author: Vaidik, Chief Judge.

text:
    Kimberly L. EADS, Appellant-Petitioner, v. Robert J. EADS, Jr., Appellee-Respondent
    Court of Appeals Case No. 18A-DR-249
    Court of Appeals of Indiana.
    FILED November 16, 2018
    Attorney for Appellant: Jonathan R. Deenik, Deenik Law, LLC, Greenwood, Indiana
    Attorney for Appellee: Janice Mandla Mattingly, Janice Mandla Mattingly, P.C. Carmel, Indiana
   Vaidik, Chief Judge.

Case Summary

[1] In October 2011, Kimberly L. Eads ("Wife") filed a petition to dissolve her marriage to Robert J. Eads ("Husband"). Nearly six years later, in July 2017, the trial court issued a decree dissolving the parties' marriage. In the decree, the court used a coverture fraction to determine that 77.2% of Husband's firefighters' pension was earned during the marriage. The court then ordered Husband, once he retires, to forward half of 77.2%, or 38.6%, of his monthly pension payment to Wife each month and then issue her a Form 1099-R (an IRS form for distributions from pensions and retirement plans) so that Wife pays the taxes on her share of his pension. In addition, the court found that Wife, who receives social-security disability payments for injuries she sustained in a car accident, is entitled to rehabilitative maintenance and ordered Husband to pay her $1000/month for twenty-four months. Finally, the court ordered each party to pay their own attorney's fees.

[2] Both Husband and Wife now appeal. We conclude that the trial court erred in calculating the coverture fraction because it included pension rights that Husband earned after Wife filed for divorce. We therefore remand this case with instructions for the court to apply one of two methods-the date-of-retirement approach or the date-of-divorce approach-to determine the portion of Husband's pension that was earned during the marriage. We also conclude that the trial court erred in ordering Husband to issue Wife a Form 1099-R each year and therefore order the court to consider different options of making Wife responsible for the taxes on her share of Husband's pension. Although we find no abuse of the trial court's discretion in ordering each party to pay their own attorney's fees, we find that the record does not support an award of rehabilitative maintenance. On remand, the court must determine whether Wife is entitled to incapacity maintenance instead of rehabilitative maintenance. We therefore affirm in part and reverse and remand in part.

Facts and Procedural History

[3] Although the dissolution decree covers many topics, this appeal concerns only a few of them. Accordingly, we set forth the facts that are relevant to the issues the parties raise on appeal.

[4] Husband began working as a firefighter on February 7, 1994. As a firefighter, Husband is a member of the 1977 Police Officers' and Firefighters' Pension and Disability Fund ("1977 Fund"), which is administered by the Indiana Public Retirement System (INPRS). Appellant's App. Vol. II p. 23 (Finding 37); see also Thatcher v. City of Kokomo , 962 N.E.2d 1224, 1225 n.1 (Ind. 2012) ("The '1977 Fund' is a disability and pension fund for police officers and firefighters established by Indiana Code section 36-8-8-4 that is managed by [INPRS]."). Members of the 1977 Fund become vested with twenty years of service and are eligible for an unreduced retirement benefit when they have twenty years of service, are at least fifty-two years old, and have separated from service. Appellant's App. Vol. II p. 23 (Finding 37); see also Ex. 1. Unlike other pensions, the 1977 Fund pension is not subject to a Qualified Domestic Relations Order (QDRO).

[5] About three-and-a-half years after Husband began working as a firefighter, on November 15, 1997, Husband and Wife married. In 2000, Wife was involved in a car accident and sustained back injuries. See Tr. Vol. II p. 9 (Wife testifying that her back injuries prevent her from sitting, standing for long periods of time, and concentrating and that her medications make her sleepy). Wife, who worked as a finance manager before the accident, has not worked since the accident. Id. Wife was eventually awarded social-security disability payments dating back to 2000. In 2002 and 2003, Husband was "medically retired" due to an injury. Appellant's App. Vol. II p. 23 (Finding 39); Tr. Vol. III p. 177. Husband then returned to work.

[6] On October 25, 2011-which was before Husband, then age forty-five, became vested in his 1977 Fund pension-Wife filed for divorce. In the petition, Wife requested spousal maintenance. Tr. Vol. II pp. 95-97. After Wife filed for divorce, Husband and Wife did not live together or commingle assets. The divorce was pending for nearly six years. During this time, Husband reached twenty years of service and thus became vested in his pension.

[7] The final hearing was held over the course of three days between December 2016 and February 2017. Husband was still working and thus continuing to accrue pension benefits. At the hearing, substantial time was devoted to Husband's 1977 Fund pension, as it was one of the parties' two major assets (the other being the marital residence). Wife presented evidence from Dan Andrews, a Franklin College business and accounting professor and a CPA. Specifically, Andrews testified that Husband's monthly benefit amount (calculated by INPRS as though Husband had separated from service on October 4, 2016-the date of valuation-and would apply for an unreduced retirement benefit when he turned fifty-two in July 2018) would be $3254.86 and that the present value of Husband's 1977 Fund pension was $1,278,133.26. See Tr. Vol. II pp. 200, 223; Ex. 2A. Andrews, at Wife's request, then applied the coverture fraction formula (discussed below), concluding that Husband earned 61.52% of his pension during the marriage. Tr. Vol. II pp. 201-02; Ex. 2A (although Andrews testified that the coverture is 61.54%, his report provides that the coverture is 61.52%). Both Husband and Wife asked the trial court to order the other party to pay their attorney's fees. Tr. Vol. II p. 111; Tr. Vol. III p. 49.

[8] On July 5, 2017, the trial court issued a decree of dissolution of marriage, which it amended in December following the parties' motions to correct error. The amended decree addresses Husband's 1977 Fund pension as follows:

46. The Court finds that the period of time from the date of [Husband's] employment (February 7, 1994) until the Date of the Decree (July 5, 2017) to be a total period of 281 months. However, the parties were not married for the first 40 months of [Husband's] employment, and there was [a] 24-month period of time in 2002-3 in which [Husband] was not working and contributing to his pension. Therefore, the pension vesting period was 217 months. (281 months - 64 months). Thus, the percentage of the pension earned during the marriage is 77.2% (217 divided by 281). [Wife] is entitled to half of that amount, or 38.6%.
* * * * *
48. [Wife] presented evidence in the form of a valuation report prepared by Dan Andrew[s] for [Husband's] 1977 Police and Firefighter pension. (Exhibit 2A). The Court accepts ... Andrew[s'] valuation and places a value of $1,278,133.26 on said pension. However, only 77.2% of that amount was earned during the marriage, or $986,718.83.

Appellant's App. Vol. II p. 24. The court then divided the $986,718.83 equally, awarding Husband and Wife each $493,359.42. Id. at 27 (Finding 59). As to how Wife would receive her share of Husband's pension, the court explained:

62. Because the parties do not have sufficient assets to divide the value of [Husband's] pension, the Court elects to divide the monthly benefit instead.
63. [Husband's] pension benefit at age 52 is calculated to be $3,254.86 per month .... [Husband] could apply for a reduced pension benefit January 1, 2017 in the amount of $2,894.22. (Exhibits 1, 2A, 2B, 2C).
64. Upon his retirement, [Husband] shall forward 38.6% ... of his monthly pension each month to [Wife], as a [QDRO] is not possible with the Firefighter Pension. Because [Husband] ... cannot determine his income tax liability before his earnings are calculated, [Husband] shall forward the pension amount directly to [Wife] and, each year, issue her a Form 1099 for her share of the pension.
65. The Court chooses this method of distributing [Husband's] pension due to the parties lacking sufficient resources to otherwise allocate sufficient assets and the inability of the pension to be divided by [QDRO].

Id. at 28.

[9] As for Wife's request for spousal maintenance, the court found:

74. The Court finds that [Wife] is disabled and in need of maintenance. [Wife] has been determined to be disabled by the Social Security Administration and receives Social Security Disability payments. [Wife] has been unable to work for several years.
* * * * *
82. The Court GRANTS [Wife's] request for spousal maintenance. The Court has reviewed I.C. 31-15-7-2 and the trial exhibits and agrees that [Wife] is in need of spousal maintenance. While [Wife] does currently receive disability income, it is not sufficient to sustain her needs. Pursuant to I.C. 31-15-7-2(3), the Court finds that [Husband] shall pay to [Wife] the sum of $1,000.00 or 16.2% of his monthly income as rehabilitative maintenance for a period of twenty-four (24) months.

Id. at 29-30. Finally, the trial court ordered Husband and Wife to pay their own attorney's fees:

86. Each party will receive sufficient funds from the sale of the marital residence out of which to pay his or her attorney fees. Accordingly, each party shall be responsible for his or her attorney fees and costs.

Id. at 30.

[10] Wife now appeals, and Husband cross-appeals.

Discussion and Decision

I. Husband's Firefighters' Pension

[11] It is well settled that in a dissolution action, all marital property, whether owned by either spouse before the marriage, acquired by either spouse after the marriage and before final separation of the parties, or acquired by their joint efforts, goes into the marital pot for division. Ind. Code § 31-15-7-4(a) ; Falatovics v. Falatovics , 15 N.E.3d 108, 110 (Ind. Ct. App. 2014). "Final separation" generally means the date that the petition for dissolution of marriage is filed. Ind. Code § 31-9-2-46. "Property" is defined in part as all the assets of either party or both parties, including:

(1) a present right to withdraw pension or retirement benefits;
(2) the right to receive pension or retirement benefits that are not forfeited upon termination of employment or that are vested (as defined in Section 411 of the Internal Revenue Code ) but that are payable after the dissolution of marriage; and
(3) the right to receive disposable retired or retainer pay (as defined in 10 U.S.C. 1408(a) ) acquired during the marriage that is or may be payable after the dissolution of marriage.

