Cora Porter Parsons VS William H. Parsons, Sr.
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NOT DESIGNATED FOR PUBLICATION I STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 CA 2120 CORA PORTER PARSONS VERSUS WILLIAM H PARSONS SR Judgment Rendered June 11 2010 Appealed from the TwentyFirst Judicial District Court In and for the Parish of Livingston Louisiana Trial Court Number 121 195 Honorable M Douglas Hughes Judge C Michele McDaniel Attorney for Plaintiff Appellee Hammond LA Cora P Parsons A Wayne Stewart Livingston LA Attorney for Defendant Appellant William H Parsons Sr BEFORE WHIPPLE HUGHES AND WELCH JJ r WELCH J This is an appeal by William H Parsons Sr from a judgment granting Cora P Parsons a protective order pursuant to the provisions set forth in La S 2131 R 46 et seq Domestic Abuse Assistance statutes For the following reasons we affirm FACTUAL AND PROCEDURAL HISTORY On September 9 2008 Cora Parsons filed a petition for protection from abuse pursuant to the Domestic Abuse Assistance statutes wherein she alleged that her husband William Parsons had choked and shoved her had threatened her life and had run over her foot with his truck On the same date based on this verified petition and pursuant to Cora Parsons request the trial court issued an ex parte temporary restraining order prohibiting William Parsons from abusing harassing stalking following or contacting Cora Parsons and from going within one hundred yards of her residence Additionally Cora Parsons was granted use and possession of the residence A hearing on the rule to show cause for the protective order was held before a hearing officer on October 17 2008 After hearing the testimony of both Cora and William Parsons along with two other witnesses the hearing officer recommended that a protective order be granted essentially in the same form and substance as the temporary restraining order previously issued Additionally the hearing officer also recommended that Cora Parsons be granted the use of a lawn mower and a generator and that William Parsons be ordered to pay support to Cora Parsons in the amount of 800 per 00 month to maintain Cora Parsons on health insurance until the parties divorce See La R 46 S 2135 I 2 The hearing on the rule to show cause for the protective order was originally scheduled for September 26 2008 but was continued to October 3 2008 and then again continued to October 17 2008 2 is final and to pay Cora Parsons medical bills that were incurred when William Parsons ran over her foot On October 22 2008 William Parsons filed an objection to the hearing officer recommendation on the basis that s the ruling was contrary to the facts and the law On January 9 2009 the trial court issued written reasons for judgment affirming the hearing officer s recommendation A written judgment to this effect was signed on November 5 2009 From this judgment William Parsons has appealed On appeal William Parsons contends that the trial court erred in granting Cora Parsons a protective order LAW AND DISCUSSION Pursuant to the Domestic Abuse Assistance statutes upon good cause shown in an ex parte proceeding the court may issue a temporary restraining order to protect a person who shows immediate and present danger of abuse La R 46 Rouyea v Rouyea 20002613 p 3 La App I Cir S 2135 A 01 28 3 808 So 558 560 If the temporary restraining order is granted 2d without notice the matter shall be set for a hearing within twenty days at which time cause must be shown why a 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 S B 2135 46 Domestic abuse is defined in the Domestic Abuse Assistance statutes 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 46 However family arguments S 2132 3 3 William Parsons filed a motion for new trial which the trial court denied pursuant to a judgment rendered and signed on July 7 2009 However it appears that this motion for new trial was filed and denied before a judgment was even signed by the trial court 3 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 statutes Rouyea v Rouyea 2000 2613 at p 5 808 So at 561 2d The trial court has vast discretion with regard to the issuance of protective orders under the Domestic Abuse Assistance statutes and the trial s court decision will not be reversed on appeal unless an abuse of that discretion is clearly shown Rouyea v Rouyea 20002613 at p 5 808 So 2d at 561 Mitchell v Marshall 2002 0015 p 3 La App P Cir 5 819 02 1 2d So 359 361 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 error Ruiz v Ruiz 2005 175 p 4 La App 5 Cir 7So 443 445 910 05 62d In Cora Parsons petition for protection from abuse she alleged that William Parsons had choked and shoved her had threatened her life and had run over her foot with his truck At the hearing on the protective order Cora Parsons testified that on August 24 2008 William Parsons choked her and told her he was going to kill her Specifically Cora Parsons testified that she and William Parsons had a disagreement over a recent purchase he had made and money which resulted in her pouring water on him She testified that William Parsons then pushed her down the hallway up against the washing machine and said he was going to kill her She testified that after he let her go she went to bed and when she woke up he was standing over her