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Onkst v. Morgan

Court of Appeals of Texas, Third District, Austin

September 11, 2019

Timothy Onkst, Appellant
v.
Jennifer Morgan, Appellee

          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 ...


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