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In re M.M.W.

Court of Appeals of Texas, Sixth District, Texarkana

April 22, 2019

IN THE INTEREST OF M.M.W. AND S.E.W., CHILDREN

          Date Submitted: April 4, 2019

          On Appeal from the 250th District Court Travis County, Texas Trial Court No. D-1-FM-15-007458

          Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Stevens

          MEMORANDUM OPINION

          Scott E. Stevens Justice.

         Kathleen Wotring (Kathleen) and Steven Charles Wotring (Steven) were divorced in Travis County[1] and were appointed joint managing conservators of their minor children, M.M.W. and S.E.W. One year later, Kathleen filed her original petition to modify parent-child relationship. As a result of Steven's conduct in the ensuing months, Kathleen sought (1) to be appointed sole managing conservator, (2) enforcement of certain provisions of the divorce decree, (3) reimbursement for medical expenses, (4) a protective order against Steven, and (5) a contempt order for Steven's violations of the divorce decree and later orders of the trial court. After a long hearing, the trial court entered its final order in suit to modify parent-child relationship (the Modification Order), an order of criminal and civil contempt, and a final protective order (the Protective Order), granting Kathleen all of the relief she sought.

         On appeal, Steven complains (1) that the Protective Order violates his right to free speech guaranteed by the First Amendment to the United States Constitution, (2) that there is factually and legally insufficient evidence to support the trial court's finding in the Protective Order that Kathleen was the victim of stalking, and (3) that the trial court erred in granting a lifetime protective order.[2] Because we find that sufficient evidence supports the trial court's findings and that Steven did not preserve his other two complaints for our review, we affirm the trial court's judgment.

         I. Procedural Background

         While her petition to modify parent-child relationship (the Petition to Modify) was pending, Kathleen filed her verified application for a protective order and request for temporary protective order (the Application) under Chapter 7A of the Texas Code of Criminal Procedure.[3]In the Application, Kathleen alleged that she was a victim of acts and conduct by Steven that constituted stalking under Article 42.072 of the Texas Penal Code.[4] Kathleen alleged that Steven had, for example

1. sent many harassing emails to Kathleen and the professionals appointed by the trial court in the case;
2. made posts on social media disparaging Kathleen and accusing her of immoral and unethical behavior;
3. emailed Kathleen's employer falsely accusing her of immoral and illegal behavior;
4. emailed her family members and their employers;
5. stalked the court-ordered professionals; and
6. contacted and harassed their minor children.

         Kathleen attached copies of reports and emails to the Application that documented the allegations made against Steven.

         The hearing lasted several days. At the conclusion, the trial court granted the Application and entered the Protective Order that granted protection for Kathleen, her minor children, her immediate family members, and any member of her household (the Protected Person(s)). In the Protective Order, the trial court found that Kathleen was the victim of acts and a course of conduct by Steven that constituted stalking. See Tex. Code Crim. Proc. Ann. art. 7A.03(a) (West 2015) (requiring the trial court, after the hearing, to "find whether there are reasonable grounds to believe that the applicant is the victim of sexual assault or abuse, stalking, or trafficking"). The Protective Order contained the following findings by the trial court:

(2) Respondent has [directed communications], on more than one occasion and pursuant to the same scheme or course of conduct that has been directed specifically at Applicant, which Respondent knew or reasonably should have known would cause Applicant to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended and would cause a reasonable person to feel harassed, annoyed, alarmed, tormented, embarrassed, or offended;
(4) Respondent's conduct, even up to and on the eve of the hearing on Applicant's Application for Protective Order, was reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass Applicant and has caused Applicant to feel harassed, annoyed, alarmed, abused, tormented or embarrassed;
(5) Respondent has frequently, if not relentlessly, directed communications to Applicant, Applicant's employers, family members, and others in ways which are not confidential such as email, social media, and in person that refers to Applicant as follows (by way of example and not by limitation): (a) applicant has sexually abused of the [sic] children, (b) forced the children to watch Applicant participate in orgies or other inappropriate sexual acts, (c) stalked the children and Respondent, (d) abused the children, (e) neglected the children, (f) referred to Applicant as a "monster" that applicant is "a monster raising a monster" (g) mobbed the Children and/or Respondent (h) harassed the Children and/or Respondent, (i) that Applicant is "psychotic" or engages in conduct based upon her "psychosis"; narcissistic; (h) referring to friends of Applicant as "narcissistic", [sic] "narcissistic monkeys", [sic] "swingers", [sic] "cuernyswingers" [sic] and that the[y] hold "illegal sex camp", [sic] (k) has forced the children to vacation with sexual abusers of the children; that (1) Applicant uses or abuses controlled substances such as Xanax, Cocaine, and the like.
(6) . . . (T)hese examples are specifically prior conduct and communications by Respondent for which the Court has found constituted Stalking and reasonably caused Applicant and Applicant's family members to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, offended or otherwise in fear of their personal safety . . . .
(7) Respondent's behavior has caused Applicant as well as members of Applicant's household and family members to genuinely feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended and genuinely frightened for that of their own personal safety and that of Petitioner's children;
(8) Respondent's actions have extended to the family members of Applicant, employers of Applicant and the employers of Applicant's family members, as well as directed towards the professionals the Court Ordered to provide services for the parties and the Children . . . .

         The Protective Order prohibited Steven from:

1. Directly or indirectly engaging in conduct directed at any Protected Person that is considered stalking under Section 42.072 of the Texas Penal Code;
2. Directly or indirectly disseminating, publishing, or causing to be published anything regarding a Protected Person that causes that person to feel harassed, annoyed, frightened, threatened, tormented, or embarrassed;
3. Directly or indirectly communicating with an employer of a Protected Person except as otherwise provided in the order;
4. Communicating, encouraging, or causing to be communicated, published, shared, or distributed in any way information, communication, or otherwise to Kathleen, her employers, or her family members certain specified accusations of ...

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