McKinsey v. Castle
| Decision Date | 10 August 2021 |
| Docket Number | 2021-CA-0368 |
| Parties | VELVA MCKINSEY v. ERNEST CASTLE |
| Court | Court of Appeal of Louisiana — District of US |
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2019-00320 DIVISION “I-14” Honorable Lori Jupiter, Judge
Nicholas J. Hite
THE HITE LAW GROUP, LLC
COUNSEL FOR PLAINTIFF/APPELLEE
Taetrece Harrison
ATTORNEY AT LAW
COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown)
This case arises out of alleged domestic abuse. Plaintiff/Appellee, V.A.M. ("Plaintiff") filed a petition for protection from abuse (the "Petition") against, Defendant/Appellant, E.J.C. ("Defendant") for herself and on behalf of her two minor children, E.M. and E.C.[1] Following a hearing, the district court granted an eighteen (18) month order of protection in favor of Plaintiff and against Defendant. From this judgment, Defendant seeks appellate review. For the reasons set forth below, we vacate the district court's judgment and remand this matter to the district court for further proceedings consistent with this opinion.
On March 29, 2021, Plaintiff filed, in the district court, a petition for protection from abuse, pursuant to La. R.S 46:2131 et seq., against Defendant on behalf of herself, and her two minor children. Plaintiff alleged that she and Defendant formerly dated and cohabitated, and they shared a child in common, E.C.[2] Plaintiff further alleged Defendant threatened her with body injury, threatened her life, and inflicted verbal, emotional and mental abuse upon her. Plaintiff averred the most recent incidents of abuse, which caused her to file the Petition, were Defendant's threatening text messages.[3] Plaintiff further alleged that Defendant cursed her all the time, threw things, and that he once threw a plant that struck her.
Plaintiff prayed for an order of protection to prohibit Defendant from abusing, harassing, assaulting and threatening her and her minor children; to prohibit Defendant from contacting her by any means, including text messages; to prohibit Defendant from going within 100 yards of her home, work or the children's schools; and to award Plaintiff temporary custody of E.C. Plaintiff also requested that the district court order Defendant to attend professional counseling or a court-approved domestic abuse intervention program.
On March 29, 2021, the district court, finding that the allegations presented in Plaintiff's petition for protection from abuse constituted an immediate and present danger to Plaintiff's physical safety, granted a temporary restraining order ("TRO") against Defendant. The district court, however, denied the TRO as to the minor children, and Plaintiff's request for temporary custody of E.C. The TRO prohibited Defendant from contacting or going within 100 yards of Plaintiff except as it related to E.C. and/or any custodial exchanges of E.C, and ordered Defendant to appear for trial on the Petition on April 13, 2021.
On April 13, 2021, Plaintiff and Defendant appeared for trial-Plaintiff was represented by counsel, and Defendant appeared pro se. Before trial commenced, Defendant was afforded an opportunity to continue the matter; however, he chose to proceed in proper person. Plaintiff and Defendant were the only ones to testify at the hearing. After the hearing, the district court granted Plaintiff's order of protection against Defendant for a period of eighteen (18) months. Defendant was ordered to surrender all firearms and was prohibited from possessing any firearms during the duration of the order. Defendant was also ordered not to go within 100 yards of Plaintiff, E.M. and E.C. Plaintiff was granted temporary custody of E.C., and Defendant was ordered to stay away from Plaintiff's residence, place of employment, and the minor children's schools. The district court also ordered Defendant to submit to and complete an anger management treatment program, an age-appropriate parenting education and skills course and a batterer's intervention program, before any visitation would be allowed. This order was then transmitted to the Louisiana Protective Order Registry.
On April 16, 2021, Defendant, through counsel, filed a motion for new trial, which the district court denied on April 19, 2021. Defendant filed a motion and order for appeal on April 21, 2021, which the district court granted the same day. On April 26, 2021, Defendant filed a motion and order to stay all proceedings, pending the appeal; the order was granted by the district court.
On June 16, 2021, this Court ordered the district court to issue a per curiam, clarifying the April 26, 2021 order that granted a stay of all proceedings. The district court issued its' per curiam on June 18, 2021, wherein it explained the order of protection was to continue, during the pendency of the appeal.
