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S. M. v. T. M.

Court of Appeals of Louisiana, Fifth Circuit

December 26, 2019

S. M.
v.
T. M.

          ON 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 PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, S. M. S. M.

          COUNSEL FOR DEFENDANT/APPELLANT, T. M. Mark A. Marino

          Panel composed of Judges Jude G. Gravois, Hans J. Liljeberg, and John J. Molaison, Jr.

          HANS J. LILJEBERG JUDGE.

         Appellant, 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.[1]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.

         FACTS AND PROCEDURAL BACKGROUND

         On 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 T.M.'s abuse.

         On 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.

         On 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.

         T.M. 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.

         DISCUSSION

         First Assignment of Error

         On 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.

         The 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).

         Louisiana 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, 1282.

         To 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.

         Due Process Argument

         Prior 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."

         Contrary 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, ...

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