STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
20-27
MATTHEW WAYNE MCCAULEY
VERSUS
ROWENA BAUTISTA MCCAULEY
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2019-235 HONORABLE GUY E. BRADBERRY, DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of Billy Howard Ezell, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
AFFIRMED.
Brad Guillory Erin F. Hargrave 940 Ryan Street Lake Charles, Louisiana 70601 (337) 433-5297 Counsel for Defendant/Appellant: Matthew Wayne McCauley
Rowena Bautista McCauley In Proper Person 2709 Laura Lane Lake Charles, Louisiana 70605 Plaintiff/Appellee KEATY, Judge.
Defendant/Appellant appeals the trial court’s judgment in favor of
Plaintiff/Appellee. For the following reasons, the trial court’s judgment is affirmed.
FACTS AND PROCEDURAL HISTORY
This matter stems from a protective order involving Plaintiff/Appellee,
Rowena Bautista McCauley (hereinafter “Rowena”), and Defendant/Appellant,
Matthew Wayne McCauley (hereinafter “Matthew”). Matthew and Rowena, who is
from the Philippines, were married on April 7, 2017 in Lake Charles, Louisiana. The
married couple, along with Rowena’s daughter from a previous relationship, resided
in a house located at 2709 Laura Lane in Lake Charles. No children were born
during the parties’ marriage, and Matthew never adopted Rowena’s daughter. On
January 15, 2019, Matthew filed a Petition for Divorce. Thereafter, Rowena and her
daughter moved out of the house for a short time and then returned and lived with
Matthew. On May 28, 2019, Rowena filed an Answer to Petition for Divorce and
Reconventional Demand for Dismissal and alleged that the parties had reconciled.
On May 29, 2019, Rowena, individually and on behalf of her daughter, filed
a Petition for Protection from Abuse against Matthew. In her petition, Rowena
alleged Matthew abused her on three different occasions. She further sought an ex
parte temporary restraining order prohibiting Matthew from going within one
hundred yards of their home located at 2709 Laura Lane, which she alleged was
“solely owned or leased by [her].” Rowena requested sole use of the residence and
sought Matthew’s eviction. The temporary restraining order was granted on May
29, 2019, at which time Matthew was evicted. On June 3, 2019, Rowena filed a First
Supplemental and Amending Petition for Protective Order to amend her previous
assertion that she “solely owned or leased” the home at 2709 Laura Lane. Rowena explained therein that her initial allegation was the result of a typographical error
and that she does not contest the fact that the house is Matthew’s separate property.
On June 12, 2019, Matthew filed a Rule to Dissolve Temporary Restraining
Order based, in part, upon Rowena’s false allegation in her original petition that she
solely owned the marital home. On that same day, trial was scheduled to begin on
Rowena’s petition and temporary restraining order. At the beginning of trial on June
13, 2019, the trial court first addressed and denied Matthew’s recently filed rule to
dissolve the temporary restraining order because it was not served on opposing
counsel. Thereafter, trial proceeded with respect to Rowena’s petition. During the
two-day trial, evidence was presented and arguments were heard, after which the
trial court granted Rowena’s petition. The protective order, which was signed on
June 14, 2019, is effective through 11:59 p.m. on December 14, 2020.1 Rowena was
awarded the exclusive use of the residence for the duration of the protective order.
Pursuant to a subsequent written judgment dated August 26, 2019, the trial court
granted Rowena attorney fees in the amount of $15,500.00.
Matthew appealed. On appeal, Matthew asserts the following assignments of
error:
1. The trial court committed error by refusing to consider and denying without a hearing the “Motion to Dissolve Temporary Restraining Order” filed by Matthew when the initial temporary restraining order was improperly granted based upon false factual information contained in the application and attached exhibits.
2. The trial court committed error and abused its discretion by allowing the introduction of improper evidence at trial.
3. The trial court committed error in granting the protective order based upon the incidents enumerated in the petitioner’s application.
1 We note that page six of the protective order states that it is effective through 11:59 p.m. on December 13, 2020 whereas page one states that it is effective through 11:59 p.m. on December 14, 2020. For clarity, we will use December 14, 2020 as the date when the protective order expires. 2 4. The trial court committed error and abused its discretion by awarding Rowena the exclusive use of Matthew’s separate property residence for an eighteen (18) month period pursuant to the granting of the protective order.
5. The trial court committed error by awarding attorney fees to Rowena in this matter. Alternatively, the trial court committed error by awarding an unreasonably high amount of attorney fees.
