CURRY v. STREATER

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CURRY v. STREATER
2009 OK 5
213 P.3d 550
Case Number: 104570
Decided: 01/20/2009

THE SUPREME COURT OF THE STATE OF OKLAHOMA

Janice Carolyn Curry, Plaintiff/Appellee,
v.
Heath Allen Streater, Defendant/Appellant.

ON WRIT OF CERTIORARI TO COURT OF CIVIL APPEALS, DIVISION III

¶0 Plaintiff filed for a protective order pursuant to the Protection from Domestic Abuse Act, 22 O.S.Supp. 2006, §§ 60-60.18, based on domestic abuse as defined in section 60.1(1). Trial court granted plaintiff's petition based on a finding of harassment and explicitly found "no domestic abuse." It also awarded attorney fees in the plaintiff's favor. The Court of Civil Appeals found that the trial court erred in finding harassment, re-weighed the evidence, found the evidence supported a finding of domestic abuse, and affirmed the issuance of the protective order. This Court previously granted the petition for writ of certiorari.

COURT OF CIVIL APPEALS' OPINION VACATED;
TRIAL COURT'S JUDGMENT REVERSED WITH INSTRUCTIONS.

Rob L. Pyron, M. Bradley Carter, Law Office of Rob L. Pyron, Seminole, Oklahoma, for Plaintiff/Appellee.
Joe Freeman, Shawnee, Oklahoma, for Defendant/Appellant.

Taylor, J.

¶1 The dispositive questions before this Court are (1) whether the trial court abused its discretion in issuing a protective order based on the defendant's having harassed the plaintiff under title 22, section 60.1(2) of the Oklahoma Statutes; (2) whether the trial court abused its discretion in finding that there was no domestic abuse on which to base a protective order under title 22, section 60.1(1); and (3) whether the Court of Civil Appeals erroneously reversed the trial court's order of "[n]o finding of domestic abuse" and erred in affirming the issuance of the protective order. We find that the trial court abused its discretion in issuing a protective order based on harassment, that it did not abuse its discretion in finding the evidence does not support a finding of domestic abuse on which to base a protective order, and that the Court of Civil Appeals erred in finding domestic abuse and in affirming the trial court.

I. FACTS

¶2 The plaintiff, Janice Carolyn Curry (Curry), is sixty-five years old, employed as a teaching assistant with the New Lima Public Schools, and the defendant's paternal aunt. The defendant, Heath Allen Streater (Streater), is a seven-year veteran with the Shawnee Police Department.

¶3 On November 24, 2006, Streater and Curry were attending graveside services for Henry Streater, who was Streater's father and Curry's brother. Curry was in a car when Streater approached her. Curry testified that Streater said, "Get this car out of here, or I'm going to whip your ass." A witness called by Curry testified that Streater asked Curry a question to which Curry replied it was none of Streater's business. The witness testified that Streater then told Curry "to get out of there or he was going to whip her ass." Streater and another witness testified that Streater did not threaten Curry but that Streater said, "You don't know what an ass kicking is that you accused Dathan of."

¶4 On November 27, 2006, Curry filed a petition for a protective order and a request for an emergency, ex parte protective order. On the form petition, Curry alleged that Streater had caused or attempted to cause serious physical harm to her and that he had threatened to perform a violent act. She did not allege that he had harassed or stalked her. The emergency order issued, but on December 11, 2006, the parties agreed to a continuance of a hearing on the permanent protective order if the emergency order were dismissed. On January 30, 2007, a trial was had on the permanent protective order. At the end of trial, the court stated that it was issuing a permanent protective order against Streater and set another hearing for February 12, 2007.

¶5 A hearing was held on February 12, 2007.

¶6 Streater filed a motion for a new trial, and Curry filed a motion for attorney fees. On February 28, 2007, a hearing was had on these two motions. At the end of the hearing, the trial court stated, "I wanted to make it clear that the court found your client under Paragraph 3, the harassment provision, was the finding that the court made; not Paragraph 2 or Paragraph 1. But that the evidence was clear under Paragraph 3 that there was a harassment that had occurred."

¶7 Streater appealed. The Court of Civil Appeals found that there was no evidence of harassment. Finding that the evidence supported issuing the protective order based on "domestic abuse," see

II. STANDARD OF REVIEW

¶8 We have not before addressed the proper standard of review of a protective order and, thus, are presented with an issue of first impression. Statutory construction presents a question of law which we review de novo. St. John Med. Ctr. v. Bilby,

III. PROTECTION FROM DOMESTIC ABUSE ACT

¶9 The Protection from Domestic Abuse Act (the Act) allows a victim of domestic abuse, stalking, harassment, or rape to petition the court for a protection order.

¶10 The Act's clear purpose is preventative, and the Act provides immediate civil, nonmonetary relief for victims of domestic abuse, stalking, harassment, or rape. To effectuate its purpose, the Act provides for courts to issue civil protection orders to prevent violence before it happens.

