Matthew Wayne McCauley v. Rowena Bautista McCauley

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-27

MATTHEW WAYNE MCCAULEY

VERSUS

ROWENA BAUTISTA MCCAULEY

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2019-235
HONORABLE GUY E. BRADBERRY, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Billy Howard Ezell, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

AFFIRMED.

Brad Guillory
Erin F. Hargrave
940 Ryan Street
Lake Charles, Louisiana 70601
(337) 433-5297
Counsel for Defendant/Appellant:
Matthew Wayne McCauley

Rowena Bautista McCauley
In Proper Person
2709 Laura Lane
Lake Charles, Louisiana 70605
Plaintiff/Appellee

KEATY, Judge.

Defendant/Appellant appeals the trial court’s judgment in favor of

Plaintiff/Appellee. For the following reasons, the trial court’s judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

This matter stems from a protective order involving Plaintiff/Appellee,

Rowena Bautista McCauley (hereinafter “Rowena”), and Defendant/Appellant,

Matthew Wayne McCauley (hereinafter “Matthew”). Matthew and Rowena, who is

from the Philippines, were married on April 7, 2017 in Lake Charles, Louisiana. The

married couple, along with Rowena’s daughter from a previous relationship, resided

in a house located at 2709 Laura Lane in Lake Charles. No children were born

during the parties’ marriage, and Matthew never adopted Rowena’s daughter. On

January 15, 2019, Matthew filed a Petition for Divorce. Thereafter, Rowena and her

daughter moved out of the house for a short time and then returned and lived with

Matthew. On May 28, 2019, Rowena filed an Answer to Petition for Divorce and

Reconventional Demand for Dismissal and alleged that the parties had reconciled.

On May 29, 2019, Rowena, individually and on behalf of her daughter, filed

a Petition for Protection from Abuse against Matthew. In her petition, Rowena

alleged Matthew abused her on three different occasions. She further sought an ex

parte temporary restraining order prohibiting Matthew from going within one

hundred yards of their home located at 2709 Laura Lane, which she alleged was

“solely owned or leased by [her].” Rowena requested sole use of the residence and

sought Matthew’s eviction. The temporary restraining order was granted on May

29, 2019, at which time Matthew was evicted. On June 3, 2019, Rowena filed a First

Supplemental and Amending Petition for Protective Order to amend her previous

assertion that she “solely owned or leased” the home at 2709 Laura Lane. Rowena

explained therein that her initial allegation was the result of a typographical error

and that she does not contest the fact that the house is Matthew’s separate property.

On June 12, 2019, Matthew filed a Rule to Dissolve Temporary Restraining

Order based, in part, upon Rowena’s false allegation in her original petition that she

solely owned the marital home. On that same day, trial was scheduled to begin on

Rowena’s petition and temporary restraining order. At the beginning of trial on June

13, 2019, the trial court first addressed and denied Matthew’s recently filed rule to

dissolve the temporary restraining order because it was not served on opposing

counsel. Thereafter, trial proceeded with respect to Rowena’s petition. During the

two-day trial, evidence was presented and arguments were heard, after which the

trial court granted Rowena’s petition. The protective order, which was signed on

June 14, 2019, is effective through 11:59 p.m. on December 14, 2020.1 Rowena was

awarded the exclusive use of the residence for the duration of the protective order.

Pursuant to a subsequent written judgment dated August 26, 2019, the trial court

granted Rowena attorney fees in the amount of $15,500.00.

Matthew appealed. On appeal, Matthew asserts the following assignments of

error:

1. The trial court committed error by refusing to consider and
denying without a hearing the “Motion to Dissolve Temporary
Restraining Order” filed by Matthew when the initial temporary
restraining order was improperly granted based upon false
factual information contained in the application and attached
exhibits.

2. The trial court committed error and abused its discretion by
allowing the introduction of improper evidence at trial.

3. The trial court committed error in granting the protective order
based upon the incidents enumerated in the petitioner’s
application.

1
We note that page six of the protective order states that it is effective through 11:59 p.m.
on December 13, 2020 whereas page one states that it is effective through 11:59 p.m. on December
14, 2020. For clarity, we will use December 14, 2020 as the date when the protective order expires.
2

4. The trial court committed error and abused its discretion by
awarding Rowena the exclusive use of Matthew’s separate
property residence for an eighteen (18) month period pursuant to
the granting of the protective order.

5. The trial court committed error by awarding attorney fees to
Rowena in this matter. Alternatively, the trial court committed
error by awarding an unreasonably high amount of attorney fees.

Rowena has not answered the appeal nor filed an appellate brief in response.

