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Larremore v. Larremore

Court of Appeals of Louisiana, Second Circuit

September 25, 2019

ELIZABETH S. LARREMORE Plaintiff-Appellee
v.
KELLY D. LARREMORE Defendant-Appellant

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 610823. Honorable Roy L. Brun, Judge.

          ALAN PESNELL, LLC By: W. Alan Pesnell Counsel for Appellant

          KAMMER & HUCKABAY, LTD. By: Charles H. Kammer, III ROBERT I. THOMPSON, III RONALD J. MICIOTTO Counsel for Appellee

          Before GARRETT, STONE, and COX, JJ.

          GARRETT, J.

         Kelly D. Larremore appeals from a protective order issued against him and in favor of his former wife, Elizabeth S. Larremore, and their three minor children. We affirm the trial court judgment.

         FACTS

         The Larremores separated in January 2015 and divorced in May 2016. Elizabeth has sole custody of the children. According to an interim order by consent, which was signed August 20, 2015, Kelly was required to undergo drug and alcohol testing weekly and/or immediately prior to any visitation with the children.[1]

         On August 17, 2018, Elizabeth filed against Kelly a verified "petition for protection from stalking or sexual assault, " in which she marked as applicable 13 of the 17 specified behaviors under the "Stalking" section.[2]These included the following: harassment; uninvited presence at protected person's home, workplace, and school; messages by telephone, texts, email or other electronic means and posting on social media; stalking; threats of bodily injury or to the protected person's life; and threats with a dangerous weapon. Elizabeth filed the petition on behalf of herself and the children.

         Elizabeth attached a three-page personal statement in which she recounted a recent escalation of disturbing behavior by Kelly. These incidents included him coming to her house late at night; harassing her by emails and texts to the point of Kelly being arrested for cyberstalking; and using social media to attack her, her relatives, her employees, and her friends. She stated that she and the children left town for several weeks during the summer "so he could not stalk me or harass me in person." Elizabeth asserted that she feared for her life and the well-being of her children. She further described the "social and emotional repercussions" being suffered by the children due to their father's "increasingly erratic behavior" and his "constant fixation" with her. She stated that the children, who have been in counseling for four years, fear for her life as the result of an incident during the marriage in which Kelly held a loaded gun to her head in their presence and threatened to "blow [her] brains out." Elizabeth asserted that Kelly's recent actions had "reopened that trauma" for the children. She also contended that Kelly had been following their oldest child while the child was driving and emailing her about the child's driving habits.

         Other concerns cited in Elizabeth's statement were Kelly's recent social media posts, in which he accused her of being "a danger to the children, a criminal, a drug addict" and having mental problems. She noted the public nature of these posts and the issues they have caused for the children. One consequence has been that the children's friends are no longer allowed by their parents to stay at Elizabeth's house because the parents fear Kelly "might do something that would endanger their children." Elizabeth asserted that Kelly consistently refuses to comply with court orders because "he believes he is above the law." Elizabeth also attached more than 80 pages of photos, texts and social media posts by Kelly which contained attacks against her, her business, and members of her family.

         Elizabeth requested that an ex parte temporary restraining order be immediately issued prohibiting Kelly from (1) abusing, harassing, assaulting, stalking, following, tracking, monitoring, or threatening her and the children; (2) contacting her and the children personally, through third parties or via public posting, by any means, including verbal, written, telephone or electronic communication; (3) going within 100 yards of their residence; and (4) contacting their family members or individuals with whom they are acquainted. She also requested that he be ordered to stay away from her place of employment and the children's schools. Finally, she sought a rule to show cause why the orders requested should not be made into protective orders and why Kelly should not be cast for costs.

         On August 20, 2018, the trial court signed the ex parte temporary order of protection, which designated Elizabeth and the children as "protected persons." The court found that the allegations presented constituted an immediate and present danger (1) to the physical safety of the protected persons and (2) of stalking. The matter was set for a hearing on August 29, 2018, the date the order was scheduled to expire.

         On August 28, 2018, Kelly's attorney filed a motion to continue the hearing on the grounds that he had inadequate time to prepare. On August 29, 2018, Kelly filed an opposition to the petition, in which he denied stalking of any kind and argued that Elizabeth's petition sought to interfere with his first amendment rights of free speech and association. He also filed a peremptory exception of no right of action and no cause of action. There are notations on the proposed orders attached to these pleadings that they were deemed moot by the trial court; the ones for the exception and the opposition stated that they were handled at the August 29, 2018 hearing.

         The appellate record does not contain a transcript of the August 29, 2018 hearing; apparently, a recording of the hearing could not be located and transcribed. However, on September 28, 2018, Elizabeth filed a "motion to codify an interim order of protection until a final judgment can be put in place." In this motion, she asserted that, at the hearing, counsel for both parties stipulated into the record an order of protection in her favor and against Kelly and that the trial court verbally informed Kelly that the order was immediately in effect and binding upon him. She alleged that the parties were unable to agree on form and content. At Elizabeth's request, the trial court signed an interim order of protection, retroactive to August 29, 2018, which incorporated an attached order of protection, and directed the parties to submit a final order within seven days of the order. The attached order of protection was issued pursuant to La. R.S. 46:2131 et seq., and was effective until August 29, 2020. It named Elizabeth as the protected person and contained the same prohibitions as the initial order of protection.