Ind. Code § 31-9-2-98(b). "The requirement that all marital assets be placed in the marital pot is meant to insure that the trial court first determines that value before endeavoring to divide property." Montgomery v. Faust , 910 N.E.2d 234, 238 (Ind. Ct. App. 2009). "Indiana's 'one pot' theory prohibits the exclusion of any asset in which a party has a vested interest from the scope of the trial court's power to divide and award." Falatovics , 15 N.E.3d at 110 (quotation omitted). While the trial court may decide to award a particular asset solely to one spouse as part of its just and reasonable property division, it must first include the asset in its consideration of the marital estate to be divided. Id.

[12] After determining what constitutes marital property, the trial court must then divide the marital property under the presumption that an equal division is just and reasonable. Barton v. Barton , 47 N.E.3d 368, 379 (Ind. Ct. App. 2015), trans. denied . This presumption may be rebutted by relevant evidence that an equal division would not be just and reasonable, such as the extent to which the property was acquired by each spouse before the marriage. Ind. Code § 31-15-7-5. However, the trial court must state its reasons for deviating from the presumption of an equal division in its findings and judgment. Barton , 47 N.E.3d at 379.

[13] We first note that Husband does not argue on appeal that his 1977 Fund pension is not "property" because it was not vested when Wife filed for divorce. See In re Marriage of Adams , 535 N.E.2d 124, 125-26 (Ind. 1989) (holding that a police pension that vested after the dissolution petition was filed but before the dissolution decree was entered was "property" according to Section 31-19-2-98(b)(2) as a right to receive pension or retirement benefits not forfeited upon termination), reh'g denied ; see also Kirkman v. Kirkman , 555 N.E.2d 1293, 1294 (Ind. 1990) (applying Adams to situation where the husband's pension vested after the dissolution decree was entered and concluding: "In contrast to Adams , Danny Kirkman's right to pension benefits was neither vested nor had it become 'not forfeited upon termination' prior to the entry of the dissolution decree"); but see Granzow v. Granzow , 855 N.E.2d 680, 684 n.1 (Ind. Ct. App. 2006) (calling into doubt Kirkman 's use of "the date of dissolution as the point on which to identify marital property subject to division"). Accordingly, we start from the premise that Husband's 1977 Fund pension is marital property to be divided between the parties.

[14] Wife argues that the trial court erred "by utilizing a coverture fraction" to exclude a portion of Husband's 1977 Fund pension from the marital pot because it resulted in an unequal division of the marital property "without sufficient justification," contrary to Indiana law. Appellant's Br. pp. 8, 10. But it was Wife's own expert who applied the coverture fraction to Husband's pension (in both his report and at the hearing). See Tr. Vol. II p. 201 (Andrews testifying that Wife asked him to calculate the coverture). Wife has therefore invited any error concerning the trial court's application of the coverture fraction to Husband's pension. In any event, the trial court included Husband's "pension rights" "in the marital pot." Appellant's App. Vol. II p. 24 (Finding 47). The court explained, however, that it was setting aside a portion of the pension to Husband because it was earned before the parties' marriage; the court then equally divided the rest of the pension. Id. (Finding 46). This satisfies Indiana law.

[15] Husband challenges the trial court's division of his 1977 Fund pension. Specifically, he argues that the trial court improperly calculated the percentage of his pension that was earned during the marriage as 77.2%. He claims that the percentage should be lower, because the court improperly included pension rights that he earned after Wife filed for divorce. Husband is correct.

[16] The court calculated 77.2% using a coverture fraction. Specifically, the court found:

46. The Court finds that the period of time from the date of [Husband's] employment (February 7, 1994) until the Date of the Decree (July 5, 2017) to be a total period of 281 months. However, the parties were not married for the first 40 months of [Husband's] employment, and there was [a] 24-month period of time in 2002-3 in which [Husband] was not working and contributing to his pension. Therefore, the pension vesting period was 217 months. (281 months - 64 months). Thus, the percentage of the pension earned during the marriage is 77.2% (217 divided by 281). [Wife] is entitled to half of that amount, or 38.6%.

Appellant's App. Vol. II p. 24 (emphasis added). The court then ordered Husband to forward 38.6% "of his monthly pension each month" to Wife. Id. at 28 (Finding 64).

[17] Determining the portion of a pension that was earned during a marriage "is one of the most difficult tasks in all of equitable distribution." 2 Brett R. Turner, Equitable Distribution of Property 3d, Defined Benefit Plans: The Coverture Fraction § 6.25 (Nov. 2017 update). Because neither the employer nor the employee normally makes specific contributions to such a plan, the court cannot use a proration of funds. Id. Rather, the court can use a proration of time. Id. This proration is used to determine the coverture fraction, that is, the portion of the pension that was earned during the marriage. Id. There are two formulas used to calculate the coverture fraction. The first one, which a "large majority" of courts use, is the date-of-retirement approach:

Date-of-retirement coverture fraction = creditable time during marriage total creditable time

Id. ; see also Morey v. Morey , 49 N.E.3d 1065, 1071 (Ind. Ct. App. 2016) (explaining that the numerator is the period of time during which the marriage existed while pension rights were accruing and the denominator is the total period of time during which pension rights accrued). For example, if the employee is employed for 20 years, 12 of which occurred during the marriage, then 12/20 or 60% of the pension was earned during the marriage. Turner, supra , § 6.25. To compute the total marital interest in the pension, the fraction is multiplied by the employee's monthly benefit at retirement . Id.

[18] The second formula, which a "small but significant minority" of courts use, is the date-of-divorce approach:

Date-of-divorce coverture fraction = creditable time during marriage total creditable time at divorce

Id. Although the numerators are the same in both formulas, this fraction uses total creditable time at divorce as the denominator, because the fraction is multiplied by what the monthly payment would be at divorce . Id. As Turner explains it, "[d]ifferent formulas are required because the denominator of the fraction must match exactly the period of time over which the employee acquired the benefit by which the fraction is being multiplied." Id. For example, an employee works 30 years: 5 years before the marriage, 15 years during the marriage, and 10 years after the marriage. According to the evidence presented, the employee's pension payment would have been $1000 per month had he retired at divorce. Thus, the coverture fraction is years married divided by years of employment at divorce, or 15/20 (75%). Id. To compute the total marital interest in the pension, the fraction is multiplied by what the monthly payment would be at divorce (not the actual pension payment, which presumably would be larger), 75% x $1000 per month = $750 per month. Id.

[19] Here, the trial court did not use either formula. We therefore remand this case with instructions for the court to re-calculate the coverture fraction, acknowledging that Husband has since turned fifty-two and might be retired. To assist the trial court, we illustrate how each of the formulas would work in this case.

[20] Using the date-of-divorce approach, the numerator of the coverture fraction is the creditable time during marriage, which is calculated from November 15, 1997, the date of marriage (since Husband was already accumulating pension benefits when the parties got married), to October 25, 2011, when Wife filed for divorce. See Barton , 47 N.E.3d at 380 & n.15 (calculating the numerator from the date of marriage to the date the dissolution petition was filed); Turner, supra , § 6.25 at n.28 (explaining that the ending date for the numerator is the "date of classification," which in Indiana is the date of "final separation"). This is a period of 167 months.

[21] The denominator is the total creditable time at divorce, which is calculated from February 7, 1994 (Husband's date of hire) to October 4, 2016 (date Husband's pension was valued). This is a period of 271 months. 167/271 is 61.62%. To compute the total marital interest in the pension, 61.62% is multiplied by Husband's estimated monthly benefit amount of $3254.86 (calculated by INPRS as though Husband had separated from service on October 4, 2016, and would apply for an unreduced retirement benefit when he turned fifty-two in July 2018), which is $2005.64. According to the trial court's finding, Wife would be entitled to 50% of this monthly payment, or $1002.82.

[22] The date-of-retirement approach can also be used. As with the date-of-divorce approach, the numerator is 167 months. However, the denominator, the total creditable time, cannot be determined until Husband retires. If, on remand, Husband has retired, the denominator would be from February 7, 1994 (Husband's date of hire), to Husband's date of retirement. To compute the total marital interest in the pension, the resulting fraction would be multiplied by Husband's actual monthly pension payment. If, however, Husband is still working, this formula can be used, but the denominator cannot be calculated until Husband retires. Likewise, the monthly benefit amount would be not known until Husband retires. If, on remand, Husband is still working, the trial court may place the formula in its order for the parties to calculate at Husband's retirement.

[23] Husband's next argument addresses taxes on Wife's portion of his pension. According to Indiana Code section 31-15-7-7, "The court, in determining what is just and reasonable in dividing property under this chapter, shall consider the tax consequences of the property disposition with respect to the present and future economic circumstances of each party." Here, the trial court ordered Husband, upon retirement, to forward a percentage of his monthly pension payment each month "directly to [Wife] and, each year, issue her a Form 1099 for her share of the pension." Appellant's App. Vol. II p. 28 (Finding 64); see Cross-Appellee's Br. p. 6 (stating that the trial court was likely referring to Form 1099-R). Husband contends that Form 1099-R is not the proper way to transfer the tax burden on Wife's portion of his pension to her. We agree.

