author: ROBB, Chief Judge.

text:
    Katherine RYAN, Appellant, v. Larry JANOVSKY, Appellee.
    No. 45A03-1304-DR-145.
    Court of Appeals of Indiana.
    Dec. 5, 2013.

      Matthew N. Fech, Law Offices of Matthew N. Fech, Griffith, IN, Attorney for Appellant.
    Michael W. Bosch, Highland, IN, Attorney for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

The marriage of Katherine Ryan and Larry Janovsky was dissolved in 1991 pursuant to a settlement agreement that included a provision dividing Janovsky's pension. Over twenty years later, Ryan presented a proposed Qualified Domestic: Relations Order ("QDRO") for Janovsky's signature. Janovsky refused to sign, and Ryan filed a Verified Petition for Contempt and Rule to Show Cause,; alleging Janovsky was in contempt of the parties' settlement agreement for failing to sign the QDRO. Ryan appeals the trial court's denial of her petition, raising one issue for our review: whether the trial court abused its discretion in finding her efforts to secure a QDRO were barred by the statute of limitations and the equitable doctrines of laches and waiver. Concluding the entry of a QDRO is not time-barred, we reverse and remand.

Facts and Procedural History

Ryan and Janovsky were married in 1974 and divorced on December 9, 1991 pursuant to a decree of dissolution and agreed property settlement that prov1ded in relevant part:

Wife shall receive a Qualified Domestic Relations Order for her share of Husband's pension which shall be computed as a sum equal to one-half (1/2) of his monthly benefit as of December 1, 1991. It is understood that Wife's benefits will be payable at such time as Husband receives his benefit.

Appendix of Appellant at 11.

In 2012, Ryan's attorney prepared a QDRO and forwarded it to Janovsky for his signature. Janovsky did not sign the document, and on October 30, 2012, Ryan filed a Petition for Contempt and Rule to Show Cause alleging Janovsky had willfully disregarded the trial court's December 9, 1991, order by failing to sign the QDRO. Janovsky responded that there was no legal basis to require him to sign a QDRO more than twenty years after the dissolution decree was issued. The trial court held a hearing and thereafter issued the following order:

6. Former Wife, by counsel, argued to the Court that Janovsky, the Former Husband would not be prejudiced if presently ordered to execute at this time the Qualified Domestic Relations Order.
7. Counsel for Janovsky replied that while he would not be prejudiced, the Court should also consider the equitable defenses of laches and waiver and further submitted a Memorandum relying upon Needham v. Suess, 577 [N.E.2d] 965 ([Ind.Ct.App.1991]). Further, counsel for Janovsky relied upon various statutes of limitations.
IT IS THEREFORE ORDERED, ADJUDGED and DECREED that Katherine Ryan's Petition for Contempt and Rule to Show Cause is denied. She waited an inordinate amount of time to attempt to perfect her interest in Janov-sky's pension. The Court finds Janov-sky's Response and Memorandum is well taken and holds that Ryan is not entitled to any portion of Janovsky's pension. ,

Id. at 22-28. Ryan filed a motion to correct error, pointing out that no evidence had been presented that Janovsky is receiving his pension benefits yet and arguing that neither the equitable defenses of laches and waiver nor the statute of limitations are applicable. Ryan's motion to correct error was also denied, and Ryan now appeals.

Discussion and Decision

I. Standard of Review

Whether a person is in contempt of a court order is a matter left to the trial court's discretion, and we will reverse a trial court's decision only for an abuse of that discretion. Evans v. Evans, 766 N.E.2d 1240, 1243 (Ind.Ct.App.2002). An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before it or when the decision is contrary to law. In re Adoption of M.P.S., Jr., 968 N.E.2d 625, 629 (Ind.Ct.App.2012). Indiana Code section 31-15-7-10 provides that orders or awards contained in a dissolution of marriage decree may be enforced by contempt, among other remedies.

II. Timeliness of QDRO

To meet the legislative goal of regulating and protecting pension plan funds, the Employee Retirement Income Security Act of 1974 ("ERISA") provides that benefits may not be assigned or alienated. 29 U.S.C. § 1056(d); Hogle v. Hogle, 732 N.E.2d 1278, 1279 (Ind.Ct.App.2000), trans.: denied. Because this caused problems in domestic relations settings where ERISA-governed pensions had to be divided, the Retirement Equity Act of 1984 amended ERISA to create an express statutory exception to the anti-alienation provision. See Hogle, 732 N.E.2d at 1279. State courts are now authorized in dissolution actions to order a pension plan administrator to distribute pension benefits to an alternate payee pursuant to a QDRO. Pond v. Pond, 700 N.E.2d 1180, 1134 n. 8 (Ind.1998). A QDRO has been characterized as any order made pursuant to a state domestic relations law which "creates or recognizes the existence of an alternative payee's right" to pension benefits. Hogle, 732 N.E.2d at 1280 n. 3 (emphasis omitted) (quoting Ablamis v. Roper, 987 F.2d 1450, 1454 (9th Cir.1991)).

The particular question of when a QDRO must be submitted is an issue of first impression in Indiana. The parties' dissolution decree provided for an equal division of Janovsky's monthly pension benefits calculated as of the date of the decree. However, because no QDRO securing Ryan's right to this portion of Ja-novsky's pension was prepared and submitted for over twenty years, Janovsky argued, and the trial court agreed, that Ryan had forfeited her right. We agree with Janovsky and the trial court that the delay was "inordinate," App. of Appellant at 23, and we note that Ryan offered no explanation for the extremely lengthy delay in preparing the QDRO. Nonetheless, we cannot agree that the delay has caused the forfeiture of Ryan's right to a portion of Janovsky's pension benefits Ryan's right to part of Janovsky's pension benefits arises from the settlement agreement; the QDRO only creates her right to be paid directly from the pension plan. And neither of these rights is yet enforceable because Janovsky's pension benefits are not yet payable to anyone. Allowing Ja-novsky to retain the entirety of his pension benefits because of the delayed preparation of a QDRO is supported by neither law nor equity: the statute of limitations and caselaw relied upon by Janovsky do not support his position, and the trial court's order leads to an inequitable result that cannot stand.

Janovsky cites to Indiana Code section 34-11-2-12 and to Needham v. Suess, 577 N.E.2d 965 (Ind.Ct.App.1991), in support of his position. Section 34-11-2-12 provides that "[elvery judgment and decree of any court of record of the United States, of Indiana, or of any other state shall be considered satisfied after the expiration of twenty (20) years." In Needham, this court considered this statute, amongst others, in the context of a post-dissolution case. When Maxine Suess and Phillip Farber were divorced in 1977, Suess was granted a $50,000 judgment against Phillip that was to be paid in 121 monthly installments. The judgment was recorded and became a lien on Phillip's real property. Pursuant to statute, judgment liens expire after ten years. See Ind.Code § 34-55-9-2. In 1986, Phillip conveyed part of his property to the Needhams, and in 1989, another couple contracted to buy that property. When Suess learned of this pending sale, she protested the distribution of the sale proceeds and petitioned the dissolution court to renew her judgment because part of the judgment remained due. The dissolution court ordered the judgment be renewed for an additional ten years and the judgment be satisfied by the proceeds of the sale. We reversed, holding the judgment lien attached at the time it was recorded and expired ten years thereafter pursuant to the statute, at which time Suess could no longer seek to enforce the lien. Needham, 577 N.E.2d at 968. Further, because a judgment lien is a creature of statute, the trial court has no discretion to extend it. Id. We did note, however, that the expiration of the judgment lien did not prevent Suess from collecting the judgment, as a judgment itself may be enforced up to twenty years after its entry. Id.