¶11 As pointed out in Katsenelenbogen v. Katsenelenbogen, 762 A.2d 198, 207 (Md. Ct. Spec. App. 2000), vacated, 775 A.2d 1249 (Md. 2000), that a protective order can be beneficial in that it may provide a potential victim of domestic abuse a measure of reassurance, but the unwarranted issuance of a protective order can have unjustified, irreversible consequences for a defendant. For example, an vindictive, angry ex-spouse may seek a protective order in an attempt to deny a parent rightful access to a child. A protective order may also carry with it a social stigma and have a devastating effect on a defendant's career. For example, federal law impacts a police officer's ability to possess and carry a firearm when subject to certain protective orders.

IV. ANALYSIS

¶12 In addressing the trial court's finding that a protective order should issue based on harassment, an element of harassment is "a knowing and willful course or pattern of conduct." 22 O.S. Supp. 2003, § 60.1(3). There is no evidence in the record of a course or pattern of threatening conduct. The evidence is that this was a one-time occurrence. We agree with the Court of Civil Appeals that the protective order based on harassment was clearly against the evidence and thus an abuse of discretion.

¶13 In his petition for certiorari, Streater argues that the Court of Civil Appeals incorrectly affirmed the trial court's judgment based on its finding that Streater had threatened Curry with imminent physical harm. Streater urges this Court to impose the elements of an actionable civil assault found in Corpus Juris Secundum, 6A C.J.S. Assault § 4 (2004), onto section 60.1(1)'s term "threat of imminent physical harm."

¶14 To determine the elements of domestic abuse by threat of imminent physical harm under the Act, our goal is to determine the legislative intent. Heldermon v. Wright,

¶15 We focus on the Act's relevant language of domestic abuse as a threat of imminent physical harm.

¶16 A condition placed on a threat does not automatically take the threat from the Act's purview as Streater argues. Even though a condition is not outcome determinative of whether a protective order should issue, it is one factor to consider in evaluating whether the defendant intended to inflict imminent physical harm. Likewise, the Act does not place the focus on a plaintiff's subjective perception. A purely subjective test from the plaintiff's viewpoint would produce inconsistent results based on individualized perceptions. Such a test would lead to unreasonable results because a plaintiff's testimony that she perceived a threat would be sufficient even if the act or statement could not, under any circumstances, be construed as a threat. Both of these positions are inconsistent with the Act's purpose and its plain language.

¶17 We next turn to the Court of Civil Appeals' opinion finding domestic abuse by threat of imminent physical harm as a basis for affirming the trial court's judgment. The trial court's judgment adopted as its final protective order, the February 12, 2007 protective order which rejected domestic abuse as a basis for the protective order. The following evidence, although contraverted, supports the trial court's finding of no domestic abuse. Streater did not threaten Curry but made a derogatory statement to her. When Curry exited the car, Streater backed away from her. There is no evidence that Streater has a history of violence. Curry told Streater's brother that she could cost Streater his job by getting the protective order. There was evidence that Curry was the actual aggressor. Based on this evidence, it was not an abuse of discretion for the trial court to find that there was no domestic abuse. Nonetheless, the Court of Civil Appeals ignored the standard of review by effectively reversing the trial court's finding that there was no domestic abuse, re-weighing the evidence, substituting its own findings for that of the trial court, and essentially issuing its own protective order based on domestic abuse. The Court of Civil Appeals was required to affirm the trial court's finding of no domestic abuse unless it was clearly erroneous, against reason and evidence. Little,

¶18 The evidence supports the trial court's finding that there was no domestic abuse under the Act. Because this finding does not constitute an abuse of discretion, we will not reverse it. However, the evidence does not support a finding of harassment on which the protective order was based. Thus, we find the trial court abused its discretion in issuing the protective order.

V. ATTORNEY FEES

¶19 In her application for attorney fees, Curry sought an award of fees pursuant to title 43 of the Oklahoma Statutes without stating a specific section under which she claimed fees. Oklahoma follows the American Rule for attorney fees, i.e., a party must bear the costs for its legal representation, attorney fees will not be awarded absent a specific statutory or contractual provision, and exceptions are narrowly defined. Whitehorse v. Johnson,

¶20 We note subsection 60.2(C)(1) of the Act allows the trial court discretion to impose attorney fees. However, Curry did not cite this section in support of an award of attorney fees. Subsection 60.2(C)(1) provides in part:

The court may assess court costs, service of process fees, attorney fees, other fees and filing fees against the defendant at the hearing on the petition, if a protective order is granted against the defendant; provided, the court shall have authority to waive the costs and fees if the court finds that the party does not have the ability to pay the costs and fees.

22 O.S.Supp. 2008, § 62.2(C)(1). Because we reverse the trial court's grant of a protective order, this provision does not allow for an attorney fee award. Because Curry failed to provide a statutory basis for an attorney fee award and because we reverse the trial court issuance of the protective order, we reverse the award of attorney fees.