[24] According to the IRS, Form 1099-R should be filed "for each person to whom you have made a designated distribution or are treated as having made a distribution of $10 or more from," among other things, retirement plans and pensions. IRS, About Form 1099-R , https://www.irs.gov/forms-pubs/about-form-1099-r. But Wife is not receiving a distribution from her pension; rather, Husband is receiving a distribution from his pension and then giving Wife a portion of it as part of the property settlement. Once Husband retires and starts receiving his pension, he will receive a Form 1099-R from INPRS for the full amount of his annual benefit and thus be responsible for taxes on the full amount. Accordingly, Form 1099-R is not a proper way to transfer Wife's tax burden to her. On remand, the trial court can address the tax consequences by reducing Wife's percentage of Husband's monthly pension payment to account for the fact Husband is paying taxes on her portion. Or, if Husband has retired and his monthly pension payment is known, the trial court can determine the net, or after-tax, amount of Husband's monthly pension payment based on his withholding and then multiply the coverture fraction by Husband's net monthly pension payment.

II. Maintenance Award

[25] Wife contends that the trial court erred in awarding her "rehabilitative" maintenance instead of "incapacity" maintenance. Spousal-maintenance awards in Indiana are "restricted to three, quite limited options": incapacity, caregiver, and rehabilitative. In re Marriage of Gertiser , 45 N.E.3d 363, 367 (Ind. 2015) (quotation omitted). Indiana Code section 31-15-7-2 sets forth the requirements of each:

A court may make the following findings concerning maintenance:
(1) If the court finds a spouse to be physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected, the court may find that maintenance for the spouse is necessary during the period of incapacity, subject to further order of the court.
(2) If the court finds that:
(A) a spouse lacks sufficient property, including marital property apportioned to the spouse, to provide for the spouse's needs; and
(B) the spouse is the custodian of a child whose physical or mental incapacity requires the custodian to forgo employment;
the court may find that maintenance is necessary for the spouse in an amount and for a period of time that the court considers appropriate.
(3) After considering:
(A) the educational level of each spouse at the time of marriage and at the time the action is commenced;
(B) whether an interruption in the education, training, or employment of a spouse who is seeking maintenance occurred during the marriage as a result of homemaking or child care responsibilities, or both;
(C) the earning capacity of each spouse, including educational background, training, employment skills, work experience, and length of presence in or absence from the job market; and
(D) the time and expense necessary to acquire sufficient education or training to enable the spouse who is seeking maintenance to find appropriate employment;
a court may find that rehabilitative maintenance for the spouse seeking maintenance is necessary in an amount and for a period of time that the court considers appropriate, but not to exceed three (3) years from the date of the final decree.

[26] In the absence of an agreement between the parties, the trial court's authority in ordering maintenance is limited to these three statutory options. Cannon v. Cannon , 758 N.E.2d 524, 526 (Ind. 2001)

("Where none of these circumstances exist, a court may not order maintenance without the agreement of the parties."). This is because the policy regarding spousal maintenance reflects a clear legislative intent to retain fairly strict limits on the power of courts to order maintenance without the consent of the parties. Id.

[27] In its findings, the trial court quoted only Section 31-15-7-2(1) , which addresses incapacity maintenance, but then found that Wife was "disabled" and entitled to "rehabilitative maintenance" under Section 31-15-7-2(3) for twenty-four months (unlike incapacity maintenance, which lasts for the duration of the incapacity until further order of the court, rehabilitative maintenance may not exceed three years from the date of the final decree). However, the trial court's findings do not address the requirements for rehabilitative maintenance. And Wife concedes that "[t]here is no evidence of record which would support a finding of 'Rehabilitative Maintenance.' " Appellant's Br. p. 12. Further adding to the confusion is the fact that the trial court found that Husband "does not have the financial means to meet all the obligations this Court has now burdened him with and pay the spousal maintenance award." Appellant's App. Vol. II p. 30 (Finding 84) (emphasis added). Accordingly, we remand this case to the trial court with instructions to determine whether Wife is entitled to incapacity maintenance, taking into consideration Husband's ability to pay. Barton , 47 N.E.3d at 375-77. If the court awards Wife incapacity maintenance, it should last for the "period of incapacity, subject to further order of the court."

III. Attorney's Fees

[28] Both Husband and Wife asked the trial court to order the other party to pay their attorney's fees, but the court ordered Husband and Wife to pay their own fees. The court reasoned that they will each "receive sufficient funds from the sale of the marital residence." Appellant's App. Vol. II p. 30 (Finding 86). Wife contends that the trial court erred in not ordering Husband to pay her attorney's fees. Pursuant to Indiana Code section 31-15-10-1, a trial court may order a party in a dissolution proceeding to pay a reasonable amount of the other party's attorney's fees. Barton , 47 N.E.3d at 377. The court has broad discretion in deciding whether to award attorney's fees. Id.

[29] In determining whether to award attorney's fees in a dissolution proceeding, trial courts should consider the parties' resources, their economic condition, their ability to engage in gainful employment and earn income, and other factors bearing on the reasonableness of the award. Id. A party's misconduct that directly results in additional litigation expenses may also be considered. Id. Consideration of these factors promotes the legislative purpose behind the award of attorney's fees, which is to ensure that a party who would not otherwise be able to afford an attorney is able to retain representation. Hartley v. Hartley , 862 N.E.2d 274, 286-87 (Ind. Ct. App. 2007). When one party is in a superior position to pay fees over the other party, an award is proper. Id.

[30] Wife argues that the court should have ordered Husband to pay her attorney's fees of $22,000 due to her disability as well as Husband's superior earning capacity and conduct during the divorce proceedings, such as his failure to appear at some of the hearings and his failure to fully comply with discovery. The trial court made several findings regarding the parties' financial situation. That is, the court found that the parties were living "well above their means while married," that a "balloon payment" on the mortgage became due during the dissolution proceedings, and that "[Husband] and [Husband] alone has been responsible for the obligations relating to the marital residence during the almost 6-year pendency of this case." Appellant's App. Vol. II p. 30 (Findings 83 & 84). Although the trial court did not make any findings regarding Husband's conduct, the trial court was well aware that the divorce had been pending for nearly six years. The trial court did not abuse its discretion in ordering each party to pay their own attorney's fees. However, because this case is being remanded, the court can revisit the topic of attorney's fees if it chooses.

[31] Affirmed in part and reversed and remanded in part.

Riley, J., and Kirsch, J., concur.

      According to INPRS,
      The fund is not required by federal law to honor [QDROs]. The 1977 Fund is not authorized by law to split payments between payees.... The Fund will not make any payments directly to a Fund Member's alternate payee under a QDRO.... The Fund will also not make any payments prior to the time that distributions would otherwise begin to the member by law. This means that the member must have actually retired or separated from employment from a 1977 Fund covered position in order for the Fund to begin making payments to the member.
      Ex. 2C.

      According to INPRS, on October 25, 2011, Husband "was not vested in a pension benefit"; however, if Husband separated from employment on October 25, 2011, "he could have withdrawn his member contribution account balance," which at that time was approximately $67,853.45. Ex. 2C; see also Tr. Vol. II pp. 216-17. After becoming vested, however, Husband cannot withdraw his member contributions "because [they] are used to fund the 1977 pension benefit." Ex. 2C.

      According to Exhibit 2A, Andrews calculated the length of marriage as 13.94 years, that is, from November 15, 1997 (date of marriage) to October 25, 2011 (date Wife filed for divorce). Andrews calculated the term of Husband's employment as 22.66 years, that is, from February 7, 1994 (date of hire) to October 4, 2016 (date Husband's pension was valued).

      This method of distributing Husband's retirement benefits is referred to as the deferred-distribution method. Under this method, the court makes no immediate division of the retirement benefits but determines the future benefits to which the non-owning spouse is entitled. Kendrick v. Kendrick , 44 N.E.3d 721, 726 (Ind. Ct. App. 2015), trans. denied . Traditionally, the benefits have been stated as a share of the owning spouse's future benefit, and payment can be ordered to come directly from the owning spouse. Id. Under the other method, the immediate-offset method, the court determines the present value of the retirement benefits and awards the non-owning spouse his or her share of the benefits in an immediate lump-sum award of cash or property equal to the value of his or her interest. Id.

      At the time of Adams , this statute was located at Indiana Code section 31-1-11.5-11 (repealed in 1997).

      According to Turner, "marital share fraction" is more accurate terminology than "coverture fraction." Turner, supra , § 6.25 at n.0.50.

      The earliest starting date is the date of marriage. However, the date of marriage is not always the starting date because the employee could have started working after the date of marriage. In such a case, the date would be the date the employee started earning pension rights.

      Although Husband testified, and the trial court found, that Husband did not accrue pension rights for twenty-four months while he was "medically retired," INPRS and Andrews said he did. See Exs. 1 & 2C; see also Ind. Code § 36-8-8-12(e) ("Time spent receiving disability benefits, not to exceed twenty (20) years, is considered active service for the purpose of determining retirement benefits."); Tr. Vol. II p. 218 (Andrews testifying that "time off on disability in the 77 Plan counts as time served"). Therefore, the twenty-four months should be included.

      If Husband's pension could have been valued on the date Wife filed for divorce, that date presumably would have been used. However, Husband's pension was not vested when Wife filed for divorce and therefore had no value (other than Husband's member contributions). Neither party objected to using October 4, 2016.

      This is almost the same number that Andrews calculated-61.52%. See Tr. Vol. II p. 202; see also Ex. 2A.