Rowena has not answered the appeal nor filed an appellate brief in response.
STANDARD OF REVIEW
The applicable standard of review is discussed in Ruiz v. Ruiz, 05-175, p. 4
(La.App. 5 Cir. 7/26/05), 910 So.2d 443, 445 (citation omitted), as follows:
In cases decided pursuant to the Domestic Abuse Assistance statute, a trial court’s order is reversible only upon a showing of an abuse of discretion. Further, the trial court sitting as the trier of fact is in the best position to evaluate the demeanor of the witnesses and its credibility determinations will not be disturbed by this Court absent manifest error.
The supreme court in Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989)
(citations omitted), further explained:
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.
DISCUSSION
I. First Assignment of Error
In his first assignment of error, Matthew contends the trial court committed
error by refusing to consider and denying without a hearing his Motion to Dissolve
3 Temporary Restraining Order when the initial temporary restraining order was
improperly granted based upon false factual information contained in the application
and attached exhibits. Matthew notes the relief granted upon the issuance of a
temporary restraining order found in La.R.S. 46:2135(3), which gives “possession
to the petitioner of the residence or household to the exclusion of the defendant, by
evicting the defendant or restoring possession to the petitioner” when one of three
requirements are satisfied. The three requirements found in La.R.S. 46:2135(3)
provide:
(a) The residence is jointly owned in equal proportion or leased by the defendant and the petitioner or the person on whose behalf the petition is brought;
(b) The residence is solely owned by the petitioner or the person on whose behalf the petition is brought; or
(c) The residence is solely leased by defendant and defendant has a duty to support the petitioner or the person on whose behalf the petition is brought.
Matthew claims the requirement in La.R.S. 46:2135(3)(b) was not satisfied because
the marital home is solely owned by him rather than Rowena. Thus, he contends
that Rowena should not have been granted exclusive use of the home, his eviction
was unlawful, and the portion of the temporary restraining order with respect to his
eviction should have been dissolved.
On review, Rowena’s petition shows that she requested Matthew’s eviction
based upon her allegation that the residence was “solely owned or leased by [her]”
in accordance with La.R.S. 46:2135(3)(b). She subsequently changed her allegation
as the sole owner/lessor and asserted Matthew as the sole owner in her supplemental
and amending petition. The evidence in the record, therefore, shows Rowena did
not satisfy the requirement found in La.R.S. 46:2135(3)(b).
4 However, La.R.S. 46:2135(3) does not govern our review of Matthew’s
assigned error on appeal, in which he claims that the trial court erred by refusing to
consider and denying, without a hearing, his motion to dissolve. Moreover, our
reading of the record on review reveals that the trial court did not actually deny
Matthew’s motion to dissolve without a hearing; rather, it denied Matthew’s request
to hear his motion to dissolve because it was not properly served on opposing
counsel. Thus, we must determine whether the trial court erred by refusing to hear
Matthew’s motion based upon La.Code Civ.P. art. 3607, which provides:
An interested person may move for the dissolution or modification of a temporary restraining order or preliminary injunction, upon two days’ notice to the adverse party, or such shorter notice as the court may prescribe. The court shall proceed to hear and determine the motion as expeditiously as the ends of justice may require.
The court, on its own motion and upon notice to all parties and after hearing, may dissolve or modify a temporary restraining order or preliminary injunction.
On review, the record shows that Matthew’s motion to dissolve was not served
“upon two days’ notice to the adverse party” as required by La.Code Civ.P. art. 3607.
Accordingly, we cannot say that the trial court erred in this regard, and Matthew’s
assignment of error is without merit.
II. Second Assignment of Error
In his second assignment of error, Matthew contends the trial court committed
error and abused its discretion by allowing the introduction of improper evidence at
trial.
A. February 23, 2019
Matthew points to Rowena’s testimony that on February 23, 2019, Matthew
pushed her out of the bedroom using both of his hands. Matthew claims this
testimony was improperly allowed into evidence despite his objection because it was
not specifically asserted in her petition. In support, he cites Bosworth v. New 5 Orleans Federal Savings & Loan Ass’n, 258 So.2d 191, 194 (La.App. 4 Cir. 1972),
wherein the fourth circuit noted that “[p]roof intended to broaden or go beyond the
pleadings is inadmissible if objected to.”
In Bettevy v. Bettevy, 19-327, pp. 4-5 (La.App. 3 Cir. 11/6/19), 283 So.3d
1047, 1050 (quoting Fontenot v. Newcomer, 10-1530, 10-1531 (La.App. 3 Cir.