VI. CONCLUSION

¶21 There is no evidence in the appellate record which would support the trial court's issuance of a protective order based on harassment pursuant to subsection 60.1(3) of the Act. The trial court did not abuse its discretion in finding that the evidence did not support the issuance of a protective order based on domestic abuse under subsection 60.1(1) of the Act. The Court of Civil Appeals improperly re-weighed the evidence and substituted its judgment for that of the trial court. The attorney fee award is not supported by any cited authority. The Court of Civil Appeals' opinion is vacated, and the trial court's judgment is reversed with instructions to dismiss.

COURT OF CIVIL APPEALS' OPINION VACATED; TRIAL COURT'S JUDGMENT REVERSED WITH INSTRUCTIONS.

Edmondson, C.J., Taylor, V.C.J., Hargrave, Kauger, Watt, Winchester, Colbert, Reif, JJ., concur.

Opala, J. (by separate writing), dissents.

FOOTNOTES

1 Dathan is Curry's nephew and Streater's cousin. There was evidence that Curry had previously accused Dathan of assaulting and battering her.

2 There is a discrepancy in that the court clerk's docket sheet and the Court Minute show the hearing was held on February 12, 2007, and the transcript is dated February 21, 2007. The exact date of the hearing is irrelevant to the outcome of this case.

3 Paragraph 3 refers to title 22, section 60.1(3) of the Oklahoma Statutes, the harassment provision. Paragraph 1 refers to title 22, section 60.1(1), the domestic abuse provision. Paragraph 2 refers to title 22, section 60.1(2), the stalking provision.

4 The current version of title 21, subsection 644(C) of the Oklahoma Statutes defines criminal domestic abuse as

any assault and battery against a current or former spouse, a present spouse of a former spouse, parents, a foster parent, a child, a person otherwise related by blood or marriage, a person with whom the defendant is in a dating relationship as defined by Section 60.1 of Title 22 of the Oklahoma Statutes, an individual with whom the defendant has had a child, a person who formerly lived in the same household as the defendant, or a person living in the same household as the defendant . . . ."

Under subsection 644(C), a first conviction of domestic abuse is punishable by county jail imprisonment for not more than one year, a fine not exceeding five thousand dollars, or both. With a subsequent conviction, imprisonment time increases to not more than four years. Id. If the domestic abuse is against a pregnant person, results in great bodily harm, or is committed in a child's presence increased penalties may apply. 21 O.S.Supp. 2006, § 644(D)-(F).

Criminal assault is defined in title 21, section 641 as "any willful and unlawful attempt or offer with force or violence to do a corporal hurt to another."

5 The definition of harassment was changed in 2003. 2003 Okla. Sess. Laws 1809, c. 407, § 1. The current language, "a family or household member or an individual who is or has been involved in a dating relationship with the person," requires a familial relationship and replaced the broader application of "an adult, emancipated minor, or minor thirteen (13) years of age or older."

6 Federal law, 18 U.S.C. § 922(g), provides:

It shall be unlawful for any person- -
. . .

(8) who is subject to a court order that--

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

7 In Brown v. Ford, 1995 OK 101, ¶¶ 11-12 & n. 34, 905 P.2d 223, 229-230, this Court tacitly adopted the Restatement (Second) of Torts definition of civil assault as the law of Oklahoma. If we were to borrow from the law of torts, we would use the Restatement's definition, rather than that found in Corpus Juris Secundum, but we decline to do so because the Restatement's definition of civil assault does not conform to the Act's definition of domestic abuse or to the Act's purpose.

8 Curry also cites to title 22, section 2002 (disclosure of evidence in a criminal case) and title 12, section 3233 (interrogatories in a civil case) in the Amended Brief in Support of Attorney's Fees, neither of which provide for an award of attorney fees but address discovery. At the hearing on attorney fees, Streater's attorney states that he believes Curry's attorney is quoting subsection 60.2(C) of the Act, but Curry's attorney fails to give any additional authority for an award of attorney fees.

9 Title 22, subsections 60.2(C)(2) allows an award of attorney fees and court costs against the plaintiff only upon a "specific finding that the petition for [the] protective order [was] filed frivolously and no victim exists . . . ."

OPALA, J., dissenting

¶1

I.

THE TRIAL COURT'S PROTECTIVE ORDER

¶2

¶3

¶4

¶5

¶6

II.

HARASSMENT MAY BE ESTABLISHED BY PROOF OF A SINGLE
EPISODE

¶7

III.

DEFENDANT'S THREATENING DEMEANOR IS ESTABLISHED BY
CRYSTAL-CLEAR PROOF.

¶8

IV.

NO IMMUNITY APPLIES TO THE DEFENDANT'S DEMEANOR.

¶9

V.

SUMMARY

¶10

¶11

FOOTNOTES