Alabama Case Law

BOYD v. OTTMAN, 2050250 (Ala.App. 12-29-2006)
John Wesley Boyd v. Kristin L. Ottman. No. 2050250.
Court of Civil Appeals of Alabama. Decided December 29, 2006.

Appeal from Madison Circuit Court (DR-05-3524)


John Wesley Boyd appeals from a protection-from-abuse order
entered against him by the Madison Circuit Court after a
proceeding under the “Protection from Abuse Act.” See Ala.
Code 1975, § 30-5-1 et seq. We affirm.

In general, the Protection from Abuse Act was enacted:

“(1) To assure victims of domestic violence the maximum
protection from abuse that the law can provide.

“(2) To create a flexible and speedy remedy to discourage
violence and harassment against family members or others
with whom the perpetrator has continuing contact.

“(3) To expand the ability of law enforcement officers to
assist victims, to enforce the law effectively in cases of
domestic violence, and to prevent further incidents of

“(4) To facilitate equal enforcement of criminal law by
deterring and punishing violence against family members
and others who are personally involved with the offender.

“(5) To recognize that battering is a crime that will not
be excused or tolerated.

“(6) To provide for protection orders to prevent domestic
abuse and provide for court jurisdiction and venue; to
provide for court hearing for petitions for relief; to
provide for the contents and the issuance of protection
orders; and to provide penalties for violations of
protection orders.”

Ala. Code 1975, § 30-5-1(b). The legislature has
directed this court to “liberally construe[] and appl[y]
[the Act] to promote” its purposes. Id.

In November 2005, Kristin L. Ottman filed a form “Petition
for Protection from Abuse” in the Madison Circuit Court.
See Ala. Code 1975, § 30-5-5(b) (“Forms for
petitions, motions, and pleadings shall be available
through the clerk’s office.”). Ottman checked certain boxes
on the form so as to allege that she and Boyd “ha[d] lived
together” and that Boyd had injured her. Where the form
requested a description of the alleged abuse, Ottman stated
that Boyd had “hit, kicked, threw, and choked” her. She
also stated that “[t]he physical abuse has occurred on
several occasions.” Ottman requested that the trial court
enter a restraining order against Boyd.

After Ottman filed her petition, the trial court entered an
ex parte order restraining Boyd from committing further
acts of abuse against Ottman and restraining Boyd from
contact with Ottman until further order of the court. A few
weeks later, it conducted an ore tenus proceeding
concerning Ottman’s petition.

Only Boyd and Ottman testified at trial. At the conclusion
of Ottman’s testimony, Boyd made an oral motion for the
trial court to dismiss Ottman’s petition because, he said,
Ottman had failed to establish that he was a “family or
household member” as described in Ala. Code 1975, §
30-5-2(a)(4). The trial court denied the motion. Thereafter,
the trial court entered an order finding that Boyd had
committed domestic violence against Ottman. The trial court
adopted the terms of its ex parte order as its final order,
and it stated that the restraining order was to remain in
effect for 10 years.

Boyd appeals, contending that the trial court erred when it
entered the protection-from-abuse order against him
because, according to Boyd, he was never a member of the
same “household” as Ottman.[fn1]

We note that the Protection from Abuse Act (the “Act”)
authorizes the trial court to enter “any order of
protection . . . for the purpose of preventing acts of
abuse,” as that term is defined in the Act. Ala. Code 1975,
§ 30-5-2(a)(6). The Act defines “abuse” as

“[t]he occurrence of one or more of the following acts,
attempts, or threats between family or household members,
as defined by this chapter:

“a. Assault. Assault as defined under Sections 13A-6-20
to 13A-6-22, inclusive.

“b. Attempt. With the intent to commit any crime under
this section or any other criminal act under the laws of
this state, performing any overt act towards the
commission of the offense.

“. . . .

“e. Harassment. Harassment as defined under Section

“. . . .

“g. Menacing. Menacing as defined under Section 13A-6-23.

“h. Other conduct. Any other conduct directed toward a
member of the protected class covered by this chapter that
could be punished as a criminal act under the laws of this

“i. Reckless endangerment. Reckless endangerment as
defined under Section 13A-6-24.”

Ala. Code 1975, § 35-5-2(a)(1).