Needham is inapposite to the case before us. 'The ex-wife in that case was granted a money judgment for a specific sum which she recorded, thereby procuring a judgment lien on her ex-husband's real property. Here, we are not presented with a question about the timeliness of enforcing a judgment lien against real property. The ten-year expiration of judgment liens imposed by Indiana Code section 34-55-9-2 is therefore not relevant to this case. We are also not presented with a money judgment for a sum certain payable immediately, and therefore Indiana Code section 34-11-2-12 also does not bar the entry of the QDRO. As our supreme court noted with respect to an order for periodic child support payments, such an order is not a final money judgment until an action is brought for a determination of the amount of unpaid and delinquent installments. Kuhn v. Kuhn, 273 Ind. 67, 70, 402 N.E.2d 989, 991 (1980). Similarly, the settlement agreement provides that Ryan will begin receiving her portion of the retirement benefits when Janovsky begins receiving his. Presumably, these benefits will be paid in monthly installments. When an obligation is payable in installments, the statute of limitations runs as to each installment as it becomes due. Id. at 71-72, 402 N.E.2d at 991. The applicable statute of limitations * would therefore not begin to run until the date of the first distribution from the pension plan, at the earliest. Although it may certainly be a good idea to have the paperwork in place well in advance, especially given the complexity of the statutes governing QDROs, there is no reason to require a QDRO to be entered prior to this date. Under Janovsky's theory, even if a QDRO had been entered immediately after the dissolution, Ryan would not be entitled to any benefits if Janovsky did not retire within twenty years of the dissolution because after twenty years, the "judgment" (Ryan's entitlement pursuant to the terms of the dissolution decree to a portion of Janovsky's pension benefits) would be deemed satisfied. If that were the case, Janovsky could retire twenty years and one day after the decree and frustrate the parties' agreement regarding the division of property.

Our decision that the statute of limitations does not bar the entry of a QDRO in this case is supported by the reasoning of other courts which have considered this issue. In Jordan v. Jordan, 147 S.W.3d 255 (Tenn.Ct.App.2004), the Tennessee appeals court considered whether a proposed QDRO filed more than ten years after a divorcee was granted was barred by the statute of limitations The court explained the process of dividing a pension plan that falls within ERISA's provisions:

[Rlegardless of whether the parties agree to a division [of a pension plan] or the court has to decree one, an order must be entered memorializing the division. Even assuming the valid entry of an appropriate order, that order cannot be enforced in the absence of action by the plan administrator. While it is up to a court to decide how a pension plan is equitably divided in a divorce, it is clear, beyond any doubt, that, under ERISA, it is up to the plan administrator to determine whether the proposed QDRO complies with the terms of ERISA.... Onee a plan administrator determines that a proposed QDRO meets the requirements of ERISA ..., the division decreed by the court, as memorialized in the now-approved QDRO, can be enforced ...; but, before the plan administrator finds and reports that the do- . mestic relations order is qualified, the division decreed by the court cannot be enforeed-regardless of what the court, the parties, or one of the parties, does or attempts to do....

Id. at 262 (emphasis in original). The court also noted that under ERISA, there is no statute of limitations for the entry of a QDRO. Id. at 260. The court concluded that "[uJntil the proposed QDRO is approved by the plan administrator and entered by the trial court, the act of the trial court in dividing the pension plan is not complete and hence not enforceable." Id. at 263. Accordingly, the wife's attempt to obtain approval of the proposed QDRO more than ten years after the divorcee decree was not an action to enforce the divoree judgment and was not barred by the ten-year statute of limitations. Id.; see Ochoa v. Ochoa, 71 S.W.3d 598, 596-97 (Mo.2002) (explaining that statutory presumption that a judgment is satisfied after ten years does not prevent entry of a QDRO past the ten-year period); Bayen v. Bayen, 81 A.D.3d 865, 917 N.Y.S.2d 269, 270 (2011) (noting that "a request to compel the equitable distribution of the agreed-upon percentage of the former husband's pension pursuant to an ERISA-compliant QDRO is not time-barred" although former wife would not be entitled to a present cash payment past the six-year statute of limitations); see also Duhamel v. Duhamel, 194 Misc.2d 100, 753 N.Y.S.2d 673, 674 (N.Y.Sup.Ct.2002) (characterizing an action by one spouse to compel the entry of a QDRO as an action "to compel the other [spouse] to perform a mere ministerial task necessary to distribute funds previously allocated by the parties' own binding agreement" and is not subject to the limitations period on actions to enforce a judgment).

Janovsky also invoked the equitable doctrines of laches and waiver. Laches is an equitable defense that stops a person from asserting a claim she would otherwise be entitled to assert. Angel v. Powelson, 977 N.E.2d 434, 445 (Ind.Ct.App.2012). The defendant raising such a defense must establish: "(1) inexcusable delay in asserting a known right; (2) an implied waiver arising from knowing acquiescence in existing conditions; and (8) a change in cireumstances causing prejudice to the adverse party." Id. A mere lapse of time is insufficient to show laches; "it is also necessary to show an unreasonable delay that causes prejudice or injury." Id. Here, Janovsky has not yet retired and therefore he is not yet receiving his pension benefits. As the trial court stated in its order, Janovsky acknowledged that he would not be prejudiced by the late entry of the QDRO. The parties will be in the same position if a QDRO is entered tomorrow as they would have been if it had been entered twenty years ago. Absent a showing of prejudice, laches cannot be established. Similarly, waiver is the "voluntary and intentional relinquishment of a known right." M.O. v. Indiana Dep't of Ins. Patient's Compensation Fund, 968 N.E.2d 254, 261 (Ind.Ct.App.2012) (citation omitted), trans. denied. "[Whlaiver is an affirmative act and mere silence, acquiescence or inactivity does not constitute waiver unless there was a duty to speak or act." Pohle v. Cheatham, 724 N.E.2d 655, 659 (Ind.Ct.App.2000). As Ryan is not yet entitled to her share of the pension benefits, any duty she has to act to secure her right to receive them has not yet inured. There is no evidence that in the twenty-plus years since the divorce, Ryan has affirmatively volunteered to relinquish her right to receive in due time the agreed upon portion of Janovsky's pension.

The result of the trial court's order-which not only denies the entry of the QDRO but affirmatively states that Ryan is no longer entitled to a portion of Janov-sky's pension-is a windfall to Janovsky, who agreed as part of the dissolution of his marriage to Ryan to share a portion of his pension benefits when he began receiving them. And we note that even if the statute of limitations did bar the entry of a QDRO at this late date, all that would mean is that Ryan was not entitled to receive her share of the benefits directly from Janovsky's pension plan. She would still be entitled to payment of those amounts directly from Janovsky pursuant to the terms of the settlement agreement.

Conclusion

Because Ryan's request for the entry of a QDRO securing her right to payment from Janovsky's pension plan is not time-barred by law or equity, the trial court abused its discretion in denying Ryan's motion and ordering that she was not entitled to the previously-agreed portion of Janovsky's pension benefits. The trial court's order is therefore reversed and this cause is remanded to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

RILEY, J., and KIRSCH, J., concur.

      . At the time Needham was decided, the ten-year expiration of judgment liens was found at Ind.Code § 34-1-45-2. The text of the statute then and now is substantively the same.

      . Because Janovsky has not yet begun receiving distributions from his pension plan, we need not decide what the applicable statute of limitations is.

      . The Tennessee statute of limitations in question provides, in relevant part: "The following actions shall be commenced within ten (10) years after the cause of action accrued: ... (2) Actions on judgments and decrees of court of record of this or any other state or government...." T.C.A. § 28-3-110.


source: Caselaw Access Project

author: MATHIAS, Judge.

license: Public Domain

text:
    LAGRO TOWNSHIP and Karen Pinkerton Tatro, Appellants-Plaintiffs, v. George E. BITZER and Zelma E. Bitzer, Appellees-Defendants.
    No. 85A02-1306-PL-520.
    Court of Appeals of Indiana.
    Dec. 9, 2013.
    Rehearing Denied Feb. 13, 2014.
    Mark C. Guenin, Guenin Law Offices, P.C., Wabash, IN, Attorney for Appellants.
    Stephen H. Downs, Tiede, Metz & Downs, P.C., Wabash, IN, Attorney for Appellees.
   OPINION

MATHIAS, Judge.

Lagro Township ("the Township") filed an action in Wabash Cireuit Court against George E. Bitzer and Zelma E. Bitzer ("the Bitzers") seeking to exercise control over an area of land referred to as "the Belden Cemetery," which is located on land owned by the Bitzers. The trial court granted summary judgment in favor of the Bitzers. The Township appeals and claims that the trial court erred in granting summary judgment in favor of the .Bitzers.