STANDARD OF REVIEW

The applicable standard of review is discussed in Ruiz v. Ruiz, 05-175, p. 4

(La.App. 5 Cir. 7/26/05), 910 So.2d 443, 445 (citation omitted), as follows:

In cases decided pursuant to the Domestic Abuse Assistance
statute, a trial court’s order is reversible only upon a showing of an
abuse of discretion. Further, the trial court sitting as the trier of fact is
in the best position to evaluate the demeanor of the witnesses and its
credibility determinations will not be disturbed by this Court absent
manifest error.

The supreme court in Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989)

(citations omitted), further explained:

When findings are based on determinations regarding the
credibility of witnesses, the manifest error-clearly wrong standard
demands great deference to the trier of fact’s findings; for only the
factfinder can be aware of the variations in demeanor and tone of voice
that bear so heavily on the listener’s understanding and belief in what
is said. Where documents or objective evidence so contradict the
witness’s story, or the story itself is so internally inconsistent or
implausible on its face, that a reasonable fact finder would not credit
the witness’s story, the court of appeal may well find manifest error or
clear wrongness even in a finding purportedly based upon a credibility
determination. But where such factors are not present, and a
factfinder’s finding is based on its decision to credit the testimony of
one of two or more witnesses, that finding can virtually never be
manifestly erroneous or clearly wrong.

DISCUSSION

I. First Assignment of Error

In his first assignment of error, Matthew contends the trial court committed

error by refusing to consider and denying without a hearing his Motion to Dissolve

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Temporary Restraining Order when the initial temporary restraining order was

improperly granted based upon false factual information contained in the application

and attached exhibits. Matthew notes the relief granted upon the issuance of a

temporary restraining order found in La.R.S. 46:2135(3), which gives “possession

to the petitioner of the residence or household to the exclusion of the defendant, by

evicting the defendant or restoring possession to the petitioner” when one of three

requirements are satisfied. The three requirements found in La.R.S. 46:2135(3)

provide:

(a) The residence is jointly owned in equal proportion or
leased by the defendant and the petitioner or the person on whose behalf
the petition is brought;

(b) The residence is solely owned by the petitioner or the
person on whose behalf the petition is brought; or

(c) The residence is solely leased by defendant and defendant
has a duty to support the petitioner or the person on whose behalf the
petition is brought.

Matthew claims the requirement in La.R.S. 46:2135(3)(b) was not satisfied because

the marital home is solely owned by him rather than Rowena. Thus, he contends

that Rowena should not have been granted exclusive use of the home, his eviction

was unlawful, and the portion of the temporary restraining order with respect to his

eviction should have been dissolved.

On review, Rowena’s petition shows that she requested Matthew’s eviction

based upon her allegation that the residence was “solely owned or leased by [her]”

in accordance with La.R.S. 46:2135(3)(b). She subsequently changed her allegation

as the sole owner/lessor and asserted Matthew as the sole owner in her supplemental

and amending petition. The evidence in the record, therefore, shows Rowena did

not satisfy the requirement found in La.R.S. 46:2135(3)(b).

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However, La.R.S. 46:2135(3) does not govern our review of Matthew’s

assigned error on appeal, in which he claims that the trial court erred by refusing to

consider and denying, without a hearing, his motion to dissolve. Moreover, our

reading of the record on review reveals that the trial court did not actually deny

Matthew’s motion to dissolve without a hearing; rather, it denied Matthew’s request

to hear his motion to dissolve because it was not properly served on opposing

counsel. Thus, we must determine whether the trial court erred by refusing to hear

Matthew’s motion based upon La.Code Civ.P. art. 3607, which provides:

An interested person may move for the dissolution or
modification of a temporary restraining order or preliminary injunction,
upon two days’ notice to the adverse party, or such shorter notice as the
court may prescribe. The court shall proceed to hear and determine the
motion as expeditiously as the ends of justice may require.

The court, on its own motion and upon notice to all parties and
after hearing, may dissolve or modify a temporary restraining order or
preliminary injunction.

On review, the record shows that Matthew’s motion to dissolve was not served

“upon two days’ notice to the adverse party” as required by La.Code Civ.P. art. 3607.

Accordingly, we cannot say that the trial court erred in this regard, and Matthew’s

assignment of error is without merit.

II. Second Assignment of Error

In his second assignment of error, Matthew contends the trial court committed

error and abused its discretion by allowing the introduction of improper evidence at

trial.

A. February 23, 2019

Matthew points to Rowena’s testimony that on February 23, 2019, Matthew

pushed her out of the bedroom using both of his hands. Matthew claims this

testimony was improperly allowed into evidence despite his objection because it was

not specifically asserted in her petition. In support, he cites Bosworth v. New
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Orleans Federal Savings & Loan Ass’n, 258 So.2d 191, 194 (La.App. 4 Cir. 1972),

wherein the fourth circuit noted that “[p]roof intended to broaden or go beyond the

pleadings is inadmissible if objected to.”