5/4/11), 63 So.3d 1149), this court discussed the requirement of a party seeking a
protective order under the Domestic Abuse Assistance Act, La.R.S. 46:2131-2140,
to specify the allegations of abuse in the petition, as follows:
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. [Louisiana Revised Statutes] 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 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.
In Bettevy, 283 So.3d 1047, the former husband, James, appealed the trial
court’s judgment granting a permanent order of protection in favor of his former
spouse, Erica. James sought to dismiss Erica’s petition for lack of specificity
concerning her allegations of abuse, claiming Erica’s petition failed to allege a date
when the incident occurred or a specific location where the incident took place. The
appellate court noted that Erica’s petition alleged the following: the incident
occurred in Oakdale when James pulled a gun on her and threatened her, a witness
came upon the scene and called 911, and James was arrested. The appellate court
affirmed the trial court’s judgment and held that there were “enough details in the 6 petition to put James on notice as to what incident was involved.” Id. at 1050.
According to the appellate court, there was no doubt that James knew “exactly what
incident was at issue” such that the trial court did not err in failing to dismiss the
petition for lack of specificity.
On review in this matter, Rowena’s petition fails to allege an incident occurred
on February 23, 2019. Her petition, however, asserts three other dates when the
alleged domestic abuse occurred. According to the petition, the three alleged
incidents all occurred in Lake Charles at the home on Laura Lane from February
through May 2019. Similarly, the February 23, 2019 incident also occurred at the
marital home. The trial court allowed Rowena to testify regarding the February 23,
2019 incident over Matthew’s counsel’s objection. Matthew’s counsel, however,
was able to cross-examine Rowena regarding her testimony. Moreover, testimony
in the record reveals that Rowena left the marital home on February 23, 2019.
Matthew also testified at trial regarding the February 23, 2019 incident. Thus, we
find that the trial court did not abuse its discretion in allowing the testimony because
it could have found that there were enough details in the petition to put Matthew on
notice, just as in Bettevy, 283 So.3d 1047. This assignment of error is meritless.
B. Suit Record from Docket Number 2019-0235
At trial, Rowena’s counsel introduced into evidence a copy of another suit
filed against Matthew as an exhibit attached to Rowena’s petition. Rowena’s
counsel claimed the introduction of this suit into evidence was to show that Matthew
has engaged in a pattern of abuse. Rowena’s counsel noted that the present hearing
was not for the purpose of obtaining the truth of the matter from the former suit and
that the trial court can give the document “however much weight” as it finds.
Matthew’s counsel timely objected to the introduction of the entire suit record.
Matthew’s counsel argued that the former suit was attached to Rowena’s petition in 7 order to give the judge signing the temporary restraining order the impression that
Matthew was a questionable individual. His counsel claimed the former suit never
proceeded to trial and the allegations therein were unproven, unverified, and had no
bearing on the instant matter. The trial court noted the objection and allowed the
former suit record to be entered into evidence. The trial court stated that it would
“apportion the appropriate weight to evidence.”
As a general rule, trial courts are afforded great discretion concerning the
admission of evidence, and their decisions to admit or exclude evidence should not
be reversed on appeal in the absence of an abuse of their discretion. Medine v.
Roniger, 03-3436 (La. 7/2/04), 879 So.2d 706. When reviewing such alleged errors,
we must determine whether the complaining party has shown that the ruling
complained of “was erroneous and whether the error prejudiced the defendant’s
cause, for unless it does, reversal is not warranted.” State in Interest of A.S., 19-248,
p. 15 (La.App. 1 Cir. 9/4/19), 285 So.3d 1129, 1141. “Prejudicial error ‘affects the
final result of the case and works adversely to a substantial right of the party
assigning it.’” Johnson v. Tucker, 51,723, p. 11 (La.App. 2 Cir. 11/15/17), 243 So.3d
1237, 1243, writs denied, 17-2075, 17-2073 (La. 2/9/18), 236 So.3d 1262, 1266.
The reviewing court must determine “whether the error, when compared to the entire
record, has a substantial effect on the outcome of the case, and it is the complainant’s
burden to prove.” Id.
“‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” La.Code Evid. art.
401. In Louisiana, “[a]ll relevant evidence is admissible, except as otherwise
provided by the Constitution of the United States, the Constitution of Louisiana, this
Code of Evidence, or other legislation. Evidence which is not relevant is not 8 admissible.” La.Code Evid. art. 402. Generally, “evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show that he
acted in conformity therewith.” La.Code Evid. art. 404(B). However, such evidence
may “be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident[.]” Id.
