DocketNumber： 11-05-00078-CV
Filed Date： 12/15/2005
Status： Precedential
Modified Date： 4/17/2021
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Opinion filed December 15, 2005
In The
Eleventh Court of Appeals
__________
No. 11-05-00078-CV
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LILLIAN HUNTER, Appellant
V.
FRED HUNTER, Appellee
On Appeal from the 106th District Court
Dawson County, Texas
Trial Court Cause No. 04-12-17094-CV
M E M O R A N D U M O P I N I O N
This is an appeal from an order denying an application for a protective order filed pursuant to Tex. Fam. Code Ann. ' 82.002 - .009 (Vernon 2002 & Supp. 2005). The record before this court supports the trial court=s order, and we affirm.
In November of 2003, Lillian and Fred Hunter were divorced. Lillian filed the divorce petition, and Fred did not appear in the trial court. The default divorce decree provided that Fred was permanently enjoined from communicating with Lillian, from physical contact with Lillian, and from coming within 100 feet of Lillian=s residence.
On December 7, 2004, Lillian filed an application seeking both a protective order and a temporary ex parte protective order. Lillian alleged that, on November 28, 2004, Fred stated that he was going to shoot both her and their daughter, Rachel Ann Hawkins. Lillian also alleged that there had been a history of family violence Aoff and on over the past 5 or 6 years,@ ever since she lost her eyesight.
On December 7, 2004, the trial court issued an ex parte protective order. Tex. Fam. Code Ann. ' 83.001 (Vernon 2002). A hearing was scheduled and then rescheduled at least twice.
At the February 14, 2005, hearing, Lillian testified that she was eighty-three years old, that she did not know how old Fred was, and that she and Fred had been married for at least fifty years when she filed for divorce. Lillian also testified that Fred made threats against her Aevery time@ he came to the house. Lillian stated that, when Fred was at the house in November of 2004, she did not talk to him. Instead, their daughter Rachel had talked to him. Lillian stated that, in the past, Fred had called her names, had threatened to burn the house down, and had hit her. Lillian testified that one time she had heard Fred say that he was going to kill her. Lillian did not testify as to the time frame for Fred=s actions.
Rachel testified that her father had recently come to the house where she lived with her mother. Her father had wanted to pick up his mail and to get an old refrigerator that was at the house. Rachel stated that she had never told her father to change his mailing address and that she thought Amaybe he might would have his mail changed@ on his own. When she reminded her father that he should not be at the house, Rachel said that Fred became upset and started to call Lillian names. Rachel told Fred that, if the police came, they would take him to jail.
Rachel first testified that her father became angry and hit her in the face with his cane. On cross-examination, Rachel stated that she had pushed her father back when he tried to enter the house. Fred fell, and his cane hit her in the face.
Rachel testified that her father had been angry in November and had threatened to get his gun and shoot Lillian and her. Rachel also stated that she had not seen her father hit Lillian Alately@ and that it had been Ayears ago@ since he had hit her mother.
Lamesa Police Officer Christopher Harmon testified that he was dispatched to Fred and Lillian=s home in February of 2003. When he arrived, Officer Harmon found Fred sitting in a car outside the home and Lillian inside the home. Lillian told Officer Harmon that Fred had threatened her. Fred told Officer Harmon that he never made Aany threats with any kind of gun.@ Rachel told Officer Harmon that she did not think her father owned a gun. When Officer Harmon found a Sears & Roebuck .22 caliber rifle, he took the gun for safekeeping. Officer Harmon determined that Fred was eighty-four at the time. Officer Harmon testified that the situation was Asolved by separation@ and that no arrests were necessary.
Dawson County Deputy Sheriff James Davis testified that, in April of 2004, he was employed as a Lamesa Police Officer and was dispatched to the Adult Protection Services offices concerning a complaint about an assault. When he arrived, Deputy Davis spoke with a caseworker and with Lillian. Lillian told Deputy Davis that Fred had made verbal threats toward her and had told her that Ahe had a gun and he was going to be the death of her.@ Lillian also told Deputy Davis that, in the past, Fred had hit her with a walking stick. Deputy Davis took Lillian to her sister=s house and then went to talk to Fred. Fred was mowing the grass in the backyard when Deputy Davis found him. Fred told Deputy Davis that he owned a Sears & Roebuck .22 caliber rifle. Deputy Davis took custody of the gun and placed it in the Lamesa Police Department=s evidence room. There was no threat of continuing violence, and Deputy Davis felt that Lillian and Fred just needed a Acooling off period.@
Fred testified that he and Lillian had been married for fifty-two years when the default divorce decree was entered in 2003. He was not aware of the divorce until he heard about it after the fact. Fred testified that he lived at the house with Lillian until he moved out in December of 2004, more than a year after the divorce was entered. Since December, he had lived northeast of town in a Abig new building@ that was not a nursing home. Fred also testified that he had owned a Sears & Roebuck .22 caliber rifle at one time and that someone had stolen it.
