Texas Divorce Attorney Blog
A recent Texas divorce appeal arose after a wife filed for a protective order against her husband. She asked for the protective order after her husband and her father had a physical fight at a pet cemetery when the group was trying to bury a dead family dog. Divorce proceedings had commenced by then.
At the graveyard were the husband and wife, their children, the wife’s father, and his wife. While the husband and father were digging with their shovels, the father’s shovel touched the husband’s scalp. He apologized to the husband and said it was an accident. However, the father didn’t believe the apology, and a fight broke out. The father was hit and kicked by his son-in-law, who later claimed he acted in self-defense. The trial judge determined that the husband had perpetrated family violence and would likely do so again. The wife was awarded a protective order and attorney’s fees.
The husband argued that there wasn’t enough legal or factual evidence to support the order and appealed. He argued it should be reversed. The appellate court explained it would need to decide whether the evidence submitted would allow a reasonable fact finder to get to the same conclusion. If it would, the evidence was enough to support the finding. In looking at whether the evidence was factually sufficient, it didn’t need to defer to the evidence that supported the decision. Instead, it had to consider all of the evidence in a neutral light and decide whether the finding cut so far against the preponderance of evidence as to be manifestly unjust or wrong.
A court can provide a protective order under Section 85.001(b) and Section 81.001 of the Family Code when it finds that family violence has occurred and is likely to happen in the future. Family violence can include any act by a family or household member against someone else in the family or household, when the act is intended to result in bodily injuries, physical harm, assault, sexual assault, or is threatening such that it reasonably makes the family member fear an imminent injury or assault. It doesn’t include measures of self-defense.
The appellate court examined the record to look at whether the father counted within the scope of the family. At the time of the fight, the husband and wife were married, and the wife’s father was the husband’s in-law. The appellate court found that this put him within the scope. Family violence excludes self-defense, and the court found that in spite of the husband’s disbelief in the father’s apology, the evidence showed the father had apologized, and the defensive steps weren’t necessary because the contact was accidental. The husband started hitting the father anyway. There was also evidence that while they were digging, the husband cried, disparaged the wife, and chest-bumped the father, whom he called a liar.
The appellate court found that it didn’t matter that the police found the father to be credible, since they weren’t actually there and didn’t see the fight. They were also not fact-finders at the trial, and the judge was entitled to reject their testimony.
The father argued the evidence wasn’t enough to show a likely recurrence of family violence. The court explained that past violent conduct could be competent evidence that is enough to sustain a protective order. In addition to the evidence of the pet cemetery fight, there was also evidence of the father shoving the wife to the ground, texting her repeatedly while ignoring her requests that he stop harassing her, going into the father’s home uninvited after the divorce started, and following the wife.
The protective order was affirmed.
Family violence and a protective order can have an impact on your Texas divorce case.
If you need to get a divorce, contact the Texas attorneys at the McClure Law Group at 214.692.8200.
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