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Gordon v. Gordon7/28/2000
other incidents of Benny's behavior toward her. The trial court exercised its authority in determining the credibility of the evidence and found that Janet was telling the truth about Benny's actions toward her.
If at least one of the allegations of abuse, harassment, or disturbing the peace made in the petition for a protective order is proved at the hearing by a preponderance of the evidence, then the trial court shall issue the order. Ind. Code § 34-26-2-12. Having found that Janet was telling the truth about Benny's actions and that the actions were sufficient to constitute abuse, harassment, or disturbing of the peace, the trial court was obligated to follow the statute and issue the protective order. The trial court was well within its discretion in determining that Benny's actions were not "ordinary horseplay."
Benny contends that the protective order is "extremely overbroad, incomprehensible, and vague." He argues that the order denies him notice of what behavior is prohibited.
In determining whether a protective order is too vague, it is helpful to look at cases that evaluate the specificity required in a statute or in a contempt order. We have previously held that a statute is not unconstitutionally vague if "individuals of ordinary intelligence comprehend it to adequately inform them of the conduct proscribed." See Vaillancourt v. State, 695 N.E.2d 606, 610 (Ind. Ct. App. 1998), trans. denied. A statute "need only inform the individual of the generally proscribed conduct . . . need not list, with itemized exactitude, each item of conduct prohibited." Id. Similarly, a contempt order "must be clear and certain so that there can be no questions as to what the person must do or not do, and no question regarding when the order is violated." Consolidated Rail Corp. v. Estate of Martin, 720 N.E.2d 1261, 1265 (Ind. Ct. App. 1999); Meyer v. Wolvos, 707 N.E.2d 1029, 1031 (Ind. Ct. App. 1999), trans. denied.
Here, the protective order begins by tracking the language of Ind. Code § 34-26-2-12(1)(A), which obligates the trial court to order the respondent to "refrain from abusing, harassing, or disturbing the peace of the petitioner, by either direct or indirect contact." The protective order then goes on to address the specific circumstances of this case, i.e. Benny's propensity to commit prohibited acts only when he and Janet are at work. In so doing, the order limits the extent of its application to "their mutual place of employment." It then specifically orders Benny not to speak or make bodily contact with Janet at the workplace or to make any remarks in her presence that are "not compelled by the employment situation in which they mutually engage."
Benny's vagueness challenge refers to the mandatory statutory language included in the protective order, not the more specific language drafted by the trial court. In essence, Benny is challenging the validity of the statute because invalidation of the statutory language in the protective order is also invalidation of the statute. However, Benny makes no attempt to show that the statute requiring the language is unconstitutionally vague. We will not invalidate the statute on our own motion.
Benny's primary concern is that the general statutory language found in the protective order will subject him to sanctions for any activity that Janet might perceive as threatening. Therefore, he is concerned that his actions will be governed by subjectivism. We do not believe that this language places Benny in such peril. The language of the protective order includes terms that are to be interpreted by an objective standard. The protective order requires Benny to refrain from those activities that a pers
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