Carla Rose Thomas VS Clinton Hyatt, III
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 1891 CARLA ROSE THOMAS VERSUS CLINTON HYATT III Judgment Rendered A 6 Z On Appeal from The Family Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No 185 355 The Honorable Ronald D Cox Ad Hoc Judge Presiding Wendy L Edwards Baton Rouge Louisiana Attorney for Plaintiff Appellee Bernard Attorney for Defendant Appellant Baton Clinton Hyatt III Hampton Rouge Louisiana BEFORE C 1 l Carly Rose Thomas PARRO WELCH AND DRAKE JJ L4U DRAKE J This is an appeal by defendant Clinton Hyatt III from a protective order granted by the trial court pursuant to Louisiana Revised Statute 46 2151 Protection from Dating Violence Act in favor ofplaintiff Cariy Rose Thomas For the following reasons we affirm FACTS AND PROCEDURAL HISTORY Plaintiff and defendant dated for approximately three years until plaintiff terminated the relationship in December of 2010 According to plaintiff when she began dating another person in April 2011 defendant freaked out Defendant then called plaintiff threatened to commit suicide Accarding to plaintiff she could hear the sound of a shotgun being cocked in the background as the defendant made his threat Following this incident defendant mother had s defendant committed to Brentwood Hospital in Shreveport Louisiana for seventy two hours Defendant was diagnosed with depression alcohol abuse and mild psychosocial stressars throu It was recommended that he enter follow treatment up Alcoholics Anon Y mous or Narcotics Anon Y mous Defendant admitted at the June 27 2012 hearing that he had only attended a of ineetings couple following his release from Brentwood HospitaL The plaintiff testified that on one occasion in April 2011 she found defendant outside her house behind the fence sitting in a lawn chair and watching her house Plaintiff further testified that the defendant had previously bruised her on a few occasions when she would try to walk away from him and he would grab her arms Plaintiff admitted that defendant had never directly threatened her life The caption lists the plaintiff as Carla Rose Thomas however the plaintiffls actual name is Carly Rose Thomas Z Based upon the information in the record plaintiff would have been seventeen years of age when the relationship with defendant ended 2 but knowing that he had a shotgun and finding him behind her house she believed he could possibly hurt her Months later defendant again harassed plaintiff by letting the air out of all four of her tires Although defendant denied doing so the evidence in the record indicates that he told a friend that he was going to let the air out of the plaintiffls tires Defendant was charged with criminal mischief due to the incident and the fine was paid The evidence in the record also contains numerous text messages from defendant to plaintiff on plaintiff birthday February 25 2012 beginning at 1 s 00 m a The text messages contain vulgar language call the plaintiff many derogatory names and state that defendant is waiting for the day somebody tries laying a finger on me On April 26 2012 the defendant again texted plaintiff calling her offensive names On May 26 2012 defendant sent plaintiff derogatory text messages after realizing plaintiff was at the Bayou Country Superfest the same function defendant was attending At the hearing on the protective order defendant testified that he was emotionally upset and decided to send plaintiff some nasty things PlaintifPs brother contacted defendant and demanded law in he cease texting plaintiff Defendant responded with a picture ofJesus flipping off the viewer During most of these texts plaintiff begged the defendant to leave her alone Plaintiff also tesrified at trial that she wanted to be left alone and that she was scared of the defendant Defendant admitted that when he became emotionally upset on at least two occasions he texted vulgarities to plaintiff which was triggered by hearing about her and seeing a picture of her on Facebook He also testified that he never Defendant denied personally paying the 50 fine however he suggested that a member of his family may have paid it 3 physically hurt plaintiff and explained that the bruises on her arm resulted from an argument where plaintiff was physical with him After hearing all the testimony and viewing the evidence the family court granted the Protective Order which ordered among other things that 1 defendant not threaten or harass plaintiff 2 defendant not contact plaintiff by any means 3 defendant stay 100 yards away from plaintiff her residence and her work or school 4 defendant not damage the property of plaintiff and 5 defendant pay attorney fees of 750 to the Battered Women Program and court s costs It is from this Protective Order that defendant appeals ASSIGNMENTS OF ERROR Defendant assigns as errors that the family court erred in granting the Protective Order because there was a lack of evidence of abuse and because there was no familial or recent dating relationship between the parties at the time the protective order was sought STANDARD OF REVIEW The trial court has vast discretion with regard to the issuance of protective orders under the Domestic Abuse Assistance statutes and the trial court decision s will not be reversed on appeal unless an abuse of that discretion is clearly shown See Rouyea v Rouyea 2000 La App 1 Cir 3 808 So 2d 558 561 2613 O1 28 see also Mitchell v Marshall 2002 La App 3 Cir 5 819 So 2d 359 0015 02 1 361 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 absent manifest enor Ruiz v Ruiz 2005 La App 5 175 Cir 7910 So 2d 443 445 OS 6 4 LAW AND ANALYSIS Pursuant to the Domestic Abuse Assistance statutes La R 46 et S 2131 seq upon good cause shown in an ex parte proceeding the court may issue a temporary restraining arder to protect a person who shows immediate and present danger of abuse See La R 46 Rouyea 808 So 2d at 560 S 2135 A If a temporary restraining order is granted without notice the matter shall