Opinion
NO. 2018-CA-0173
09-26-2018
Stephen P. NICKLES v. Shani TAYLOR
Michael J. Hall, Jonique Martin Hall, Law Office of Michael J. Hall, L.L.C., 1010 Common Street, Sutie 2340, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLANT Allyson D. Tuttle, CATHOLIC CHARITIES ARCHDIOCESE OF NEW ORLEANS/ PROJECT SAVE, 639 Loyola Avenue, Suite 1810, New Orleans, LA 70113, COUNSEL FOR DEFENDANT/APPELLEE
Michael J. Hall, Jonique Martin Hall, Law Office of Michael J. Hall, L.L.C., 1010 Common Street, Sutie 2340, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLANT
Allyson D. Tuttle, CATHOLIC CHARITIES ARCHDIOCESE OF NEW ORLEANS/ PROJECT SAVE, 639 Loyola Avenue, Suite 1810, New Orleans, LA 70113, COUNSEL FOR DEFENDANT/APPELLEE
(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods )
Judge Regina Bartholomew-Woods
Appellant seeks review of the trial court's October 27, 2017 judgment granting of an Order of Protection against Appellant. For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant, Stephen P. Nickles ("Mr. Nickles"), and Appellee, Shani Taylor ("Ms. Taylor") are the parents of a minor child, J.N. On August 30, 2016, Mr. Nickles filed a petition to establish paternity, custody, and a visitation schedule. On July 3, 2017, Ms. Taylor filed a Petition for Protection from Abuse alleging that Mr. Nickles committed acts of domestic violence against her and J.N.; the trial court granted a Temporary Restraining Order. Prior to ruling on the Order of Protection, the trial court conducted a Watermeier hearing with the minor child. On October 27, 2017, the trial court granted an Order of Protection in favor of Ms. Taylor and J.N. The trial court granted supervised visitation in favor of Mr. Nickles. It is from this Order of Protection that Mr. Nickles appeals.
In this opinion, the initials, rather than the full name of the minor child are used to protect and maintain the privacy of the minor child involved in this proceeding. See Uniform Rules, Courts of Appeal, Rule 5-1 and Rule 5-2.
On October 7, 2016, the parties entered into a consent judgment regarding the establishment of paternity. The trial court signed the judgment on November 3, 2017.
Watermeier v. Watermeier , 462 So.2d 1272, 1275 (La. App. 5th Cir. 1985).
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DISCUSSION
Mr. Nickles' sole assignment of error is whether the trial court erred in granting an Order of Protection against him and in favor of Ms. Taylor and J.N. because Ms. Taylor failed to prove that Mr. Nickles presented an immediate and present danger of abuse to Ms. Taylor and J.N.
Standard of Review
This Court has stated that "[a]n appellate court reviews domestic protective orders for abuse of discretion." Rodriguez v. Claassen , 2016-0610, p. 3 (La. App. 4 Cir. 12/21/16), 207 So.3d 490, 493 ; Alfonso v. Cooper , 2014-0145, p. 13 (La. App. 4 Cir. 7/16/14), 146 So.3d 796, 805. This Court has further stated that "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." Alfonso , 2014-0145, pp. 13-14, 146 So.3d at 805 (citing Ruiz v. Ruiz, 2005-175, p. 4 (La. App. 5 Cir. 7/26/05), 910 So.2d 443, 445 ).
Analysis
The trial court granted the Order of Protection pursuant to the Domestic Abuse Assistance Act, La. R.S. 46:2131, et seq. , which was enacted to "provide relief to victims of domestic violence by establishing a civil remedy for domestic violence that affords the victim(s) immediate and easily accessible protection." Dvilansky v. Correu , 2016-0279, p. 6 (La. App. 4 Cir. 10/26/16), 204 So.3d 686, 689, writ denied , 2016-2081 (La. 1/9/17), 214 So.3d 871 (citing Alfonso , 14-0145, p. 13, 146 So.3d at 805. This Court has stated that,
[t]o 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, [20]12-0675, p. 23 (La. App. 4 Cir. 11/14/12), 105 So.3d 207, 222 (quoting Hanks v. Entergy Corp., [20]06-477, p. 19 (La. 12/18/06), 944 So.2d 564, 578 ).
Shaw v. Young , 2015-0974, p. 4 (La. App. 4 Cir. 8/17/16), 199 So.3d 1180, 1183.
