Ragen H. Borel v. James I. Borel

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-335

RAGEN H. BOREL

VERSUS

JAMES I. BOREL

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 129,221-C
HONORABLE KEITH RAYNE JULES COMEAUX, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Shannon J. Gremillion, Judges.

AFFIRMED.

Diane Sorola
402 W. Convent Street
Lafayette, LA 70501
Telephone: (337) 234-2355
COUNSEL FOR:
Plaintiff/Appellee - Ragen H. Borel

Lucretia Pecantte
P. O. Box 9010
New Iberia, LA 70562-9010
Telephone: (337) 374-1202
COUNSEL FOR:
Defendant/Appellant - James I. Borel

THIBODEAUX, Chief Judge.

Ragen H. Borel, pro se, filed a petition for protection from abuse

against her estranged husband, James I. Borel. At the conclusion of the

proceedings, the trial court granted the petition and issued an order of protection in

Mrs. Borel’s favor. Mr. Borel now appeals that judgment. Finding no abuse of

discretion in the trial court’s issuance of the protective order, we affirm.

I.

ISSUES

The court must decide:

whether the trial court erred in granting [Mrs.
Borel]’s Petition for Protection from Abuse based
upon the testimony and lack []of evidence at the
trial on the merits.

II.

FACTS AND PROCEDURAL HISTORY

The parties were married on May 15, 2009. Two children are issue of

the marriage. Mrs. Borel filed a petition for divorce on November 9, 2016. A

month later, on December 9, 2016, Mrs. Borel filed the instant petition for

protection from abuse pursuant to La.R.S. 46:2131 et seq., seeking protection

based on a domestic altercation that allegedly occurred between the parties on

October 30, 2016. After granting a temporary restraining order in favor of Mrs.

Borel, the trial court set the matter for hearing on December 22, 2016.

At the hearing, both parties represented themselves and were the only

witnesses. As to the incident, Mrs. Borel testified that the parties were in the New

Orleans French Quarter when they became separated around 4:00 a.m. After

looking unsuccessfully for her husband, Mrs. Borel began receiving text messages

from him through which she discovered that he had returned to their hotel room

without her. Mrs. Borel stated that his text messages revealed that Mr. Borel was

agitated and upset with her. Based upon her past experiences with him, she waited

to return to the hotel until around 6:00 a.m., “to give him time to cool off.” When

she entered their room, Mr. Borel initially said nothing, but simply:

jumped out of bed. The door was still open. He grabbed
me by the shoulders and pushed me up against the wall
and he said that I had f…ed up, that I wasn’t going to get
away with this. I yelled for someone to help me and I
tried to get out of the door, and he grabbed my throat and
held me against the wall and banged my head against the
wall several times, and then shut the door. He threw me
on the bed and he got on top of me. He held me down by
my throat and he hit me on the side of the face.

According to Mrs. Borel, a hotel guest heard her screams and called hotel security.

A security guard appeared at their room and asked Mrs. Borel if she had been the

one screaming to which Mrs. Borel replied, “Yes.” Mrs. Borel recalled that the

security guard entered their hotel room and initially spoke with Mr. Borel alone.

Thereafter, the security guard asked Mrs. Borel if she wanted to file a police report,

yet he discouraged her from doing so by telling her to think about their kids. Mrs.

Borel returned to the room and noted that Mr. Borel had calmed down. The next

day the parties returned to Lafayette together and began living separate and apart

on that day. They have remained apart since then.

When asked by the court if she had any other evidence, Mrs. Borel

testified that she had the text messages, pictures of her face, and an examination by

her doctor. She did not, however, have them with her.

Mr. Borel then took the stand and recalled that both parties were

inebriated when Mrs. Borel disappeared into the crowd on Bourbon Street. He

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returned to their hotel room when he could not find her. Regarding the altercation,

Mr. Borel remembered “hearing the door open and close and she hollered

something out at me.” Explaining that Mrs. Borel had a history of attacking him

while he slept, Mr. Borel then recounted how “she came in and kind of went to

attack me. I grabbed her by her arms and restrained her.” He could not recall if he

grabbed his wife by the throat, but admitted it was a possibility, even though he did

not believe that he did because he “didn’t see a single bruise on her.” Mr. Borel

further admitted that he threw his wife on the bed, but could not remember if he

got on top of her.

At the conclusion of the hearing, the trial court issued a protective

order in Mrs. Borel’s favor, directing Mr. Borel to not “abuse, harass, assault,

stalk, follow, track, monitor, or threaten” Mrs. Borel. Additionally, the order

prohibits Mr. Borel from: (1) going within 100 yards of Mrs. Borel, her residence,

or her place of employment; (2) contacting her except as it relates to the welfare or

exchange of their children; and (3) damaging her personal property or shutting off

her utilities. In granting the protective order, the trial court reasoned:

I think she’s presented evidence to say exactly what you
did. You can’t rebut that evidence. You said you don’t
remember if you grabbed her by the throat or anything. I
understand there may have been an incident, but I don’t
want you putting your hands on her.