      As explained earlier, Husband's 1977 Fund pension is not subject to a QDRO. However, when a deferred-distribution award is implemented through a QDRO, the plan administrator gives a separate benefit check to each spouse, and each spouse is responsible for his or her own tax consequences. 2 Brett R. Turner, Equitable Distribution of Property 3d, Defined Benefit Plans: Deferred Distribution Method § 6.32 (Nov. 2017 update).

      According to INPRS, it must "withhold federal taxes on monthly payments. You may choose not to have taxes withheld. Make sure to complete the tax withholding forms when you apply for benefits." INPRS, [1977 Fund] Member Handbook : Taxation of Retirement Benefits , https://www.in.gov/inprs/77fundmbrhandbooktaxationofrtmtbenefits.htm. If the trial court is worried that Husband will withhold too many taxes, thus decreasing the amount that Wife receives each month, the court can order Husband to withhold a specific amount.

      Wife posits that the trial court awarded her rehabilitative maintenance for twenty-four months so that it ended "at approximately the time she will begin receiving her share of [Husband's] monthly pension benefit." Appellant's Br. p. 13.


source: Caselaw Access Project

author: May, Judge.

license: Public Domain

text:
    UNITED FARM FAMILY MUTUAL INSURANCE COMPANY, Appellant-Plaintiff, v. Stacy B. MATHENY, Earl R. Matheny, and the Estate of Phillip Preston Chase By and Through Ana Marie Chase, Personal Representative of the Estate of Phillip Preston Chase, Appellees-Defendants
    Court of Appeals Case No. 18A-CT-515
    Court of Appeals of Indiana.
    Filed November 28, 2018
    Attorney for Appellant: Lewis S. Wooton, Wooton Hoy, LLC, Greenfield, Indiana
    Attorneys for Appellee: Mark K. Phillips, Michael K. Phillips, Phillips and Phillips, P.C., Boonville, Indiana
   May, Judge.

[1] United Farm Family Mutual Insurance Company ("United") appeals the trial court's denial of its motion for summary judgment. United contends the trial court's conclusion Stacy Matheny ("Stacy") and Earl Matheny ("Earl") lived in separate residences was in error. We reverse and remand with instructions.

Facts and Procedural History

[2] Stacy is Earl's son. Stacy lives in an apartment on the second floor of Earl's house. Stacy has lived under the same roof as his father since approximately 2000, excepting some time Stacy spent in prison. While Stacy was imprisoned and after Earl's wife died, Earl closed off access between the upstairs and downstairs of his home and rented the second floor to other people as an apartment. Thereafter, access to the upstairs apartment was via two separate entryways at the front and the back of the house. The upstairs apartment consisted of two bedrooms, a living room, and space for a kitchen; however, no appliances were ever installed to make the kitchen area functional for meal preparation.

[3] To gain access to the downstairs where Earl lived, one must enter from outside and have a key. Stacy and his siblings all had keys to the part of the house where Earl lived. Stacy usually ate breakfast and lunch with Earl in Earl's living area. The two men also typically ate dinner together. Stacy was unemployed and did not have a driver's license. Earl paid Stacy's living expenses, did not collect rent from him, and transported him on errands.

[4] Earl had several long guns and a handgun. When Stacy was released from prison, Earl thought Stacy was not allowed to live in a house with guns. Earl stored his long guns off-site but kept his handgun with him for personal protection. Earl kept the gun under his pillow and took it with him in a bag when he travelled.

[5] Earl had three mobile homes that he rented to other people. Pete Paris rented one of the homes. Phillip Chase frequently visited Paris; however, both Earl and Stacy had told Chase he was not welcome on the property. Earl and Stacy did not want Chase there because Chase allegedly manufactured drugs on the property.

[6] On March 14, 2016, Earl and Stacy were headed into town when Earl noticed Paris had accumulated more than thirty bags of trash at the back of the mobile home. Earl and Stacy stopped so Earl could tell Paris to clean it up. When Earl pulled up to the mobile home, Stacy noted Chase's car was beside the home. Paris came outside, and Stacy told him to have Chase come out to talk. As they were waiting for Chase, Earl was worried the men would fight. When Chase came out, he and Stacy moved toward the back of Earl's truck to talk. Stacy shot Chase in the head with Earl's handgun. Chase died. Earl did not know when or how Stacy obtained his gun.

[7] On May 13, 2016, Chase's Estate ("Estate") sued Stacy and Earl for wrongful death alleging Stacy had "knowingly or intentionally sho[ ]t" Chase, (App. Vol. II at 14), and Earl had been negligent in storing and safe-keeping the handgun and in not controlling his son when a special relationship existed between the men. This special relationship, the Estate alleged, arose from the fact Earl knew Stacy had a history of violent and criminal activity, had been in prison for shooting someone, had an "emotional and/or mental disturbance," (id. at 15), and was prohibited from owning or using a handgun because he is a convicted felon.

[8] Earl had homeowner's insurance with United, and United represented Earl in the negligence claim; however, on February 13, 2017, United filed a complaint for declaratory judgment alleging it was not obligated to defend or indemnify Earl or Stacy in the wrongful death suit because the policy included an exclusion for damages that were the result of a criminal act.

[9] Earl's insurance policy with United stated:

If a claim is made or a suit is brought against an "insured" for damages because of "bodily injury" or "property damage" caused by an "occurrence" to which this coverage applies, we will:
1. Pay up to our limit of liability for the damages for which the "insured" is legally liable. Damages include prejudgment interest awarded against the "insured"; and
2. Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate. Our duty to settle or defend ends when the amount we pay for damages resulting from the "occurrence" equals our limit of liability.

(Id. at 49.)

[10] The policy contains the following pertinent definitions:

In this policy, "you" and "your" refer to the "named insured" shown in the Declarations and the spouse if a resident of the same household. "We," "us" and "our" refer to the Company providing this insurance. In addition, certain words and phrases are defined as follows:
1. "Bodily injury" means bodily harm, sickness or disease, including required care, loss of services and death that results.
* * * * *
3. "Insured" means you and residents of your household who are:
a. Your relatives; or
b. Other persons under the age of 21 and in the care of any person named above.
* * * * *
4. "Insured location" means:
a. The "residence premises";
b. The part of other premises, other structures and grounds used by you as a residence and:
(1) Which is shown in the Declarations; or
(2) Which is acquired by you during the policy period for your use as a residence;
* * * * *
h. Any part of a premises occasionally rented to an "insured" for other than "business" use.
5. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in:
a. "Bodily injury"; or
b. "Property damage."

(Id. at 37.)

[11] The policy also includes exclusions that limit coverage in certain circumstances:

We do not pay for loss to property covered by this policy, "bodily injury" or "property damage" intended by, or which may reasonably be expected to result from, the intentional or criminal acts or omissions of any "insured." This exclusion applies even if:
(1) Such "insured" lacks the mental capacity to govern his or her conduct;
(2) Such loss, "bodily injury" or "property damage" is of a different kind or degree than intended or reasonably expected;
(3) Such loss, "bodily injury" or "property damage" is sustained by a different person than intended or reasonably expected; or
(4) Such loss or "property damage" is caused by or results from an intentional or criminal act of any person to whom an "insured" has rented, leased, loaned or entrusted the property, unless the "insured" has no knowledge of or reason to suspect such intentional or criminal activity.
This exclusion applies regardless of whether or not such "insured" is actually charged with, or convicted of, any crime.

(Id. at 52.)

[12] On September 8, 2017, United filed a motion for summary judgment, claiming that because Stacy, as a relative residing in Earl's household, was an insured party who intentionally shot Chase, the damages claimed by the Estate were excluded from coverage. The Estate filed a response and objected, alleging that, because Stacy was not a resident of Earl's household, coverage for Earl was not excluded. On January 9, 2018, the trial court denied United's motion for summary judgment, stating:

COMES NOW THE COURT after review of the Motion for Summary Judgment filed by the Plaintiff's [sic], after review of testimony and exhibits presented at hearing on this motion, after review of submissions filed by the parties, and the court being duly advised in the premises now FINDS as follows:
1. The Plaintiff's [sic] issued a home insurance policy to Defendant, Earl R. Matheny.
2. Defendant, Stacy B. Matheny, is the adult son of Defendant, Earl R. Matheny.
3. Defendant, Stacy B. Matheny, was not listed as an insured party under the home insurance policy that was issued to Defendant Earl R. Matheny by the Plaintiff's [sic].
4. The Defendant, Earl R. Matheny, has repeatedly stated that he lives alone.
5. Testimony revealed that the Defendant, Stacy B. Matheny, lived in his own apartment alone.
6. Testimony revealed that the apartment of Defendant, Stacy B. Matheny, had no access to the home of Defendant, Earl R. Matheny.
7. Testimony revealed that the only access Defendant, Stacy B. Matheny, had to the home of Defendant, Earl R. Matheny, was through a locked door.
8. Testimony revealed that the apartment in which Defendant, Stacy B. Matheny, had been living on March 14, 2016 had previously been rented to third parties and had not been used as living quarters by Defendant, Earl R. Matheny, for many years.
9. The apartment of the Defendant, Stacy B. Matheny, was sealed off from the home of Defendant, Earl R. Matheny.
10. The apartment of the Defendant, Stacy B. Matheny, had its own outside entrance separate from that of the Defendant, Earl R. Matheny.
THE COURT NOW CONCLUDES AS FOLLOWS:
1. The homeowner's policy issued to the Defendant, Earl R. Matheny, listed only the Defendant, Earl R. Matheny, as an insured party.
2. The Defendant, Earl R. Matheny, lived separate from the Defendant, Stacy B. Matheny[,] in separate living quarters.
3. The parties intended to live separately.
4. The Plaintiff's Motion for Summary Judgment should be denied.
IT IS THE ORDER OF THIS COURT that Plaintiff's Motion for Summary Judgment is DENIED.