We affirm.

Facts and Procedural History

In 1872, Solomon and Nancy Fry deeded one acre of their real estate in Wabash County to "the public" to be used as a cemetery. This parcel was located on a larger, 219-acre parcel of land that was eventually purchased by the Bitzers in 1967. There is dispute as to how many deceased persons were buried in the Bel-den Cemetery over the years, but it is undisputed that there were some gravestones and markers in the Belden Cemetery. The Bitzers designated evidence that there were only two marked graves in the area, whereas the Township designated evidence that there were up to one hundred graves there. From the time the Bitzers purchased the land in 1967, the Township never contacted them about the Belden Cemetery or otherwise attempted to maintain the cemetery. In fact, Mr. Bitzer averred that he contacted the Township Trustee sometime between 2006 and 2009 and asked if the Trustee was aware of the cemetery. He claims that he was told that the Trustee was unaware of the cemetery and did not desire to take care of yet another cemetery.

In September 2006, the Wabash County Assessor was directed by the State to assign a tax identification number to each and every parcel of land in Wabash County. The Assessor did so and, for the first time, the cemetery was given its own tax identification number, showing it as exempt from property tax. However, for some reason, the cemetery was described incorrectly as being east of a center seetion line, as opposed to its actual location west of the line, and also incorrectly listed the property as consisting of 1.57 acres instead of one acre. Because the cemetery was misidentified on the tax records, no exempt acreage was ever deducted from the Bitzers' property taxes. In other words, since 1967, the Bitzers' property taxes have included assessments for the land on which the cemetery is located.

In December 2009, the Bitzers cleared the cemetery area, save for the two marked graves of Solomon and 'Naney Fry, around which they placed a fence. Upon learning of this, the Township Trustee investigated the situation and determined that the Bitzers had desecrated the Belden Cemetery. An investigation by the County Sheriff led to the filing of an affidavit for probable cause, but the County Prosecutor declined to prosecute.

On May 10, 2011, the Township filed a complaint against the Bitzers seeking to quiet title, establish the Township's interest in preserving the Belden Cemetery, and recover damages for the Bitzers' actions. Both parties then filed motions for summary judgment. After both parties replied to each other parties' motion for summary judgment, the trial court held a hearing on the matter on May 22, 2018. The trial court entered an order on May 31, 2013, granting the Bitzers' motion for summary judgment and denying the Township's motion for summary judgment. The Township now appeals.

Summary Judgment

Our standard of review of summary judgment appeals is well established:

When reviewing a grant of summary judgment, our standard of review is the same as that of the trial court. Considering only those facts that the parties designated to the trial court, we must determine whether there is a "genuine issue as to any material fact" and whether "the moving party is entitled to a judgment as a matter of law." In answering these questions, the reviewing court construes all factual inferences in the non-moving party's favor and resolves all doubts as to the existence of a material issue against the moving party. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law; and once the movant satisfies the burden, the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact.

Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind.2009) (citations omitted).

Although we are limited to reviewing only the evidence designated before the trial court, we are not constrained to the claims and arguments presented at trial nor the rationale of the trial court ruling. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind.2013). Instead, we may affirm a grant of summary judgment on any theory supported by the designated evidence. Id. The party appealing a -summary judgment decision has the burden of persuading this court that the grant or denial of summary judgment was erroneous. Knoebel v. Clark County Superior Court No. 1, 901 N.E.2d 529, 581-32 (Ind.Ct.App.2009). And our standard of review is not altered by the fact that the parties filed cross-motions for summary judgment. Ind. Farmers Mut. Ins. Grp. v. Blaskie, 727 N.E.2d 13, 15 (Ind.Ct.App.2000).

Discussion and Decision

The Township sets out several reasons why it thinks the trial court erred in granting summary judgment in favor of the Bitzers. The Township first claims that, even if it is not the owner of the Belden Cemetery, it at least has the right to exercise authority over the cemetery because of the recording of the 1872 deed whereby the Frys dedicated to "the public" one acre of their land to be used as a cemetery The Township argues that the Bitzers took possession of the land subject to this recorded dedication.

There are two elements of a common-law dedication: (1) the intent of the owner to dedicate and (2) the acceptance by the public of the dedication. Jackson v. Bd. of Comm'rs of Cnty. of Monroe, 916 N.E.2d 696, 704 (Ind.Ct.App.2009), trams. denied; see also 14 Am.Jur.2d Cemeteries § 17 (2013) ("The intention of the owner of the land to dedicate it for a public cemetery, together with the acceptance and use of the same by the public, or the consent and acquiescence of the owner in the long-continued use of his or her lands for such purpose, are sufficient.").

Here, it is clear from the language of the Fry's 1872 dedication that they intended to dedicate "to the public" the one-acre portion of their land for use as a cemetery. It is also clear that the land was used at some point as a cemetery, even if it is disputed as to what extent it was used as a cemetery.

Nevertheless, the Bitzers claim that the deed "to the public" is void because it is a designation to a non-existing entity, i.e., the public. In support of this claim, they refer to cases which hold that a transfer of property to a non-existing entity is void. See, e.g., LeRoy v. Wood, 113 Ind.App. 397, 47 N.E.2d 604, 605 (1943) ("A deed naming a nonexistent grantee is a nullity and passes no legal title to anyone."); Harwood v. Masquelette, 95 Ind.App. 338, 181 N.E. 380, 382 (1932) ("Prior to the instant of delivery [of a deed grating title to a corporation not yet in existence] it may be conceded that it was a nullity, so far as vesting title to the premises was concerned.").

We do not think that the deed of the land by the Fry's to "the public" to be used as a cemetery is a nullity. Instead of attempting to transfer fee title to a non-existing entity, the Fry deed dedicated land to "the public" for use as a cemetery. Indeed, "(there is no such thing as a dedication between the owner (of land) and individuals, and the public must be a party to every dedication. In fact, the essence of a dedication to public uses is that it shall be for the use of the public at large." 75 AL 591 (1961) (emphasis added). The Bitzers note that there was no evidence designated that the Township ever accepted this dedication. However, it is not necessary for there to have been any formal acceptance by "the public' of the dedication. "While acceptance by the pub-lie is necessary to complete the dedication, such acceptance may be implied from acts and from the use of the land." 14 Am. Jur.2d Cemeteries § 17 (2018); see also Lay v. State, 12 Ind.App. 362, 39 N.E. 768, 769 (1895) (holding that ground set apart and used as a public cemetery for some years was a "cemetery" for purposes of statute criminalizing disturbing cemetery even though the land was not dedicated as a cemetery by means set forth in statute).

Thus, the evidence designated in the present case establishes that the Frys dedicated a portion of their real estate to "the public" as a cemetery and that at least some people were buried in the cemetery. The parties, however, presented contradicting evidence with regard to how many graves were located on the cemetery grounds. Thus, there is a genuine issue of material fact with regard to whether, and to what extent, the public used the cemetery dedicated by the Frys in such a manner as to act as an acceptance. CJ. Lay, 12 Ind.App. 362, 39 N.E. at 769 (noting that cemetery at issue had been set apart and used as a public cemetery for some years). For this reason, to the extent that the trial court's order granting summary judgment held that the Belden Cemetery was, as a matter of law, not a dedicated public cemetery, it went too far.

But whether and to what extent the public accepted the Frys' dedication of the cemetery is not the end of our analysis. This is so because, even if we assume that the dedication of the Belden Cemetery was properly accepted by the public, we must still address the issue of the Township's ability to exercise authority over the come-tery.