Section 30-5-2(a)(4) defines “family or household members”
as “[a] spouse, former spouse, parent, child, or any other
person related within the 6th degree consanguinity or
affinity or common-law marriage, a person with whom the
plaintiff has a child in common, or a present or former
household member.” (Emphasis added.)

“[W]hen a trial court hears ore tenus testimony, its
findings on disputed facts are presumed correct and its
judgment based on those findings will not be reversed
unless the judgment is palpably erroneous or manifestly
unjust.” Philpot v. State, 843 So.2d 122, 125 (Ala. 2002).
Also, when a trial court makes no specific findings of
fact, “this Court will assume that the trial judge made
those findings necessary to support the judgment.”
Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A.,
608 So.2d 375, 378 (Ala. 1992). On review of issues as to
which the ore tenus standard is applicable, “‘appellate
courts are not allowed to substitute their own judgment for
that of the trial court if the trial court’s decision is
supported by reasonable inferences to be drawn from the
evidence.'” Yates v. El Bethel Primitive Baptist Church,
847 So.2d 331, 345 (Ala. 2002) (quoting Ex parte Pielach,
681 So.2d 154, 155 (Ala. 1996)). Further, this court must
“review the evidence in a light most favorable to the
prevailing party.” Driver v. Hice, 618 So.2d 129, 131
(Ala.Civ.App. 1993).

It is undisputed that Boyd and Ottman had a romantic
relationship for approximately one year before the trial.
It is also undisputed that Boyd and Ottman each had their
own house. However, there was conflicting testimony
concerning what time periods Boyd spent in Ottman’s house.
Ottman, who appeared pro se, testified as follows:

“THE COURT: You allege in your petition . . . that you
and Mr. Boyd lived together.

“MS. OTTMAN: He stayed at my house for months at a time.

“THE COURT: Tell me about that. When did he first move in
and how long did he stay.

“MS. OTTMAN: The longest he stayed was two and a half,
three months. After my brother passed away he stayed.

“THE COURT: And what was your relationship? Boyfriend,

“MS. OTTMAN: Boyfriend.

“THE COURT: Had you had a dating relationship before he
moved in?


“THE COURT: And he lived there two and a half months?

“MS. OTTMAN: It was stretches at a time. When the fights
would happen he would leave and go back to his house.

“THE COURT: When he lived with you, did he stay overnight
every night for that period of time?


“THE COURT: What would you do in the morning?

“MS. OTTMAN: Get up and go to work. I worked third shift.
He would get up and go to work.

“THE COURT: Would he come home at night after work.


“THE COURT: How many times did this happen that he stayed
with you for an extended period of time also?

“MS. OTTMAN: I couldn’t count the times we broke up in
between. The longest stretch was two and half, three
months. When the fight would happen, he would leave.

“THE COURT: When was the last time you and he resided in
your residence.

“MS. OTTMAN: He stayed with me for two weeks before the
last physical altercation.”

The last physical altercation allegedly occurred a few days
before Ottman filed her petition.

On cross-examination, Ottman testified:

“Q. Ms. Ottman, during this two and a half, three months
period, he would actually go home and get his own
clothing, come back to his house?

“A. Not his clothes. They were at my house.

“Q. This has been several months ago since that happened,

“A. Yes.

“Q. Okay. Because you haven’t had an ongoing
relationship, living overnight since, you said, last two
weeks. But previous to that it’s been several months
before you actually — he actually stayed overnight;

“A. No, he’d stayed there several nights.

“. . . .

“Q. What address do you live at?

“A. 3816 Cooper Street.

“Q. What address does he live at?

“A. On Dellbrook.

“. . . .

“Q. That’s been his residence since you’ve dated or known
him; correct?

“A. Yes.

“Q. So he hasn’t — he has had that physical
address since you’ve known him?

“A. Yes. He lived at my house.

“. . . .

“Q. He’s been living there for as long as you know?

“A. Unless he was at my house, yes.

“Q. You’ve had a girlfriend, boyfriend relationship. He
has stayed with you overnight on occasion; correct?

“A. For months at a time.

“. . . .

“Q. You’ve never held yourself out to paying bills, joint
checking accounts, anything like that?

“A. No. He’s offered to pay bills.”