(Appealed Order at 1-2.) United filed a motion requesting certification of that order for interlocutory appeal. The trial court granted that motion, and we accepted jurisdiction.

Discussion and Decision

[13] We review summary judgment using the same standard as the trial court: summary judgment is appropriate only where the designated evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rogers v. Martin , 63 N.E.3d 316, 320 (Ind. 2016). All facts and reasonable inferences are construed in favor of the non-moving party. City of Beech Grove v. Beloat , 50 N.E.3d 135, 137 (Ind. 2016). Where the challenge to summary judgment raises questions of law, we review them de novo. Rogers , 63 N.E.3d at 320.

[14] When the trial court makes findings and conclusions in support of its order regarding summary judgment, we are not bound by such findings and conclusions, but they aid our review by providing reasons for the decision. Allen Gray Ltd. P'ship IV v. Mumford , 44 N.E.3d 1255, 1256 (Ind. Ct. App. 2015). We will affirm a summary judgment order on any theory or basis found in the record. Id.

[15] When interpreting an insurance policy, we give plain and ordinary meaning to language that is clear and unambiguous. Meridian Mut. Ins. Co. v. Auto-Owners Ins. Co. , 698 N.E.2d 770, 773 (Ind. 1998). Policy language is unambiguous if reasonable persons could not honestly differ as to its meaning. Id. To this end, we look to see "if policy language is susceptible to more than one interpretation." Id. If an insurance policy contains ambiguous provisions, they are construed in favor of the insured. Id. "This strict construal against the insurer is driven by the fact that the insurer drafts the policy and foists its terms upon the customer. The insurance companies write the policies; we buy their forms or we do not buy insurance." Id.

[16] United argues it has no obligation to defend or indemnify either Stacy or Earl because Stacy was an insured party under the policy and, therefore, the exclusion for an intentional, criminal act applies. Although Stacy was not a named insured on the policy, United argues he was an insured because the policy defined "insured" as relatives of the named insured who are also "residents in [the named insured's] household." (App. Vol. II at 37.)

[17] When, as here, the parties' policy leaves the term "resident in your household" undefined, we apply Indiana common law to determine its meaning. Indiana Farmers Mut. Ins. Co. v. Imel, 817 N.E.2d 299, 304 (Ind. Ct. App. 2004). In determining residency status under an automobile liability insurance contract, Indiana case law has developed a three-fold test, which has been applied to questions of residence arising in a personal liability insurance policy. Id. To determine whether someone is a resident of a household, we consider: 1) whether the claimant maintained a physical presence in the insured's home; 2) whether he had the subjective intent to reside there; and 3) the nature of his access to the insured's home and its contents. Id. When there is a question of fact, the factfinder must consider all of the evidence indicative of the claimant's living habits. Id.

[18] Alleging Stacy was a resident in Earl's household, United argues that - because Stacy obviously had a physical presence in Earl's home and obviously had access to Earl's home - the only prong of the test at issue is the subjective intent prong. United maintains Earl and Stacy subjectively intended for Stacy to be a resident of Earl's household because Stacy received all his mail at the single address for the home and Earl paid all Stacy's expenses. Stacy paid no rent. Earl stated several times that Stacy lived with him. Maybe most important, Earl, without being directed to do so by law enforcement, removed all the long guns from the downstairs because he believed Stacy, as a felon, could not live in a house with guns. Earl admitted he nevertheless kept the handgun for personal protection.

[19] Unable to find Indiana cases wherein residency was disputed when a party lived full-time under the same roof as the insured, United turned to cases from other jurisdictions. United first cites Row v. United Services Automobile Association , 474 So.2d 348 (Fla. Ct. App. 1985), wherein a son lived in an apartment complex inhabited and owned by his father. The Florida Court of Appeal noted that "what constitutes residency in a household is a mixed question of law and fact to be determined from the facts of each individual case." Id. at 349. However, as the facts were "essentially undisputed ... whether those facts fit within the policy definition is a question of law that may be decided on appellate review." Id. The undisputed facts were that the son had a separate apartment unit, but also had the master key to his father's apartment. Id. at 351. The son had unrestricted use of his father's apartment and did not have a written lease or pay rent. Id. Therefore, the appellate court held the son was a resident of the father's household. Id.

[20] As in Row , Stacy had a separate living area from Earl but had a key to Earl's living area. Additionally, Stacy did not pay rent, did not have a lease, and had virtually unrestricted use of Earl's living area. Notably, Stacy's living area was not a full apartment with kitchen facilities, nor was it in an apartment complex. Rather, Stacy's living area was, at one time, connected to the rest of the house by a staircase and would have been considered part of the main house, albeit on a different floor.

[21] United also cites Kepple v. Aetna Casualty and Surety Company , 634 So.2d 220 (Fla. Ct. App. 1994), wherein the court was asked to decide if a married daughter of the named insured was also an insured when she and her husband lived on her parents' property. Id. at 221. The young couple lived in the attached garage that had been converted into an apartment. Id. The converted garage, though small, was a full apartment with a kitchen and shower. Id. The couple paid a nominal amount in rent. Id. The garage did not have a separate address, the couple had a key to the main residence, and the couple frequently ate dinner in the main house with the daughter's parents. Id. The appellate court decided that as "the material facts [we]re undisputed ... this matter [wa]s a question of law to be decided by [it.]" Id. at 223. It then decided that, under these facts, the daughter was a resident of her parents' home. Id.

[22] As in Kepple , Stacy did not have a separate address from Earl, and Stacy lived in a part of the main house that had been converted into a separate living area. He also frequently ate his meals with Earl. Unlike Kepple , Stacy did not pay even nominal rent, and his apartment did not have a functional kitchen.

[23] Using the three-part test for residency, we note Stacy had a physical presence in Earl's home, whether we define that home as both the upstairs and downstairs or whether we limit it to the downstairs. Stacy slept upstairs but spent significant time downstairs with Earl. Stacy had access to Earl's home, both upstairs and downstairs. Thus, we look to Earl's subjective intent.

[24] Earl stated during his deposition on August 22, 2017, that Stacy did not pay rent, Stacy had a key for the "whole house," (Appellant's App. Vol. III at 133), Earl provided all of Stacy's transportation, and Stacy had free access to the house. However, he then insisted Stacy "wasn't a part of [his] household, but [Stacy] did come and have his meals with me when he wanted." (Id. at 135.) The Estate argues Earl has maintained consistently that Stacy does not live with him because in the interrogatories sent to Earl from the Estate in the underlying case Earl states none of his children live with him. (See Appellee's App. Vol. II at 47 (when asked whether any of his children live with him, Earl answered "No").)

[25] The Estate's argument that Earl's subjective intent was that Stacy did not live with him is not supported by the evidence. It is undisputed that Stacy had unrestricted access to the whole house and that Stacy depended on Earl to support him by providing food, housing, utilities, and transportation. Earl's statements that Stacy did not live with him are disingenuous as his actions prior to any litigation-provision of housing, food, utilities, and transportation-show Stacy resided with Earl. See Quiring v. GEICO Gen. Ins. Co. , 953 N.E.2d 119, 130-31 (Ind. Ct. App. 2011) (party's statements regarding her subjective intent as it related to her residence were "akin to a conclusion of law that is insufficient to preclude summary judgment," therefore, a statement of intent is relevant but the reviewing court must look at the "totality of the evidence").

[26] No question of fact exists to preclude summary judgment. Stacy, like the children in Row and Kepple , was a resident of his parent's household. Under the policy definition, therefore, Stacy was an insured. Because Stacy qualifies as an insured, the exclusion clause applies and United is not obligated to defend or indemnify either Stacy or Earl. Therefore, as a matter of law, summary judgment for United is proper.

Conclusion

[27] Because no question of material fact existed as to whether Stacy was a resident of Earl's household, the trial court erred in denying summary judgment to United. Accordingly, we reverse and remand with instructions to grant summary judgment in favor of United.

[28] Reversed and remanded.

Baker, J., and Bailey, J., concur.

      We heard oral argument on this matter on October 29, 2018, at South Dearborn High School in Aurora, Indiana. We commend counsel for their oral advocacy and for participating in the post-argument discussion with the audience. We especially thank the students and school personnel of Dearborn High School for their gracious hospitality and thoughtful post-argument questions.

      United's brief indicates this exclusion is in Section II, number 1, subpart "o"; however, at the citation United provides, "Appellant's App. Vol. 2, p. 52," (Br. of Appellant at 9), the exclusion listed is in Section II, number 1, subpart "n." We believe this to be a scrivener's error.

      Because the insurance policy states the exclusion applies to "the intentional or criminal acts or omissions of any 'insured[,]' " this exclusion would apply to United's obligation or lack thereof for both Stacy and Earl even though only Stacy committed a criminal act, provided Stacy is considered an insured party. See Holiday Hosp. Franchising, Inc. v. Amco Ins. Co. , 983 N.E.2d 574, 581 (Ind. 2013) (obligation to defend or indemnify is relieved as to all insured parties even when exclusionary act committed by only one insured).