be set for a hearing within twenty days at which time cause must be shown why a one protective order should not be issued At the hearing on the rule for the protective order the petitioner must prove the allegations of abuse by a preponderance of the evidence La R 46 Additionally the trial court sitting as a trier of S 2135 B fact is in the best position to evaluate the demeanor of the witnesses and its credibility determinations will not be disturbed on appeal absent manifest error Ruiz v Ruiz 2005 La App 5 Cir 7910 So 2d 443 445 175 OS 26 Evidence of Abuse Defendant claims that at the hearing in family court there was a lack of evidence of abuse Specifically he claims that there was no evidence of physical abuse of plaintiff Defendant relies upon Culp v Culp 42 La App 2 Cir 239 07 20 6 960 So 2d 1279 writ not considered 2007 La 10 964 So 1836 07 5 2d 378 and Rouyea Louisiana Revised Statutes 46 provides the purposes of the Domestic 2131 Abuse Assistance statutes as follows The ptu of this Part is to recognize and address the complex legal and social problems created by domestic violence The legislature finds that existing laws which regulate the dissolution of marriage do not adequately address problems of protecting and assisting the victims of domestic abuse The legislature further finds that previous societal attitudes have been reflected in the policies and practices of law enfarcement agencies and prosecutors which have resulted in different treatment of crimes occurring between family or household members and those occurring between strangers It is the 5 intent of the legislature to provide a civil remedy for domestic violence which will afford the victim immediate and easily accessible protecrion Furthermore it is the intent of the legislature that the official response of law enforcement agencies to cases of domestic violence shall stress the enforcement of laws to protect the victim and shall communicate the attitude that violent behavior is not excused or tolerated Domestic abuse is defined as including but not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana except negligent injury and defamation committed by one family or household member against another La R S 3 2132 46 However family arguments that do not rise to the threshold ofphysical or sexual abuse or violations of the Criminal Code are not in the ambit of the Domestic Abuse Assistance statutes Rouyea 808 So 2d at 561 The legislature has also recognized that not all violence occurs between family members victim of a The Protection From Dating Violence Act provides that A dating partner other forms of assistance shall be eligible to receive all services benefits and provided by La S R 2121 46 et seq La R S A 2151 dating 46 A partner is defined as any person who is or has been in a social relarionship of a romantic or intimate nature with the victim and where the existence of such a relationship shall be determined by the court taking into consideration the length of the relationship the type of relationship and the frequency of interaction between the persons involved La R 46 S 2151 B Similar to La R 463132 the legislature defined daring violence as S 3 including but not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana except negligent injury and defamation committed by one dating partner against C 2151 46 6 the other La S R The cases cited by defendant are distinguishable from the present matter Culp involved a custody dispute over a child and conflicting testimony over whether the father had swung a belt in the direction of the mother and child to get the child to go with him on his visitation The court stated f amily 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 Law Culp 960 So 2d at 1282 The second circuit disagreed that the language of the statute includes but is not limited to included general harassment The court noted that temporary restraining orders and protective orders should not be issued for every unpleasant child custody exchange contentious relationship between former spouses or parent bickering Id at 1283 In Rouyea Mrs Rouyea who was separated from her husband entered the home where he was sleeping was very aggressive toward Mr Rouyea threw a picture frame at him and attempted to grab his wallet Mr Rouyea grabbed Mrs s Rouyea arm and forced her down to the floor The court found that Mr s Rouyea only physical action was defensive and reversed the protective order which had been granted by the trial court Royeau 808 So 2d at 560 62 Defendant argues that although the text messages he sent were vulgar and offensive he never threatened to physically harm the plaintiff Therefore he claims that the family court abused its discretion in granting the protective order We note that dating violence includes but is not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana except negligent injury and defamation committed by one dating partner against the other La R 46 emphasis added The Criminal S 2151 C Code contains many offenses against the person one of which is assault Assault is an attempt to commit a battery or the intentional placing of another in 7 reasonable apprehension of receiving a battery La R 14 The evidence at S 36 trial included testimony that defendant called plaintiff on one occasion threatened suicide and audibly cocked a shotgun Plaintiff testified that she felt threatened because if he running around LSU with a shotgun and sitting behind my house s watching me that tells me that he possibly could hurt me too I don know t what he capable of doing The evidence supports a finding that the actions of s defendant intentionally placed plaintiff in reasonable apprehension of receiving a battery Additionally the Criminal Code contains the offense of stalking which is defined in La R 14 as S 40 A 2 Stalking is the intentional and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress Stalking shall include but not be limited to the intentional and repeated uninvited presence of the perpetrator at