On review, the other suit was filed by a woman against Matthew and his
employer, New Horizons Counseling Center, LLC. The petition alleges that the
woman was Matthew’s client and was seeking help for her past abusive and
dysfunctional relationships, including emotional and physical abuse. According to
the petition, Matthew pursued a sexual relationship with his client. A short time
after sexual intercourse, the petition asserts that Matthew broke off the relationship.
We find that the trial court did not abuse its discretion in allowing the other
suit into evidence because it is relevant by showing a pattern of abuse and similar
conduct. This is especially true in light of Rowena’s trial testimony that Matthew
has a history of inappropriate relationships with his clients and uses his status as a
mental health counselor to gain an advantage over patients or former patients with
mental issues. Notably, Rowena testified that Matthew was having an inappropriate
relationship with a former client, Christi Jeffels, who also testified at trial on
Matthew’s behalf. Rowena further testified that she (Rowena) had mental issues
which allowed Matthew to prey on her, considering his employment as a mental
health professional. Moreover, even if the admission of the suit had been an error,
it did not have a substantial effect on the outcome of the case, given the other
evidence and testimony in the record supporting Rowena’s domestic abuse claim.
Thus, any error would be harmless. Accordingly, Matthew’s assignment of error is
meritless,
9 C. New Horizons Documents
During Matthew’s testimony, Rowena’s counsel attempted to question him
pertaining to a document identified as the Declarations of Practices and Procedures
from New Horizons Counseling Center, LLC. Matthew testified that he has been
employed as a mental health therapist at New Horizons for the past seven or eight
years. During trial, Rowena’s counsel explained that the document has been
“publicly displayed on [Matthew’s] web page, and it relates to his treatment of his
patients, one of which he has brought with him to court today [i.e., Christi], that is
essential and relevant to a lot of the incidents of abuse.” Rowena’s counsel noted
that Matthew’s former patient, Christi, witnessed “one of the incidents, and she has
been at the crux of” many of the issues presented at trial.
Matthew’s counsel objected to the relevance of the document and argued it
would only be relevant if Rowena alleged that she was Matthew’s former client. The
trial court admitted these documents into evidence as “P-2” over the objection of
counsel.
We find that the trial court did not abuse its discretion in admitting this
evidence. At trial, Matthew agreed the document was displayed on his web page
and explained that it was a Declaration of Practices and Procedures which every
client must sign. We find that the document could have been admitted to elicit
testimony to show that Matthew may have been having an inappropriate relationship
with his former client, Christi. Christi testified at trial on Matthew’s behalf.
Additionally, testimony reveals that Christi was the subject of many of Matthew and
Rowena’s fights which resulted in Rowena’s alleged abuse. Christi witnessed one
of these incidents according to testimony in the record. Moreover, even if the
admission of the suit was an error, it did not have a substantial effect on the outcome
of the case given the other evidence and testimony in the record supporting 10 Rowena’s claim of domestic abuse. Thus, any error would be harmless.
Accordingly, Matthew’s assignment of error is meritless with respect to the
introduction of this evidence.
D. Uncertified Medical Records
Matthew claims the trial court erred by admitting into evidence uncertified
medical records from Compass Counseling, L.L.C. offered by Rowena as exhibit
“P-5”. Matthew asserts that the medical records should not have been admitted into
evidence because no medical records custodian appeared as a representative of
Compass Counseling to authenticate these records, and no treating physician
appeared to testify about the referenced treatment. Matthew’s counsel claims he was
unable to review these records because they were illegible. Matthew argues that the
records are hearsay, unauthentic, and should not have been admitted into evidence
“‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the present trial or hearing, offered in evidence to prove the truth of the
matter asserted.” La.Code Evid. art. 801(C). “Hearsay is not admissible except as
otherwise provided by this Code or other legislation.” La.Code Evid. art. 802. There
are exceptions to the hearsay rule found in La.Code Evid. art. 803, as follows:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
....
(4) Statements for purposes of medical treatment and medical diagnosis in connection with treatment. Statements made for purposes of medical treatment and medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis in connection with treatment.
Another hearsay exception found in La.Code Evid. art. 803(6) relates to
records of regularly conducted business activity, and includes:
11 A memorandum, report, record, or data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in the circumstances under which the statement would not be excluded by the hearsay rule.