      As United notes, the question Indiana courts usually have decided is whether children in college or children of divorced parents remain a resident of the insured's household. See, e.g. , Quiring v. GEICO Gen. Ins. Co. , 953 N.E.2d 119, 132 (Ind. Ct. App. 2011) (listing of several cases where residency is determined and noting residency of adult children is determined by several factors where "no single fact is determinative" but hinges on whether a reasonable person would consider the adult child to be a resident of the insured parent's home). However, as the facts of those cases are materially different from the facts herein, we need not review the holdings of those cases.

      The Estate also argues Earl admitted "that he lived alone...; that Stacy was not living with him at that address; [and] that Stacy lived by himself at a separate apartment without an access to Earl's place of residence other than through a locked door[.]" (Br. of Appellee at 10.) However, these admissions are the result of a request from the Estate to Earl and do not bind United. See Herff Jones, Inc. v. State Bd. of Tax Comm'rs, Ind.Tax, No. 49T05-8610-TA-00030 , 512 N.E.2d 485, 489 (Ind. T.C. 1987) (admissions not directed to a party are not binding on that party).

      This case is distinguishable from our holding in Secura Supreme Ins. Co. v. Johnson , 51 N.E.3d 356 (Ind. Ct. App. 2016), reh'g denied . In Secura , the O'Brien family had a second house wherein a family member lived. The family member's dogs harmed a third party. We held summary judgment was not proper because although the "extrinsic facts allow for the possibility that the O'Briens' household extends from the Hobart house to the Valparaiso house ... a fact-finder could also conclude that a landlord-tenant relationship is incompatible with being a member of a household." Id. at 361. Thus, although the facts were undisputed, there existed a genuine issue of material fact as to whether the family member was a resident or a tenant. Here, Stacy is living in the same structure as Earl, does not pay rent, and does not support himself. Therefore, no genuine issue of material fact exists as to whether Stacy is a tenant or a resident of Earl's household.


text:
    Larry ERVIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-965
    Court of Appeals of Indiana.
    FILED November 28, 2018
    Attorney for Appellant: Victoria L. Bailey, Valerie K. Boots, Kevin Wild, Marion County Public Defender Agency, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Lyubov Gore, Deputy Attorney General, Indianapolis, Indiana
   May, Judge.

[1] Larry Ervin appeals his conviction of Level 5 felony criminal recklessness and Level 6 felony pointing a firearm. He presents two issues for review, which we restate as:

1) Whether the State presented sufficient evidence to support his convictions; and
2) Whether the trial court abused its discretion when it denied his proposed jury instructions regarding defense of property and defense of others.

In addition, we address, sua sponte , whether Ervin was subjected to double jeopardy. We vacate in part and affirm in part.

Facts and Procedural History

[2] On February 26, 2017, Ervin discovered his iPad was missing. Earlier in the day, he had been asked by a neighbor to assist with a car repair. He had last seen his iPad prior to helping his neighbor. Ervin contacted the police and was told someone would come to take a report. While waiting, Ervin used his Find My iPhone application ("App") and located his iPad in the area where he had gone to assist his neighbor. Shortly thereafter, Ervin saw, via the App, that his iPad was moving around Indianapolis. Ervin decided to follow it.

[3] Ervin arrived at the intersection of Sherman and Southeastern in Indianapolis when the App indicated his iPad was at the same intersection. Ervin saw only one other vehicle at the intersection-a black truck that he thought he had seen earlier in the day when he tried to help his neighbor. Ervin stopped his truck in the middle of the intersection and stepped out to attempt to retrieve his property from the person in the black truck. Ervin approached the black truck and shouted for the occupant to "Stop, freeze, stop." (Tr. Vol. II at 75.)

[4] Anthony Hines was driving the black truck. He had the windows rolled up and did not hear Ervin. Hines saw "a big white SUV stop[ ] in the middle of the intersection, a guy hop[ ] out of a truck, ... grabbing for something[.]" (Id. at 57.) Hines had never met Ervin before. Hines then noticed Ervin was pointing a gun at him. Hines did not realize a vehicle was behind him, and he put his truck in reverse and backed into that vehicle-a Kia Sorento. Without stopping, Hines made a "right U-turn[,]" (id . at 58), and started to drive away. He heard Ervin start firing at him, "like [Ervin] peppered [Hines'] truck." (Id. ) Hines executed the U-turn on the shoulder near a gas station. After verifying Ervin was not following him, Hines called 911 and went home. Hines talked to police at his home.

[5] Ervin called 911 again after Hines left the scene. Ervin told the dispatcher he had attempted to shoot the tires of the truck. The dispatcher told Ervin to remain onsite and talk to the responding officer.

[6] Kristin Armour was an eyewitness. Armour had her twelve-year-old daughter in the car with her. The daughter was screaming because of the gun fire. Armour called 911 "as soon as [she] seen [sic] [Ervin] pull out the gun[.]" (Id. at 75.) Armour parked at the gas station to talk to the police.

[7] Anthony McGowan, the driver of the Kia, ducked down in his car when shots were fired. After the shooting stopped, McGowan exited his vehicle to talk to Ervin. McGowan said he "didn't have any fear [of Ervin] because [he] knew [Ervin] wasn't shooting at [him]." (Id. at 86.)

[8] Michael Tedders was at the gas station, with his fifteen-year-old son. He heard " 'Stop, stop,' then ... pop-pop-pop-pop." (Id. at 92.) He and his son hid in their car during the shooting and stayed at the scene to talk to the police.

[9] Indianapolis Metropolitan Police Department ("IMPD") Officer Richard Faulkner, Sr., was dispatched to the scene pursuant to a report of a "disturbance with shots fired." (Id. at 31.) He was only "about five blocks away[,]" (id . at 33), so he arrived in "[l]ess than a minute" after being dispatched. (Id. at 34.) He saw "several people in the [gas station] parking lot, in the grass area, yelling and waving their hands." (Id. ) The people were yelling that Ervin was the shooter and had a gun.

[10] Officer Faulkner located a white truck blocking the intersection with a white male walking toward it. Officer Faulkner pulled his gun and "yelled at [Ervin] to turn around" and show his hands. (Id. at 39.) Ervin leaned into his truck and did not do as he was told. Officer Faulkner had to repeat his order before Ervin complied. Officer Faulkner placed Ervin in handcuffs and read his Miranda rights to him.

[11] Ervin told Officer Faulkner what had occurred, i.e. , that his iPad had been stolen, he had been tracking it, he located it at this intersection, and "he was going to initiate a citizen's arrest." (Id. at 42.) Ervin told Officer Faulkner that he had "started firing rounds at [the truck] because he thought he was going to be hit." (Id. )

[12] IMPD Officer Kyle Hoover was sent to talk to Hines. He noted that Hines "was very rattled, very - he was very upset." (Id. at 98.) Officer Hoover noted Hines' truck had three bullet holes in it and had damage to the "rear bumper tailgate area that would be consistent with a fresh vehicle accident." (Id. at 99.) The bullet holes were all on the passenger side of the truck.

[13] The State ultimately charged Ervin with Level 5 felony criminal recklessness and Level 6 felony pointing a firearm. At trial, Ervin requested the trial court give jury instructions for defense of property and for defense of other. The trial court stated:

Ervin precipitated the events, one, by blocking the traffic in the intersection, and two, approaching, which was by all apparent - based on all the testimony I heard, a weapon was seen either at the side or pulled at some point during this, but I do find that [Ervin] precipitated the sequence of events, and the instructions will be denied on that basis.

(Id. at 142.)

[14] During closing arguments, Ervin's counsel explained Indiana allows a person to use deadly force to defend other people and that was what Ervin was doing. Ervin's counsel also explained Ervin was allowed to use reasonable force to protect his property. Ervin argued he was: 1) trying to protect his property by approaching the truck in which Ervin believed the property was located; and 2) trying to protect people from a reckless driver when the driver of the truck tried to race away.

[15] The jury found Ervin guilty as charged. The trial court agreed with Ervin that no malice was present during the events but also agreed with the State that, due to the nature of the offense and that it included a firearm, some executed time was required. The trial court sentenced Ervin to three years, with two and one-half years suspended.

Discussion and Decision

Double Jeopardy

[16] At oral argument, sua sponte , we asked the parties whether a double jeopardy violation occurred herein. Article 1, Section 14 of the Indiana Constitution states: "No person shall be put in jeopardy twice for the same offense." Indiana uses a two-part test for double jeopardy claims by deciding whether the offenses share statutory elements or whether the actual evidence used to convict on one count also establish the elements of the other count. Lee v. State , 892 N.E.2d 1231, 1233 (Ind. 2008). Although the counts of pointing a firearm and criminal recklessness do not share all statutory elements, we review the evidence presented herein to determine whether the jury could have used the same evidence to find Ervin guilty of both charges.

[17] To determine if a jury used the same facts to establish the elements of each offense, we consider the evidence, charging information, jury instructions, and arguments of counsel. Garrett v. State , 992 N.E.2d 710, 720 (Ind. 2013). The charging information alleged as Count I that Ervin "did perform an act that created a substantial risk of bodily injury to another person by shooting a firearm into ... a place where people are likely to gather, to wit: a vehicle driven by [ ] Hines while [ ] Hines was in said vehicle[.]" (App. Vol. II at 47.) Count II alleged simply: "Ervin did knowingly or intentionally point a firearm ... at [ ] Hines[.]" (Id. ) The jury instructions also did not clarify whether Ervin pointed his gun at Hines at a time different than when Ervin shot his gun at Hines. That leaves us with the evidence presented and the arguments made by counsel.