This timely filed appeal followed.
On appeal, Defendant asserts several assigned errors, which we summarize as follows:
In domestic violence cases, orders of protection are issued pursuant to La. R.S. 46:2131 et seq, the Domestic Abuse Assistance Act. The purpose of the statute is "provide relief to victims of domestic violence which will afford the victim immediate and easily accessible protection." Alfonso v. Cooper, 14-0145, p. 13 (La.App. 4 Cir. 7/16/14), 146 So.3d 796, 805 (citing Vallius v. Vallius, 10-0870, p. 5 (La.App. 4 Cir. 12/8/10), 53 So.3d 655, 658, quoting Branstetter v. Purohit, 06-1435, p. 4 (La.App. 4 Cir. 5/2/07), 958 So.2d 740, 743). In accordance with La. R.S. 46:2135 and 46:2136, the issuance of a protective order requires that there be "good cause shown." D.M.S. v. I.D.S., 14-0364, p. 15, 225 So.3d 1127, 1137 (La.App. 4 Cir. 3/4/15). Good cause shown, as defined in La. R.S. 46:2135, is a showing of immediate and present danger of abuse. Id. "'Domestic abuse' 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." La. R.S. 46:2132(3).[4] "General harassment and family arguments, if they do not rise to the threshold of physical or sexual abuse in violation of the criminal code, or an offense against the person, are not within the ambit of the Domestic Abuse Assistance Act." D.M.S., 14-0364, p. 15, 225 So.3d at 1137 (citing Harper v. Harper, 537 So.2d 282 (La.App. 4th Cir. 1988); Lee v. Smith, 08-455, p. 9 (La.App. 5 Cir. 12/16/08), 4 So.3d 100, 106; Rouyea v. Rouyea, 00-2613 (La.App. 1 Cir. 3/28/01), 808 So.2d 558).
"An appellate court reviews domestic orders for an abuse of discretion." Patterson v. Charles, 19-0333, p 9 (La.App. 4 Cir. 9/11/19), 282 So.3d 1075, 1082 (citation omitted). "The trial court sitting as a trier of fact is in the best position to evaluate the demeanor of the witnesses, and its credibility determinations will not be disturbed on appeal absent manifest error." Id. (citation omitted). In addition, as to evidentiary issues, "[a] trial court is granted broad discretion in its rulings on evidentiary issues which will not be disturbed on appeal absent a clear abuse of that discretion." Cipolla v. Cox Commc'ns La., LLC, 19-0509, p. 2 (La.App. 4 Cir. 8/5/20), 305 So.3d 911, 914 (quoting Freeman v. Phillips 66 Co., 16-0247, p. 4 (La.App. 4 Cir. 12/21/16), 208 So.3d 437, 441). The Court is also "required to examine the record . . . for legal error." St. Germain v. St. Germain, 20-0146, p. 9 (La.App. 4 Cir. 3/17/21), 315 So.3d 443, 450 (). "[L]egal errors are reviewed under the de novo standard of review." Id. (quoting 1026 Conti Condominiums, LLC v. 1025 Bienville, LLC, 15-0301, p. 5 (La.App. 4 Cir. 12/23/2015), 183 So.3d 724, 727).
"A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial." Id. (citation omitted). "Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights." Id. (quoting Evans v. Lungrin, 97-0541, p. 7 (La. 2/6/98), 708 So.2d 731, 735). "Where an error of law taints the record, we are not bound to affirm the judgment of the lower court." Id. (quoting City of New Orleans, 07-1066, p. 3, 985 So.2d at 834-35). However, "[a]s long as the trier of fact's findings are reasonable in light of the record as a whole, the appellate court will affirm." Shaw v. Young, 15-0974, p. 4 (La.App. 4 Cir. 8/17/16), 199 So.3d 1180, 1184 (citation omitted).
With the applicable law and standards of review in mind, we turn to Defendant's assigned errors. Because Defendant has raised, as assigned errors, evidentiary and procedural due process issues, we will first address those errors.
Authentication of and objection to the text messages
Defendant argues that the district...
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