Fred stated that he recently had gone by the home to get his mail and to find out if Lillian still had the Aicebox@ he had bought in 1951. Rachel had told him to leave. Instead, he turned to go inside the home. Fred thought that Rachel must have pushed him because he stumbled and Athrew up [his] walking cane.@ Fred stated that he Afigured@ that was what had happened because, if he Awould have hit [Rachel] with the cane, she would have been hurt.@
Fred admitted that he had threatened to shoot Lillian and Rachel Aa while back.@ Fred also admitted that he knew he should not threaten anyone with a gun. Fred further testified that he Asure@ would Anot be going back@ to Lillian=s home.
In open court, the trial court found that the ex parte protective order had expired and that, therefore, the ex parte order had not been violated when Fred visited the house the week before the hearing. The trial court also found that Fred and Lillian had continued to live together after the divorce and that the couple had waived by agreement the permanent injunction in the divorce decree. The trial court further found that family violence was not likely to occur in the future and instructed Fred not to Ago near her house@ or Anear anywhere you know that she is.@ The trial court advised Fred that, if he did have a gun, he should give it to someone else. In the written order, the trial court denied the application for a protective order.
In her first issue, Lillian argues that the trial court=s finding that family violence was not likely to occur in the future was against the great weight and preponderance of the evidence. In order to determine if the evidence is factually sufficient, the appellate court must review all of the evidence to determine whether the challenged finding is so against the great weight of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175 (Tex. 1986); In re King=s Estate, 244 S.W.2d 660 (Tex. 1951); In the Interest of M.G.M., 163 S.W.3d 191 (Tex. App.CBeaumont 2005, no pet.); Peña v. Garza, 61 S.W.3d 529 (Tex. App.CSan Antonio 2001, no pet.).
The record reflects that both Lillian and Fred were in their eighties. Lillian was visually impaired, and Fred used a cane. The couple had been married for more than fifty years when Lillian obtained a divorce without Fred=s knowledge. However, the couple continued to live together for more than a year after the divorce. Fred had moved out two months before the hearing and had no intentions of living with Lillian again. Fred was not able to provide the name of the facility where he had lived since moving out of the house. Lillian was not sure of Fred=s age. The record further reflects that Fred and Lillian=s relationship had involved verbal conflicts and that at some time during the marriage physical conflict might have occurred. There was no evidence concerning the specifics of any confrontations between Lillian and Fred. The law enforcement officers testified as to events that happened twenty-four months and eleven months prior to the hearing. Both officers stated that there was no need for further action on their part once Lillian and Fred were separated from each other. The finding that family violence was not likely to occur in the future was not so against the great weight of the evidence as to be manifestly unjust.
We disagree with Lillian=s contention that the fact that the 2003 default divorce decree contained a permanent injunction prohibiting Fred from having contact with her conclusively established that family violence was likely to occur after the 2005 hearing. In fact, the record reflects that Fred and Lillian continued to live together after the divorce and that the specific instances of verbal conflicts since the divorce were between Fred and Rachel. The trial court correctly determined that the terms of the injunction had been waived by agreement when Lillian and Fred continued to live together for over a year after the divorce. The first issue is overruled.
In her second issue, Lillian argues that the trial court abused its discretion by acting without regard for the laws of the State of Texas and by imposing a remedy of its own creation. Lillian bases her argument on her contention that the evidence did not support the trial court=s finding that family violence was not likely to occur in the future. Lillian argues that the evidence established a clear pattern of ongoing family violence and that, therefore, the trial court created its own remedy when it denied the protective order and admonished Fred about his future behavior. We disagree.
The trial court denied the application after concluding that family violence was not likely to occur in the future. Tex. Fam. Code Ann. '' 81.001 & 85.001 (Vernon 2002). As stated above, we find that the evidence supported that conclusion. Fred=s counsel asked the trial court to Aexplain to this man in very clear English what [the trial court] expects of him.@ Lillian made no objection. The trial court then admonished Fred to have no contact with Lillian and advised him to not have a gun. The trial court asked Fred if he could hear and if he understood what the trial court was saying. The trial court concluded with the following:
THE COURT: You got those three things? Stay away from the house, stay away from Ms. Hunter, and, if you have any kind of a gun, you give it away to someone, but you get your lawyer to help you with that. Do you understand?
[FRED]: Yes, Ma=am.
THE COURT: Am I clear?
[FRED]: You=re clear.
THE COURT: Now, Mr. Hunter, let me tell you something. If you don=t do what I=ve told you to do and you come back here in this court, I probably will be one mad woman.
[FRED]: Okay.
THE COURT: You got that?
[FRED]: Yes, ma=am.
THE COURT: Okay.
[FRED]: Can I say one word?
[FRED=S ATTORNEY]: No. Let=s go.
[FRED]: Okay.
THE COURT: We=re adjourned.
The record does not support Lillian=s argument that the trial court abused its discretion by failing to follow statutory provisions or by creating its own remedies. The second issue is overruled.
The order of the trial court is affirmed.
PER CURIAM
December 15, 2005
Not designated for publication. See Tex. R. App. P. 47.2(a).
Panel consists of: Wright, C.J., and
McCall, J., and McCloud, S.J.[1]
[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.