Alyson Mary Babcock VS Charles David Martin (2012CA0148 Consolidated With 2012CA0149)
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 0148 ALYSON MARY BABCOCK VERSUS CHARLES DAVID MARTIN CONSOLIDATED WITN 2012 CA 0149 CHARLES MARTIN VERSUS ALYSON BABCOCK On Appeal from the 32nd Judicial District Court Parish of Terrebonne Louisiana Docket Nos 143 and 157 Division E 450 528 Honorable Randall L Bethancourt Judge Presiding J Ogden Middleton Alexandria LA Philip II Attorney for Appellant Plaintiff and Appellant Defendant Alyson Mary Babcock A Spence Attorney for Houma LA Appellee Defendant and Plaintiff Appellee Charles David Martin Dixie C Brown Attorney ad hoc Houma LA for the minor child A M G BEFORE PARRO HUGHES AND WELCH JJ 1 GG s cati L l DEC 3 1 2 12 udgment rendered PARRO J Appellant challenges an order of protection issued against her in accordance with the domestic abuse assistance provisions of LSA 46 et seq S R 2131 For the reasons that follow we reverse FACTUAL BACKGROUND AND PROCEDURAL HISTORY This is a highly contested domestic matter between the parents of a minor child Alyson Mary Babcock and Charles David Martin were never married however they had a romantic and intimate relationship during the period of December 2003 through August 3 2004 Of this relationship one child A was born to the parties on M G September 20 2004 Ms Babcock and Mr Martin shared joint custody of A with Ms Babcock M G designated as the domiciliary parent until Mr Martin was awarded sole custody pursuant to a consent judgment signed on December 1 2008 In addition to granting sole legal and physical custody of A to Mr Martin this consent judgment further M G provided that Ms Babcock would have supervised visitation with A once she M G complied with certain conditions which required her to begin and maintain active mental health counseling among other things The judgment further required Ms Babcock to execute certain documentation necessary to allow Mr Martin to claim M G A as a dependent on his federal and state income tax returns each year Ms Babcock was also ordered to produce the minor child original birth certificate and s social security card to the court On June 4 2009 Mr Martin filed a rule to show cause why Ms Babcock should not be held in contempt of court for violation of various judgments of the trial court including the consent judgment signed on December 1 2008 Mr Martin further requested that Ms Babcock her agents or assigns be enjoined from harassing him or The minor child name apparently was legally changed at some point during the course of these s proceedings We will use the initials of the child name after it was finally changed s Z On October 21 2004 Ms Babcock filed a petition to establish filiation custody and visitation 3 The judgment was rendered in open court on October 2 2008 but was not signed until December 1 2008 However Ms Babcock was ordered to produce the birth certificate and social security card by October 6 2008 at 3 p 00 m 2 his family A temporary restraining order was issued to that effect and a hearing was set on the rule On the same June 4 2009 date in a separate proceeding Mr Martin also filed a petition for protection from abuse pursuant to the domestic abuse assistance provisions of LSA 46 et seq This petition alleged that Ms Babcock her agents and S R 2131 assigns had taken certain actions to harass stalk and threaten Mr Martin and his family The trial court also issued a temporary restraining order in this matter In both the rule to show cause and the petition for protection from abuse Mr Martin alleged that Ms Babcock her agents and assigns had posted certain threats to Mr Martin and his family as well as derogatory information about him and his family on awebsite account the website The pleadings further alleged that Ms MySpace Babcock her agents and assigns stalked Mr Martin and his family by repeatedly driving past his house and that they made repeated attempts to contact A at her M G school in violation of the trial courYs orders Finally the pleadings alleged that Ms Babcock her agents and assigns harassed members of Mr Martin family by e s mail The two matters were ultimately consolidated for hearing After numerous delays the matters were heard on May 23 and 24 2011 Subsequent to this hearing the trial court issued a protective order prohibiting Ms Babcock from going within 100 yards of Mr Martin residence or from contacting him or the minor child directly or s through a third parry The protective order further ordered Ms Babcock not to abuse harass stalk follow or threaten Mr Martin or the minor child Ms Babcock was also held in contempt of court for violation of prior court orders For this contempt she was sentenced to thirty days in the parish jail however this sentence was suspended upon Ms Babcock being placed on unsupervised probation for a period of eighteen months s During this time she was not to commit a crime and she was further required to maintain full employment Ms Babcock has appealed time The trial court considered the issue of child support at the same time appeal That issue is not before us on 5 Louisiana Revised Statutes 462136 provides for a devolutive appeal from a final protective order F 3 DISCUSSION Upon good cause shown in an ex parte proceeding the court may enter a temporary restraining order without bond as it deems necessary to protect from abuse the petitioner any minor children or any person alleged to be incompetent LSA S R A 2135 46 Any person who shows immediate and present danger of abuse shall constitute good cause Id If a temporary restraining order is granted without notice the matter shall be set for a hearing within twenty days for a rule to show cause one why the protective order should not be issued at which time the petitioner must prove the allegations of abuse by a preponderance of the evidence LSA 46 S B R 2135 In an effort to meet this burden of proof Mr Martin testified about the website A Voice for A Mr Martin testified that he was not sure who started the M G website but he knew that someone in Ms Babcock family had started it s Mr Martin his stepdaughters participated website he felt threatened by posts on the to I that I on the I According website although he acknowledged in conversations and wrote inflammatory posts Specifically Mr Martin referred to a post from Hallie Sevin A s M G godmother which stated A my beautiful godchild you my world I would kill M G re to see you You will always have my heart He also pointed to a post from Mary Babcock Ms Babcock mother which provided in pertinent part Relax her days s before some people kick her ass are numbered Although Mr Martin testified that he felt threatened by these and other statements on the website he did not provide any evidence to prove by a preponderance of the evidence that Ms Babcock was involved in the posting of these statements on the website The above statements were clearly posted by people other than Ms Babcock