Shaw v. Young

199 So. 3d 1180, 2015 La.App. 4 Cir. 0974, 2016 La. App. LEXIS 1579, 2016 WL 4395045
CourtLouisiana Court of Appeal
DecidedAugust 17, 2016
DocketNo. 2015-CA-0974
StatusPublished
Cited by15 cases

This text of 199 So. 3d 1180 (Shaw v. Young) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shaw v. Young, 199 So. 3d 1180, 2015 La.App. 4 Cir. 0974, 2016 La. App. LEXIS 1579, 2016 WL 4395045 (La. Ct. App. 2016).

Opinion

SANDRA CABRINA JENKINS, Judge.

| i This case presents an issue of first impression as it relates to whether the [1182]*1182crime of cyberstalking constitutes domestic abuse for the purpose of obtaining a protective order under the Louisiana Domestic Abuse Assistance Law, La. R.S. 46:2131, et seq. We decide that it does, and find that the trial court did not abuse its discretion in granting a permanent protective order in favor of Ms. Shaw and against Mr. Young. We further find that the trial court did not abuse its discretion in denying Mr. Young interim and permanent spousal support. Accordingly, we affirm the trial court’s May 6, 2015 judgment.

FACTS AND PROCEDURAL BACKGROUND

Mr. Young and Ms. Shaw married in January 2013. At that time, Ms. Shaw moved permanently from Australia to New Orleans, Louisiana, where the parties established their matrimonial domicile.

On February 13, 2014, Ms. Shaw filed a Petition for Protection from Abuse pursuant to the Louisiana Domestic Abuse Assistance Law, La. R.S. 46:2131, et 19seq. In the Petition, Ms. Shaw alleged that, on or about February 8, 2014, Mr. Young punched her, shoved her, and threatened her with bodily harm.

Based on the verified allegations in the Petition, on February 13, 2014, the trial court entered an ex parte Order of Protection against Mr. Young, effective through March 10, 2014 (“Temporary Restraining Order” or “TRO”). The Temporary Restraining Order prohibited Mr. Young from: (1) abusing, harassing, stalking, following, or threatening Ms. Shaw; (2) contacting Ms. Shaw personally, electronically, by phone, in writing, or through a third party, without the express written permission of the court; (3) going within 100 yards of Ms. Shaw without court permission; and (4) going within 100 yards of Ms. Shaw’s residence.

On or about May 9, 2014, Mr. Young filed a Petition for Divorce based on fault pursuant to La. Civ. Code art. 103, and requested a permanent injunction on the grounds of spousal abuse. Ms. Shaw filed an Answer and Reconventional Demand for Divorce and Permanent Injunction.

On October 14, 2014 and April 27, 2015, the district court held a two-day trial on Mr. Young’s Rule for Preliminary Injunction, Interim Spousal Support and Final Spousal Support; and Ms. Shaw’s Answer and Reconventional Demand for Divorce and Permanent Injunction.

At the conclusion of the trial on April 27, 2015, the district court issued a permanent Protective Order, which stated that Mr. Young was not to abuse, harass, stalk, follow, or threaten Ms. Shaw in any manner. The Protective Order further stated that “[f]or the purpose of this order, harassment includes, but is not limited lato, defendant’s written, verbal or electronic communication to 3rd parties disparaging petitioner.” The Protective Order also prohibited Mr. Young from contacting Ms. Shaw personally, electronically, by phone, in writing or through a third party. Mr. Young was also barred from going within 100 yards of Ms. Shaw or her residence, and he was ordered to stay away from Ms. Shaw’s place of employment/school and to not interfere with Ms. Shaw in any manner at her place of employment/school.

On May 6, 2015, the trial court signed a written judgment: (1) granting Ms. Shaw’s rule for divorce based on the parties having lived separate and apart continuously for 180 days; (2) granting Ms. Shaw a permanent protective order against Mr. Young, to be registered with the Louisiana Protective Order Registry; (3) denying Mr. Young’s rule for interim spousal support; (4) denying Mr. Young’s rule for final/permanent spousal support; and (5) [1183]*1183granting Mr. Young a five year civil injunction against Ms. Shaw, prohibiting Ms. Shaw from “any and all harassments, including electronic means.”

Mr. Young timely appealed.

DISCUSSION

Permanent Protective Order Under the Louisiana Domestic Abuse Assistance Law

A trial court’s decision denying a protective order under the Domestic Abuse Assistance Law, La. R.S. 46:2181, et seq., is reversible only upon a showing of an abuse of discretion. Alfonso v. Cooper, 14-0145, p. 13 (La.App. 4 Cir. 7/16/14), 146 So.3d 796, 805. The trial court’s findings of fact, including its assessment of |4the weight of the evidence and the credibility of the witnesses, may not be set aside in the absence of manifest error or unless they are clearly wrong, Sander v. Brousseau, 00-0098, p. 3 (La.App. 4 Cir. 10/4/00), 772 So.2d 709, 710-11. When a conflict in the testimony exists, reasonable evalua tions of credibility and reasonable inferences of fact made by the trial court are not to be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are just as reasonable. Melerine v. O’Connor, 13-1073, p. 3 (La.App. 4 Cir. 2/26/14), 135 So.3d 1198, 1202. As long as the trier of fact’s findings are reasonable in light of the record as a whole, the appellate court will affirm. Mazzini v. Strathman, 13-0555, p. 4 (La.App. 4 Cir. 4/16/14), 140 So.3d 253, 256.

Under the Domestic Abuse Assistance Law, the trial court may grant a protective order directing the defendant to refrain from abusing, harassing, or interfering with the person on whose behalf a Petition for Protection from Abuse has been filed. La. R.S. 46:2136(A)(1); La. R.S. 46:2135(A)(1). To obtain a protective order under this statute, the petitioner must prove his or her allegations of domestic abuse by a preponderance of the evidence. La. R.S. 46:2135(B). “ ‘Proof is sufficient to constitute a preponderance of the evidence when the entirety of the evidence!,] both direct and circumstantial, shows that the fact sought to be proved is more probable than not.’” Joseph v. Williams, 12-0675, p. 23 (La.App. 4 Cir. 11/14/12), 105 So.3d 207, 222 (quoting Hanks v. Entergy Corp,, 06-477, p. 19 (La.12/18/06), 944 So.2d 564, 578).

On appeal, Mr. Young’s third assignment of error is that Ms. Shaw did not produce sufficient evidence to warrant a permanent protective order pursuant to La. R.S. 46:2136. Ms. Shaw argues that the evidence from the prior protective border proceedings, along with the evidence presented at the protective order proceedings at issue in this appeal, are sufficient to satisfy her burden of proof. Ms. Shaw is correct that evidence from prior protective order proceedings is admissible.

In this instance, however, we must decide whether evidence introduced at the prior protective order proceedings is properly before this court.

Under the Domestic Abuse Assistance Law, upon good cause shown in an' ex parte proceeding, the court may issue a temporary restraining order to protect a person who shows immediate and present danger of abuse. La. R.S. 46:2135(A). According to the statute, the court shall 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).

The February 13, 2014 Temporary Restraining Order was issued based solely on Ms. Shaw’s sworn allegations in her Peti[1184]*1184tion for Protection From Abuse that, on or about February 8, 2014, Mr. Young punched her, shoved her, and threatened her with bodily-harm. In the Petition, Ms. Shaw alleged that when she tried to pack her belongings and move out of their residence, Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
199 So. 3d 1180, 2015 La.App. 4 Cir. 0974, 2016 La. App. LEXIS 1579, 2016 WL 4395045, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaw-v-young-lactapp-2016.