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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Dec 21 2011, 9:23 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: JEROME L. WITHERED Withered Burns, LLP Lafayette, Indiana

ATTORNEY FOR APPELLEE: DANIEL J. MOORE Laszynski & Moore Lafayette, Indiana

IN THE COURT OF APPEALS OF INDIANA
THOMAS AUFIERO, Appellant-Repondent, vs. DANIEL RICKS, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

No. 79A04-1107-PO-350

APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Les A. Meade, Judge Cause No. 79D05-1101-PO-2

December 21, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge

Thomas Aufiero ("Aufiero") appeals from the trial court's denial of a motion to correct error regarding the protective order against him. Aufiero presents the following restated issues for our review: I. Whether there is sufficient evidence to support the issuance of the protective order; and Whether the scope of the protective order is overly broad.

II.

We affirm in part, reverse in part, and remand with instructions. FACTS AND PROCEDURAL HISTORY In January 2011, at the time Daniel Ricks ("Ricks") filed the petition for protective order, he was married to Jennifer Ricks ("Jennifer") and they had three minor children, M.R., who was nine years old, E.R., who was seven years old, and T.R. who was five years old. Ricks and Jennifer were in the process of dissolving their marriage and resolving custody issues. Ricks and Jennifer, however, both resided in the marital residence with their three children until other arrangements could be made. Aufiero and Jennifer had been, and continued to be, involved in an extra-marital relationship. Ricks was aware of the affair between the two. Aufiero is a heart surgeon and Ricks is a profusionist, which means that during open-heart surgeries he runs a heart-lung bypass machine. Both Aufiero and Ricks had performed work at Lafayette's two hospitals, IU Clarian Arnett Hospital and St. Elizabeth's Hospitals for several years prior to the time Ricks sought the protective order. However, at the time of the hearing on Ricks' petition for a protective order, Aufiero was not employed.

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On December 3, 2010, Ricks tried to locate Aufiero's home in an attempt to find Jennifer. During the ensuing, heated conversation among the three inside Aufiero's house, Aufiero pointed a gun at Ricks, and Ricks immediately left Aufiero's house. Approximately one week later, on December 10, 2010, Aufiero placed a call using the land line telephone number for Ricks' house. Ricks answered the telephone, instructed Aufiero not to call the land line telephone number, and told Aufiero that the children were home. Ricks refused to pass the telephone to Jennifer as Aufiero had requested. Aufiero then began to call Ricks names and challenged him to fight. Aufiero told Ricks that he was on his way to Ricks' house and, several times during the conversation, threatened to injure or kill Ricks. Ricks, who was fearful that Aufiero would follow through with his threats, woke up the children and transported them to his mother's home. Ricks then notified law enforcement. On January 1, 2011, just after midnight, Aufiero again called Ricks' home using the land line telephone number. Ricks answered the telephone and restated his request that Aufiero refrain from calling the home telephone number. Ricks refused to pass the telephone to Jennifer as Aufiero had requested. Aufiero then demanded that Ricks pass the telephone to Jennifer or he would kill him. Ricks notified law enforcement of the threat. Also in December 2010 and January 2011, Ricks observed a vehicle he believed belonged to Aufiero drive by his house on several occasions. Ricks lives on a very rural road that normally had very little traffic traveling on it. His closest neighbor lived approximately one-half mile away. Ricks recognized Aufiero's vehicle, which was a black Chevrolet Tahoe or Suburban. They had parked their vehicles next to each other at work for nearly two years,

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so Ricks was familiar with Aufiero's vehicle. At one point, a vehicle matching that description slowed near the driveway of Ricks' house. Although Ricks could not identify the driver of the vehicle given the distance from the street to Ricks' house, no one living in the area of Ricks' home drove a vehicle similar to that one. Ricks made these observations at approximately the same time as the other incidents. On January 5, 2011, Ricks filed a petition for a protective order and a request for a hearing. In that petition Ricks sought protection for himself and his three minor children from Aufiero. On February 7, 2011, the trial court held an ex parte hearing on the petition at the conclusion of which the trial court entered a protective order enjoining Aufiero from threatening to commit or committing acts of domestic or family violence, stalking, or a sex offense against Ricks and his children, prohibiting him from harassing, annoying, telephoning, contacting or directly or indirectly communicating with Ricks or his children, ordering him to stay away from Ricks' residence, the children's schools, and places where Ricks worked including IU Clarian Arnett Hospital and the St. Elizabeth Hospitals in Lafayette, Indiana. On January 25, 2011, Aufiero filed a verified request for a hearing to contest the protective order, and a hearing was held on February 25, 2011 at the conclusion of which the trial court took the matter under advisement. On April 8, 2011, the trial court entered an order reaffirming the entry and terms of the protective order, but amended it to provide that contact by Aufiero by cell phone was not prohibited.

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On May 6, 2011, Aufiero filed a motion to correct error, and the trial court held a hearing on the motion. On July 8, 2011, the trial court entered an order denying the motion to correct error. Aufiero now appeals. DISCUSSION AND DECISION I. Sufficiency of the Evidence Aufiero challenges the sufficiency of the evidence to support the issuance of the protective order. When reviewing the sufficiency of the evidence in this context, we do not reweigh the evidence or reassess witness credibility. Tons v. Bley, 815 N.E.2d 508, 511 (Ind. Ct. App. 2004). We consider only the evidence of probative value and the reasonable inferences that support the trial court's judgment. Id. We have previously stated as follows about Indiana's Civil Protection Order Act: Indiana's legislature has directed the courts to "construe" the Civil Protection Order Act ("the Act") so as "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

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