Shortly after this incident William Parsons moved out of the home According to Cora Parsons she then left the home a few days later because she was evacuating with her son who is a major to Alabama because of Hurricane Gustay She testified that she returned to the home on September 2 2008 after Hurricane Gustav made landfall and discovered several things 17 were missing from the home Although she suspected that William Parsons had removed those items she was not sure so she contacted the police who came to her home to investigate the matter After the police left the home William Parsons showed up at the home in his truck with a horse trailer Cora Parsons explained that she walked up to William Parsons in the truck she told him that he could not take the horses and as she went to back away he threw the truck in gear and he gunned it and cut the wheel towards her and he got her foot She further explained that if she had not been moving away from the truck when he put it in gear he probably would have run over her She testified that her daughterin law then called 911 and both the paramedics and police came to her home The paramedics transported Cora Parsons to the hospital and William Parsons was subsequently arrested and charged with aggravated battery Photographs taken of Cora Parsons foot after the incident were offered into evidence and these photographs show her foot was bruised William Parsons denied that he had ever pushed shoved abused or touched Cora Parsons in an improper or harmful way or that he had run over her foot with his truck Two other witnesses who were at the home during the September 2 2008 incident and in close proximity to William Parsons truck but on the opposite side of the truck as Cora Parsons testified that they did not think it was possible that William Parsons had run over Cora Parsons foot during this incident but they both admitted that when she returned to the front porch of the home following the incident she had limped away from the truck After a thorough review of the record and given the conflict in the 4 A batterydefined as the intentional use of force or violence upon the person of anotheris physical contact whether injurious or merely offensive See La R 14 S 33 State v Dauzat 392 So 393 396 La 1980 2d 5 testimony of the parties and thus the obvious credibility determinations facing the trial court we find no abuse of the trial court discretion in s concluding that Cora Parsons established by a preponderance of the evidence that William Parsons had committed an act of domestic abuse warranting the issuance of a protective order against him Accordingly we hereby affirm the judgment granting a protective order in favor of Cora Parsons CONCLUSION For all of the above and foregoing reasons the November 5 2009 judgment is hereby affirmed All costs of this appeal are assessed to the appellant defendant William H Parsons Sr AFFIRMED 5 As previously noted under the Domestic Abuse Assistance statutes domestic abuse is defined to include not only physical or sexual abuse but also any offense against the person as defined in the Criminal Code of Louisiana committed by one family or household member against another La R 46 S 2132 3A battery is an offense against the person in the Louisiana Criminal Code See egnerally La R S 29 46 14 14 the part of the Louisiana Criminal Code which set forth the offenses 1 against the person 2 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2120 O PORTER VERSUS WILLIAM H PARSONS JR HUGHES J dissenting I must with respect dissent This is a protective order case not a divorce or a community property partition The evidence is wholly insufficient to needlessly impose a remedy best accomplished by other available legal means when the result is to unreasonably and harshly punish the defendant by depriving him of his constitutional right to bear arms see 18 USC see 922 8 g There are two instances of domestic discord alleged In the first instance the plaintiff admits she was the aggressor throwing water on the defendant In the second instance the defendant was sitting in his truck and the plaintiff again approached him The defendant at trial called one relative and one non relative to testify The plaintiff also had one relative and one non relative witness known to her but called neither at trial Yet the trial court based its ruling on personal relationship bias of the witnesses This is a misapplication of the facts The defendant and his witnesses all testified under oath that the plaintiff approached the truck banging on it and cursing The defendant also testified that the plaintiff was kicking his truck as well as banging on it The plaintiff admits taking xanax and hydrocodone before the incident Her limping and bruised foot can easily be explained by kicking the truck The lack of broken bones in her foot after being run over by a large truck pulling a horse trailer cannot The issue before us is not the initial temporary restraining order but a permanent order after a full hearing with both parties able to present evidence The plaintiff failed to call two eye witnesses which would presumably supported her version of events I must conclude the order at issue is not supported by the evidence admitted at the hearing 2
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