Janice Carolyn Curry v. Heath Allen Streater

Seminole, Oklahoma, family law lawyers represented the Plaintiff and Defendant in a protective order proceeding.



Plaintiff filed for a protective order pursuant to the Protection from Domestic Abuse Act, 22 O.S.Supp. 2006, §§ 60-60.18, based on domestic abuse as defined in section 60.1(1). Trial court granted plaintiff's petition based on a finding of harassment and explicitly found "no domestic abuse." It also awarded attorney fees in the plaintiff's favor. The Court of Civil Appeals found that the trial court erred in finding harassment, re-weighed the evidence, found the evidence supported a finding of domestic abuse, and affirmed the issuance of the protective order. This Court previously granted the petition for writ of certiorari.



The dispositive questions before this Court are (1) whether the trial court abused its discretion in issuing a protective order based on the defendant's having harassed the plaintiff under title 22, section 60.1(2) of the Oklahoma Statutes; (2) whether the trial court abused its discretion in finding that there was no domestic abuse on which to base a protective order under title 22, section 60.1(1); and (3) whether the Court of Civil Appeals erroneously reversed the trial court's order of "[n]o finding of domestic abuse" and erred in affirming the issuance of the protective order. We find that the trial court abused its discretion in issuing a protective order based on harassment, that it did not abuse its discretion in finding the evidence does not support a finding of domestic abuse on which to base a protective order, and that the Court of Civil Appeals erred in finding domestic abuse and in affirming the trial court.



The Protection from Domestic Abuse Act (the Act) allows a victim of domestic abuse, stalking, harassment, or rape to petition the court for a protection order. 22 O.S.Supp. 2003, §§ 60.1-60.2. The two components which are relevant to this litigation are harassment, id. § 60.1(3); and domestic abuse by a threat of imminent physical harm, id. § 60.1(1), as there was no evidence of an act of physical harm. Domestic abuse is defined as "any act of physical harm, or the threat of imminent physical harm which is committed by an adult, emancipated minor, or minor child thirteen (13) years of age or older against another adult, emancipated minor or minor child who are family or household members or who are or were in a dating relationship." Id. § 60.1(1).4 Harassment is defined as "a knowing and willful course or pattern of conduct by a family or household member or an individual who is or has been involved in a dating relationship with the person, directed at a specific person which seriously alarms or annoys the person, and which serves no legitimate purpose." Id. § 60.1(3).5 Family or household members are spouses, ex-spouses, present spouses of ex-spouses, parents, grandparents, stepparents, adoptive and foster parents, children, grandchildren, stepchildren, adopted and foster children, persons otherwise related by blood or marriage, persons are presently living or have formerly lived in the same household, and biological parents of the same child. Id. § 60.1(4).

This court sits in this case as an appellate tribunal called upon to review a trial court's proceedings. In this capacity it is utterly powerless to readjudicate de novo any of the facts found by the trial judge. Because the trial court's findings are clearly not contrary to the weight of the evidence, they must be accepted on review as true and entitled to credence. Liberty Plan Co. v. Francis T. Smith Lumber Co., 1961 OK 30, ¶18, 360 P.2d 500, 505.



The defendant may not clad himself in the mantle of an avenger of complainant's wrongdoing, real or imagined.1 He is not immune here from the law's general application because he is a police officer. He was not acting in that capacity when this controversy arose. The complainant is hence entitled to the trial court's protective order. It rests on record proof which may not be disregarded. It is not clearly contrary to the weight of the evidence. Time-honored deference to nisi prius fact finding is here absolutely commanded. Akin v. Missouri Pacific R. Co., 1998 OK 102, ¶35, 977 P.2d 1040, 1054.