and there is no evidence in the record to suggest that Ms Babcock caused them to make these posts Indeed Mr Martin testified that he did not know if Ms Babcock wrote any of the posts on the website and his only position with regard to the website was that he knew someone in Ms Babcock family had started it s 6 Ms Sevin testified that she intended this statement to be an exaggeration and that she never meant that she intended to kill anyone 4 At the hearing Ms Babcock smother and sister Mary Babcock and Angel Fitch respectively acknowledged creating and maintaining the website as well as posting the information to it Mary Babcock stated that she had kept diaries from the beginning of the court proceedings and she used those diaries to get the information to post on the According to Mary Babcock Ms Babcock was not involved in creating website maintaining or providing information for the purpose of posting it on the website Ms Babcock also denied that she had any involvement with the website It is true that certain postings on the website were written in the first person and therefore appeared to have been written by Ms Babcock In her testimony Mary Babcock acknowledged that she had originally written those posts from the third person point of view however after consultation with a friend who advised her that the posts were confusing she changed them so that they were written from the first person point of view Mr Martin also testified about attempts by Ms Fitch to contact him and other members of his family The evidence demonstrates that Ms Fitch confrontational conversations with certain members of Mr Martin family s had some Ms Fitch acknowledged that some of the statements she made were derogatory and she stated that she would do things differently if she could A review of the conversations indicates that both parties made inflammatory statements Mr Martin and his wife Leslie Martin testified that they were also victims of harassment and stalking as various people drove by and stopped in front of their home However as the testimony indicated the Martins home is on a public street and there is a stop sign right in front of their house Furthermore Mrs Martin testified that the people driving by their house did not actually stop in front of the house unless they were stopping at the stop sign The Martins testified that Mary Babcock Ms Fitch and Ms Sevin had driven by Ms Fitch apparently also called Mr Martin at his home in an alleged violation of a restraining order Mr Martin testified that he informed her of the existence of the restraining order and hung up on her He stated that she then called back to apologize He did not state that she threatened him during either telephone call 5 the house on various occasions Mrs Martin also testified that she once saw Ms Babcock as a passenger in a vehicle on her street when she passed the vehicle on her way to church At the time Mrs Martin saw her Ms Babcock was not in front of the Martins house This was the only incident in which Ms Babcock was alleged to have been a participant Mr Martin also testified about certain third parties who allegedly drove past the house and attempted to take pictures of him and his family however there was never any connection demonstrated between these third parties and Ms Babcock or other members of her family Finally the Martins testified concerning attempts by Ms Fitch and Ms Sevin to visit the minor child at school in an alleged violation of certain court orders Ms Fitch and Ms Sevin visited the school on two occasions and brought gifts and cards signed by themselves Ms Babcock and Mary Babcock Ms Fitch testified that she wanted to go to the school to see A and Ms Babcock gave her some gifts and cards to bring M G to the school for the child on her behalf since she could not go herself After the second time she and Ms Sevin went they were asked to leave and they later received a letter from the principal of the school telling them not to come back As noted previously Mr Martin had the burden of proving the allegations of abuse against Ms Babcock by a preponderance of the evidence LSA 46 SB R 2135 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 S 3 R Z132 LSA 46 In reviewing the trial court issuance of a s protective order under LSA 46 et seq the appellate court is to apply the S R 2131 abuse of discretion standard of review Rouyea v Rouyea 00 La App lst Cir 2613 O1 28 3 808 So 558 561 2d A review of the record does not reveal any incidents of physical abuse 8 Mr Martin was able to testify with specificity as to only twelve incidents of drive He contended bys that there were more incidents but when he testified he had a list of dates corresponding to twelve incidents of drive dating from October 2010 to April 2011 bys 9 For her part Ms Babcock denied passing in front of the Martins house 6 perpetuated by Ms Babcock against Mr Martin or A In addition no allegations M G of sexual abuse were made or proven by Mr Martin The testimony and evidence in the record centered primarily around actions taken by third parties rather than actions taken by Ms Babcock herself Although there is some evidence that suggests Ms Babcock may have been in violation of a court order by giving gifts and cards to her sister to take to her daughter school when she knew or should have known she could s not have delivered them herself this possible violation does not meet the threshold necessary for the issuance of a protective order pursuant to LSA 46 et seq S R 2131 Furthermore there is insufficient evidence of Ms Babcock involvement in the other s acts complained of by the Martins to warrant the issuance of a protective order Moreover the acts complained of by the Martins even if accepted as true are insufficient to warrant the issuance of a protective order Simply put family arguments that do not rise to the threshold of physical or sexual abuse or violations of the criminal code are not within the ambit of the domestic abuse assistance provisions of LSA S R 2131 46 etseq Rouyea 808 So at 561 After a thorough review of the record we Zd conclude that Mr Martin failed to carry his burden of proving by a preponderance of the evidence the allegations of abuse against Ms Babcock and the trial court clearly abused its discretion in determining otherwise DECREE For the foregoing reasons the May 24 2011 protective order is hereby reversed The trial court is ordered to take the appropriate steps to set aside the protective order within 45 days of the date of the finality of this decision to file a copy of its action with this court and to have it removed from the Louisiana protective order registry Rouvea 808 So at 562 2d See All costs of this appeal are assessed to Charles David Martin REVERSED WITH INSTRUCTIONS 10 Indeed when asked Mr Martin denied that Ms Babcak had ever struck him allegations of physical abuse as to A were made in the pleadings M G 7 Furthermore no
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