In Bettevy v. Bettevy, 19-327, pp. 4-5 (La.App. 3 Cir. 11/6/19), 283 So.3d

1047, 1050 (quoting Fontenot v. Newcomer, 10-1530, 10-1531 (La.App. 3 Cir.

5/4/11), 63 So.3d 1149), this court discussed the requirement of a party seeking a

protective order under the Domestic Abuse Assistance Act, La.R.S. 46:2131-2140,

to specify the allegations of abuse in the petition, as follows:

The purpose behind the entire legislative scheme in Louisiana
Revised Statutes 46:2131, et seq., is to provide relief to victims of
domestic violence by establishing “a civil remedy for domestic
violence which will afford the victim immediate and easily accessible
protection.” LSA-R.S. 46:2131; Bays v. Bays, 00-1727, p. 5 (La.
2/21/01), 779 So.2d 754, 758. [Louisiana Revised Statutes] 46:2136
permits a court to grant a protective order to prevent the possibility of
family violence, provided a petition is filed requesting the order and the
defendant is afforded reasonable notice consistent with due process.
Wise v. Wise, 02-574, p. 2 (La.App. 5 Cir. 11/13/02), 833 So.2d 393,
394. The petition must detail the facts and circumstances concerning
the alleged abuse. LSA-R.S. 46:2134. By requiring the party seeking
a protective order to file a petition specifying the allegations of abuse,
the legislature has ensured that a defendant’s constitutional due process
rights, particularly the right of reasonable notice, will be observed.
Bays, p. 6, 779 So.2d at 758; Branstetter v. Purohit, 06-1435, p. 5
(La.App. 4 Cir. 5/2/07), 958 So.2d 740, 743.

In Bettevy, 283 So.3d 1047, the former husband, James, appealed the trial

court’s judgment granting a permanent order of protection in favor of his former

spouse, Erica. James sought to dismiss Erica’s petition for lack of specificity

concerning her allegations of abuse, claiming Erica’s petition failed to allege a date

when the incident occurred or a specific location where the incident took place. The

appellate court noted that Erica’s petition alleged the following: the incident

occurred in Oakdale when James pulled a gun on her and threatened her, a witness

came upon the scene and called 911, and James was arrested. The appellate court

affirmed the trial court’s judgment and held that there were “enough details in the
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petition to put James on notice as to what incident was involved.” Id. at 1050.

According to the appellate court, there was no doubt that James knew “exactly what

incident was at issue” such that the trial court did not err in failing to dismiss the

petition for lack of specificity.

On review in this matter, Rowena’s petition fails to allege an incident occurred

on February 23, 2019. Her petition, however, asserts three other dates when the

alleged domestic abuse occurred. According to the petition, the three alleged

incidents all occurred in Lake Charles at the home on Laura Lane from February

through May 2019. Similarly, the February 23, 2019 incident also occurred at the

marital home. The trial court allowed Rowena to testify regarding the February 23,

2019 incident over Matthew’s counsel’s objection. Matthew’s counsel, however,

was able to cross-examine Rowena regarding her testimony. Moreover, testimony

in the record reveals that Rowena left the marital home on February 23, 2019.

Matthew also testified at trial regarding the February 23, 2019 incident. Thus, we

find that the trial court did not abuse its discretion in allowing the testimony because

it could have found that there were enough details in the petition to put Matthew on

notice, just as in Bettevy, 283 So.3d 1047. This assignment of error is meritless.

B. Suit Record from Docket Number 2019-0235

At trial, Rowena’s counsel introduced into evidence a copy of another suit

filed against Matthew as an exhibit attached to Rowena’s petition. Rowena’s

counsel claimed the introduction of this suit into evidence was to show that Matthew

has engaged in a pattern of abuse. Rowena’s counsel noted that the present hearing

was not for the purpose of obtaining the truth of the matter from the former suit and

that the trial court can give the document “however much weight” as it finds.

Matthew’s counsel timely objected to the introduction of the entire suit record.

Matthew’s counsel argued that the former suit was attached to Rowena’s petition in
7

order to give the judge signing the temporary restraining order the impression that

Matthew was a questionable individual. His counsel claimed the former suit never

proceeded to trial and the allegations therein were unproven, unverified, and had no

bearing on the instant matter. The trial court noted the objection and allowed the

former suit record to be entered into evidence. The trial court stated that it would

“apportion the appropriate weight to evidence.”

As a general rule, trial courts are afforded great discretion concerning the

admission of evidence, and their decisions to admit or exclude evidence should not

be reversed on appeal in the absence of an abuse of their discretion. Medine v.

