STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 19-327
ERICA FAYE BETTEVY
VERSUS
JAMES A. BETTEVY
**********
APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ALLEN, NO. C-2019-062 HONORABLE ERROL DAVID DESHOTELS, JR., DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Sylvia R. Cooks, Billy Howard Ezell, and John E. Conery, Judges.
AFFIRMED. Cory P. Roy Brandon J. Scott Benjamin D. James P.O. Box 544 Marksville, LA 71351 (318) 240-7800 COUNSEL FOR DEFENDANT/APPELLANT: James A. Bettevy
Erica Faye Bettevy In Proper Person 1180 LeJeune Rd Oakdale, LA 71463 EZELL, Judge.
This case arises under the Domestic Abuse Assistance Act found in La.R.S.
46:2131 to 46:2140. James Bettevy appeals a judgment of the trial court granting a
permanent order of protection in favor of his former spouse, Erica Bettevy. The
issues on appeal are whether the trial court erred in admitting the entire record
from a “Gwen’s Law” hearing and in not dismissing the petition for protection
from abuse for lack of specificity.
FACTS
Erica filed a petition for protection from abuse by James on February 6,
2019. In her petition, Erica alleged that James stopped her in Oakdale and
threatened her if she continued to proceed with the property settlement following
their divorce. When she told him no, he raised a gun to shoot at her. A witness
drove up behind them and called 911. Erica further alleged that this was not the
first time he threatened her. She also stated she was in possession of a recording of
James abusing her and her children in which he stated he would kill her and burn
down her house with her in it. Erica also referred to some stalking pictures.
At the time the petition was filed, James was in the Allen Parish jail. He had
been arrested for the incident that was the basis for the petition for protective order.
A temporary order of protection was entered on the day the petition was filed and
became effective until February 20, 2019.
Pursuant to La.R.S. 46:2135(B), a hearing was held on February 20, 2019 to
determine whether a permanent protective order should be issued. At the hearing,
Erica represented herself and James was represented by private counsel. The trial
court noted that a “Gwen’s Law” hearing concerning the incident at issue was
conducted on December 3, 2018, and accepted those proceedings by reference. Counsel for James objected to the admission of the entire proceedings. Erica also
testified at the hearing for the protective order.
Following the hearing, the court held that there was sufficient evidence to
grant the order of protection, which was effective until July 28, 2020. James then
filed the present appeal.
EVIDENCE
James first claims that the trial court erred in admitting the entire evidentiary
record from the “Gwen’s Law” hearing. He claims that this evidence goes well
beyond the scope of the allegations set forth in the protective order.
We first observe that the record from the “Gwen’s Law” proceeding was not
part of the record on appeal. James did attach the transcript from the hearing to his
brief.
Pursuant to La.Code Civ.P. art. 2132, “[a] record on appeal . . . which omits
a material part of the trial record, may be corrected even after the record is
transmitted to the appellate court, by the parties by stipulation, by the trial court or
by the order of the appellate court.”
Clearly the record from the “Gwen’s Law” proceeding was admitted into
evidence by the trial court at the hearing. James has attached the transcript to his
brief and bases his first assignment of error on the introduction of this evidence.
James is obviously in agreement that this evidence should be part of the appellate
record. Therefore, we have supplemented the appellate record pursuant to La.Code
Civ.P. art. 2132 with the record from the “Gwen’s Law” hearing so that we may
review James’s first assignment of error regarding the admissibility of the record in
the protective order proceedings.
2 Under “Gwen’s Law,” La.Code Crim.P. art. 313, the trial court is required to
conduct a contradictory hearing to determine the feasibility of granting bail to a
person arrested on domestic abuse charges. State v. Poirier, 18-467 (La.App. 3 Cir.
7/11/18), 251 So.3d 486. If the trial court finds that there is a likelihood that the
defendant would inflict further harm, bail can be denied and the defendant would
stay in jail until the case is heard in court. La.Code Crim.P. art. 313(A)(4).
Pursuant to La.R.S. 46:2135(B), the allegations of abuse entitling a person to
a protective order must be established by a preponderance of evidence. In issuing
the temporary order of protection, for good cause shown, the trial court must
consider “any and all past history of abuse, or threats thereof, in determining the
existence of an immediate and present danger of abuse.” La.R.S. 46:2135(A).
“There is no requirement that the abuse itself be recent, immediate, or present.” Id.
It has been held that “good cause shown” applies to both the temporary
restraining order and the other protective orders. Dvilansky v. Correu, 16-279
(La.App. 4 Cir. 10/26/16), 204 So.3d 686, writ denied, 16-2081 (La. 1/9/17), 214
So.3d 871; S.L.B. v. C.E.B., 17-978, 17-979, 17-980 (La.App. 4 Cir. 7/27/18), 252
So.3d 950, writ denied, 18-1442 (La. 11/20/18), 256 So.3d 992.