On review, these records show that Rowena underwent mental health
counseling in May and June of 2019 from Jodi Underwood at Compass Counseling
in Lake Charles. At trial, Rowena reviewed the records and explained that she
presented to Jodi six times during that period. Rowena testified that they discussed
jealousy, anger, and domestic violence. Rowena agreed that the fifth page of the
document was created by her wherein she checked the following boxes which
indicated the ailments she was seeking help for: anxiety, depression, stress, problem
within the family, domestic violence, and anger issues. When introducing the
records into evidence, Rowena’s counsel acknowledged that part, but not all, of the
packet was created by Rowena. Rowena’s counsel advised, however, that the
records were obtained directly from Compass Counseling through a records request
and were filed in the regular business filings. The trial court noted the objection for
the record and allowed it into evidence as exhibit “P-5,” explaining that “this
document will be considered and given the appropriate weight.”
In this case, the trial court could have found that the Compass Counseling
records were admissible under La.Code Evid. art. 803(6) relating to records of
regularly conducted business activity. The trial court also could have found the
records were admissible under La.Code Evid. art. 803(4) relating to statements made
12 for the purpose of medical treatment and diagnosis in connection with treatment.
The trial court’s findings are reasonable in light of Rowena’s testimony that she
checked the boxes indicating her ailments. Moreover, there is nothing in the record
on review which shows the lack of trustworthiness of the source of the information.
Accordingly, Matthew’s assignment of error is meritless with respect to the
E. Pictures of Clothes
At trial, Rowena offered into evidence three pictures of different items of
clothing that she allegedly found when she returned home after the granting of the
temporary restraining order. Rowena claimed that these clothes were set out by
Matthew to cause her emotional abuse. Because Rowena alleged that the clothing
represented emotional abuse, Matthew’s counsel objected to the introduction of the
pictures as being outside the scope of Rowena’s petition. Matthew’s counsel noted
that emotional abuse was not asserted in Rowena’s petition or supplemental petition.
The trial court allowed introduction of the pictures and testimony regarding same.
At trial, Rowena testified that the clothes in the pictures belonged to Christi.
Rowena believed Matthew had intentionally placed them out for her to see after the
signing of the temporary restraining order because it would trigger her jealousness.
Christi, however, refuted Rowena’s testimony when she [Christi] clarified at trial
that none of the clothes belonged to her. Matthew testified that the clothes probably
belonged to his deceased mother. Matthew explained that upon returning home after
the granting of the temporary restraining order, he was accompanied by a police
officer who was present at all times. Matthew denied placing the clothes on the bed
or instructing any third person to do the same.
In this case, we find that the trial court did not abuse its broad discretion in
allowing the photos. Moreover, even if the trial court’s ruling was erroneous, when 13 compared to the entire record, it does not have a substantial effect on the outcome
of the case. See Johnson v. Tucker, 243 So.3d 1237. Accordingly, Matthew’s
assignment of error is meritless with respect to the introduction of this evidence.
III. Third Assignment of Error
In his third assignment of error, Matthew contends the trial court committed
error in granting the protective order based upon the incidents enumerated in
Rowena’s application. Matthew claims that, on the three occasions when Rowena
alleges the domestic abuse occurred, he was merely defending his property,
defending himself, or defending a third person. He further claims that Rowena was
the instigator in all three occasions. Thus, Matthew alleges that he did not commit
any act of domestic abuse as defined under La.R.S 46:2132.
In Louisiana, domestic abuse pursuant to La.R.S 46:2132(3) “includes but is
not limited to physical or sexual abuse and any offense against the person, physical
or non-physical, as defined in the Criminal Code of Louisiana, except negligent
injury and defamation, committed by one family member, household member, or
dating partner against another.” Rowena’s petition and testimony claim that
Matthew abused her on three different occasions: February 3, 2019, March 6, 2019,
and May 27, 2019. Testimony in the record further reveals another incident occurred
on February 23, 2019. Notably, Matthew’s trial testimony reveals that he is a
licensed professional mental health counselor who works with women who have
been past victims of domestic violence.
A. February 3, 2019
In her petition, Rowena alleged the parties were verbally arguing on February
3, 2019, when Matthew pushed her and caused her to fall on the floor. Rowena’s
trial testimony reveals that Matthew returned to their home on the evening in
question when they began fighting because he had been at Christi’s house watching 14 movies. Rowena claimed that during their argument, Matthew began playing an
online game with Christi. At that point, Rowena picked up the computer mouse and
threw it on the floor, “not to[wards] him.” She alleged that Matthew subsequently
picked her up by both of his hands and threw her on the floor, landing on her bottom.