Roniger, 03-3436 (La. 7/2/04), 879 So.2d 706. When reviewing such alleged errors,

we must determine whether the complaining party has shown that the ruling

complained of “was erroneous and whether the error prejudiced the defendant’s

cause, for unless it does, reversal is not warranted.” State in Interest of A.S., 19-248,

p. 15 (La.App. 1 Cir. 9/4/19), 285 So.3d 1129, 1141. “Prejudicial error ‘affects the

final result of the case and works adversely to a substantial right of the party

assigning it.’” Johnson v. Tucker, 51,723, p. 11 (La.App. 2 Cir. 11/15/17), 243 So.3d

1237, 1243, writs denied, 17-2075, 17-2073 (La. 2/9/18), 236 So.3d 1262, 1266.

The reviewing court must determine “whether the error, when compared to the entire

record, has a substantial effect on the outcome of the case, and it is the complainant’s

burden to prove.” Id.

“‘Relevant evidence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” La.Code Evid. art.

401. In Louisiana, “[a]ll relevant evidence is admissible, except as otherwise

provided by the Constitution of the United States, the Constitution of Louisiana, this

Code of Evidence, or other legislation. Evidence which is not relevant is not
8

admissible.” La.Code Evid. art. 402. Generally, “evidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person in order to show that he

acted in conformity therewith.” La.Code Evid. art. 404(B). However, such evidence

may “be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake or accident[.]” Id.

On review, the other suit was filed by a woman against Matthew and his

employer, New Horizons Counseling Center, LLC. The petition alleges that the

woman was Matthew’s client and was seeking help for her past abusive and

dysfunctional relationships, including emotional and physical abuse. According to

the petition, Matthew pursued a sexual relationship with his client. A short time

after sexual intercourse, the petition asserts that Matthew broke off the relationship.

We find that the trial court did not abuse its discretion in allowing the other

suit into evidence because it is relevant by showing a pattern of abuse and similar

conduct. This is especially true in light of Rowena’s trial testimony that Matthew

has a history of inappropriate relationships with his clients and uses his status as a

mental health counselor to gain an advantage over patients or former patients with

mental issues. Notably, Rowena testified that Matthew was having an inappropriate

relationship with a former client, Christi Jeffels, who also testified at trial on

Matthew’s behalf. Rowena further testified that she (Rowena) had mental issues

which allowed Matthew to prey on her, considering his employment as a mental

health professional. Moreover, even if the admission of the suit had been an error,

it did not have a substantial effect on the outcome of the case, given the other

evidence and testimony in the record supporting Rowena’s domestic abuse claim.

Thus, any error would be harmless. Accordingly, Matthew’s assignment of error is

meritless,

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C. New Horizons Documents

During Matthew’s testimony, Rowena’s counsel attempted to question him

pertaining to a document identified as the Declarations of Practices and Procedures

from New Horizons Counseling Center, LLC. Matthew testified that he has been

employed as a mental health therapist at New Horizons for the past seven or eight

years. During trial, Rowena’s counsel explained that the document has been

“publicly displayed on [Matthew’s] web page, and it relates to his treatment of his

patients, one of which he has brought with him to court today [i.e., Christi], that is

essential and relevant to a lot of the incidents of abuse.” Rowena’s counsel noted

that Matthew’s former patient, Christi, witnessed “one of the incidents, and she has

been at the crux of” many of the issues presented at trial.

Matthew’s counsel objected to the relevance of the document and argued it

would only be relevant if Rowena alleged that she was Matthew’s former client. The

trial court admitted these documents into evidence as “P-2” over the objection of

counsel.

We find that the trial court did not abuse its discretion in admitting this

evidence. At trial, Matthew agreed the document was displayed on his web page

and explained that it was a Declaration of Practices and Procedures which every

client must sign. We find that the document could have been admitted to elicit

testimony to show that Matthew may have been having an inappropriate relationship

with his former client, Christi. Christi testified at trial on Matthew’s behalf.

Additionally, testimony reveals that Christi was the subject of many of Matthew and

Rowena’s fights which resulted in Rowena’s alleged abuse. Christi witnessed one

of these incidents according to testimony in the record. Moreover, even if the

admission of the suit was an error, it did not have a substantial effect on the outcome

of the case given the other evidence and testimony in the record supporting
10

Rowena’s claim of domestic abuse. Thus, any error would be harmless.

Accordingly, Matthew’s assignment of error is meritless with respect to the

introduction of this evidence.

D. Uncertified Medical Records

Matthew claims the trial court erred by admitting into evidence uncertified

medical records from Compass Counseling, L.L.C. offered by Rowena as exhibit

“P-5”. Matthew asserts that the medical records should not have been admitted into

evidence because no medical records custodian appeared as a representative of

Compass Counseling to authenticate these records, and no treating physician

appeared to testify about the referenced treatment. Matthew’s counsel claims he was

unable to review these records because they were illegible. Matthew argues that the

records are hearsay, unauthentic, and should not have been admitted into evidence

“‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the present trial or hearing, offered in evidence to prove the truth of the

matter asserted.” La.Code Evid. art. 801(C). “Hearsay is not admissible except as

otherwise provided by this Code or other legislation.” La.Code Evid. art. 802. There

are exceptions to the hearsay rule found in La.Code Evid. art. 803, as follows:

The following are not excluded by the hearsay rule, even though
the declarant is available as a witness:

....

