Dolgener v. Dolgener

651 S.W.3d 242

Crystal DOLGENER, Appellant

v.Steven DOLGENER, Appellee

NO. 14-19-00645-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed August 31, 2021

Alicia Palmer, Carrie Ruth Marquis, Houston, Kelly Fritsch, for Appellant.

Melissa Cass Pickett, Katy, for Appellee.

Panel consists of Justices Spain, Hassan, and Poissant.

Margaret "Meg" Poissant, Justice

Appellant Crystal Dolgener appeals a protective order entered in favor of her husband, appellee Steven Dolgener.¹ In eleven issues we have reorganized, Crystal argues: the evidence was legally and factually insufficient to support a finding that (1) Crystal committed family violence against Steven, (2) Crystal committed family violence against P.D., (3) Crystal committed family violence against the parties' children thereby necessitating listing them as "protected persons," (4) Crystal was likely to commit family violence in the future; and the protective order court abused its discretion when it (5) awarded Steven exclusive possession of the parties' children and ordered supervised visitation for Crystal, (6) awarded Steven exclusive possession of the marital residence, (7) awarded Steven exclusive possession of the parties' vehicle, (8) awarded Steven attorney's fees, (9) signed an order releasing supersedeas funds deposited by Crystal to Steven's attorney, and (10) denied Crystal's motion to transfer the protective order. Crystal also raises an issue of due process, arguing (11) the trial court violated due process principles and abused its discretion by preventing Crystal from calling a witness at trial.² We affirm.

I. BACKGROUND

During their marriage, Crystal and Steven had three daughters: L.D., S.D., and D.D.³ Steven also has a son from a previous relationship, P.D. On January 11, 2019, Steven left the marital residence and separated from Crystal. On April 22, 2019, Steven filed an application for a protective order in the 280th Judicial District Court of Harris County against Crystal on behalf of himself and the four children. On April 23, 2019, Steven filed for divorce, and the case was assigned to the 245th Judicial District Court. In his live pleading, Steven alleged that Crystal "engaged in conduct that constitutes family violence as defined in [§] 71.004 of the Texas Family Code" against Steven and P.D., and that there was good cause for prohibiting Crystal from communicating with Steven and P.D., except through the parties' attorneys. See Tex. Fam. Code Ann. § 71.004. Steven also requested that the trial court award him: exclusive possession of L.D., S.D., and D.D.; possession of the marital residence; possession of one of the community vehicles; and attorney's fees.

A. TRIAL ⁴

Trial on the protective order began on June 24, 2019.⁵ The trial court heard testimony from: the parties (Steven and Crystal); Crystal and Steven's neighbor (Joseph Heiliger); Steven's sister (Lisa Mulvaney); Steven's brother-in-law and Lisa's husband (Doug Mulvaney); a therapist (John Douglas Trani, Ph.D.); and on the issue of attorney's fees, Steven's attorney (Melissa Pickett).

1. Evidence Presented by Steven

a. Joseph Heiliger

Heiliger testified that on January 5, 2019, while in his neighbor's driveway, he witnessed Crystal, in the front yard of the house with the children present, yelling at Steven and trying to stop Steven from leaving the house by standing in front of him and blocking him from getting into his car to leave. Heiliger stated Crystal accused Steven of destroying and abandoning the family, while Steven was attempting to leave the house. While Steven and Crystal were arguing, P.D. walked down the street past Heiliger's house and Steven followed him. Crystal re-arranged the vehicles to prevent Steven from leaving in the car. Heiliger further testified that Steven went back to his house to attempt to retrieve some of his clothes and a bag, but he was not able to do so.

Heiliger testified to similar incidences of Steven and Crystal arguing outside in the yard, and stated he never saw Steven put his hands on Crystal but that he witnessed Crystal push Steven. Heiliger testified that, during the January incident, Steven seemed lucid and did not smell of alcohol.

b. Steven

Steven testified about incidents and altercations involving him and Crystal. In the summer of 2018, he and Crystal were arguing and Crystal punched Steven in the chest and shoulder area. Steven also testified about other incidents in 2018 when Steven tried to leave the house or go to work and Crystal prevented him from leaving by barricading herself against the door while holding the children or by hugging Steven and refusing to let go.