[18] At trial, contrary evidence was presented as to whether Ervin had his iPhone or his gun in his hand as he approached Hines' truck. Ervin, himself, testified he approached with his iPhone in his hand but then pulled and raised his gun when Hines revved his engine. He stated he then lowered the gun until he thought Hines was going to hit the witnesses at the gas station. At that point, all parties agree Ervin started shooting in the direction of the truck. Thus, evidence was presented that would have allowed the jury to find that Ervin pointed his gun at Hines at a time separate from when Ervin shot his gun at Hines.

[19] When discussing the Level 6 felony pointing a firearm during closing arguments, the State argued Ervin pointed the gun when Hines revved the truck engine. However, the State followed this statement by saying: "And what really settles the fact that he pointed that gun is that Anthony Hines' truck was littered with bullets." (Tr. Vol. II at 146.) The State then proceeded to go through the elements of criminal recklessness wherein it stated the recklessness was proven by the fact Ervin "block[ed] traffic," got "out of [his] vehicle, frighten[ed] other individuals who d[id] not know what's going on, doing it with a gun, and firing off seven rounds." (Id. at 147.) Thus, the State, in closing argument, used the fact of Ervin's shooting the gun as part of the evidence to show he pointed the gun, and the State also used the facts occurring from the time Ervin stopped his truck to demonstrate that he was criminally reckless.

[20] The possibility of the jury using the same facts to support more than one charge cannot be "remote and speculative[.]" Griffin v. State , 717 N.E.2d 73, 89 (Ind. 1999), cert. denied 530 U.S. 1247, 120 S.Ct. 2697, 147 L.Ed.2d 968 (2000). However, a "reasonable possibility" the jury used the same facts would indicate a defendant has been subjected to double jeopardy. Id. Herein, the charging information does not allege facts that indicate Ervin pointed the gun at Hines at a time distinct from when he pointed the gun at Hines to shoot at him. The preliminary jury instructions merely instruct the jurors to consider how the law and evidence "appl[ies] to each count individually[,]" (App. Vol. II at 105), and cautions the jurors that each element of each charge must be proven by the State. None of the jury instructions specifically advised the jury it was required to find a separate act to prove each charge. The evidence presented was conflicting as to whether Ervin approached Hines' truck with the gun drawn or drew it only as he prepared to shoot. The State invited the jury to use the fact Hines' truck was "littered with bullets[,]" (Tr. Vol. II at 146), to support the charge of pointing a firearm, which is the same evidence supporting the charge of criminal recklessness.

[21] While the jury may have based its verdict on the fact Ervin approached Hines' truck with the gun pointed at the truck, an action that could reasonably be presumed to be separate from Ervin pulling the gun immediately prior to shooting, the jury was also free to use the drawing of the gun immediately before Ervin started firing to support both charges. Therefore, there is a reasonable probability that a double jeopardy violation occurred. Accordingly, the lesser charge of pointing a firearm must be vacated. See Richardson v. State , 717 N.E.2d 32, 55 (Ind. 1999) (when a double jeopardy violation occurs, the proper outcome is to "vacate the conviction with the less severe penal consequences"), holding modified on other grounds by Garrett v. State , 992 N.E.2d 710 (Ind. 2013).

Sufficiency of Evidence

[22] Ervin argues the State did not present sufficient evidence to overcome his defense of property and defense of others claims. Ervin claims he was defending his property when he approached Hines' truck. Thereafter, when Hines was driving away, Ervin claims he was defending others from an erratic driver. A claim of "defense of property is analogous to the defense of self-defense." Hanic v. State , 406 N.E.2d 335, 339 (Ind. Ct. App. 1980). A claim of defense of other is also analogous to a claim of self-defense. Rondeau v. State , 48 N.E.3d 907, 919 (Ind. Ct. App. 2016), trans. denied .

[23] Our standard for reviewing a challenge to the sufficiency of evidence to rebut a claim of self-defense is the same standard used for any claim of insufficient evidence. Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). We neither reweigh the evidence nor judge the credibility of the witnesses. A.A. v. State , 29 N.E.3d 1277, 1280 (Ind. Ct. App. 2015). We consider only the probative evidence and reasonable inferences supporting the trial court's decision. Id. "A conviction will be affirmed if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt." Id. at 1280-81.

[24] To prove Ervin committed Level 6 felony criminal recklessness, the State needed to present evidence Ervin "recklessly, knowingly, or intentionally perform[ed] an act that create[d] a substantial risk of bodily injury to another person ... while armed with a deadly weapon[.]" Ind. Code §§ 35-42-2-2(a) & (b)(1)(A) (2014).

[25] "A valid claim of self-defense is legal justification for an otherwise criminal act." Wallace , 725 N.E.2d at 840.

A person is justified in using reasonable force against any other person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.

Ind. Code § 35-41-3-2(c).

With respect to property other than a dwelling, curtilage, or an occupied motor vehicle, a person is justified in using reasonable force against any other person if the person reasonably believes that the force is necessary to immediately prevent or terminate the other person's trespass on or criminal interference with property lawfully in the person's possession, lawfully in possession of a member of the person's immediate family, or belonging to a person whose property the person has authority to protect. However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
only if that force is justified under subsection (c).

Ind. Code § 35-41-3-2(e).

[26] To prevail on such claims, a defendant must show he: (1) was in a place where he had a right to be; (2) did not provoke, instigate, or participate willingly in the violence; and (3) had a reasonable fear of death or great bodily harm. Wilson v. State , 770 N.E.2d 799, 800 (Ind. 2002). "When a claim of self-defense is raised and finds support in the evidence, the State bears the burden of negating at least one of the necessary elements." King v. State, 61 N.E.3d 1275, 1283 (Ind. Ct. App. 2016), trans. denied . "The State may meet this burden by rebutting the defense directly, by affirmatively showing the defendant did not act in self-defense, or by simply relying upon the sufficiency of its evidence in chief." Id. If a defendant is convicted despite his claim of self-defense, we will reverse only if no reasonable person could say that self-defense was negated beyond a reasonable doubt. Wilson , 770 N.E.2d at 801.

[27] The witnesses all testified Ervin stopped in the middle of the intersection and shot at Hines' truck. Ervin, himself, also agrees he did those things. Ervin did not have the right to be in the middle of the intersection blocking all traffic. No evidence was presented Hines provoked the interaction; rather, all evidence points to the fact Ervin instigated it and willingly pursued it. The existence of either of these facts negates Ervin's claims of defense of property and defense of others. Therefore, without examining the final prong regarding reasonable fear of death or great bodily harm, we can unequivocally say the State met its burden to overcome Ervin's claims because Ervin had no right to block traffic and Ervin instigated the situation. See, e.g., King v. State , 61 N.E.3d 1275, 1284 (Ind. Ct. App. 2016) (State rebutted self-defense claim by presenting evidence King instigated the altercation), trans. denied .

[28] Nevertheless, if we examine whether Ervin could have had reasonable fear of death or great bodily harm, the State still overcame Ervin's claims. When viewing a claim of self-defense, we look to both a subjective and objective component: "(1) a defendant must have actually believed that the use of force was necessary to protect himself or herself; and (2) the belief must have been one that a reasonable person would have held under the circumstances." Schermerhorn v. State , 61 N.E.3d 375, 383 (Ind. Ct. App. 2016), trans. denied .

[29] Ervin's belief Hines had stolen his iPad was speculative-he did not see Hines steal it and he did not see Hines exercising unauthorized control over the iPad. Ervin's decision to shoot a gun in the direction of not only the fleeing truck but also the group of people he now argues he was trying to protect is beyond the scope of what a reasonable person would have believed necessary. No evidence, beyond Ervin's subjective belief, was presented that anyone was in reasonable fear of death or great bodily harm from Hines. Ervin's belief in his right to effectuate a citizen's arrest in these circumstances was not only incorrect but his decision to do so in such a manner put more people at risk and was utterly unreasonable.

[30] The State presented sufficient evidence to prove Ervin committed criminal recklessness and, in the process of presenting such evidence, overcame Ervin's claims of defense of property and defense of others. See Huls v. State , 971 N.E.2d 739, 747 (Ind. Ct. App. 2012) (State effectively overcame claim of defense when it presented evidence Huls "instigated and participated in the violence"), trans. denied .

Jury Instruction

[31] "The manner of instructing a jury is left to the sound discretion of the trial court." Albores v. State, 987 N.E.2d 98, 99 (Ind. Ct. App. 2013), trans. denied. When we review the trial court's decision regarding jury instructions, we consider "(1) whether the tendered instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; [and] (3) whether the substance of the tendered instruction is covered by other instructions which were given." Davis v. State , 265 Ind. 476, 355 N.E.2d 836, 838 (1976) (internal citations omitted). "When the claimed error is the failure to give an instruction ... a tendered instruction is necessary to preserve error because, without the substance of an instruction upon which to rule, the trial court has not been given a reasonable opportunity to consider and implement the request." Scisney v. State , 701 N.E.2d 847, 848 n.3 (Ind. 1998) (emphasis in original).

[32] A defendant in a criminal case is entitled to have the jury instructed on any theory of defense that has some foundation in evidence, Creager v. State , 737 N.E.2d 771, 777 (Ind. Ct. App. 2000), trans. denied , even if the evidence is weak and inconsistent. Id. It is within the province of the jury to determine whether the defendant's evidence was believable, unbelievable, or sufficient to warrant the use of force. Id. Generally, the determination whether a defendant acted in self-defense is a question of fact for the jury. Id. However, the evidence on which the claim is based must have some "probative value to support it." Id.