(4) Statements for purposes of medical treatment and
medical diagnosis in connection with treatment. Statements made
for purposes of medical treatment and medical diagnosis in connection
with treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general character of
the cause or external source thereof insofar as reasonably pertinent to
treatment or diagnosis in connection with treatment.

Another hearsay exception found in La.Code Evid. art. 803(6) relates to

records of regularly conducted business activity, and includes:

11

A memorandum, report, record, or data compilation, in any form,
including but not limited to that which is stored by the use of an optical
disk imaging system, of acts, events, conditions, opinions, or diagnoses,
made at or near the time by, or from information transmitted by, a
person with knowledge, if made and kept in the course of a regularly
conducted business activity, and if it was the regular practice of that
business activity to make and to keep the memorandum, report, record,
or data compilation, all as shown by the testimony of the custodian or
other qualified witness, unless the source of information or the method
or circumstances of preparation indicate lack of trustworthiness. This
exception is inapplicable unless the recorded information was furnished
to the business either by a person who was routinely acting for the
business in reporting the information or in the circumstances under
which the statement would not be excluded by the hearsay rule.

On review, these records show that Rowena underwent mental health

counseling in May and June of 2019 from Jodi Underwood at Compass Counseling

in Lake Charles. At trial, Rowena reviewed the records and explained that she

presented to Jodi six times during that period. Rowena testified that they discussed

jealousy, anger, and domestic violence. Rowena agreed that the fifth page of the

document was created by her wherein she checked the following boxes which

indicated the ailments she was seeking help for: anxiety, depression, stress, problem

within the family, domestic violence, and anger issues. When introducing the

records into evidence, Rowena’s counsel acknowledged that part, but not all, of the

packet was created by Rowena. Rowena’s counsel advised, however, that the

records were obtained directly from Compass Counseling through a records request

and were filed in the regular business filings. The trial court noted the objection for

the record and allowed it into evidence as exhibit “P-5,” explaining that “this

document will be considered and given the appropriate weight.”

In this case, the trial court could have found that the Compass Counseling

records were admissible under La.Code Evid. art. 803(6) relating to records of

regularly conducted business activity. The trial court also could have found the

records were admissible under La.Code Evid. art. 803(4) relating to statements made

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for the purpose of medical treatment and diagnosis in connection with treatment.

The trial court’s findings are reasonable in light of Rowena’s testimony that she

checked the boxes indicating her ailments. Moreover, there is nothing in the record

on review which shows the lack of trustworthiness of the source of the information.

Accordingly, Matthew’s assignment of error is meritless with respect to the

introduction of this evidence.

E. Pictures of Clothes

At trial, Rowena offered into evidence three pictures of different items of

clothing that she allegedly found when she returned home after the granting of the

temporary restraining order. Rowena claimed that these clothes were set out by

Matthew to cause her emotional abuse. Because Rowena alleged that the clothing

represented emotional abuse, Matthew’s counsel objected to the introduction of the

pictures as being outside the scope of Rowena’s petition. Matthew’s counsel noted

that emotional abuse was not asserted in Rowena’s petition or supplemental petition.

The trial court allowed introduction of the pictures and testimony regarding same.

At trial, Rowena testified that the clothes in the pictures belonged to Christi.

Rowena believed Matthew had intentionally placed them out for her to see after the

signing of the temporary restraining order because it would trigger her jealousness.

Christi, however, refuted Rowena’s testimony when she [Christi] clarified at trial

that none of the clothes belonged to her. Matthew testified that the clothes probably

belonged to his deceased mother. Matthew explained that upon returning home after

the granting of the temporary restraining order, he was accompanied by a police

officer who was present at all times. Matthew denied placing the clothes on the bed

or instructing any third person to do the same.

In this case, we find that the trial court did not abuse its broad discretion in

allowing the photos. Moreover, even if the trial court’s ruling was erroneous, when
13

compared to the entire record, it does not have a substantial effect on the outcome

of the case. See Johnson v. Tucker, 243 So.3d 1237. Accordingly, Matthew’s

assignment of error is meritless with respect to the introduction of this evidence.

III. Third Assignment of Error

In his third assignment of error, Matthew contends the trial court committed

error in granting the protective order based upon the incidents enumerated in

Rowena’s application. Matthew claims that, on the three occasions when Rowena

alleges the domestic abuse occurred, he was merely defending his property,

defending himself, or defending a third person. He further claims that Rowena was

the instigator in all three occasions. Thus, Matthew alleges that he did not commit

any act of domestic abuse as defined under La.R.S 46:2132.