Likewise, ma’am, if what he says is true, that
you’ve attacked him in the past, he’s not going to go
around you anymore, so there’s no reason for you to go
around him except for the exchange of the children.

Thereafter, Mr. Borel timely filed a motion for new trial, which the trial court

denied.

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III.

STANDARDS OF REVIEW

Trial courts are granted wide discretion in the issuance of protective

orders, which we review under the abuse of discretion standard. Mitchell v.

Marshall, 02-15 (La.App. 3 Cir. 5/1/02), 819 So.2d 359. This standard is highly

deferential to the trial court’s determination. LCR-M Ltd. P’ship v. Jim Hotard

Props., L.L.C., 13-483 (La.App. 4 Cir. 10/9/13), 126 So.3d 668. Along with

erroneous applications of law, “[a]n abuse of discretion . . . generally results from a

conclusion reached capriciously or in an arbitrary manner.” Tugwell v.

Plaquemines Parish Gov’t, 14-657, p. 5 (La.App. 4 Cir. 11/19/14), 154 So.3d 695,

699.

The terms “arbitrary and capricious” mean willful and
unreasoning action, absent consideration and in disregard
of the facts and circumstances of the case. However,
when there is room for two opinions, an action is not
arbitrary or capricious when exercised honestly and upon
due consideration, even though it may be believed an
erroneous conclusion has been reached.

Toups v. City of Shreveport, 10-1559, pp. 3-4 (La. 3/15/11), 60 So.3d 1215, 1217.

Moreover, appellate courts must give deference to a trial court’s factual findings

when those findings are based on its reasonable credibility evaluations. Canter v.

Koehring Co., 283 So.2d 716 (La.1973). “[W]here there is conflict in the

testimony, reasonable evaluations of credibility and reasonable inferences of fact

should not be disturbed upon review.” Id. at 724.

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IV.

LAW AND DISCUSSION

Protective orders are issued in domestic violence matters under the

Domestic Abuse Assistance Statute. La.R.S. 46:2131 et seq. Pursuant to La.R.S.

46:2135(B):

If a temporary restraining order is granted without
notice, the matter shall be set within twenty-one days for
a rule to show cause why the protective order should not
be issued, at which time the petitioner must prove the
allegations of abuse by a preponderance of the evidence.
The defendant shall be given notice of the temporary
restraining order and the hearing on the rule to show
cause by service of process as required by law within
twenty-four hours of the issuance of the order.

Louisiana Revised Statutes 46:2132(3) defines domestic abuse, in

pertinent part:

“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.

In support of his argument, Mr. Borel points to the lapse of thirty-nine

days between the incident and the filing of the petition as well as the overall lack

of medical evidence, photographs, or testimony from any witness regarding the

incident. He further notes that Mrs. Borel failed to call the police or file an

incident report at the hotel. Mr. Borel also claims that his testimony establishes

that he was merely protecting himself when he grabbed Mrs. Borel’s arms and

threw her on the bed, thus refuting her allegations of abuse. All this, he argues,

demonstrates a lack of evidence sufficient to support the issuance of the protective

order herein.

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Mrs. Borel, however, argues that the trial court did not manifestly

abuse its extensive discretion in concluding that she was entitled to a protective

order. She notes that the trial court was unconcerned at the delay between the

incident and the petition and that the parties’ own testimony was evidence of the

domestic altercation. Although Mrs. Borel concedes that the court was required to

address serious issues with only the parties’ testimony, she asserts that this is what

often occurs in domestic violence situations.

After reviewing the record in its entirety, we find no abuse of

discretion in the trial court’s decision to grant Mrs. Borel a protective order against

Mr. Borel. Although the only evidence consisted of the testimony of the parties,

that testimony does reasonably support the trial court’s conclusion in that Mrs.

Borel testified that Mr. Borel assaulted her by placing his hands on her and

throwing her onto the bed. Mr. Borel does not deny intentionally putting his hands

on her or throwing her on the bed, but justifies his actions by arguing self-defense.

However, his admission, rather than refuting Mrs. Borel’s claim, actually supports

her allegations.

Moreover, the trial court was in a far better position to evaluate the

credibility of these witnesses through its observations of their demeanor and their

tone of voice. The trial court actively questioned both of them and clearly found

that Mrs. Borel’s story was credible. Based on the testimony elicited in response

to the pointed questions it asked, the trial court concluded that Mr. Borel more

probably than not abused his wife in the manner alleged. In the absence of any

objective record evidence contradicting her story, we will not, and further cannot,

disturb the trial court’s credibility and factual determinations on review.

Accordingly, we find that the record in its entirety provides a reasonable basis for

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the trial court’s decision to grant the protective order and that the trial court,

therefore, did not abuse its vast discretion.

V.

CONCLUSION

For these reasons, we find no abuse of discretion in the trial court’s

issuance of the protective order in favor of Mrs. Borel. We affirm the trial court’s

judgment. Costs of this appeal are assessed to the Defendant/Appellee, James I.

Borel.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
RULE 2-16.3, UNIFORM RULES—COURTS OF APPEAL.

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