The Township claims that it has the right to exercise control over the Belden Cemetery pursuant to statutory authority. Specifically, Indiana Code section 36-6-4-3(9) provides that a township executive shall "[pJjrovide and maintain cemeteries under IC 23-14." Indiana Code sections 23-14-31-~1 through 23-14-77-2, known as the Indiana General Cemetery Law, govern cemeteries in Indiana in some detail. Relevant to our discussion is Indiana Code chapter 23-14-68, which sets forth the rights and responsibilities of townships visa-vis cemeteries. Generally, a township trustee must "locate and maintain all the cemeteries described in section 1(a) of this chapter that are within the township." Ind.Code § 28-14-68-2. Such maintenance includes: "(1) Resetting and straightening all monuments. (2) Leveling and seeding the ground. (8) Constructing fences where there are none and repairing existing fences. (4) Destroying and cleaning up detrimental plants ..., noxious weeds, and rank vegetation." Ind.Code § 283-14-68-3.

But application of this chapter is limited by its first section, which provides:

(a) This chapter applies to each cemetery that:
(1) is without funds for maintenance
(2) was in existence on February 28, 1939; and (8) is operated by a nonprofit organization or is not managed by any viable organization.
(b) This chapter does not apply to a cemetery located on land on which property taxes are assessed and paid under IC 6-1.1-4.

Ind.Code § 23-14-68-1 (emphasis added).

The Bitzers claim that the Township is without authority over the Belden Cemetery by operation of subsection (b) of the above-quoted statute. That is, they claim that property taxes have been assessed and paid by them for all of their land, including the Belden Cemetery, under Indiana Code chapter 6-1.1-4. The designated evidence supports the Bitzers' contention.

The Bitzers designated evidence indicating that they had always paid property taxes on the entirety of their land, including the Belden Cemetery. It was not until 2006 that the Assessor assigned a tax identification number to a portion of land purported to be the Belden Cemetery and listed this property as exempt. However, for unknown reasons, the description of the cemetery by the Auditor and Assessor lists the area as being 1.57 acres instead of the one-acre dedicated by the Frys; more importantly, the Auditor and Assessor's description of the cemetery locates the parcel as east and north of the actual cemetery land. It is this misidentified parcel that the Auditor and Assessor listed as exempt from property taxes.

As a result, no deduction had ever been made in the property tax records of the Auditor or Assessor, and the Bitzers had paid taxes on all of their land, including the cemetery land, since 1967. Accordingly, pursuant to Indiana Code section 23-14-68-1(b), the authority granted to the Township under Indiana Code chapter 23-14-68 does not extend to the Belden Cemetery because it is a "a cemetery located on land on which property taxes are assessed and paid[.]"

Although the Township makes an extensive argument that the Bitzers' actions have desecrated the Belden Cemetery contrary to law, this is a criminal matter left to the discretion of the county prosecutor. As indicated above, to date, the County Prosecutor has declined to file charges against the Bitzers, and the claim of intentional infliction of emotional distress filed against the Bitzers was dismissed.

Conclusion

The statute authorizing a Township Trustee to exercise control over cemeteries located within the township is inapplicable where the cemetery is located on land on which property taxes have been paid. And here, even though there was a genuine issue of material fact with regard to whether and to what extent the dedication of the Belden Cemetery to the public was accepted by the public through usage, there is no genuine issue of material fact with regard to the Bitzers' payment of property taxes on the land on which the Belden Cemetery is located for decades. For this reason alone, the Township's claims of authority over the Belden Cemetery must fail. Accordingly, the trial court properly granted summary judgment in favor of the Bitzers.

Affirmed.

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

      . The Township asserts in its statement of the facts that members of the public and adjacent property owners worked to preserve the cemetery. In support of this assertion, the Township cites page 40 of its Appellant's Brief. This page contains a copy of an affidavit sworn by Robert Gray. Mr. Gray's affidavit, however, does not support the Township's factual assertion. Instead, it states that Mr. Gray had personal knowledge of "a heavy wooded and overgrown area known as Bel-den Cemetery," that had a white picket fence surrounding it. Appellant's App. p. 40. It also states that the prior owner of the land on which the cemetery is located "was emphatic that the cemetery area not be plowed or destroyed in any manner." Id. Several affidavits designated by the Township contradict its claim that the cemetery was maintained and instead indicate that the cemetery area was heavily wooded and/or overgrown with grass and bushes. See id. at 31, 33, 38, 40, 45, 49.

      . Karen Pinkerton Tatro, a relative of someone allegedly buried at the cemetery, also filed a claim for intentional infliction of emotional distress against the Bitzers. This claim was later dismissed, and Ms. Tatro is not an active party to this appeal.

      . It appears that the Township has abandoned on appeal its claim of title in the cemetery. And for good reason. "[A] right conferred by common-law dedication is usually a mere easement." 23 Am.Jur.2d Dedication § 3 (2013). Further, "(al common-law dedication of land for a cemetery does not result in the extinguishment of the dedicator's title; the fee remains in him or her with a possibility of reverter on the abandonment of the cemetery, although the dedication does operate to reduce his or her rights as an owner." 14 Am.Jur.2d Cemeteries § 19 (2013).

      . See Ind.Code § 23-14-33-1.

      . "Cemetery" is defined as "any land or structure in Indiana that is: (1) dedicated to; and (2) used for, or intended to be used for; the interment, entombment, or inurnment of human remains." Ind.Code § 23-14-33-7.

      . Contrary to the Township's claims to the trial court and on appeal, the Bitzers have been exceedingly clear that they are not claiming title by adverse possession.

      . The Township claims in its brief that the Bitzers admitted in response to a request for admissions that the Belden Cemetery was exempt from property taxes and that they had not paid property taxes on the cemetery. While it is true that the Bitzers did initially admit this, they later requested permission from the trial court to withdraw this admission, and the trial court granted their request. See Appellee's App. p. 4. Even though this was noted to the trial court at the summary judgment hearing, the Township still incorrectly claims on appeal that Bitzers admitted that they 'did not pay taxes on the cemetery land. The record clearly does not support the Township's assertion, and the Township makes no argument on appeal that the trial court erred in permitting the Bitzers to withdraw their admission. Thus, for our purposes, the Bit-zers did not admit that the Belden Cemetery was exempt from property taxes and that they had never paid taxes on the cemetery land.


author: BAKER, Judge.

text:
    Charity LINDQUIST, Appellant-Petitioner, v. Cory LINDQUIST, Appellee Respondent.
    No. 23A04-1306-DR-277.
    Court of Appeals of Indiana.
    Dec. 12, 2013.

      Hunter J. Reece, Judson G. Barce, Bonnie J. Adams, Barce & Reece, P.C., Fowler, IN, Attorneys for Appellant.
    Jon P. McCarty, Covington, IN, Attorney for Appellee.
   OPINION

BAKER, Judge.

We first acknowledge that the trial court was faced with an extremely difficult-and almost Solemniec-decision in this case. More particularly, we must determine whether the trial court properly entered an order restricting the custodial parent, appellant-petitioner, Charity Lindquist (Mother), from permitting her and former husband, appellee-respondent, Cory Lind-quist's (Father) (collectively, the parents), children to continue an unsupervised relationship with Mother's boyfriend when Father is not otherwise entitled to be with them under the Indiana Parenting Time Guidelines (Guidelines). The trial court's order noted that Mother's relationship with her boyfriend was undermining and interfering with Father's relationship with the children. As a result, Mother contends that her constitutional right to due process was violated along with her right of freedom of association.

After reviewing the evidence, we initially observe that the trial court's determination that Mother was in contempt for denying Father his Christmas 2012 time must be affirmed. However, because there is no evidence that Mother is an unfit parent or that permitting the children to spend unsupervised time with Mother's boyfriend violated the children's best interests or that he posed a danger or detriment to the children, we must conclude that this portion of the order was too restrictive and, therefore, the trial court improperly determined that the children were not permitted to spend any "one on one" unsupervised time with Mother's boyfriend. As a result, we affirm in part, reverse in part, and remand this case to the trial court with instructions that it craft an order that will not deny Father the opportunity to exercise additional parenting time in accordance with the Guidelines, but also to permit the children to interact with Mother's boyfriend on an unsupervised basis should Mother so desire, so long as Father's relationship with the children is not undermined or thwarted.

FACTS

Mother and Father were formerly married and are the parents of triplet girls born on November 26, 2002. Shortly before the girls turned two years old, the parents separated. The Fountain Circuit Court dissolved the parties' marriage in July 2005.