In Louisiana, domestic abuse pursuant to 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.” Rowena’s petition and testimony claim that

Matthew abused her on three different occasions: February 3, 2019, March 6, 2019,

and May 27, 2019. Testimony in the record further reveals another incident occurred

on February 23, 2019. Notably, Matthew’s trial testimony reveals that he is a

licensed professional mental health counselor who works with women who have

been past victims of domestic violence.

A. February 3, 2019

In her petition, Rowena alleged the parties were verbally arguing on February

3, 2019, when Matthew pushed her and caused her to fall on the floor. Rowena’s

trial testimony reveals that Matthew returned to their home on the evening in

question when they began fighting because he had been at Christi’s house watching
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movies. Rowena claimed that during their argument, Matthew began playing an

online game with Christi. At that point, Rowena picked up the computer mouse and

threw it on the floor, “not to[wards] him.” She alleged that Matthew subsequently

picked her up by both of his hands and threw her on the floor, landing on her bottom.

Rowena noted Matthew told her she merely tripped. Rowena stated that she called

911 but hung up because she did not want to make things worse. She claimed

Matthew subsequently called 911, and Rowena spoke to the police. Recorded 911

calls were entered into evidence at trial.

Matthew’s testimony reveals that on the date in question, Rowena threw a

phone and a mouse next to his computer which was located on top of a glass coffee

table. Matthew explained that he was concerned Rowena was going to hurt herself.

As a result, he stated that the following occurred: “I just put my arms next to hers

and kind of turned us so that I was between her and all the glass stuff.” Matthew

acknowledged that Rowena called the police and hung up. He said that the police

called back and units were dispatched to the home. Matthew noted that they spoke

to the police, and he was not arrested. Matthew’s counsel introduced into evidence

police body camera videos.

B. February 23, 2019

Rowena testified that she and Matthew were in their master bedroom when

they started arguing about Christi. She alleged that Matthew pushed her with both

of his hands out of the bedroom. Rowena explained that she left their home that

night because she was scared of Matthew. Rowena entered into evidence an audio

recording of the couple.

Matthew’s testimony reveals that he was walking forward and yelling at

Rowena while she backed up towards the bedroom door. Matthew claims that when

Rowena reached the door, she began struggling to stay in. At that point, Matthew
15

tried to shut the door but failed to realize that Rowena’s hands were in the doorway.

Matthew claimed this was an accidental incident and that he never made intentional

physical contact with Rowena.

C. March 6, 2019

In her petition, Rowena claimed that she attempted to enter the home when

Matthew blocked her access to the door. At trial, Rowena testified that she was

physically harmed when she went to their home. She explained that she wanted to

speak to Christi, who was staying with Matthew at the marital home. Rowena

advised that when she attempted to open the house door, Matthew blocked her from

entering by pushing the door from the other side. She eventually entered the home

and proceeded to the master bedroom to confront Christi when Matthew grabbed

Rowena. Rowena claimed Matthew dragged her along the hallway and pinned her

down to the floor. He allegedly held her down with both of his hands and dragged

her outside. Rowena claims that Matthew pinned her down, causing her left cheek

to hit the floor. Matthew allegedly twisted her arms and stepped on her back.

Rowena explained that Matthew placed his left hand on the back of her neck when

she began yelling that she could not breathe. According to Rowena’s testimony,

Matthew eventually opened the door and threw her outside. During this incident,

Rowena claimed that she called Christi bad names although she never threatened to

physically harm her. Rowena revealed that she never called the police regarding the

incident. However, she returned the couple’s car to the residence later that day when

she was confronted by police, who told her she was trespassing. Police records were

entered into evidence at trial.

The following day after the alleged incident, Rowena took photographs of her

body. These pictures, which reveal bruises on various parts of her body, were

attached to her petition and entered into evidence at trial. Rowena also testified that
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she sought medical treatment two days later at Lake Charles Urgent Care. The

medical records, which are dated March 8, 2019, and were entered into evidence at

trial, reveal that Rowena was diagnosed with having soft bruises on her body. A text

message between Rowena and Matthew, also entered into evidence, reveals Rowena

sent Matthew a picture of her bruises after which Matthew responded, “Ok. And?”

Matthew’s testimony reveals that the doorbell rang on the morning in question.

He opened the door where he saw Rowena, who was cursing about Christi. He

testified that Rowena made her way inside and proceeded to the master bedroom

where Christi was hiding. He acknowledged that Rowena was unable to enter the

master bedroom, although she kicked and punched the door. Matthew was scared

that Rowena and Christi would get into a fight and decided to move Rowena. At

that point, Matthew stated that he grabbed Rowena by the arms and pulled her

towards the front door. Matthew brought her outside and “let her go” where Rowena

probably fell. He never choked her, stepped on her back, or twisted her arms.

