “the parties”) were married for twelve years before 

separating in 2012. On September 24, 2013, the parties’ marriage was 

dissolved. On the same day, A.S. filed a petition for protective order against 

A.A. alleging that A.A. had committed multiple acts of domestic violence and 

stalking against her in 2012. The trial court granted an emergency ex parte 

order for protection. On October 22, 2013, the trial court dismissed the petition 

due to A.S.’s failure to show that domestic violence had occurred by a 

preponderance of the evidence. 

[3] On June 4, 2014, A.S. again petitioned for a protective order against A.A and 

appeared pro se at an ex parte hearing in front of the trial court. The only 

“incident” described in her petition was the short statement “to kill me.” 

Appellant’s App. p. 10. Due to a language barrier, the trial court had difficulty 

understanding A.S. and questioned why she needed an order for protection 

when she had already received no contact orders from the Hammond City 

Court.1 Regardless, the trial court granted an ex parte order for protection and 

 

1 Criminal charges were filed against A.A. in Hammond City Court based on allegations of domestic abuse 

committed against A.S. during the marriage. As of August 28, 2014, the criminal cases relating to those 

allegations were pending. 
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set a hearing on the motion. On July 3, 2014, A.A. filed a motion to dismiss 

the petition. The trial court denied the motion to dismiss at the outset of the 

August 28, 2014 hearing. At the hearing, A.S. recounted many incidents of 

domestic abuse which occurred prior to the parties’ divorce, the last of which

occurred in January of 2013. When asked by counsel if there had been any 

other incidents since September 2013 (after the divorce was finalized), A.S. 

responded, “No, but I don’t want any more to happen.” Tr. p. 21. The trial 

court granted A.S. a one-year protective order against A.A. A.A. appeals. 

Discussion and Decision 

[4] Protective orders are in the nature of injunctions. Therefore, in 

granting a protective order the trial court must sua sponte make special 

findings of fact and conclusions thereon. See Indiana 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).

Where, as here, the trial court entered findings of fact and conclusions 

thereon pursuant to Trial Rule 52(A), we apply a two-tiered standard 

of review. Mysliwy v. Mysliwy, 953 N.E.2d 1072, 1076 (Ind. Ct. App.

2011), trans. denied.

[F]irst, we determine whether the evidence supports the 

findings, and second, whether the findings support the 

[order]. In deference to the trial court’s proximity to the 

issues, we disturb the [order] only where there is no 

evidence supporting the findings or the findings fail to 

support the [order]. We do not reweigh the evidence, but 

consider only the evidence favorable to the ... [order]. 

Those appealing the ... [order] must establish that the 

findings are clearly erroneous. Findings are clearly 

erroneous when a review of the record leaves us firmly 

convinced that a mistake has been made. We do not 
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defer to conclusions of law, however, and evaluate them 

de novo. 

Id. (internal citations omitted). 

Hanauer v. Hanauer, 981 N.E.2d 147, 148-49 (Ind. Ct. App. 2013) (some 

citations omitted).

[5] Indiana Code section 34-26-5-2 provides as follows:

(a) A person who is or has been a victim of domestic or family 

violence may file a petition for an order for protection 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 or a sex 

offense under IC 35-42-4 against the petitioner.

Indiana Code section 34-26-5-9 provides:

A finding that domestic or family violence has occurred sufficient to 

justify the issuance of an order under this section means that a 

respondent represents a credible threat to the safety of a petitioner or a 

member of a petitioner’s household. Upon a showing of domestic or 

family violence by a preponderance of the evidence, the court shall 

grant relief necessary to bring about a cessation of the violence or the 

threat of violence.

[6] A.A. argues that his motion for dismissal should have been granted, or that 

A.S.’s petition should have been denied, because A.S. made no allegations of 

any new instances of misconduct since her prior petition seeking a protective 

order was denied on October 22, 2013. We agree. Absent any new allegations

of misconduct, the trial court was essentially re-ruling on the same issue which 

had previously been addressed by another court. 

The doctrine of res judicata bars the litigation of a claim after a final 

judgment has been rendered in a prior action involving the same claim 
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between the same parties or their privies. Small v. Centocor, Inc., 731 

N.E.2d 22, 26 (Ind. Ct. App. 2000), reh’g denied, trans. denied. The 

principle behind this doctrine, as well as the doctrine of collateral 

estoppel, is the prevention of repetitive litigation of the same dispute. 

Id. The following four requirements must be satisfied for a claim to be 

precluded under the doctrine of res judicata: 1) the former judgment 

must have been rendered by a court of competent jurisdiction; 2) the 

former judgment must have been rendered on the merits; 3) the matter 

now in issue was, or could have been, determined in the prior action; 

and 4) the controversy adjudicated in the former action must have 

been between the parties to the present suit or their privies. Id.

MicroVote Gen. Corp. v. Indiana Election Comm’n, 924 N.E.2d 184, 191 (Ind. Ct. 

App. 2010). 

[7] In response to A.A.’s res judicata argument, A.S. argues that the previous order 

denying A.S.’s first petition for protective order was not rendered “on the 

merits,” as is required by the second element of the res judicata doctrine. 

Appellee’s Br. 11. We find this argument unpersuasive. The order dismissing 

A.S.’s 2013 petition for protection states, “The Petitioner has not shown, by a 

preponderance of the evidence, that domestic or family violence, stalking, or a 

sex offense has occurred sufficient to justify the issuance of an Order for 

Protection.” Appellant’s App. p. 36. We think this is clearly a judgment on the 

merits. Accordingly, A.S. was barred from attempting to gain a subsequent 

protection order based on any allegations of domestic abuse prior to the 

September 24, 2013 motion for protective order. To find otherwise would 

encourage forum shopping and redundant litigation by permitting parties who 

had been denied a protective order to re-petition in different courts. Under such 

circumstances, there would be no finality to a denial of a protective order and 
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respondents could be required to defend themselves repeatedly against the same 

claims. 

[8] A.S. conceded that A.A. had not committed any misconduct after September 

24, 2013, and that the last reported instance of abuse/stalking occurred in 

January of 2013. In its August 28, 2014 order, the trial court found that “The 

Petitioner has shown by a preponderance of the evidence that domestic or 

family violence has occurred sufficient to justify the issuance of this Order [for 

Protection].” Appellant’s App. p. 21. The trial court was precluded, under the 

doctrine of res judicata, from granting a protective order based on incidents that 

occurred prior to September 24, 2013, and there were no alleged incidents of 

misconduct which occurred after that date. Therefore, the trial court’s grant of 

the order for protection was clearly erroneous. 

[9] We note that as of the June 4, 2014 ex parte hearing, A.S. had valid no contact 

orders against A.A. This decision in no way limits the effectiveness of those 

orders, and, assuming they are still valid, A.S. is required to abide by the 

guidelines therein. 

[10] The judgment of the trial court is reversed. 

Vaidik, C.J., and Kirsch, J., concur.