Clements v. Haskovec

Ira Clements lived with his elderly wife, Helen, who had been diagnosed with Alzheimer’s disease.  Their daughter, Linda, believed that her father was abusing her mother.  When Linda arrived at the family home with the intention of removing her mother from Ira’s home, Ira grabbed Linda by her hair and drew back his fist as though he would hit her.  As Helen tried to sneak out of the house, Ira grabbed her arm and pulled her back into the house.  When police officers arrived to investigate, Ira admitted to them that he grabbed Linda’s hair and stated that he “should have beat the hell out of [Linda]”; Linda was visibly nervous and shaken and reported to the officer that she feared for her life.  A “family violence” protective order issued against Ira behalf of Helen, Linda, and Linda’s husband pursuant to section 71.004 of the Texas Family Code.  Ira challenged the protective order on the grounds that (i) his conduct did not constitute “family violence” under the Code and (ii) there was no threat that family violence would likely occur in the future.  As to Ira’s first argument, the court held that Ira’s behavior fit the definition of “family violence” even though he never actually struck his wife or daughter because he put a family member “in fear of imminent physical harm, bodily injury, [or] assault.” The protective order was legally sufficient because Linda, her sister, and two police officers testified that Ira grabbed Linda’s hair and drew back his fist as if he would hit her, and, that Ira had repeatedly threatened Helen and made her fearful—thus, there was not a complete absence of vital fact and the evidence amounted to more than a “mere scintilla.”  As to Ira’s second argument, the court held that there was sufficient evidence for the finding that family violence would likely occur in the future.  In so finding, the court explicitly extended to family violence protective order cases the well-settled family law principle that evidence a person has engaged in abusive or neglectful conduct permits an inference that the person will continue this behavior in the future.

Year 

2008

Avon Center work product 

ID 

427