Matthew advised that Christi called the police, who showed up. Matthew’s counsel

introduced into evidence police body camera videos.

Christi’s trial testimony confirms that she called police on the day in question.

Christi acknowledged that she is Matthew’s former client, and the two have become

friends since their professional relationship ended. Christi, a nurse who lives in

Moss Bluff, explained that she sometimes stays at Matthew’s house because it is

located closer to her patients than her house.

D. May 27, 2019

According to Rowena’s petition and trial testimony, the couple was at home

when they began arguing about Christi. Rowena was angry because Matthew was

with Christi earlier that day. Rowena revealed that she grabbed Matthew’s phone

with her right hand. Rowena testified that she never hit Matthew’s arm or hand when
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she grabbed his phone. According to Rowena, Matthew subsequently stood up and

pushed her, causing her to fall into the furniture.

Matthew acknowledged that he had been watching movies at Christi’s house

earlier in the day. This was confirmed by Christi’s testimony. Matthew testified

that as he was leaving Christi’s house, he saw Rowena and her daughter pass in

another vehicle. Thereafter, the parties returned to the marital home when Rowena

and Matthew began arguing in the living room. Matthew stated that Rowena

removed his cell phone from his hand without his permission. He explained that he

subsequently reached forward with his right hand and retrieved his phone from

Rowena while holding out his left arm. Matthew stated that Rowena subsequently

sat down in the loveseat behind her.

After considering the foregoing testimony and evidence, along with

jurisprudence, the trial court held that a caustic relationship existed between Rowena

and Matthew which resulted in non-consensual physical touches. The trial court

granted the protective order and use of the home to Rowena pending further

proceedings.

Our review of the record reveals that the trial court found Rowena’s testimony

more credible than Matthew and Christi’s testimony, and there is nothing in the

record to contradict its finding. Accordingly, the trial court’s finding is not

manifestly erroneous in this regard.

Matthew further claims that during the March 6, 2019 incident, he was acting

in self-defense pursuant to La.R.S. 14:19, such that his acts should not be considered

domestic abuse. Pursuant to La.R.S. 14:19, the use of force or violence upon the

person of another is justifiable in certain circumstances. In a non-homicide case, the

defendant must carry the burden of proving self-defense by a preponderance of the

evidence. State v. Perkins, 527 So.2d 48 (La.App. 3 Cir. 1988). In a non-homicide
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case, the issue of self-defense “requires a dual inquiry: (1) an objective inquiry into

whether the force used was reasonable under the circumstances; and (2) a subjective

inquiry into whether the force was apparently necessary.” Id. at 50.

In the case before us, the evidence presented at trial demonstrates that

Matthew suffered little or no injury as a result of the March 6, 2019 incident. On

the other hand, Rowena introduced medical records and photographs demonstrating

her injuries which resulted from the incident. In light of the evidence presented, we

find that the trial court could have reasonably found that Matthew did not act in self-

defense. Accordingly, the trial court did not abuse its discretion, and this assignment

of error is without merit.

IV. Fourth Assignment of Error

In his fourth assignment of error, Matthew contends that the trial court

committed error and abused its discretion by awarding Rowena the exclusive use of

Matthew’s separate property residence for an eighteen-month period pursuant to the

granting of the protective order. In support, Matthew cites La.R.S. 46:2136(A),

which provides:

The court may grant any protective order or approve any consent
agreement to bring about a cessation of domestic abuse as defined in
R.S. 46:2132, or the threat or danger thereof, to a party, any minor
children, or any person alleged to be incompetent, which relief may
include but is not limited to:

(2) Where there is a duty to support a party, any minor
children, or any person alleged to be incompetent living in the residence
or household, ordering payment of temporary support or provision of
suitable housing for them, or granting possession to the petitioner of the
residence or household to the exclusion of the defendant, by evicting
the defendant or restoring possession to the petitioner where the
residence is solely owned by the defendant and the petitioner has been
awarded the temporary custody of the minor children born of the parties.

According to Matthew, a petitioner can only be granted the exclusive possession of

a defendant’s separately owned property under La.R.S. 46:2136(A)(2) when the

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petitioner has been awarded temporary custody of the minor children born of the

parties. Because Rowena and Matthew have no children together, he claims the trial

court abused its discretion in awarding Rowena exclusive possession.