Rowena noted Matthew told her she merely tripped. Rowena stated that she called
911 but hung up because she did not want to make things worse. She claimed
Matthew subsequently called 911, and Rowena spoke to the police. Recorded 911
calls were entered into evidence at trial.
Matthew’s testimony reveals that on the date in question, Rowena threw a
phone and a mouse next to his computer which was located on top of a glass coffee
table. Matthew explained that he was concerned Rowena was going to hurt herself.
As a result, he stated that the following occurred: “I just put my arms next to hers
and kind of turned us so that I was between her and all the glass stuff.” Matthew
acknowledged that Rowena called the police and hung up. He said that the police
called back and units were dispatched to the home. Matthew noted that they spoke
to the police, and he was not arrested. Matthew’s counsel introduced into evidence
police body camera videos.
B. February 23, 2019
Rowena testified that she and Matthew were in their master bedroom when
they started arguing about Christi. She alleged that Matthew pushed her with both
of his hands out of the bedroom. Rowena explained that she left their home that
night because she was scared of Matthew. Rowena entered into evidence an audio
recording of the couple.
Matthew’s testimony reveals that he was walking forward and yelling at
Rowena while she backed up towards the bedroom door. Matthew claims that when
Rowena reached the door, she began struggling to stay in. At that point, Matthew 15 tried to shut the door but failed to realize that Rowena’s hands were in the doorway.
Matthew claimed this was an accidental incident and that he never made intentional
physical contact with Rowena.
C. March 6, 2019
In her petition, Rowena claimed that she attempted to enter the home when
Matthew blocked her access to the door. At trial, Rowena testified that she was
physically harmed when she went to their home. She explained that she wanted to
speak to Christi, who was staying with Matthew at the marital home. Rowena
advised that when she attempted to open the house door, Matthew blocked her from
entering by pushing the door from the other side. She eventually entered the home
and proceeded to the master bedroom to confront Christi when Matthew grabbed
Rowena. Rowena claimed Matthew dragged her along the hallway and pinned her
down to the floor. He allegedly held her down with both of his hands and dragged
her outside. Rowena claims that Matthew pinned her down, causing her left cheek
to hit the floor. Matthew allegedly twisted her arms and stepped on her back.
Rowena explained that Matthew placed his left hand on the back of her neck when
she began yelling that she could not breathe. According to Rowena’s testimony,
Matthew eventually opened the door and threw her outside. During this incident,
Rowena claimed that she called Christi bad names although she never threatened to
physically harm her. Rowena revealed that she never called the police regarding the
incident. However, she returned the couple’s car to the residence later that day when
she was confronted by police, who told her she was trespassing. Police records were
entered into evidence at trial.
The following day after the alleged incident, Rowena took photographs of her
body. These pictures, which reveal bruises on various parts of her body, were
attached to her petition and entered into evidence at trial. Rowena also testified that 16 she sought medical treatment two days later at Lake Charles Urgent Care. The
medical records, which are dated March 8, 2019, and were entered into evidence at
trial, reveal that Rowena was diagnosed with having soft bruises on her body. A text
message between Rowena and Matthew, also entered into evidence, reveals Rowena
sent Matthew a picture of her bruises after which Matthew responded, “Ok. And?”
Matthew’s testimony reveals that the doorbell rang on the morning in question.
He opened the door where he saw Rowena, who was cursing about Christi. He
testified that Rowena made her way inside and proceeded to the master bedroom
where Christi was hiding. He acknowledged that Rowena was unable to enter the
master bedroom, although she kicked and punched the door. Matthew was scared
that Rowena and Christi would get into a fight and decided to move Rowena. At
that point, Matthew stated that he grabbed Rowena by the arms and pulled her
towards the front door. Matthew brought her outside and “let her go” where Rowena
probably fell. He never choked her, stepped on her back, or twisted her arms.
Matthew advised that Christi called the police, who showed up. Matthew’s counsel
introduced into evidence police body camera videos.
Christi’s trial testimony confirms that she called police on the day in question.
Christi acknowledged that she is Matthew’s former client, and the two have become
friends since their professional relationship ended. Christi, a nurse who lives in
Moss Bluff, explained that she sometimes stays at Matthew’s house because it is
located closer to her patients than her house.
