Opinion
2210492
09-16-2022
W.T. v. H.S.
Appeal from Lee Circuit Court (CV-21-183)
EDWARDS, JUDGE.
In September 2021, H.S. filed in the Lee Circuit Court ("the trial court") a form petition seeking a protection-from-abuse ("PFA") order pursuant to the Protection from Abuse Act ("the Act"), Ala. Code 1975, § 30-5-1 et seq. On that form petition, H.S. named W.T. as the defendant and checked the box indicating that she and W.T. "has or had a dating relationship." H.S. attached to her petition a police report indicating that she had reported that W.T., who the police report characterized as her ex-boyfriend, had engaged in certain acts, including trespassing on her property and sending her threatening text messages. In a document entitled "Protection From Abuse (PFA) Cover Sheet," however, H.S. described her relationship with W.T. as "ex-friend." H.S. also completed the top portion of the forms entitled "Ex Parte Protection Order" ("the proposed ex parte PFA order") and "Protection Order" ("the proposed PFA order") at the time she filed her petition. Although each of those forms had a box to check to indicate that the plaintiff and the defendant were in a dating relationship, on the proposed ex parte PFA order, H.S. drew a separate box, checked that box, and wrote beside it: "We never dated. Friends" on the proposed PFA order, H.S. checked the box for "Current or Former Dating Relationship" but crossed out the word "Dating."
The trial court entered an ex parte PFA order on September 24, 2021. That order, which appeared to be a copy of the proposed ex parte PFA order H.S. had filed, indicated via check mark in a box drawn on the form order that H.S. and W.T. had "never dated" and were "friends." After a trial held in November 2021, the trial court entered a PFA order on November 24, 2021. That PFA order appeared to be a copy of the proposed PFA order H.S. had filed, because, although the box for "Current or Former Dating Relationship" was checked, the word "Dating" was crossed out.
W.T. filed a postjudgment motion in which he challenged the PFA order on the ground that H.S. had not established that she and W.T. had been in a "dating relationship," as that term is defined in the Act. The trial court denied W.T.'s postjudgment motion on February 7, 2022.
W.T. appealed the PFA order. No transcript was made of the November 2021 trial. W.T. submitted, and the trial court approved, a Rule 10(d), Ala. R. App. P., statement of the evidence. That statement, by and large, reiterates the facts set out in the order denying W.T.'s postjudgment motion. The statement reads, in pertinent part:
"The matter was called to order on the 23rd day of November 2021, for a final hearing on a Petition for Protection from Abuse filed by [H.S.], pursuant to the Protection from Abuse Act (Ala. Code [1975], § 30-5-1, et seq.). [H.S.] was present, pro se, and [W.T.] was present and represented by his counsel of record, Eric Funderburk. [H.S.] also had a witness present with her.
"Prior to taking testimony, [W.T.'s] counsel moved the trial court to dismiss the petition based on [H.S.'s] statements in the pleadings that the parties did not have a dating relationship. [W.T.'s] counsel argued that because there was no dating relationship, Ala. Code [1975], § 30-5-1, et seq., would not apply and [H.S.] would therefore not have standing to seek an order of protection pursuant to the Protection from Abuse Act.
"The trial court placed the witnesses under oath and examined [H.S.] concerning [W.T.'s] motion to dismiss. Under examination from the trial court, [H.S.] testified that she and [W.T.] had been intimate on three occasions, the first being in February 2021, and the last being in May 2021. Further, [H.S.] testified that she was not and had never been in a dating relationship with [W.T.].
"On cross examination, [H.S.] again testified that she was not in a dating relationship with [W.T.] and that the two had never been in a dating relationship.
"[H.S.] called a witness to testify about a text exchange the witness had with [W.T.] in, or around, the end of July 2021, beginning of August 2021. This witness gave no testimony concerning whether or not the parties were or had ever been in a dating relationship.
"[W.T.] did not testify.
"There was no evidence or testimony presented by [H.S.,] or anyone on her behalf, that [W.T.] and/or [H.S.] had any expectation of affection or sexual involvement from the other."
On appeal, W.T. challenges whether the evidence supports a conclusion that he and H.S. were in a "dating relationship," as defined in the Act. He correctly points out that Ala. Code 1975, § 30-5-2(3), defines "dating relationship" as "[a] relationship or former relationship of a romantic or intimate nature characterized by the expectation of affectionate or sexual involvement by either party." W.T. argues that, because H.S. denied that the parties had a dating relationship and because the evidence before the trial court lacked any indication that the parties had "an expectation of affectionate or sexual involvement by either party," the trial court could not have concluded that H.S. and W.T. were in a dating relationship. Therefore, he contends, the trial court erred in entering the PFA order.
Based on the facts stated in the Rule 10(d) statement of the evidence, we cannot agree that H.S. established that she and W.T. had been involved in a "dating relationship" as that term is defined in the Act. Her petition did not allege that the parties were in a dating relationship, and, according to the Rule 10(d) statement of the evidence, she repeatedly denied at trial that she and W.T. were engaged in a dating relationship and did not present evidence indicating that either she or W.T. had any "expectation of affectionate or sexual involvement" at any point during their interactions. Accordingly, we reverse the PFA order and remand the cause for the entry of a judgment in accordance with this opinion.
In light of our reversal of the PFA order based on W.T.'s first argument, we pretermit discussion of his second argument for reversal. See Favorite Mkt. Store v. Waldrop, 924 So.2d 719, 723 (Ala. Civ. App. 2005) (explaining that this court would pretermit discussion of additional issues on appeal in light of the dispositive nature of another issue).
REVERSED AND REMANDED WITH INSTRUCTIONS.
Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.