FROM
THE 345TH DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-FM-14-003084, THE HONORABLE TIM SULAK, JUDGE PRESIDING
Before
Chief Justice Rose, Justices Kelly and Smith
MEMORANDUM OPINION
JEFF
ROSE, CHIEF JUSTICE
Appellant
Timothy Onkst complains of the trial court's February
2017 protective order, barring him from communicating with,
threatening, harassing, or approaching appellee Jennifer
Morgan and several members of her family. The trial court
signed a final order in a suit affecting the parent-child
relationship (SAPCR order) in April 2018, incorporating the
protective order. Onkst appeals from the protective order and
the provisions of the SAPCR order that incorporate the
protective order. As explained below, we will affirm the
protective order.
STANDARD
OF REVIEW
A trial
court may issue a protective order if it finds that family
violence has occurred and is likely to occur in the future.
Tex. Fam. Code § 85.001(b). In issuing a protective
order against someone who has committed family violence, the
court may prohibit that person from: committing family
violence; threatening a protected person or a member of the
protected person's family or household directly or
through a third-party; communicating in any way with a
protected person or a member of her family or household other
than through an attorney or someone appointed by the court;
going near the home or workplace of the protected person or a
member of her family or household; going near a protected
child's home, child-care facility, or school; engaging in
conduct that is specifically directed toward a protected
person or a member of her family or household and that is
reasonably likely to harass, annoy, alarm, abuse, torment, or
embarrass, including following the person; possessing a
firearm if the subject of the order is not an actively
employed peace officer for a governmental entity; and
harming, threatening, or interfering with the care or control
of a pet of the protected person or a member of her family or
household. Id. § 85.022(b). The court may
render a protective order that lasts longer than two years
if, as relevant to this case, it finds that the subject of
the order was also the subject of at least two previous
protective orders that were rendered to protect the current
applicant, that the subject had committed family violence,
and that the subject is likely to commit family violence in
the future. Id. §§ 85.001(d), .025(a-1).
We
review a trial court's issuance of a protective order
under the same standards used in evaluating the sufficiency
of the evidence following a jury verdict. S.N. v. Texas
Dep't of Family & Protective Servs., No.
03-18-00539-CV, 2019 WL 471069, at *3 (Tex. App.- Austin Feb.
7, 2019, no pet.) (mem. op.) (citing B.C. v. Rhodes,
116 S.W.3d 878, 883 (Tex. App.-Austin 2003, no pet.)). In
reviewing legal sufficiency, we view the evidence in the
light most favorable to the trial court's determination,
indulging all reasonable inferences in its favor; in
reviewing factual sufficiency, we consider all of the
evidence and will uphold the finding unless the evidence is
too weak to support it or the finding is so against the
overwhelming weight of the evidence as to be manifestly
unjust. Id. The trial court is the sole judge of the
credibility of witnesses and the weight to be given their
testimony, and we will not substitute our judgment simply
because we might reach a different conclusion. Id.;
B.C., 116 S.W.3d at 884.
FACTUAL
AND PROCEDURAL SUMMARY
Onkst
and Morgan were divorced in 2013, [1] when the trial court signed
a decree that included possession and child-support
provisions related to their child, "Billie," who
was born in 2011.[2] Soon after the decree was signed, Onkst
and Morgan began filing motions for enforcement and petitions
to modify the parent-child relationship. In October 2012 and
January 2015, Morgan obtained two protective orders against
Onkst that each had two-year terms. In February 2017, the
trial court held a hearing on Morgan's request for a
third protective order.
At the
hearing, Travis County Deputy Constable Kasben Harris
testified that she provides security at a facility called
PlanetSafe, [3] the service that Onkst and Morgan use to
supervise their exchanges of Billie for visitation. In early
January 2017, she saw a "suspicious male person" go
behind the building and investigated when she did not see him
come out within a few minutes. Harris found Onkst's
father, Raymond Dwight Onkst, who goes by "Dwight,"
in a parking lot adjacent to the facility, "looking down
the alleyway to" the custodial-parent parking lot used
by Morgan, having positioned himself to have a "clear
view of those leaving" the facility. Harris, who knew
that Morgan had arrived at the facility to pick up Billie,
asked what he was doing and why he was there. He told her
"that he was not on PlanetSafe property" and
"that it was public property and he could be
there." She said he should leave, and he "was a
little defiant at first." He then walked away and stood
across the street until he left in a car with Onkst. Harris
testified that after that interaction, she learned that
Morgan "had just left before" Harris saw Dwight
watching the parking lot. Harris testified that Dwight's
behavior violated PlanetSafe's policies.