         On November 15, 2018, Kelly filed a motion requesting that the trial court fix a hearing on the merits of the protective order. He asserted that the "attempted agreement" could not be reduced to writing because there was no record or tape of the proceedings. He stated that the matter needed "to be re-set as soon as possible." On November 16, 2018, Elizabeth filed a motion to reset the protective order hearing and for attorney fees.[3] Both matters were set for hearing on December 5, 2018.

         On November 26, 2018, Kelly filed a "motion to terminate interim order and replace with temporary restraining order." He claimed that, due to the lack of a hearing transcription, there was no compromise, and the interim order of protection was "imperfect." There is a notation, "file into record unsigned, " on the attached order to show cause.

         On December 5, 2018, Kelly failed to appear at the hearing which he had requested. His absence was not explained. His attorney reurged his exception as to the initial protective order, which Elizabeth sought on her own, being premised on the stranger and acquaintance stalking statute, La. R.S. 46:2171 et seq. However, the parties agreed to proceed under the Domestic Abuse Assistance Act, La. R.S. 46:2131 et seq.[4]

         Elizabeth testified about her relationship with Kelly. She described the history of Kelly's substance abuse and the domestic violence she suffered during the marriage, which served as a backdrop for Kelly's current actions.[5] Of particular interest was her testimony about an incident shortly before their January 2015 separation in which Kelly placed a gun to Elizabeth's head and threatened to kill her in the presence of their three young children. She further testified that Kelly continued to act violently and erratically after the separation and the divorce. Elizabeth described an incident in 2016 when Kelly inflicted $3, 000 worth of damage to her car in a restaurant parking lot and then came inside and announced to her in front of other diners, "By the way, Bitch, I just fucked up your new car." She testified that Kelly has come to her house repeatedly and threatened her in front of their children.

         According to Elizabeth, Kelly's behavior began to escalate recently. She stated that he began emailing her incessantly and making "horrible" posts about her and her family. He moved into a house which was about half a mile from her residence. Beginning in April 2018, Kelly would drive by her house every night, beat on the front door, and demand to see the children. As a result, she installed a security system with cameras. She recounted one particular incident, which occurred on July 15, 2018, when he came to the house, made a "gun shooting" motion, kicked the door, and threatened to kill her. This incident, which was recorded by the security system, precipitated her filing for the protective order.

         Testimony was also provided by two Shreveport police officers, who described responding to calls involving Elizabeth and/or Kelly on July 15 and 16, 2018. These events culminated in Kelly's involuntary commitment at the LSU Medical Center on July 16, 2018, approximately one month before Elizabeth filed for the protective order.

         Sergeant Anthony Sutis testified that on July 15, 2018, he responded to a call at Elizabeth's house. He said she was distraught because Kelly had been to her house in violation of a divorce-related injunction. She told him she had video of Kelly from her security system, but he testified that he did not believe he viewed the video that night. Elizabeth also said Kelly had been driving past her house.[6] Sergeant Sutis testified that, as he pulled up to Elizabeth's house, he saw a truck driven by a male go by but was unable to get its license plate number. However, according to his testimony, it "closely matched" a truck he saw at Kelly's residence when he responded to a welfare check there later that same night. He testified that the welfare check was initiated by Kelly's current wife, Jennifer, who was concerned about Kelly's behavior when he left the residence. Sergeant Sutis testified that he spoke to Jennifer when she answered the door. Kelly, who had returned home and appeared to have been sleeping, came to the door and told Sergeant Sutis that he was distraught because he had not seen his kids in a couple of years. Although Kelly appeared to be upset, he denied intending to harm himself or anyone else. Sergeant Sutis testified that, based on the information they had from the contacts at both residences, it was deemed the best course of action was to write up a report and forward it to investigators for further action.

         Corporal Charles Person testified he responded to a call at Kelly's residence on July 16, 2018, which involved Kelly burning a purse belonging to Jennifer in the kitchen. Kelly told Corporal Person that he burned the purse because it was his and he wanted to. Corporal Person observed ice had been thrown on the burners in the kitchen and that Kelly was in his underwear. However, the purse could not be located.

         Sergeant Sutis also testified about this incident. He said he was the last officer to arrive on scene; three other officers were there. As he was arriving, Jennifer was leaving in her vehicle. He recognized her and stopped her. According to Sergeant Sutis, she was upset but said her main concern was her dog. She returned to the house, where Kelly was being detained in his bedroom. After contacting his officers, Sergeant Sutis talked to Jennifer, who again said her dog was her main concern. She also told him that she did not want to leave the residence; instead, she wanted Kelly to leave. After Sergeant Sutis talked to Kelly, it was determined that he should be taken to LSU Medical Center for an emergency commitment.

         At the conclusion of the evidence, the trial court specifically found the witnesses "testified credibly and truthfully in all matters" and that the evidence was sufficient to require issuance of the requested protective order. It assessed costs against Kelly. It additionally awarded attorney fees against Kelly and stated that, if the attorneys could not work out the amount, another hearing would be held.

         The trial court then executed and signed the protective order which named Elizabeth and the children as protected persons. It prohibited Kelly from (1) abusing, harassing, assaulting, stalking, following, tracking, monitoring, or threatening them, or (2) contacting them "personally, through a third party, or via public posting, by any means, including written, telephone, or electronic (text, email, messaging, or social media) communication." Kelly was ordered to stay 300 yards from them and their residence. He was also ordered to stay away from Elizabeth's businesses and the children's schools. Kelly was ordered to pay all court costs and the attorney fees, which were to be set. This order was transmitted to the Louisiana Protective Order Registry.

         PROTECTIVE ...


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