Furthermore, La.Code Evid. art. 412.4(A) provides:
When an accused is charged with a crime involving abusive behavior against a family member, household member, or dating partner or with acts which constitute cruelty involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving assaultive behavior against a family member, household member, or dating partner or acts which constitute cruelty involving a victim who was under the age of seventeen at the time of the offense, may be admissible and may be considered for its bearing on any matter to which it is relevant, subject to the balancing test provided in Article 403.
3 Therefore, it follows that all history of abuse or threats, past and present,
must be considered in proving the allegations of abuse and entitlement to a
protective order. La.R.S. 46:2135(B).
After reviewing the evidence, we find that the majority of the “Gwen’s Law”
hearing concerned the incident in Oakdale at the intersection. The hearing was
determining whether James was entitled to bail after his arrest for this incident.
Erica testified about other past events at the “Gwen’s Law” hearing, but the focus
was not on those events. Erica’s testimony at the “Gwen’s Law” proceeding was
very similar to her testimony at the hearing for the protective order. We find no
error by the trial court in admitting the entire record of the “Gwen’s Law” hearing
in the proceeding for a protective order.
LACK OF SPECIFICTY
Prior to the hearing, James sought to dismiss Erica’s petition for lack of
specificity concerning the allegations of abuse. Specifically, he claims that the
petition fails to allege a date when the incident occurred or a specific location
where the incident took place.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 19-327
ERICA FAYE BETTEVY
VERSUS
JAMES A. BETTEVY
**********
APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ALLEN, NO. C-2019-062 HONORABLE ERROL DAVID DESHOTELS, JR., DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Sylvia R. Cooks, Billy Howard Ezell, and John E. Conery, Judges.
AFFIRMED. Cory P. Roy Brandon J. Scott Benjamin D. James P.O. Box 544 Marksville, LA 71351 (318) 240-7800 COUNSEL FOR DEFENDANT/APPELLANT: James A. Bettevy
Erica Faye Bettevy In Proper Person 1180 LeJeune Rd Oakdale, LA 71463 EZELL, Judge.
This case arises under the Domestic Abuse Assistance Act found in La.R.S.
46:2131 to 46:2140. James Bettevy appeals a judgment of the trial court granting a
permanent order of protection in favor of his former spouse, Erica Bettevy. The
issues on appeal are whether the trial court erred in admitting the entire record
from a “Gwen’s Law” hearing and in not dismissing the petition for protection
from abuse for lack of specificity.
FACTS
Erica filed a petition for protection from abuse by James on February 6,
2019. In her petition, Erica alleged that James stopped her in Oakdale and
threatened her if she continued to proceed with the property settlement following
their divorce. When she told him no, he raised a gun to shoot at her. A witness
drove up behind them and called 911. Erica further alleged that this was not the
first time he threatened her. She also stated she was in possession of a recording of
James abusing her and her children in which he stated he would kill her and burn
down her house with her in it. Erica also referred to some stalking pictures.
At the time the petition was filed, James was in the Allen Parish jail. He had
been arrested for the incident that was the basis for the petition for protective order.
A temporary order of protection was entered on the day the petition was filed and
became effective until February 20, 2019.
Pursuant to La.R.S. 46:2135(B), a hearing was held on February 20, 2019 to
determine whether a permanent protective order should be issued. At the hearing,
Erica represented herself and James was represented by private counsel. The trial
court noted that a “Gwen’s Law” hearing concerning the incident at issue was
conducted on December 3, 2018, and accepted those proceedings by reference. Counsel for James objected to the admission of the entire proceedings. Erica also
testified at the hearing for the protective order.
Following the hearing, the court held that there was sufficient evidence to
grant the order of protection, which was effective until July 28, 2020. James then
filed the present appeal.
EVIDENCE
James first claims that the trial court erred in admitting the entire evidentiary
record from the “Gwen’s Law” hearing. He claims that this evidence goes well
beyond the scope of the allegations set forth in the protective order.
We first observe that the record from the “Gwen’s Law” proceeding was not
part of the record on appeal. James did attach the transcript from the hearing to his
brief.
Pursuant to La.Code Civ.P. art. 2132, “[a] record on appeal . . . which omits
a material part of the trial record, may be corrected even after the record is
transmitted to the appellate court, by the parties by stipulation, by the trial court or
by the order of the appellate court.”
Clearly the record from the “Gwen’s Law” proceeding was admitted into
evidence by the trial court at the hearing. James has attached the transcript to his
brief and bases his first assignment of error on the introduction of this evidence.
James is obviously in agreement that this evidence should be part of the appellate
record. Therefore, we have supplemented the appellate record pursuant to La.Code
Civ.P. art. 2132 with the record from the “Gwen’s Law” hearing so that we may
review James’s first assignment of error regarding the admissibility of the record in
the protective order proceedings.