[33] Ervin claims the trial court abused its discretion when it refused to give the instructions regarding defense of property and defense of others. He argues that even though the trial court thought he had provoked the incident, he had presented enough evidence to support the instruction being read.

[34] As a matter of law, as discussed supra , Ervin could not have been acting in defense of his property or others as he was not in a place he was allowed to be-blocking an intersection-and as he instigated and provoked the situation. Therefore, the trial court properly declined to give Ervin's proposed instructions. See id. at 778 (when evidence "supports the trial court's conclusion as a matter of law" that defendant was not in a place he or she was allowed to be, the trial court did not err in refusing to give a self-defense instruction).

Conclusion

[35] As the jury may have used the same evidence to support its verdict of guilt on both charges, we vacate the charge of Level 6 felony pointing a firearm. Because the State presented sufficient evidence of Level 5 felony criminal recklessness and overcame Ervin's defense claims, we affirm that conviction. As a matter of law, Ervin was not in a place he was allowed to be and he instigated the situation, such that the trial court did not err when it refused to give jury instructions regarding defense of property and defense of others. Accordingly, we vacate in part and affirm in part.

[36] Vacated in part and affirmed in part.

Baker, J., and Bailey, J., concur.

      Ind. Code §§ 35-42-2-2(a) & (b)(1)(A) (2014).

      Ind. Code § 35-47-4-3(b) (2014).

      We heard oral argument on this matter on October 30, 2018, at Rising Sun High School in Rising Sun, Indiana. We thank counsel for the quality of their written and oral arguments, for participating in the post-argument discussion with the audience, and for commuting to Rising Sun. We especially thank the faculty, staff, and students of the Rising Sun High School for their gracious hospitality and thoughtful post-argument questions.

      As to Ervin's claim he was making a lawful citizen's arrest, Indiana Code section 35-33-1-4 states: (a) Any person may arrest any other person if:
      (1) the other person committed a felony in his presence;
      (2) a felony has been committed and he has probable cause to believe that the other person has committed that felony; or
      (3) a misdemeanor involving a breach of peace is being committed in his presence and the arrest is necessary to prevent the continuance of the breach of peace.
      Ervin did not see anyone, let alone Hines, steal the iPad. In order for the theft of the iPad to qualify as the lowest level felony, the iPad needed to be worth "at least seven hundred fifty dollars ($750)[.]" Ind. Code § 35-43-4-2(a)(1). No proof of the iPad's value was presented at trial. Therefore, Ervin's claims of making a lawful citizen's arrest are without merit because the alleged theft of his iPad was not "committed in [Ervin's] presence[.]" Ind. Code § 35-33-1-4(a)(3).


text:
    S.H., Appellant-Respondent, v. D.W., Appellee-Petitioner
    Court of Appeals Case No. 18A-PO-1413
    Court of Appeals of Indiana.
    FILED November 28, 2018 Publication Ordered December 28, 2018
    Case Summary
    [1] S.H. appeals the trial court's order extending a protective order. The sole restated issue presented for our review is whether sufficient evidence supports the trial court's order and whether the two-year extension is reasonable. Finding the evidence sufficient and the extension reasonable, we affirm.
    Facts and Procedural History
    [2] In January 2016, D.W. filed a petition for a protective order against her then husband S.H. The parties were involved in contentious dissolution of marriage proceedings, and her petition contained numerous allegations of domestic abuse and threats of violence by S.H. The court held a hearing on February 11, 2016. During the hearing, S.H. agreed to have a protective order issued against him. The trial court accepted that agreement and issued a protective order against S.H.
    [3] On February 5, 2018, D.W. again petitioned the trial court for a protective order against S.H. The petition alleged that the prior protective order was set to expire on February 11, 2018, and that S.H. had twice tried indirectly contacting D.W. through a family member's social media. The petition also reiterated some of the details of the alleged domestic abuse and threats of violence that had precipitated the prior protective order. On February 7, 2018, the trial court issued an ex parte protective order. On February 15, 2018, S.H. appeared by counsel and requested a hearing on D.W.'s petition. A hearing was held on the petition on April 20, 2018. S.H. appeared by counsel, and D.W. appeared pro se. That same day, the trial court issued its order granting the petition and extending the protective order for two years. The order contained the following relevant findings:
   1. That the testimony of [D.W.] was credible at the time of the original issuance of the order and remains credible today.
2. That [S.H.] continues to deny that any domestic violence has ever occurred.
3. The Court believes based on the totality of the circumstances in this case that there still exist[s] a current necessity to bring about a cessation to a threat of violence.

Appellant's App. Vol. 2 at 48. S.H. filed a motion to correct error, which was denied by the trial court. This appeal ensued.

Discussion and Decision

[4] The Indiana Civil Protection Order Act ("CPOA") "shall be construed to promote the: (1) protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner; and (2) prevention of future domestic and family violence." Ind. Code § 34-26-5-1. The CPOA authorizes "a person who is or has been a victim of domestic ... violence" to file a petition for a protective order. Ind. Code § 34-26-5-2. Domestic violence means "the occurrence of" an act by the respondent "attempting to cause, threatening to cause, or causing physical harm" to the petitioner, or placing the petitioner "in fear of physical harm." Ind. Code § 34-6-2-34.5.

[5] A protective order lasts for two years, "unless another date is ordered by the court." Ind. Code § 34-26-5-9(e). "The fact that an order for protection is issued under this chapter does not raise an inference or presumption in a subsequent case or hearings between the parties." Ind. Code § 34-26-5-9(h). This Court has addressed the circumstances under which a trial court may properly order an extension of a protective order's length:

[B]ecause an extension is necessarily derived from the original protective order, the trial court's determination must be viewed in light of the continuing harm or the threat of continuing harm that necessitated the issuance of the protective order in the first instance. As an order for protection can impose significant restrictions on a respondent's freedom of movement and other rights, the extension must be equally supported by a court's conclusion that such additional time ... is necessary to protect the petitioner and to bring about a cessation of the violence or the threat of violence.

A.N. v. K.G. , 10 N.E.3d 1270, 1272 (Ind. Ct. App. 2014). Any such extension of an initial protective order must be reasonable. Id.

[6] A petitioner who seeks either reissuance of a protective order that has expired, or modification of an unexpired protective order, bears the burden of proving by a preponderance of the evidence that a new protective order or extension of an existing order is required. J.K. v. T.C. , 25 N.E.3d 179, 182 (Ind. Ct. App. 2015). When considering the sufficiency of the evidence supporting a decision to issue or modify a protective order, we do not reweigh the evidence or judge the credibility of witnesses. A.G. v. P.G. , 974 N.E.2d 598, 598 (Ind. Ct. App. 2012). We look only to the evidence of probative value and reasonable inferences that support the trial court's judgment. Id.

[7] S.H. asserts that D.W. presented insufficient evidence to support an extension of the protective order. We agree that the evidence presented by D.W. was minimal; however, we believe that it was enough to satisfy her burden. During the hearing, D.W. appeared pro se and testified on her own behalf. She reiterated and elaborated on her 2016 allegations against S.H. of domestic violence and threats of violence. She testified that she believed that S.H. had very recently tried to contact her indirectly through social media in order to find out where she was living. She considered this behavior to be a current threat to her safety and conveyed to the trial court that she continues to be in great fear for her physical well-being. She requested a two-year extension to help ensure her "safety at least until [her] last child graduates [high school]." Tr. Vol. 2 at 50. Based upon this evidence, the trial court concluded that a two-year extension of the protective order was necessary to protect D.W. and to bring about the cessation of violence or threat of violence.

[8] S.H. denies that any domestic violence has ever occurred between the parties and asserts that "there was no evidentiary basis for the Protective Order being issued in the first instance," much less any evidence to support an extension. Appellant's Br. at 16. We remind S.H. that he agreed to the issuance of the initial protective order, which in effect was a tacit admission to the necessity of the order due to violence or threat of violence. We find it incredibly significant here that the trial judge is the same judge who presided over both the initial protective order proceedings and the parties' contentious dissolution of marriage proceedings. This judge was in the optimal position to determine the credibility of the parties and whether, under the totality of the circumstances, there is a continuing threat of harm. The trial court considered the testimony of both parties, as well as an additional witness, and determined that there is a current necessity to bring about the cessation of violence or threat of violence. We decline S.H.'s invitation to second-guess that determination by inappropriately reweighing the evidence and reassessing witness credibility.

[9] The trial court's order is supported by sufficient evidence, and we cannot say that a two-year extension is unreasonable based on the record before us. Accordingly, we affirm.

[10] Affirmed.

Najam, J., and Pyle, J., concur.

Order

[1] Appellee, by counsel, filed Appellee's Motion to Publish Opinion Pursuant to Indiana Rule of Appellate Procedure 65(A).

[2] Having reviewed the matter, the Court finds and orders as follows:

1. The Appellee's Motion to Publish Opinion Pursuant to Indiana Rule of Appellate Procedure 65(A) is granted.
2. This Court's opinion heretofore handed down in this cause on November 28, 2018, marked Memorandum Decision, is now ordered published.
3. The Clerk of this Court is directed to send copies of said opinion together with copies of this order to the West Publishing Company and to all other services to which published opinions are normally sent.

[3] Ordered 12/28/2018.

[4] Najam, Crone, Pyle, JJ., concur.

      Indeed, our legislature has determined that a modification of a protective order is automatically effective for two years after the date of issuance unless another date is ordered by the court. Ind. Code § 34-26-5-9(e).