The trial court awarded the parents joint legal custody of the girls and Mother was to have primary physical custody. Father was awarded parenting time as the parties could agree. In the event of a dispute, parenting time would be decided in accordance with the Guidelines.

At some point before the marriage was dissolved, Mother began a romantic relationship with Robert Criswell. Mother and the children began living with Crigwell when the triplets were three years old. Criswell lived in the vicinity and held ownership interests in a local restaurant and movie theater. Mother and Criswell never married, but they lived together with the triplets for nearly seven years. Although Mother and the triplets eventually moved out, Mother and Criswell continued their relationship.

On June 6, 2011, Mother filed a petition to establish parenting time because she and Father could not agree on a schedule, particularly with regard to the children's participation in extracurricular activities. Although the trial court ordered the parents to attend mediation, Father filed a petition for rule to show cause on September 15, 2011, at which time the trial court affirmed its order for the parties to participate in mediation.

The parents proceeded to mediation and filed an agreed order with the trial court on August 17, 2012, which settled most of the issues, except for Mother's alleged contempt and her perpetuation of the relationship between Criswell and the children. The first line of the agreed order provided that "the parties agree that they shall follow the Indiana Parenting Time Guidelines." Appellant's App. p. 28-24. However, approximately ninety days later, Mother allegedly violated the agreement by refusing Father any parenting time with the children on Christmas Eve or Christmas Day in 2012. Rather, Mother permitted the children to vacation with Criswell and his family in Mother's absence.

At a hearing that commenced in May 2013, the evidence established that Mother and Crigwell had not been living together for nearly a year and a half. The children were approximately nine years old when Mother and Criswell stopped living together. Criswell has never petitioned the court to establish a legal parenting time relationship between him and the children since he and Mother separated. However, even after Mother and Criswell separated, Mother has permitted Criswell to take the children to doctor appointments on multiple occasions without Mother present, has had the children overnight in his home on many occasions, has hosted slumber parties for the children and has attended their extracurricular activities on a regular basis, and has taken them on family vacations without Mother.

Criswell testified that the parties' triplets often refer to him as "Dad." Tr. p. 8. Although Criswell has a twenty-seven-year-old son, he has "outfitted" his residence with young children in mind. Id. at 12, 27-28. More specifically, Criswell's home includes swings, a trampoline, all terrain vehicles, a playhouse and cabin, and numerous animals for the children.

Criswell also provides Mother financial assistance on a regular basis, which has included thousands of dollars over the three and one-half years since Criswell and Mother stopped living together. Cris-well has also opened savings accounts for each of the children and has provided for them in his will. According to Criswell, he told the children about these accounts years ago, even though the children were very young.

Dr. Ann Carlson, a clinical child psychologist, testified at the hearing that children benefit from strong stable bonds, called "natural supports," from people who are "not necessarily family or paid providers," which aide in the child's development. Id. at 101-02.

On the other hand; Father testified that he is equally available and desires to spend as much time as he can with the children, but Mother has refused him several opportunities to do so. Father also testified that the relationship Mother is fostering between the children and Criswell is undermining his relationship with the children. According to Father, the children compare him to Criswell during Father's parenting time, and have "very often" referred to him as "[Criswell]." Tr. p. 42.

Conflicting evidence was presented at the hearing, such that Mother testified that she has never called Criswell to provide care for the children or take them to appointments without first offering that opportunity to Father. - On the other hand, testimony was presented that Mother never calls Father to allow him to pick up the children from school or take them to appointments if she is not able to do so.

Following the hearing, the trial court took the matter under advisement and entered its order on May 13, 2013. In light of the clear language of the parents' agreement and the Guidelines, the trial court found Mother in willful contempt for refusing Father parenting time during Christmas in 2012. The trial court also determined that

The court has no doubt that the children are bonded to Mr. Criswell. He played an important role in their lives and clearly he cares for them deeply; however, he is not their father. Wife has allowed this relationship to interfere with ' children's primary relationship with their father. Wife is prohibited from allowing the children to spend one on' one time with Mr. Criswell or any time with him unless she too is present (the court would envision brief periods like dinner and/or a movie on the occasional basis).
Pa s Pa
Wife is in contempt for her failure to allow husband his Christma[s] holiday visit. Husband shall be entitled to make-up that lost time by having the children for what would normally be wife's Memorial Day holiday weekend.

Appellant's App. p. 7-8 (emphasis added). Mother now appeals.

DISCUSSION AND DECISION

'Mother argues that the trial court's order with regard to custody and parenting time infringed upon her constitutional rights to raise the children and chilled her relationship with Criswell. Mother further claims that the order violated her constitutional right to free association and due process when it determined that Cris-well may only visit the children when she is present. Mother further contends that the trial court's interpretation and application of the Guidelines to restrict Criswell's contact with the children was erroneous because there were no allegations or evidence that Mother was unfit or that any harm or detriment was posed to the children while they were with Criswell.

I. Standard of Review

In eustody and visitation matters, foremost consideration must be given to the best interests of the child. Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind.Ct.App.1998). We will generally reverse child visitation decisions only upon a showing of a manifest abuse of discretion. Hanson v. Spolnik, 685 N.E.2d 71, 79 (Ind.Ct.App.1997). We neither reweigh the evidence nor reexamine the credibility of the witnesses. Id. Rather, we will view the record in the light most favorable to the trial court's decision to determine whether the evidence and reasonable inferences therefrom support the trial court's decision. Id.

II. Mother's Contentions

A. Infringement of Constitutional Rights

As noted above, Mother contends that the trial court's order violated her fundamental constitutional rights in raising her children by restricting their relationship with Criswell because there was no showing that any harm resulted to the children. Appellant's Br. p. 7, 11. Mother also claims that the portion of the order regarding the relationship restriction must be set aside because Father presented no evidence that 'the children's relationship and unsupervised time with Criswell undermined or damaged his own relationship with the children.

In support of her contention, Mother directs us to Troxel v. Granville, where the United States Supreme Court addressed a dispute between a parent and grandparents who sought to obtain visitation with their grandchildren over the parent's objection. 530 U.S. 57, 60, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In Troxel, it was determined that there is a strong preference in favor of a natural parent to have the care of his children over a third party. Id. at 65-66, 120 S.Ct. 2054; see also Guardianship of B.H., 770 N.E.2d 283, 286 (Ind.2002) (observing that natural parents are entitled to the custody of their minor children, except when they are unsuitable persons to be entrusted with the care, control, and education of the children). ©

However, unlike the dispute in Troxel, the situation here involves two natural parents with equal rights following the dissolution of marriage. In fact, Troxel recognized that "[T]here is a presumption that fit parents act in the best of their children." Troxel, 530 U.S. at 68, 120 S.Ct. 2054.

In commenting on Troxel, at least one court has recognized that

A dispute between a parent and grandparents represents a far different dy-namie than the dispute between two natural parents with equal rights after a divoree. The grandparents in Troxel simply did not have a fundamental right to the care and custody of the children as do the parents here. So, when the Troxel court was speaking of fundamental rights in the raising of children, it was speaking to the existing disparity between natural parents and grandparents.

Arnold v. Arnold, 270 Wis.2d 705, 711-12, 679 N.W.2d 296 (Wis.Ct.App.2004). The Arnold court went on to note that this distinction is critical in addressing due process claims in a post-dissolution setting.

Additionally, this court observed in Kitchen v. Kitchen that

Parental rights are matters of constitutional import protected by the Fourteenth Amendment to the United States Constitution.... Accordingly we adhere to the limitation of our statutes and case law conferring standing only to parents, grandparents and step-parents. The trial court erred in concluding that it had the authority to grant third-party visitation to persons other than parents, step-parents, or grandparents.

953 N.E.2d 646, 649-50 (Ind.Ct.App.2011).

Notwithstanding these pronouncements, we are confronted with a unique situation in light of the various provisions of Section I(C)(8) of the Guidelines, which provide that:

When it becomes necessary that a child be cared for by a person other than a parent or a responsible household family member, the parent needing the child care shall first offer the other parent the opportunity for additional parenting time, if providing the child care by the other parent is practical considering the time available and the distance between residences. The other parent is under no obligation to provide the child care. If the other parent elects to provide this care, it shall be done at no cost and without affecting child support. The parent exercising additional parenting time shall provide the necessary transportation unless the parties otherwise agree.