D. May 27, 2019
According to Rowena’s petition and trial testimony, the couple was at home
when they began arguing about Christi. Rowena was angry because Matthew was
with Christi earlier that day. Rowena revealed that she grabbed Matthew’s phone
with her right hand. Rowena testified that she never hit Matthew’s arm or hand when 17 she grabbed his phone. According to Rowena, Matthew subsequently stood up and
pushed her, causing her to fall into the furniture.
Matthew acknowledged that he had been watching movies at Christi’s house
earlier in the day. This was confirmed by Christi’s testimony. Matthew testified
that as he was leaving Christi’s house, he saw Rowena and her daughter pass in
another vehicle. Thereafter, the parties returned to the marital home when Rowena
and Matthew began arguing in the living room. Matthew stated that Rowena
removed his cell phone from his hand without his permission. He explained that he
subsequently reached forward with his right hand and retrieved his phone from
Rowena while holding out his left arm. Matthew stated that Rowena subsequently
sat down in the loveseat behind her.
After considering the foregoing testimony and evidence, along with
jurisprudence, the trial court held that a caustic relationship existed between Rowena
and Matthew which resulted in non-consensual physical touches. The trial court
granted the protective order and use of the home to Rowena pending further
proceedings.
Our review of the record reveals that the trial court found Rowena’s testimony
more credible than Matthew and Christi’s testimony, and there is nothing in the
record to contradict its finding. Accordingly, the trial court’s finding is not
manifestly erroneous in this regard.
Matthew further claims that during the March 6, 2019 incident, he was acting
in self-defense pursuant to La.R.S. 14:19, such that his acts should not be considered
domestic abuse. Pursuant to La.R.S. 14:19, the use of force or violence upon the
person of another is justifiable in certain circumstances. In a non-homicide case, the
defendant must carry the burden of proving self-defense by a preponderance of the
evidence. State v. Perkins, 527 So.2d 48 (La.App. 3 Cir. 1988). In a non-homicide 18 case, the issue of self-defense “requires a dual inquiry: (1) an objective inquiry into
whether the force used was reasonable under the circumstances; and (2) a subjective
inquiry into whether the force was apparently necessary.” Id. at 50.
In the case before us, the evidence presented at trial demonstrates that
Matthew suffered little or no injury as a result of the March 6, 2019 incident. On
the other hand, Rowena introduced medical records and photographs demonstrating
her injuries which resulted from the incident. In light of the evidence presented, we
find that the trial court could have reasonably found that Matthew did not act in self-
defense. Accordingly, the trial court did not abuse its discretion, and this assignment
of error is without merit.
IV. Fourth Assignment of Error
In his fourth assignment of error, Matthew contends that the trial court
committed error and abused its discretion by awarding Rowena the exclusive use of
Matthew’s separate property residence for an eighteen-month period pursuant to the
granting of the protective order. In support, Matthew cites La.R.S. 46:2136(A),
which provides:
The court may grant any protective order or approve any consent agreement to bring about a cessation of domestic abuse as defined in R.S. 46:2132, or the threat or danger thereof, to a party, any minor children, or any person alleged to be incompetent, which relief may include but is not limited to:
(2) Where there is a duty to support a party, any minor children, or any person alleged to be incompetent living in the residence or household, ordering payment of temporary support or provision of suitable housing for them, or granting possession to the petitioner of the residence or household to the exclusion of the defendant, by evicting the defendant or restoring possession to the petitioner where the residence is solely owned by the defendant and the petitioner has been awarded the temporary custody of the minor children born of the parties.
According to Matthew, a petitioner can only be granted the exclusive possession of
a defendant’s separately owned property under La.R.S. 46:2136(A)(2) when the
19 petitioner has been awarded temporary custody of the minor children born of the
parties. Because Rowena and Matthew have no children together, he claims the trial
court abused its discretion in awarding Rowena exclusive possession.
Matthew further asserts that the only case cited by Rowena in her amended
petition to support her contention that La.R.S. 46:2136(A)(2) is applicable, i.e.,
Beard v. Beard, 917 So.2d 1160 (La.App. 5 Cir. 11/29/05), is factually
distinguishable from the instant matter. In Beard, Mrs. Beard was granted a
temporary restraining order against Mr. Beard which included the use of the
matrimonial domicile. Mr. Beard filed an ex parte motion to vacate the temporary
restraining order, arguing that the matrimonial domicile was his separate property
and that Mrs. Beard misled the court in her petition by stating that she was the sole
owner. The trial court maintained the domestic abuse order and granted Mrs. Beard
use and possession of the residence until August 24, 2006. On appeal, and with
respect to the order granting Mrs. Beard use of family home, Mr. Beard claimed that
La.R.S. 46:2136(A)(2) provided that an order granting a party use of the separate
property of the other spouse may be issued only if the petitioner had been awarded
temporary custody of the parties’ minor children.2 The fifth circuit affirmed the trial
court’s judgment.
