Crystal Dolgener v. Steven Dolgener, 14-19-00645-CV

Background

In April 2019 Steven filed for a protective order against his wife, Crystal, on behalf of himself and four children (three daughters and P.D., Steven’s son from a prior relationship); Steven also filed for divorce the next day.
At a June 2019 hearing the court heard testimony from Steven, Crystal, neighbors, family members, and a treating psychologist, and admitted ~500 pages of text messages (mostly from Crystal).
The trial court found Crystal committed family violence and that family violence was likely to occur in the future, named Steven and all four children as "protected persons," and issued an order granting Steven exclusive possession of the children, the marital residence, and a community vehicle; Crystal’s visitation was ordered supervised.
The court also ordered Crystal to undergo a psychological evaluation and awarded Steven $10,609 in attorney’s fees; Crystal deposited funds to the court registry seeking to supersede that award.
Crystal appealed raising 11 issues (sufficiency of evidence as to each alleged victim and future risk; awards of possession and property; attorney’s fees; release of deposited funds; denial of transfer; and alleged denial of a witness), and the court of appeals affirmed in all respects.

Issues

Issue	Plaintiff's Argument (Steven)	Defendant's Argument (Crystal)	Held
Legal & factual sufficiency that Crystal committed family violence against Steven	Steven argued testimony and witness accounts (pushing, punching, blocking car/door, aggressive texts) supported finding	Crystal said conduct was defensive or motivated by concern about Steven’s drinking and safety of children; denied abuse	Affirmed: evidence legally and factually sufficient to find family violence against Steven
Sufficiency that Crystal committed family violence against P.D.	Steven alleged incidents of aggressive conduct toward P.D., threats, and that P.D. was scared	Crystal conceded anger but denied she would be physically violent; blamed P.D.’s behavior	Affirmed: testimony supported family-violence finding as to P.D. and risk of future violence
Inclusion of L.D., S.D., D.D. as "protected persons"	Steven requested the children be protected as family members of the applicant	Crystal argued no evidence showed the girls were victims and they shouldn’t be listed absent direct findings	Affirmed: court may list family members as protected even if they did not directly suffer family violence; no requirement of separate finding
Finding that family violence was likely to occur in the future	Steven relied on pattern of past acts, escalation, voluminous harassing texts, and violations of no-contact orders	Crystal argued incidents were isolated or defensive and motivated by concern over drinking	Affirmed: past acts plus continuing harassment and lack of remorse supported inference of likely future violence
Award of exclusive possession of the three daughters and supervised visitation for Crystal	Steven argued award necessary to protect children given witnessed incidents, use of children to block exits, and frequent harassing contact	Crystal argued award was an abuse because Steven already had other vehicle/access and she needed contact with children	Affirmed: §85.021(3) authorizes protective orders to provide for possession/access where in children’s best interest
Exclusive possession of marital residence	Steven argued residence award necessary for stability of children and consistent with exclusive custody award	Crystal argued award was arbitrary and she needed the home and vehicle	Affirmed: §85.021(2) authorizes exclusive possession; evidence supported decision in children’s interest
Exclusive use/possession of community vehicle (Chevrolet Traverse)	Steven requested one community vehicle for primary use given he was awarded children and is sole income source	Crystal argued it was primarily her vehicle and necessary for her transportation	Affirmed: trial court acted within discretion to award vehicle to Steven under §85.021(5)
Award of attorney’s fees to Steven ($10,609)	Steven’s attorney testified to fees incurred and requested award under §81.005	Crystal argued trial court abused discretion because no evidence of her ability to pay was offered	Affirmed: applicant bore initial burden to prove fees; respondent had burden to introduce evidence of inability to pay but did not do so
Release of funds Crystal deposited in clerk’s registry (attempt to supersede fees)	Steven argued the protective-order judgment was not superseded because Crystal did not obtain a court order suspending enforcement where custody is implicated	Crystal argued funds were supersedeas and trial court lacked authority to release them while appeal pending	Affirmed: because order affected custody, Crystal needed a court order to suspend enforcement under Rule 24.2(a)(4); she did not supersede the judgment, so clerk could release funds to attorney
Denial of motion to transfer protective order to divorce court (245th)	Steven implicitly opposed transfer; trial court has discretion under §85.064	Crystal argued transfer was required/in the interest of justice because protective order overlaps divorce temporary orders and creates conflict	Affirmed: transfer is discretionary; no hearing requirement; denial not an abuse of discretion on the record
Due process claim—court refused to allow a witness (Gauze)	Steven: (no brief filed)	Crystal argued exclusion deprived her of due process	Overruled: Crystal failed to preserve objection at trial; appellate review waived; no reversible error shown

Key Cases Cited

M.O. Dental Lab v. Rape, 139 S.W.3d 671 (Tex. 2004) (sua sponte review of jurisdiction/mootness)
Marshall v. Housing Auth. of the City of San Antonio, 198 S.W.3d 782 (Tex. 2006) (collateral-consequences exception to mootness)
In re N.G., 577 S.W.3d 230 (Tex. 2019) (protective-order considerations related to custody)
Boyd v. Palmore, 425 S.W.3d 425 (Tex. App.—Houston [1st Dist.] 2011) (family-violence standard and fear inference)
Clements v. Haskovec, 251 S.W.3d 79 (Tex. App.—Corpus Christi–Edinburg 2008) (past acts and threats can support protective order)
In re A.C., 560 S.W.3d 624 (Tex. 2018) (legal-sufficiency and factual-sufficiency standards)
In re Sheshtawy, 154 S.W.3d 114 (Tex. 2004) (effect of supersedeas and trial-court duty to enforce unsuperseded judgment)
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003) (deference to factfinder on credibility)