2 Under “Gwen’s Law,” La.Code Crim.P. art. 313, the trial court is required to
conduct a contradictory hearing to determine the feasibility of granting bail to a
person arrested on domestic abuse charges. State v. Poirier, 18-467 (La.App. 3 Cir.
7/11/18), 251 So.3d 486. If the trial court finds that there is a likelihood that the
defendant would inflict further harm, bail can be denied and the defendant would
stay in jail until the case is heard in court. La.Code Crim.P. art. 313(A)(4).
Pursuant to La.R.S. 46:2135(B), the allegations of abuse entitling a person to
a protective order must be established by a preponderance of evidence. In issuing
the temporary order of protection, for good cause shown, the trial court must
consider “any and all past history of abuse, or threats thereof, in determining the
existence of an immediate and present danger of abuse.” La.R.S. 46:2135(A).
“There is no requirement that the abuse itself be recent, immediate, or present.” Id.
It has been held that “good cause shown” applies to both the temporary
restraining order and the other protective orders. Dvilansky v. Correu, 16-279
(La.App. 4 Cir. 10/26/16), 204 So.3d 686, writ denied, 16-2081 (La. 1/9/17), 214
So.3d 871; S.L.B. v. C.E.B., 17-978, 17-979, 17-980 (La.App. 4 Cir. 7/27/18), 252
So.3d 950, writ denied, 18-1442 (La. 11/20/18), 256 So.3d 992.
Furthermore, La.Code Evid. art. 412.4(A) provides:
When an accused is charged with a crime involving abusive behavior against a family member, household member, or dating partner or with acts which constitute cruelty involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving assaultive behavior against a family member, household member, or dating partner or acts which constitute cruelty involving a victim who was under the age of seventeen at the time of the offense, may be admissible and may be considered for its bearing on any matter to which it is relevant, subject to the balancing test provided in Article 403.
3 Therefore, it follows that all history of abuse or threats, past and present,
must be considered in proving the allegations of abuse and entitlement to a
protective order. La.R.S. 46:2135(B).
After reviewing the evidence, we find that the majority of the “Gwen’s Law”
hearing concerned the incident in Oakdale at the intersection. The hearing was
determining whether James was entitled to bail after his arrest for this incident.
Erica testified about other past events at the “Gwen’s Law” hearing, but the focus
was not on those events. Erica’s testimony at the “Gwen’s Law” proceeding was
very similar to her testimony at the hearing for the protective order. We find no
error by the trial court in admitting the entire record of the “Gwen’s Law” hearing
in the proceeding for a protective order.
LACK OF SPECIFICTY
Prior to the hearing, James sought to dismiss Erica’s petition for lack of
specificity concerning the allegations of abuse. Specifically, he claims that the
petition fails to allege a date when the incident occurred or a specific location
where the incident took place.
The purpose behind the entire legislative scheme in Louisiana Revised Statutes 46:2131, et seq., is to provide relief to victims of domestic violence by establishing “a civil remedy for domestic violence which will afford the victim immediate and easily accessible protection.” LSA–R.S. 46:2131; Bays v. Bays, 00–1727, p. 5 (La.2/21/01), 779 So.2d 754, 758. LSA–R.S. 46:2136 permits a court to grant a protective order to prevent the possibility of family violence, provided a petition is filed requesting the order and the defendant is afforded reasonable notice consistent with due process. Wise v. Wise, 02–574, p. 2 (La.App. 5 Cir. 11/13/02), 833 So.2d 393, 394. The petition must detail the facts and circumstances concerning the alleged abuse. LSA–R.S. 46:2134. By requiring the party seeking a protective order to file a petition specifying the allegations of abuse, the legislature has ensured that a defendant’s
4 constitutional due process rights, particularly the right of reasonable notice, will be observed. Bays, p. 6, 779 So.2d at 758; Branstetter v. Purohit, 06–1435, p. 5 (La.App. 4 Cir. 5/2/07), 958 So.2d 740, 743.
Fontenot v. Newcomer, 10-1530, 10-1531, p. 2 (La.App. 3 Cir. 5/4/11), 63 So.3d
1149, 1151 (quoting Lee v. Smith, 08-455, p. 6 (La.App. 5 Cir. 12/16/08), 4 So.3d
100, 104).
In her petition, Erica alleged that the incident occurred in Oakdale and
involved James pulling a gun on her and threatening her. She further stated that a
witness came upon the scene and called 911. James was then arrested.
We agree with the trial court that there are enough details in the petition to
put James on notice as to what incident was involved. There is no doubt that
James knows exactly what incident was at issue. The trial court did not err in
failing to dismiss the petition for lack of specificity.
For the reasons set forth in this opinion, the judgment of the trial court
granting the protective order is affirmed. Costs of this appeal are assessed to
James Bettevy.
AFFIRMED.