APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF
ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 73, 266,
DIVISION "C" HONORABLE J. STERLING SNOWDY, JUDGE
COUNSEL FOR PLAINTIFF/APPELLEE, S. M. S. M.
COUNSEL FOR DEFENDANT/APPELLANT, T. M. Mark A. Marino
composed of Judges Jude G. Gravois, Hans J. Liljeberg, and
John J. Molaison, Jr.
J. LILJEBERG JUDGE.
T.M., appeals the grant of a protective order in favor of his
spouse, S.M., and their minor child, M.M., pursuant to La.
R.S. 46:2131, et. seq.For reasons set forth more fully
below, we affirm the trial court's decision to grant the
protective order in favor of the minor child, M.M. However,
we reverse the protective order granted in favor of S.M. and
remand this matter to the trial court to modify the
protective order in accordance with this Court's opinion.
AND PROCEDURAL BACKGROUND
January 11, 2019, S.M. filed a verified Petition for
Protection from Abuse against T.M., pursuant to La. R.S.
46:2131, et. seq., on behalf of herself and the
parties' 16-year-old child, M.M. In the petition, S.M.
alleged that on the previous day, January 10, 2019, T.M.
verbally assaulted her and harassed her at work. The petition
also alleged that T.M. verbally and physically assaulted
their minor child, M.M., and that she was brought to the
hospital where the alleged abuse was "logged by staff,
doctors, and psychiatrists." The petition further
alleged that T.M. regularly sends S.M. threatening texts and
verbally assaults both M.M. and S.M. on a daily basis. S.M.
also claimed the minor child ran away from home due to
January 11, 2019, the trial court issued a temporary
restraining order, effective through January 25, 2019,
prohibiting T.M. from abusing, harassing or contacting the
"protected person(s)." The order also granted S.M.
exclusive use of the residence shared by the parties and set
a January 25, 2019 hearing date for T.M. to show cause why
the temporary restraining order and other relief requested
should not be made a protective order.
January 25, 2019, T.M. and S.M. both appeared in proper
person before the trial court for a hearing on the Petition
for Protection from Abuse. Following an evidentiary hearing,
the trial court entered a protective order in favor of both
S.M. and the minor child, M.M., effective for a period of 18
months until July 25, 2020. The protective order also granted
S.M. exclusive use of the family residence.
filed a motion for new trial, which the trial court summarily
denied on February 15, 2019. On March 21, 2019, T.M. filed a
timely motion and order for appeal, which the trial court
granted the same day.
Assignment of Error
appeal, T.M. contends in his first assignment of error that
the trial court erred in granting the protective order
because S.M. failed to prove the abuse allegations by a
preponderance of the evidence.
Domestic Abuse Assistance Law, La. R.S. 46:2131, et.
seq., provides protection in the form of temporary
restraining orders and protective orders for persons subject
to domestic abuse. Lepine v. Lepine, 17-45 (La.App.
5 Cir. 6/15/17), 223 So.3d 666, 674; Coy v. Coy, 46,
655 (La.App. 2 Cir. 7/13/11), 69 So.3d 1270, 1272. Domestic
abuse "includes but is 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).
courts have determined that the definition of domestic abuse
does not include nonphysical acts, such as general harassment
or family arguments, if those acts do not rise to the level
of physical abuse, or otherwise constitute an offense against
the person as defined in the Louisiana Criminal Code.
Ariatti v. Plaisance, 18-84 (La.App. 5 Cir.
9/13/18), 255 So.3d 1239, 1248; Lee v. Smith, 08-455
(La.App. 5 Cir. 12/16/08), 4 So.3d 100, 106; Culp v.
Culp, 42, 239 (La.App. 2 Cir. 6/20/07), 960 So.2d 1279,
obtain a protective order under the Domestic Abuse Assistance
Law, the petitioner must prove the allegations of domestic
abuse by a preponderance of the evidence. La. R.S.
46:2135(B); Ferrand v. Ferrand, 16-7 (La.App. 5 Cir.
8/31/16), 221 So.3d 909, 943, writ denied, 16-1903
(La. 12/16/16), 211 So.3d 1164. A trial court is afforded
discretion in the issuance of a protective order and the
trial court's order is reversible only upon a showing of
an abuse of discretion. Ruiz v. Ruiz, 05-175
(La.App. 5 Cir. 7/26/05), 910 So.2d 443, 445.
to addressing his argument regarding the alleged
insufficiency of the evidence, T.M first argues in his
appellate brief that a "due process problem" exists
with respect to the hearing held by the trial court. T.M.
claims the trial court indicated at the outset of the
evidentiary hearing that he would like to handle the matter
"informally." T.M. argues that because of this
statement, it is "uncertain if [he] understood the
ramifications of the protective order hearing and what was
being conducted by the trial court."
to T.M.'s characterization of the hearing, the following
colloquy between T.M. and the trial court, prior to the start
of the evidentiary hearing, indicates that T.M. was fully
aware of the purpose of the hearing and the specific relief
S.M. was seeking against him:
COURT: Before we have a seat, because I like to handle this
rather informally, I'd like to ask that both of you be
sworn in first. (Both parties are sworn in at the same time.)
. . . Mr. [T.M.] in a protective order setting usually I ask
a few questions of the respondent first. Have you, sir, ...