199 So. 3d 1180
La. Ct. App.2016Background
- Parties married in Jan 2013; Shaw (wife) moved from Australia to New Orleans; separation in Feb 2014 and divorce later granted.
- Shaw obtained a February 13, 2014 ex parte temporary restraining order alleging physical assault and threats by Young; TRO barred electronic contact and set a show-cause date. Transcript of an April 2014 protective-order hearing is not in the appellate record.
- Shaw filed a Petition for Protection from Abuse (La. R.S. 46:2131 et seq.); trial occurred Oct 2014 and Apr 2015 on protective order, divorce, and spousal support issues.
- At trial Shaw and a friend (Cinara Cobb) testified about repeated electronic and social‑media postings, messages, and threats by Young (Facebook posts, messages to friends, alleged threats to release private photos); no contemporaneous electronic messages were introduced into evidence.
- Trial court issued a permanent protective order prohibiting abuse/harassment/contact (including electronic communication) and denied Young interim and permanent spousal support; Young appealed.
Issues
| Issue | Plaintiff's Argument (Shaw) | Defendant's Argument (Young) | Held |
|---|---|---|---|
| Whether non‑physical acts (stalking/cyberstalking) qualify as "domestic abuse" under La. R.S. 46:2136 | Stalking and cyberstalking are "offenses against the person" under the Criminal Code and thus fall within the statute’s definition of domestic abuse; electronic harassment caused emotional distress and justified a protective order | Argued insufficient evidence of domestic abuse at the Oct 2014/Apr 2015 trial (no physical abuse testimony at that trial; did not introduce actual electronic messages) | Yes. Court held stalking and cyberstalking constitute domestic abuse under the statute and affirmed the permanent protective order based on credibility findings and evidence of repeated electronic harassment |
| Whether prior protective‑order hearing evidence (April 2014) may be considered on appeal | Shaw relied on prior proceeding evidence to support the protective order | Young argued the prior hearing transcript / order is not in appellate record so cannot be considered | Court declined to consider prior hearing evidence absent transcript; nonetheless found the Oct 2014/Apr 2015 trial evidence sufficient |
| Whether lack of documentary electronic messages at trial defeats a protective order | Shaw argued testimony about posts/messages and friend testimony (Cobb) sufficed to prove harassment by a preponderance | Young argued the specific messages/posts were not admitted and he claimed some Facebook settings were private/non‑targeted | Court held that although messages/posts were not admitted, testimony and circumstantial evidence supported finding of harassment/cyberstalking and did not require admission of the actual postings |
| Whether the trial court abused discretion in denying interim and permanent spousal support to Young | Shaw argued she lacked ability to pay; presented tax returns, income and expense evidence showing low income and high expenses/debt | Young argued need and insufficient proof Shaw could not pay; produced minimal income documentation and claimed inability to work post‑accident | Court affirmed denial: (1) interim support denied because Shaw lacked ability to pay; (2) permanent support denied because claimant must be free from fault and in need, and even assuming freedom from fault outcome would not change given Shaw’s financial incapacity |
Key Cases Cited
- Alfonso v. Cooper, 146 So.3d 796 (La. App. 4th Cir.) (appellate review of protective‑order decisions for abuse of discretion)
- Joseph v. Williams, 105 So.3d 207 (La. App. 4th Cir.) (preponderance defined as entirety of evidence making fact more probable than not)
- Hanks v. Entergy Corp., 944 So.2d 564 (La.) (preponderance standard articulated)
- Harper v. Harper, 537 So.2d 282 (La. App. 4th Cir.) (noncriminal family arguments not within Domestic Abuse statute absent criminal‑code violation)
- Miccol Enterprises, Inc. v. City of New Orleans, 106 So.3d 746 (La. App. 4th Cir.) (appellate court cannot consider evidence not in appellate record)
- State v. Craig, 112 A.3d 669 (N.H.) (discussion of Facebook privacy/default public access and social‑media evidence)