Matthew further asserts that the only case cited by Rowena in her amended

petition to support her contention that La.R.S. 46:2136(A)(2) is applicable, i.e.,

Beard v. Beard, 917 So.2d 1160 (La.App. 5 Cir. 11/29/05), is factually

distinguishable from the instant matter. In Beard, Mrs. Beard was granted a

temporary restraining order against Mr. Beard which included the use of the

matrimonial domicile. Mr. Beard filed an ex parte motion to vacate the temporary

restraining order, arguing that the matrimonial domicile was his separate property

and that Mrs. Beard misled the court in her petition by stating that she was the sole

owner. The trial court maintained the domestic abuse order and granted Mrs. Beard

use and possession of the residence until August 24, 2006. On appeal, and with

respect to the order granting Mrs. Beard use of family home, Mr. Beard claimed that

La.R.S. 46:2136(A)(2) provided that an order granting a party use of the separate

property of the other spouse may be issued only if the petitioner had been awarded

temporary custody of the parties’ minor children.2 The fifth circuit affirmed the trial

court’s judgment.

In his brief, Matthew claims Beard is inapplicable because Mr. Beard testified

that he did not mind Mrs. Beard living in the house whereas in this matter, Matthew

does not want Rowena living in the house. Although the fifth circuit noted the

foregoing testimony as one of its reasons in affirming the trial court’s judgment, that

2
Our reading of Beard, 917 So.2d 1160, reveals that Mrs. Beard has a daughter named
Sandra Rivere who used to live rent free in one of Mr. Beard’s mobile homes. However, there is
no information in the opinion as to Sandra’s age and whether Mr. Beard is Sandra’s father.
Moreover, there is no information in the opinion as to whether Mr. and Mrs. Beard actually had
any children together.

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was not the sole reason. Beard, 917 So.2d 1160. Rather, the fifth circuit noted that

the trial court found Mrs. Beard’s testimony was more credible than Mr. Beard’s

testimony, and there was nothing in the record to contradict such a finding.

Importantly, the fifth circuit stated:

The wording of LSA-R.S. 46:2136 makes it clear that the court
is not limited to the enumerated relief. The legislature apparently
fashioned the statute thus in order to permit the court to tailor relief to
the circumstances of the case. Under the facts presented here, we find
the decision by the trial court to award occupancy of the family home
to Mrs. Beard is a protective order which results in the cessation of
systematic psychological abuse by her husband.

Id. at 1163. Thus, Matthew’s claim that Beard is inapplicable to this case is without

merit.

Rather, we find the trial court’s reliance on Beard is appropriate. The trial

court in this case, just as in Beard, found Rowena’s testimony more credible than

Matthew’s testimony, and there is nothing in the record to contradict such a finding.

Just as in Beard, the trial court in this matter recognized that it was not limited to the

enumerated relief provided in La.R.S. 46:2136. Similar to Beard, the trial court in

this case recognized that La.R.S. 46:2136 was fashioned in order to enable the court

to tailor relief to the circumstances of the case. Under the facts presented here, we

find the decision by the trial court to award occupancy of the residence to Rowena

is a protective order which results in the cessation of abuse by Matthew.

Accordingly, the trial court did not abuse its discretion in this regard, and Matthew’s

assignment of error is without merit.

V. Fifth Assignment of Error

In his fifth assignment of error, Matthew contends the trial court committed

error by awarding attorney fees to Rowena. Alternatively, he contends the trial court

committed error by awarding an unreasonably high amount of attorney fees.

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According to the record on review, the trial court awarded attorney fees to

Rowena pursuant to the granting of the protective order. Rowena’s counsel was

instructed to submit an affidavit indicating the amount of attorney fees incurred.

Matthew filed an opposition to the affidavit of attorney fees. The trial court

subsequently signed an order awarding Rowena $15,500.00 in attorney fees.

A “trial court’s award of attorneys’ fees should not be modified absent an

abuse of discretion.” D.M.S. v. I.D.S., 14-364, p. 25 (La.App. 4 Cir. 3/4/15), 225

So.3d 1127, 1143, writ denied, 15-897 (La. 6/19/15), 172 So.3d 654. In this case,

the trial court’s award was granted pursuant to the Domestic Abuse Assistance Act,

La.R.S. 46:2136.1(A), which provides:

All court costs, attorney fees, costs of enforcement and
modification proceedings, costs of appeal, evaluation fees, and expert
witness fees incurred in maintaining or defending any proceeding
concerning domestic abuse assistance in accordance with the provisions
of this Part shall be paid by the perpetrator of the domestic violence,
including all costs of medical and psychological care for the abused
adult, or for any of the children, necessitated by the domestic violence.

The statute clearly awards all attorney fees incurred, including the costs of

appeal, in maintaining or defending a proceeding concerning domestic abuse

assistance which must be paid by the perpetrator. In this case, the perpetrator is

Matthew. Thus, the trial court properly awarded attorney fees in light of the statute.

We find no abuse of the trial court’s discretion, and this assignment lacks merit.

DECREE

For the foregoing reasons, the trial court’s judgment is affirmed. All costs

associated with this appeal are assessed to Defendant/Appellant, Matthew Wayne

McCauley.

AFFIRMED.

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