Harris
stated that during Onkst's supervised exchanges, he has
called her "the N word" and "Shaniqua,"
rather than using her name, which is written on her nametag,
and that he has said "that I probably had 50 million
kids and didn't know the fathers." She further
testified that Dwight has "called me stupid" and
told her that he had "never seen someone like myself
being so unprofessional when all I was asking was for them to
empty their pockets, which is the process." Harris said
she had not had any similar problems with other noncustodial
parents and testified, "As a matter of fact, on one of
those occasions, a couple of the fathers, they were bothered
by the statements . . . [the Onksts] were saying to me, and
started an exchange. And I had to intercede and ask them to
just, you know, ignore them."
Rebecca
Wooten testified that she was a friend of Morgan and
Morgan's new husband, Keith, and that she was Keith's
realtor when he decided to sell his house in 2016. In
December 2016, someone calling himself "Ray Onkst"
contacted her online to ask, "Is this home vacant? Seems
to be far overpriced. If not vacant, why are the occupants
moving?" Recognizing Onkst as Morgan's former name,
Wooten immediately contacted Morgan and asked if she knew
someone named Ray Onkst. She also blocked "Ray
Onkst" from being able to contact her in that way.
Although Wooten said that possible buyers frequently ask if a
home is vacant, she also said, "Knowing what's going
on, I was a little concerned. It's kind of creepy."
Anji
MaCuk owns an investigation agency and testified that she was
hired by Onkst to investigate where Morgan was living for
purposes of a "possible change of venue." She said
that her employees did "basic surveillance" at
Keith's residence and at Morgan's mother's
residence. She did not think her investigators had gone to
Keith's or Morgan's places of employment but was not
positive because she did not do the investigation herself.
MaCuk testified that Onkst never seemed angry or violent in
his communications and that her agency would not have
accepted the job if he had. She also said that if she had
known there was a protective order issued against Onkst, she
would have insisted on communicating any information to his
attorney, rather than giving it to Onkst himself.
Morgan
testified and explained that part of her reason for seeking a
third protective order was that Onkst had located and emailed
Tina Morgan, who is Keith's ex-wife. In the emails, which
were introduced into evidence, Onkst said, "I'd like
to talk to you about Keith Morgan, I think you would be
interested in what is going on and I'd like to ask you
some things about him and their situation." Tina
responded, "How do you know Keith Morgan and why are you
contacting me," and Onkst replied:
I don't know him and I wasn't sure but I was pretty
sure you were his ex. I'd like to know about the
situation with him and anything else you could share.
I have a 4-year old daughter (who I share custody of) who has
told me that her mother has evidently moved in (and in turn
my daughter part time) with Keith Morgan and his 2 children .
. . . Though I'm sure he is probably a far better person
to be around children than my ex, it is still a tad
disconcerting on my end.
Tina
told him that Keith "is good with children" and
"a good dad" and asked, "Are you telling me
there is information regarding their situation that I need to
be aware of?" Onkst responded that he and Morgan had an
ongoing custody dispute and that:
My ex has in the past used her living situation (among other
things) to attempt to get more child support, alter or cut
visitation schedules. Among our disputes have been her
allowing people with sexually related arrests including her
brother in law around my daughter. So I wanted to know as
much about this situation as I could. I know that there is a
significant age differential and I thought that was odd as
she is in her early 30's. . . . I'll say that if I
were you, there is no person I can think of that would be
worse to be around your children than my ex-wife. . . So I
feel for you as I just know that this isn't a good thing
for her to be around or interacting with your kids.
Tina
wrote that she would have a conversation with Keith to
"address" the "brother-in-law situation"
but said that Onkst's description of Morgan did not match
Tina's impression after having met her several times.
Morgan testified that Tina met with her soon after and gave
her print-outs ...