Dave Stafford for www.theindianalawyer.com

An ex-husband’s actions that prompted a woman to get a protective order against him did not constitute stalking or threatening behavior sufficient to warrant the court order, the majority of an Indiana Court of Appeals panel ruled Friday. A dissenting judge warned the holding “insulates perpetrators of domestic violence” who threaten friends or associates of former partners.

The court reversed a Johnson Circuit Court protective order that limited Joshua Cruse’s communication with his ex-wife to only that regarding their three children.

A key incident preceding the issuance of the order was Cruse’s confrontation with his ex-wife’s companion after his son’s baseball game, during which Cruse held a bat and “got up in this gentleman’s face and told him that he better not come around our kids again and he felt threatened enough that he left,” according to his ex.

Judge Edward Najam dissented from the majority that found no basis for stalking or other behavior sufficient to support a protective order.

“C.C. proved that Cruse deliberately initiated three aggressive encounters with her, and Cruse’s conduct is symptomatic of controlling behavior, which is a form of domestic violence,” Najam wrote in his dissent. “I would hold that the trial court did not commit reversible error when it concluded that C.C. carried her burden of proof by a preponderance of the evidence and issued an Order of Protection.”

But Judge John Baker, in a majority opinion joined by Chief Judge Nancy Vaidik, wrote, “As the only evidence in the record regarding the bat establishes that Cruse was holding it in a non-threatening manner, and C.C. did not even mention the bat, we strongly disagree with the dissent that this suffices to establish that Cruse attempted or threatened to cause physical harm to anyone. We certainly do not believe that this holding in any way ‘insulates perpetrators of domestic violence.”

The majority wrote that there was insufficient evidence to support a finding that Cruse stalked his ex. “Although she did comment that at one point she felt intimidated, most of her concerns were based upon the way other people were reacting to Cruse,” Baker wrote. “She was not frightened, she merely ‘preferred’ that Cruse not be around when she was with the children. We also find insufficient evidence that Cruse’s course of conduct would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened.”

The case is Joshua Perry Cruse v. C.C., 41A01-1512-PO-2345.