In his brief, Matthew claims Beard is inapplicable because Mr. Beard testified
that he did not mind Mrs. Beard living in the house whereas in this matter, Matthew
does not want Rowena living in the house. Although the fifth circuit noted the
foregoing testimony as one of its reasons in affirming the trial court’s judgment, that
2 Our reading of Beard, 917 So.2d 1160, reveals that Mrs. Beard has a daughter named Sandra Rivere who used to live rent free in one of Mr. Beard’s mobile homes. However, there is no information in the opinion as to Sandra’s age and whether Mr. Beard is Sandra’s father. Moreover, there is no information in the opinion as to whether Mr. and Mrs. Beard actually had any children together.
20 was not the sole reason. Beard, 917 So.2d 1160. Rather, the fifth circuit noted that
the trial court found Mrs. Beard’s testimony was more credible than Mr. Beard’s
testimony, and there was nothing in the record to contradict such a finding.
Importantly, the fifth circuit stated:
The wording of LSA-R.S. 46:2136 makes it clear that the court is not limited to the enumerated relief. The legislature apparently fashioned the statute thus in order to permit the court to tailor relief to the circumstances of the case. Under the facts presented here, we find the decision by the trial court to award occupancy of the family home to Mrs. Beard is a protective order which results in the cessation of systematic psychological abuse by her husband.
Id. at 1163. Thus, Matthew’s claim that Beard is inapplicable to this case is without
merit.
Rather, we find the trial court’s reliance on Beard is appropriate. The trial
court in this case, just as in Beard, found Rowena’s testimony more credible than
Matthew’s testimony, and there is nothing in the record to contradict such a finding.
Just as in Beard, the trial court in this matter recognized that it was not limited to the
enumerated relief provided in La.R.S. 46:2136. Similar to Beard, the trial court in
this case recognized that La.R.S. 46:2136 was fashioned in order to enable the court
to tailor relief to the circumstances of the case. Under the facts presented here, we
find the decision by the trial court to award occupancy of the residence to Rowena
is a protective order which results in the cessation of abuse by Matthew.
Accordingly, the trial court did not abuse its discretion in this regard, and Matthew’s
V. Fifth Assignment of Error
In his fifth assignment of error, Matthew contends the trial court committed
error by awarding attorney fees to Rowena. Alternatively, he contends the trial court
committed error by awarding an unreasonably high amount of attorney fees.
21 According to the record on review, the trial court awarded attorney fees to
Rowena pursuant to the granting of the protective order. Rowena’s counsel was
instructed to submit an affidavit indicating the amount of attorney fees incurred.
Matthew filed an opposition to the affidavit of attorney fees. The trial court
subsequently signed an order awarding Rowena $15,500.00 in attorney fees.
A “trial court’s award of attorneys’ fees should not be modified absent an
abuse of discretion.” D.M.S. v. I.D.S., 14-364, p. 25 (La.App. 4 Cir. 3/4/15), 225
So.3d 1127, 1143, writ denied, 15-897 (La. 6/19/15), 172 So.3d 654. In this case,
the trial court’s award was granted pursuant to the Domestic Abuse Assistance Act,
La.R.S. 46:2136.1(A), which provides:
All court costs, attorney fees, costs of enforcement and modification proceedings, costs of appeal, evaluation fees, and expert witness fees incurred in maintaining or defending any proceeding concerning domestic abuse assistance in accordance with the provisions of this Part shall be paid by the perpetrator of the domestic violence, including all costs of medical and psychological care for the abused adult, or for any of the children, necessitated by the domestic violence.
The statute clearly awards all attorney fees incurred, including the costs of
appeal, in maintaining or defending a proceeding concerning domestic abuse
assistance which must be paid by the perpetrator. In this case, the perpetrator is
Matthew. Thus, the trial court properly awarded attorney fees in light of the statute.
We find no abuse of the trial court’s discretion, and this assignment lacks merit.
DECREE
For the foregoing reasons, the trial court’s judgment is affirmed. All costs
associated with this appeal are assessed to Defendant/Appellant, Matthew Wayne
McCauley.