During the trial on the Order of Protection, the trial court heard testimony from Ms. Taylor. She testified that when she learned that she was pregnant, Mr. Nickles threatened to kill her and instructed her to "get rid" of the baby. She further testified that while she carried J.N. in her arms, Mr. Nickles attempted to snatch J.N. from her and pushed her, which caused her to drop J.N. onto the floor. Afterward, she ran into another room to call the police, while Mr. Nickles yelled "B****, I'm going to f***ing kill you. You're not going out of this house alive." Mr. Nickles then went out to Ms. Taylor's vehicle, punched her vehicle and its windows, and yelled, "B****, I'm going to flatten these f***ing tires." Ms. Taylor testified that although she called the police, the police never responded to the home.
Ms. Taylor also recounted for the trial court other instances of physical abuse that she suffered at the hands of Mr. Nickles. She testified that Mr. Nickles:
(1) choked her while J.N. attempted to push Mr. Nickles off of her;
(2) struck her ankle with a belt buckle as she lay in bed;
(3) punched her in her right eye causing her vision to become blurry for a number of days;
(4) threw a cellular phone charger at her face causing a welt that took a day to heal;
(5) carved "b****" into the back of her vehicle; and on a separate occasion, scratched the driver side door of her vehicle;
(6) attacked her in his garage causing bruises and scrapes to her arms;
(7) slapped her on a number of occasions;
(8) spit in her face on a number of occasions
(9) sexually assaulted her on a number of occasions; and
(10) grabbed her by her hair, punched her head, and called her a "black b****."
In addition to the testimony of Ms. Taylor, the trial court also heard testimony from one of Ms. Taylor's co-workers who testified that Mr. Nickles arrived at Ms. Taylor's place of employment, waited for her to exit the building for a break, then jumped out of his vehicle, chased Ms. Taylor around the building, and yelled and cursed in Ms. Taylor's face. The co-worker further testified that once Ms. Taylor was able to escape from Mr. Nickles, he got back into his vehicle, drove the wrong way down a one-way street chasing Ms. Taylor. Once Mr. Nickles observed other employees outside looking on, he drove away. The co-worker also testified that on a number of separate occasions, Mr. Nickles arrived at their place of employment and waited for Ms. Taylor to arrive, came in and stared at Ms. Taylor as she worked, drove past the building slowly, and called repeatedly to speak with Ms. Taylor.
The trial court also heard testimony from Mr. Nickles who denied the incidents of abuse that Ms. Taylor detailed; as well as from his mother, Ms. Valteau who denied that her son physically abused Ms. Taylor. Ms. Valteau conceded that Mr. Nickles was upset when he learned of Ms. Taylor's pregnancy and he had instructed her to terminate her pregnancy. Both Mr. Nickles and Ms. Valteau testified that the police had responded to Mr. Nickles' home in response to verbal arguments. In fact, Ms. Valteau testified that she had witnessed Mr. Nickles yell and curse at Ms. Taylor; and she witnessed him throw Ms. Taylor's clothes out of his house.
After hearing all of the testimony, the trial court granted an Order of Protection against Mr. Nickles pursuant to the Domestic Abuse Assistance Act, La. R.S. 46:2131, et seq. Domestic violence, as contemplated by 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."
Ms. Taylor provided testimony, which was corroborated by her co-worker, of physical, sexual, and verbal abuse that qualify as domestic violence. The trial court, after hearing from all witnesses, weighed their credibility and chose to believe the testimony of Ms. Taylor and her co-worker over the testimony of Mr. Nickles and Ms. Valteau; thus, granting the Order of Protection in favor of Ms. Taylor and J.N. This Court has reasoned that "[t]he trial court is in the best position to view the demeanor and mannerisms of the witnesses" and "[w]hen conflicting testimony exists, reasonable evaluations of credibility and reasonable inferences of fact made by the trial court are not to be disturbed." Munger v. Sirenko , 2016-0778, p. 8 (La. App. 4 Cir. 7/12/17), 224 So.3d 445, 449–50.
DECREE
For the aforementioned reasons, we find that the trial court did not abuse its discretion. Accordingly, we affirm the trial court's judgment granting the Order of Protection against Appellant.
AFFIRMED
LOBRANO, J., CONCURS IN THE RESULT.