The trial court referenced Section A of the Guidelines in its order that encourages parents to "recognize and address a child's basic needs," including the development . of meaningful relationships with other significant adults (grandparents, stepparents and other relatives) as long as these relationships do not interfere with or replace the child's primary relationship with the parents."

Although the evidence in this case established that Criswell has developed a positive and meaningful relationship with the children, he has no "parental right" to see and visit with the children, but Father, of course, does. On the other hand, when applying Section I(C)(8) of the Guidelines to the cireumstances here, Criswell should be able to interact with the children, so long as it would be in the children's best interests to maintain their then-existing relationship with him. There have been no allegations of abuse or neglect against Criswell, and Dr. Ann Carlson testified at the hearing that continuing his relationship with the children would be in their best interests. Tr. p. 79.

In light of these cireamstances, we believe that Criswell should be able to continue seeing the children so long as his relationship with them does not undermine or damage the relationship with Father. And under Section I(C)(3) of the Guidelines, Father must first be given the opportunity to exercise additional parenting time. That said, it is apparent that the trial court's order as it currently stands is too broad and restrictive and must, therefore, be crafted to allow Criswell to maintain his relationship with the children because there is no evidence that he either abused or neglected them and the evidence showed that it was in the children's best interest to continue that relationship. However, the subsequent order must also reflect that Criswell's continued relationship with the children must not interfere with or undermine Father's right to additional parenting time in accordance with the Guidelines.

B. Freedom of Association

In a related issue, Mother asserts that the trial court's order violates her right of association because "restricting her contact with her romantic interest, absent any harm to her children, infringed and has a chilling effect upon the Mother's First Amendment right to association." Appellant's Br. p. 11. Put another way, Mother argues that the trial court's "broad sweeping order" has prevented her from having any future intimate relationship with Cris-well, "while she has custody of her children." Id. at 12.

The freedom of association "is a constitutional right which is included in the bundle of First Amendment rights made applicable to the States by the due process clause of the Fourteenth Amendment." Sills v. Irelan, 663 N.E.2d 1210, 1213 (Ind.Ct.App.1996). Notwithstanding this pronouncement, there is nothing in the trial court's order that prohibits or prevents Mother from associating with Criswell now or in the future. To the contrary, Mother may associate with Criswell as often as she chooses. Appellant's App. p. 6-8. As a result, Mother's suggestion that the trial court's ruling chills her from having "any future intimate relationship with Criswell" is misplaced and this argument fails. Id. at 9.

On the other hand, this case concerns the children and, as noted above, the trial court's ruling restricts the children's association with Criswell unless Mother is also present. In that sense, we agree with Mother's notion that the trial court's ruling improperly impedes upon her parenting time with the children. However, while Mother has the freedom to associate with Criswell, that right does not trump Father's liberty interest in raising his children. Guardianship of B.H., 770 N.E.2d at 286.

That said, we realize that the trial court has impliedly determined from the evidence that Criswell's time spent with the children has detracted from the time that Father could have spent with them. However, as discussed above, so long as Father's rights to additional parenting time under the Guidelines are followed and respected, we see no reason why Criswell should not be allowed to continue his relationship with the children unattended by Mother. In other words, because there has been no showing of some danger or detriment to the children, there is not a legitimate basis for restricting Mother's fundamental right to control her children's relationships with others. As a result, this portion of the trial court's order must be set aside because it is too restrictive with regard to Criswell's continued relationship with the children. Thus, we are compelled to reverse this portion of the trial court's order.

The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions that the trial court craft an order permitting the children to maintain their relationship with Crisgwell and to spend unsupervised time with him because it is within the children's best interest to do so, and so long as that relationship does not interfere with or impede Father's opportunity to exercise his parenting time in accordance with the Guidelines.

NAJAM, J., and CRONE, J., coneur.

      . Mother does not challenge the trial court's finding of contempt with regard to this issue.

      . As is pointed out more thoroughly below, Criswell does not have a parental right to see and visit with the children.

      . Because we have already determined above from the evidence presented at the hearing that the portion of the trial court's order that currently restricts the children's continued relationship with Criswell is too broad and restrictive under the circumstances here, we need not discuss Mother's final assertion that the evidence was insufficient to support the trial court's ruling.


author: SULLIVAN, Senior Judge.

text:
    Anthony SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1304-CR-195.
    Court of Appeals of Indiana.
    Dec. 12, 2013.
    Joel Schumm, Clinical Professor of Law, James Banister, Certified Legal Intern, Appellate Clinic, I.U. Robert H. McKinney School of Law, Indianapolis, IN, for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, for Ap-pellee.
   OPINION

SULLIVAN, Senior Judge.

Anthony Smith was convicted by a jury of Class A misdemeanor invasion of privacy for knowingly violating a protective order. He now appeals, claiming the evidence is insufficient to sustain his conviction. We affirm.

In early January 2012, Sara Pearson and Smith ended their two-year relationship, and Smith moved out of Pearson's home. On January 20, 2012, Pearson obtained an ex parte protective order against Smith. The next day, she had all the locks on her home changed by a locksmith.

On January 26, 2012, Detective Andre Bell of the Indianapolis Metropolitan Police Department notified Smith of the protective order during a phone conversation in which Detective Bell tried to make arrangements to recover Pearson's Jeep from him. Specifically, Detective Bell told Smith that he was being served with a protective order and that he could not "call, mail, text, e-mail, anything, or make any type of threats or contact with" Pearson. Tr. pp. 115,125. Detective Bell then entered his verbal service of the protective order to Smith in the Indiana Protection Order Registry. Additionally, on January 31, 2012, Pearson "mentioned the protective order" in a text message to Smith,. Id. at 36.

On February 11, 2012, Pearson was in the midst of moving out of her house and getting it ready for sale. That day, Smith © texted Pearson and said he wanted to get his weightlifting equipment from her house. Pearson texted back that he could pick up his equipment at 2:30 p.m., believing she could arrange for the police to be there by then to supervise the transfer. Smith responded that he could not make it at 2:30 and suggested the next day. Pearson said no.

Pearson left her house that morning and returned home around 12:45 p.m. to meet an appraiser. She started a fire in the fireplace and then headed toward the door to the garage. When she opened the door, Smith was stdnding directly in front of her. Pearson tried to shove the door closed, but when Smith put his foot in the door, she ran down the hallway toward the kitchen. Smith grabbed her by her sweatshirt, got her down to the floor, stood over her, and took her phone and pepper spray. He then let her up, and a little after 1:00 p.m., the appraiser rang the doorbell. Smith fled. Pearson let the appraiser in and called 911. The police arrived and found damage to the door leading into the garage froin the backyard.

The State charged Smith with Class D felony residential entry and Class A misdemeanor invasion of privacy. It later alleged he was a habitual offender.

- At his jury trial, Smith gcknowledged that a person identifying himself as Detective Bell informed him of the protective order. However, he denied making any contact with Pearson. He claimed that Pearson texted him on February 11', 2012, to tell him to get his belongings out of her garage but that he did not respond to any of her messages. He further claimed 'he was at his home at the time of the alleged incident.

‘Thé jury found Smith guilty of residential entry and invasion of privacy, and the trial court adjudicated him a habitual offender. He was later sentenced to an aggregate term of six and a half years: three years for residential entry enhanced by three and a half years for being a habitual offender, and a concurrent one year for invasion of privacy.

Smith's sole challenge on appeal is to the sufficiency of the evidence sustaining his invasion of privacy conviction In reviewing a sufficiency of the evidence claim, we neither reweigh the evidence nor assess the credibility of witnesses. Bailey v. State, 979 N.E.2d 133, 135 (Ind.2012). Rather, we look to the evidence and reasonable inferences drawn therefrom that support the verdict. Id. We affirm if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id.