Steven testified that he left the residence he shared with Crystal on January 11, 2019. Steven testified that on the day before he left, Crystal was cussing and swearing from around 10:00 a.m. that day until 3:00 a.m. the next day. According to Steven, Crystal referred to P.D. and Steven by numerous derogatory and insulting terms. Steven testified that while their five-year-old daughter was in the room, P.D. turned off the light and Crystal turned the light back on, several times, and verbally threatened P.D. with physical harm if he turned his light off again. He stated he pleaded with Crystal to stop, but that Crystal continued yelling and screaming.

The next day Crystal continued her altercation with P.D., and Steven was "done." As P.D. came down the stairs, Crystal would not let him pass, and Steven "had to grab her again to move her to the side of the stairwell" so that P.D. could make it past Crystal. As Steven tried to leave, Crystal grabbed and tore his shirt and started blocking the doors in an attempt to prevent him from leaving. After Steven managed to exit the house, Crystal told L.D. and S.D. that Steven was trying to leave, instructed them to sit on Steven's car, and Crystal stood behind the car, telling Steven to go back inside the house. At that point, Steven walked down the street to look for P.D. in an attempt to diffuse the situation.

On January 16, 2019, Steven agreed to meet Crystal at a Wal-Mart parking lot. As Steven approached Crystal's car, Crystal opened her car door, grabbed and twisted Steven's shirt, and began yelling and screaming at Steven, while their children were in the car. When Steven was able to walk away, Crystal repositioned her car to prevent Steven from getting into his car.

On January 27, 2019, Steven went out drinking with friends. At the end of the night, a friend got an Uber to take Steven to his sister's home, where Steven had been staying since his separation from Crystal. However, Steven fell asleep in the Uber and the driver took Steven to the address on his driver's license—the home he had shared with Crystal. Steven fell asleep in the house, and when he woke up, Crystal was hitting him and telling him to leave. Steven said Crystal punched him and hit him across the head and that one of his daughters witnessed Crystal striking him. Steven left in an attempt to prevent the children from seeing any further physical altercation.

At 6:30 a.m. on January 30, 2019, Steven sent an email to Crystal informing her that he was no longer going to direct deposit his checks into their bank account because Crystal had withdrawn "$2,500 or $2,700" that week and also two weeks prior. Crystal texted Steven 144 times and called him 123 times that day and filed a criminal assault charge against Steven that afternoon. Crystal continued to call and text Steven many times in the days that followed. On February 8, 2019, as a result of Crystal's criminal complaint, a no contact order was put in place, yet Crystal continued to text and call Steven. Crystal texted Steven multiple times on February 8–11, 13, and 25–27. "And after 30 days of doing that, I think Crystal ... went back up to the courthouse to amend the no contact [order]."

On April 14, 2019, Steven, his sister (Lisa), Lisa's husband (Doug), and his nephew went to play golf. That day, Crystal called Steven 121 times requesting that Steven meet with her. Crystal eventually went to the golf course with the girls in the car, and drove up to the car Steven was in, to pin him in. Crystal then rolled down her car windows, and yelled and screamed at Steven while the girls were in the back seat. The five-year-old child started crying.

Steven and his family members decided to have Steven and Crystal continue their conversation at the parking lot of a nearby police station,⁶ where Crystal continued to yell and scream at Steven and call him derogatory and insulting names. Police officers approached their vehicles; Crystal accused Steven of drinking and driving and said she had been trying to find Steven all day.

On April 15, 2019, Steven met with Pickett and another attorney to pursue a divorce. While at the consultation with Pickett, Steven could not access his phone because Crystal was calling "almost every second for almost an hour or two."

On April 16, 2019, Crystal showed up at the restaurant where Steven worked part-time,⁷ held onto to Steven, and refused to leave until she was informed by Steven's co-worker that their manager was calling the police. Steven then filed the underlying suit requesting a protective order.

Steven addressed Crystal's allegations of abuse by him. Specifically, Steven said he has been the cause of bruising on Crystal at times because he's had to restrain her from attacking P.D. and move her out of the way. Steven explained that Crystal would scream at P.D. while standing right in front of P.D.

The trial court admitted into the record Steven's exhibits showing the voluminous records of Crystal's text messages between January 30, 2019, and June 15, 2019.⁸ The exhibits show Crystal texted Steven repeatedly, often multiple times a minute, in an aggressive tone or an insulting manner. In particular, Crystal repeatedly accused Steven in the text messages of being abusive and an alcoholic.

c. Lisa Mulvaney

Regarding the April 14, 2019, incident in the golf course...