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James v. Warren

Court of Appeals of Louisiana, First Circuit

December 21, 2017

STANLEY JAMES
v.
ROSALIND WARREN

         On Appeal from the 17th Judicial District Court In and for the Parish of Lafourche State of Louisiana Trial Court Number 131502 Honorable Steven M. Miller, Judge Presiding.

          Timothy C. Ellender, Jr. Houma, Louisiana Attorney for Plaintiff/ Appellee, Stanley James

          Rosalind Warren Address Confidential Defendant/ Appellant, In Proper Person

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

          PENZATO, J.

         This is an appeal from a judgment dismissing Ms. Warren's petition for protection from abuse. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         At the time of the confrontation that forms the underlying basis for this appeal, plaintiff, Stanley James, had been married to Mary White James, mother of defendant, Rosalind Warren, for approximately fifteen years. Mrs. James was diagnosed with cancer, and Ms. Warren had been living in her mother and stepfather's home for about three months, with Mrs. James's permission, to assist in caring for Mrs. James.

         On December 7, 2016, plaintiff, Stanley James, filed a petition for protection from abuse alleging that Ms. Warren[1] had abused him by pushing him, spitting in his face, and threatening to hurt him. A temporary restraining order was issued prohibiting Ms. Warren from, among other things, abusing, harassing, or contacting Mr. James, and from coming within 100 yards of his residence, and a show cause order was set to determine whether a protective order should be issued. On December 12, 2016, Ms. Warren filed a petition for protection from abuse in reconvention, alleging that Mr. James had threatened her with bodily harm and that he may "snap" and kill both Ms. Warren and Mrs. James. Ms. Warren's petition was set for hearing at the same time as the hearing on Mr. James's petition. At the hearing on January 3, 2017[2], the trial court found that neither party was entitled to a protective order, and rendered judgment dismissing with prejudice Ms. Warren's petition for protection from abuse based upon her failure to prove the allegations contained in her petition.[3]

         Ms. Warren appeals, essentially challenging the trial court's judgment that she failed to prove the allegations contained in her petition by the appropriate standard.

         LAW AND DISCUSSION

         Pursuant to the Domestic Abuse Assistance Statute, La. R.S. 46:2131, et seq., upon good cause shown in an ex parte proceeding, the court may enter a temporary restraining order to protect a person who shows immediate and present danger of abuse. La. R.S. 46:2135(A). If a temporary restraining order is granted without notice, the matter shall be set within twenty-one days for a rule to show cause why a protective order should not be issued, at which time the petitioner must prove the allegations of abuse by a preponderance of the evidence. La. R.S. 46:2135(B). If no temporary restraining order has been granted, the court shall issue a rule to show cause why a protective order should not be issued, and set the rule for hearing within ten days from the date of service of the petition, at which time the petitioner must prove the allegations of abuse by a preponderance of the evidence. La. R.S. 46:2135(D).

         "Domestic abuse" is defined in the Domestic Abuse Assistance Statute as including, but not limited to, "physical or sexual abuse and any offense against the person, physical or non-physical, as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family member, household member, or dating partner against another." La. R.S. 46:2132(3). However, family arguments that do not rise to the threshold of physical or sexual abuse or violations of the criminal code are not in the ambit of the Domestic Abuse Assistance Statute. Rouyea v. Rouyea, 2000-2613 (La.App. 1 Cir. 3/28/01), 808 So.2d 558, 561.

         A trial court's decision to issue or deny a protective order is reversible only upon a showing of an abuse of discretion. Id., Additionally, the trial court sitting as a trier of fact is in the best position to evaluate the demeanor of the witnesses, and its credibility determinations will not be disturbed on appeal ...


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