To convict Smith of invasion of privacy as charged here, the State had to prove beyond a reasonable doubt that he knowingly violated the protective order by "going to [Pearson's] residence and/or entering her house." Appellant's App. p. 27; see Ind.Code $ 35-46-1-15.1(1) (2010).

The evidence most favorable to the verdict shows that Detective Bell verbally served Smith with the protective order on January 26, 2012, and explained that he could not have any contact with Pearson. Smith himself even acknowledged at trial that Detective Bell called him and informed him of the protective order. Despite being verbally served with the order, Smith broke into Pearson's house and confronted her less than three weeks later. This evidence shows Smith had actual knowledge of the protective order but violated it anyway. See Dixon v. State, 869 N.E.2d 516, 520 (Ind.Ct.App.2007) (regardless of whether Bruno actually gave Dixon copy of protective order, evidence sufficient to sustain invasion of privacy conviction where Officer Gomez gave Dixon verbal notice of protective order and its provision to stay away from Bruno's residence and where Dixon returned to Bruno's home hours after the verbal notice).

Smith nonetheless argues: (1) he did not have actual knowledge of the order because Detective Bell did not inform him of all its specific terms, and (2) he did not knowingly violate the order because Pearson's actions toward him indicated it was no longer valid. We address each claim in turn.

I. SPECIFIC TERMS

Smith argues he did not have actual knowledge of the order because Detective Bell did not inform him of all its specific terms. He includes a chart in his brief comparing what Detective Bell told him (that he could not "call, mail, text, email, anything, or make any type of threats or contact with" Pearson) to a bevy of specific terms in the protective order. See Appellant's Br. pp. 9-10.

Smith's argument is unpersuasive. While it is true that Detective Bell did not list verbatim every specific action prohibited by the protective order, he adequately informed Smith that he could not make any type of threat or have any type of contact with Pearson. There can be no question that breaking into Pearson's home and confronting her was prohibited conduct under Detective Bell's instructions.

Nor does Hendricks v. State, 649 N.E.2d 1050 (Ind.Ct.App.1995), support Smith's claim as he suggests. In that case, Bernadette Mercado obtained a protective order preventing Michael Hendricks from contacting her family. When Hendricks called Mereado's home six days later, Mercado informed him of the protective order and told him he was not to have any contact with her family. The same day, Hendricks called again. An officer was at the Mercado home and "also told Hendricks of the emergency protective order and the parameters of the order." Id. at 1052. Hendricks came within 1000 feet of Mercado's daughter the next day and was charged with invasion of privacy. This Court found the evidence sufficient to show Hendricks knowingly violated the protective order. Id.

Smith latches on to the language in Hendricks that the defendant was informed not only of the protective order but also of its "parameters." Smith essentially equates these "parameters" with all of a protective order's specific terms and thus reasons that Detective Bell had to inform him of every specific term.

We reject this reading. As Smith acknowledges, nothing in Hendricks leads to a firm conclusion that the defendant was informed of every specific term of the protective order. See Appellant's Br. p. 11. Even if he was so informed, nothing in Hendricks suggests that knowledge of every specific term of a protective order is necessary to have the requisite knowledge sufficient to sustain an invasion of privacy conviction.

Instead, Hendricks supports a finding of knowledge here. There, as in the case before us, the evidence of knowledge was sufficient where the protected party and a law enforcement officer informed the defendant of the protective order. Our Supreme Court recently discussed Hendricks and noted that just a single notification of the protective order and its prohibition on contact would have been sufficient:

The evidence that Bernadette Mereado informed Hendricks of the protective order and its parameters (that he was not to have any contact with the family) could have by itself been sufficient to prove Hendricks' knowledge of the protective order. The additional notification by the officer to Hendricks would simply have been cumulative evidence of his knowledge of the protective order.

Joslyn v. State, 942 N.E.2d 809, 813 (Ind.2011). Thus, there is ample evidence of knowledge here where Detective Bell and Pearson each informed Smith of the protective order and where Detective Bell additionally explained that Smith could not make any type of contact with Pearson.

Smith distinguishes Joslyn, where the evidence was sufficient to sustain the defendant's invasion of privacy convictions. Again, we find instead that Joslyn supports Smith's eonviction. In that case, a process server testified that she left a copy of the protective order at Joslyn's home, but there was no indication that she also sent a copy to his house by first class mail as required under our Trial Rules. Even so, Joslyn admitted in police statements and again at trial that he was aware of the protective order and had read its terms. Our Supreme Court rejected Joslyn's sufficiency claim on appeal, holding that the minor defect in service was cured by his admission that he had received the order at his home. Id. at 810, 818-14.

Smith elaims that, unlike Joslyn, he had no opportunity to read the protective order and its terms. This distinction is of no moment. Smith, like Joslyn, had actual notice that a protective order prohibited any contact with the protected person. This evidence, as in Joslyn, is sufficient to show his knowledge of the order.

II. PEARSONS ACTIONS

Smith also argues he did not knowingly violate the order because Pearson's actions toward him indicated it was no longer valid. He suggests that Tharp v. State, 942 N.E.2d 814 (Ind.2011), mandates reversal here. In Tharp, Lisa Pitzer obtained a protective order against Jeffrey Tharp but was found riding in a vehicle with him a few months later. The trial court convicted Tharp of invasion of privacy after a bench trial, indicating it credited Pitzer's testimony that she told Tharp about the protective order. The Indiana Supreme Court reversed the conviction, noting Pitzer's testimony was that she told him at the same time that the order was no longer valid. See id. at 817 ("Well, I had told him there was a protective order, but I had thought it had been dropped already, because I had been down there.... I told him it was no contact, and that I had thought I had took care of it.... That we had no contact and I had thought that I had went and had it uplift, ed."). The Court stated, "We conclude that the mixed messages from Pitzer are oral notice of the type that is insufficient for a conviction." Id. at 818.

Smith claims he received mixed messages akin to those in Tharp because Pearson's actions in communicating with him through text messages and arranging a time for him to pick up his personal possessions from her house gave him reason to believe that the protective order was no longer valid. We disagree,. The Court found Tharp received "mixed messages" because Pitzer told him the protective order was no longer in effect at the same time she told him of its existence in the first place. No such mixed messages occurred here. Detective Bell unequivocally told Smith that the protective order prohibited him from making any type of contact with Pearson. Pearson also informed him of the protective order. Furthermore, although Pearson told Smith he could retrieve his property at 2:30 p.m. on February 11, when Smith told her he could not do so at that time and requested to do so at a later date, she specifically told him no. Neither Detective Bell nor Pearson told Smith that the order was no longer in effect. Tharp is distinguishable on this basis and thus provides no relief here.

Moreover, when determining whether Smith committed the offense of invasion of privacy, we do not consider whether Pearson knowingly ignored the protective order but, rather, whether Smith knowingly violated the order. See Dixon, 869 N.E.2d at 520; Ind.Code § 34-26-5-11 (2002) ("If a respondent is excluded from the residence of a petitioner or ordered to stay away from a petitioner, an invitation by the petitioner to do so does not waive or nullify an order for protection."). Pearson's text messages to Smith simply could not serve as a basis for Smith to reasonably believe that the protective order had been dismissed.

Related to his first argument, Smith claims that knowledge of every term of the protective order would have prevented any confusion on this point because the order specifically provided, "If so ordered by the court, the Respondent is forbidden to enter or stay at the Petitioner's residence or residence of any child who is the subject of the order, even if invited to do so by the Petitioner or any other person. In no event is the order for protection voided." State's Ex. 7-R (capitalization omitted). Although this provision would have informed Smith of a specific instance in which contact was prohibited-namely, that he could not go to Pearson's residence even if invited-that provision was adequately covered by Detective Bell's instructions that he could not make any type of contact with Pearson.

We therefore conclude that the evidence is sufficient to sustain Smith's invasion of privacy conviction.

Affirmed.

BARNES, J., and BRADFORD, J., concur.

      . Smith has filed a Motion for Oral Argument. We deny this motion by separate order issued contemporaneously with this opinion.