another person shome workplace school or any place which would cause a reasonable person to be alarmed or to suffer emotional distress as a result of verbal or behaviorally implied threats of death bodily injury sexual assault kidnap or any other ing p statutory criminal act to himself or any member of his family or any person with whom he is acquainted The totality of the evidence at trial demonstrated that defendant actions s also fell within the stalking statute Defendant was found watching plaintiff s house on one occasion from behind the fence He also appeared where plaintiff was one evening and let the air out of her tires Although defendant did not directly threaten plaintiff life his actions were behaviorally implied threats of s bodily injury We find defendant actions and text messaging fall within the s definition of stalking e repeated i harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress La R S 14 Since defendant actions also fell within the stalking statute he A 2 40 s 8 arguably did commit an offense against a person within the meaning of La R S C 2151 46 Finally defendant also sent plaintiff numerous vulgar and offensive text messages Another offense against a person is cyberstalking which is defined in Louisiana Revised Statutes 14 as B 403 Cyberstalking is action of any person to accomplish any of the following 2 Electronically mail or electronically communicate to another repeatedly whether or not conversation ensues for the purpose of threatening terrifying or harassing any person In the present case the evidence supports a finding that the text messages sent to plaintiff were for no other reason than to harass her Repeatedly plaintiff asked defendant to leave her alone However on several occasions he sent her harassing text messages Plaintiff and defendant had dated for approximately three years Plaintiff was approximately fourteen to seventeen years of age at the time she was in a relationship with defendant Between fourteen months and seventeen months after the relationship terminated defendant texted plaintiff vulgar messages on three separate occasions Plaintiff then filed a petition for protection from abuse to prohibit defendant from taking numerous actions including harassing and stalking her The same arguments made by defendant were made in Harper v Harper 537 So 2d 282 La App 4 Cir 1988 The fourth circuit held that t Domestic he Abuse Assistance Statute incorporates as a standard any offense against the person as defined by the criminal code Thus assaultive behavior is domestic abuse Id at 285 The court also noted that fJamily arguments that do not rise to the threshold of physical or sexual abuse ar violation or the criminal code are not in 9 the ambit of the Domestic Abuse Assistance Statute E case must be ach reviewed individually Id We agree with Harper and hold that the Protection From Dating Violence Act read in conjunction with the Domestic Abuse Assistance Satute is broad enough to include the assaultive behavior of defendant and includes defendant s stalking and cyberstalking behavior Datin Relationship s Defendant second assignment of enor is that the family court abused its discretion in granting a Protective Order when there was no familial or recent dating relationship or cohabitation arrangement between the parties Defendant s argument is that since family arguments which do not rise to the level of physical or sexual abuse or violations of the Criminal Code as it relates to offenses against a person are not sufficient violations of the Domestic Abuse Assistance statute then girlfriend boyfriend arguments also do not suffice Notwithstanding the fact ex that this court has already ruled that defendant actions did rise to violations of s the Criminal Code as it relates to offenses against a person Louisiana Revised Statute 46 specifically applies to a partner and affords a 2151 dating dating partner the same protections as provided to a family member pursuant to Louisiana Revised Statutes 46 et seq Louisiana Revised Statutes 46 2131 2151 specifically defines dating partner as any person who is or has been in a social relationship of a romantic or intimate nature with the victim Emphasis added It is undisputed that the plaintiff and defendant had been in a romantic relationship Defendant points to no cases that hold that the parties must have a present romantic relationship and the Protection from Dating Violence Act clearly provides otherwise The Protection from Dating Violence Act was intended to protect dating partners from just the type of activity in which defendant engaged 10 continually harassing a previous dating partner even though the relationship was terminated There is nothing in the statute that limits the time frame for a Protective Order to issue To hold otherwise would render those who have terminated a relationship defenseless We also note that the plaintiff and defendant were never married Unlike the parties in Culp and Rouyea where the parties were either married or divorced and had reason to contact each other the defendant and plaintiff in this matter were never married Defendant admitted to contacting plaintiff when he became emotionally upset for the purpose of sending her nasty things Therefore defendant readily admits to harassing plaintiff which is distinguishable from the family arguments m Culp and Rouyea After a thorough review of the recard and the credibility determinations facing the family court we find no abuse of the family court discretion in s concluding that plaintiff established by a preponderance of the evidence that defendant committed acts of dating violence warranting the issuance of a protective order against him Accordingly we hereby affirm the judgment granting a protective order in favor of plaintiff CONCLUSION For the foregoing reasons the judgment of the trial court is affirmed Costs of the appeal are assessed to defendant Clinton Hyatt III appellant AFFIRMED 11
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