      . As Smith's one-year sentence for invasion of privacy was ordered to be served concurrent with his six-and-a-half-year sentence for residential entry with the habitual offender enhancement, reversal of his invasion of privacy conviction would not affect his aggregate sentence.


text:
    John Everitt DICKEY, Appellant, Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 10A01-1212-CR-587.
    Court of Appeals of Indiana.
    Dec. 13, 2013.
    Jeffrey D. Stonebraker, Jeffersonville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

John Everitt Dickey ("Dickey") was con-viected in Clark Circuit Court of two counts of Class A felony child molesting and sentenced to an aggregate term of forty-five years, with five years suspended. Dickey appeals and presents one issue for our review: whether the trial court abused its discretion in admitting into evidence testimony that Dickey had been physically abusive both to the victim and to the victim's mother. Because Dickey failed to preserve this issue for appeal, we affirm.

Facts and Procedural History

In 2003, Dickey lived with his then girlfriend, N.S., who had two daughters, one of whom was eight-year-old N.O. According to N.O., shortly after Dickey moved in, he became physically abusive toward N.S. Specifically, she stated that Dickey "hit her. He beat her up." Tr. p. 74. N.O. also stated that during one incident when Dickey physically abused her mother, she attempted to yell out a window for help. In response, Dickey grabbed her by her shirt, threw her across the room, and threw items at her. One of these items hit N.O. in the head and left a knot on her forehead. During another incident, Dickey began to physically abuse N.S., and N.O. attempted to run out of the house to seek assistance from her cousin. Dickey stopped N.O. by pulling her by her collar, then knocked her to the ground and kicked her in her sides. N.O. also stated that Dickey slapped her in the face once when she was crying and that this left a hand-print on her face.

Shortly after these incidents of physical violence, N.O. came home from school and found Dickey in a bedroom ironing clothes. Dickey told N.O. to get undressed and lie down on a blanket on the floor. Dickey got on top of N.O. and attempted to penetrate her vagina with his penis, but was initially unable to do so. He then took the girl to her mother's bedroom and told her to lie down on the edge of the bed. Dick ey gave the girl lubricant and told her to rub it on his penis. She did so for several minutes, after which Dickey inserted his penis into her vagina. When Dickey heard N.S. arrive home, he stopped his molestation and told N.O. to clean herself up. He also told her that if she told anyone, he would hurt or kill both her and her family.

Dickey later molested N.O. during a see-ond incident, which started when Dickey called N.O. into the house from playing outside. He told her to go to the bath room and clean herself up. He then told her to sit on the edge of her mother's bed and remove her pants and underpants. Dickey then placed his mouth on N.O.'s genitalia.

N.O. did not immediately report these incidents. Several years later, when she was thirteen years old, N.O. told her cousin that Dickey had "raped" her. Tr. p. 97. When she was fourteen years old, N.O. went to the doctor for a wellness examination and was given a questionnaire. One of the questions asked if she had ever been touched in a way that made her feel uncomfortable. N.O. answered, "Yes." Tr. p. 60. When questioned by the physician about this, she told her about Dickey's behavior. The physician then reported N.O.'s allegations to the authorities.

On November 6, 2009, the State charged Dickey with two counts of Class A felony child molesting. Count I alleged that Dickey performed sexual intercourse with N.O., and Count II alleged that he performed criminal deviate conduct with N.O. Dickey filed a motion in limine seeking to exclude evidence of prior bad acts by Dickey pursuant to Indiana Evidence Rule 404(b).

During a pre-trial hearing, the trial court ruled on this motion by stating that it would:

not allow the State to bring in any of that [sic] additional things. In regards to any information concerning [N.O.], I think we're going to have to take that on a case by case basis or a fact by fact basis and see what occurs, and then [defense counsel] may want to renew your motion at that time in regards to any incident that would refer to [N.O.].

Tr. pp. 18-19. Then, immediately before trial, the parties and the trial court discussed the issue again. The trial court then stated:

[IIn regards to testimony of [N.O.], any allegations she's making concerning physical abuse or other sexual advances during this same time frame, the Court is going to allow [it] in, if it comes in appropriately. I would say, [defense counsel], you still have the right to object during trial for purposes of the record and there may be some incident that the Court doesn't find relevant, but basically in regards to what we're discussing here, I'm going to allow that type of testimony to occur.

Tr. p. 36 (emphasis added).

During N.O's testimony, the State asked her, "at what point d[id] the things change where [Dickey] change[d] how he relate[d] to you and your mom?" Tr. p. 73. Dickey's counsel then interjected, "Your Honor, I'm going to renew our objection to this line of questioning at this time." Id. The trial court overruled the objection, and the State continued to elicit detailed testimony concerning Dickey's physical abuse of N.O. and her mother. Tr. pp. 73-79. Dickey's counsel, however, did not further object to this testimony, nor did she request a continuing objection. At the conclusion of trial, the jury found Dickey guilty as charged. The trial court subsequently sentenced Dickey to forty-five years on each count, to be served concurrently. The trial court also suspended five years of each sentence. Dick ey now appeals.

Discussion and Decision

On appeal, Dickey claims that the trial court abused its discretion when it admitted into evidence N.O.'s testimony concerning his prior physical abuse of N.O. and her mother. It is well settled that the admission of evidence is entrusted to the sound discretion of the trial court, and the trial court's decision on the admission of evidence will not be reversed on appeal absent a showing of manifest abuse of the trial court's discretion. Simmons v. State, 760 N.E.2d 1154, 1158 (Ind.Ct.App.2002).

Prior to trial, Dickey filed a motion in limine seeking to exclude the evidence of his prior bad acts. However, a trial court's ruling on a motion in limine is not a final ruling on the admissibility of the evidence in question, and a motion in limine does not preserve the error for appeal. Id. Instead, in order to preserve error in the denial of a motion in limine, the party must also object to the admission of the evidence at the time it is offered. Id.

Here, when the State asked N.O. when Dickey's relationship with N.O. and her mother began to change, Dickey did object, and the trial court overruled this objection. However, the State then continued to ask N.O. questions that elicited detailed testimony regarding Dickey's past physical abuse of N.O. and her mother, all without further objection from Dickey. See Tr. pp. 78-79. Dickey's "renewed" objection to the initial question is insufficient to preserve for appeal the question of error regarding the further questioning by the State. See Hutcherson v. State, 966 N.E.2d 766, 770 (Ind.Ct.App.2012) (holding that defendant's single objection during State's questioning of witness did not preserve error for appeal), trans. denied.

Of course, this is not to suggest that Dickey's only alternative was to object to each question by the State. To the contrary, a proper request for a continuing objection, if granted by the trial court, is sufficient to preserve error. See id.; see also Hayworth v. State, 904 N.E.2d 684, 691-92 (Ind.Ct.App.2009) (noting that continuing objections can preserve error on appeal and serve the useful purpose of avoiding the futility and waste of time inherent in requiring repetition of the same unsuccessful objection each time the evidence in question is offered). Here, however, Dickey did not seek a continuing objection.

We therefore conclude that Dickey failed to preserve for appeal the sole issue he now presents to this court. Accordingly, we affirm the judgment of the trial court.

Affirmed.

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

      . The State later amended the charging information to alter the dates of the incidents alleged but did not otherwise alter the substance of the charges.

      , We note that our Supreme Court has amended Indiana Evidence Rule 103(b), effective January 1, 2014, to provide: "Once the court rules definitively on the record at trial a party need not renew an objection or offer of proof to preserve a claim of error for appeal." See Order Amending Rules of Evidence, No. 94800-1301-MS-30 (Ind. Sept. 13, 2013), available at http://www.in.gov/judiciary/files/ order-rules-2013-0913-evidence.pdf As this rule amendment was not in effect at the time of Dickey's trial, it is inapplicable to the present case.

      . We also note that Dickey makes no argument under the fundamental error exception to the contemporaneous objection requirement. See Brown v. State, 929 N.E.2d 204, 207 (Ind.2010) (observing that a claim that has been waived by the failure to contemporaneously object can be reviewed for fundamental error, an "extremely narrow" exception to the contemporaneous objection requirement available only in "egregious circumstances").