In contrast to Ottman’s testimony, Boyd testified that he
“may stay a week at a time or something” at Ottman’s house,
but that he would go back to his house to get his clothing.
Boyd denied that he actually lived with Ottman; however, he
later testified:

“THE COURT: The longest period of time you say you lived
there was a week?

“[BOYD]: Yes, sir.

“THE COURT: Seven straight nights or six straight nights?

“[BOYD]: Yes.

“THE COURT: How many times did you do that?

“[BOYD]: I don’t know over a period of a year.

“THE COURT: Did y’all share a bedroom?

“[BOYD]: Yes, sir.”

There is no question that Boyd is not a “family member”
under § 30-5-2(a)(4). Thus, Boyd is only subject to
the Act if he is a “household member” as that term is used
in the Act. In light of the foregoing testimony and the
requirement that we view the evidence in the light most
favorable to Ottman, the question in the present case
becomes whether Boyd is a “household member” in relation
to Ottman, even though Boyd has his own separate house,
because he lived in Ottman’s house for weeks at a time
during the year preceding the filing of the petition,
including one stay that extended for at least two and
one-half months and a final stay that extended for the two
weeks immediately preceding the filing of the petition.

The parties have cited no decisions from this court or our
Supreme Court of significant precedential value for
purposes of deciding this case.[fn2] Accordingly, the case
appears to require us to interpret and apply the Act as a
matter of first impression to the facts presented.

In Norfolk Southern Railway Co. v. Johnson, 740 So.2d 392,
396 (Ala. 1999), our Supreme Court stated:

“This Court has held that the fundamental rule of
statutory construction is to ascertain and give effect to
the intent of the Legislature in enacting a statute. IMED
Corp. v. Systems Engineering Assocs. Corp., 602 So.2d 344,
346 (Ala. 1992). If possible, a court should gather the
legislative intent from the language of the statute
itself. Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.
1985). . . . The legislative intent may be gleaned from
the language used, the reason and necessity for the act,
and the purpose sought to be obtained by its passage.
Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of
Tuscaloosa County, 589 So.2d 687, 689 (Ala. 1991) (citing
Ex parte Holladay, 466 So.2d 956 (Ala. 1985)).”

As noted above, the Act defines “family or household
member” to include two classes of persons: (1) certain
persons related to the alleged victim by “consanguinity or
affinity,” i.e., by blood or marriage, and (2) “a present
or former household member.” Ala. Code 1975, §
30-5-2(a)(4). The Act provides no further definition of the
term “household member.”[fn3] One of the stated purposes
of the Act, however, is “[t]o create a flexible and speedy
remedy to discourage violence and harassment against family
members or others with whom the perpetrator has continuing
contact.” Ala. Code 1975, § 30-5-1(b)(2).
Furthermore, the legislature has directed this court to
“liberally construe[] and appl[y] [the Act] to promote” its
purposes. Ala. Code 1975, § 30-5-1(b).

In light of the above-stated purpose of the Act and the
above-stated directive of our legislature, this court
cannot ignore the juxtaposition of the term “family
members” and “others with whom the perpetrator has
continuing contact” in § 30-5-1(b)(2), when
understanding the meaning of “family or household members”
in § 30-5-2(a)(4). All of the persons described in
§ 30-5-2(a)(4) before the phrase “or a present or
former household member” are persons who are related to the
alleged victim either by consanguinity or affinity. In
other words, they are persons who are, or were, part of the
victim’s immediate or extended family, either based upon a
blood or marital relationship. We therefore construe the
phrase “present or former household member” as not being
limited to “family members” as contemplated by §
30-5-2(a)(4), but as including persons who satisfy the
“continuing contact” provision of § 30-5-1(b)(2).

To decide the present case, it is not necessary that we
determine the exact universe of relationships covered by
the Act. Given the stated purpose of the Act and the
legislature’s admonition that the Act be liberally
construed, we are clear to the conclusion that the facts of
the present case qualify Boyd as a “household member” under
the Act. Accordingly, the trial court’s judgment is due to
be affirmed.


Crawley, P.J., and Thompson, Pittman, and Bryan, JJ.,

[fn1] Although Boyd repeatedly asserts that the trial court
lacked jurisdiction in this case, his argument, and the
pertinent legal authority he cites in support of his
argument, is actually to the effect that no cause of action
existed against him under § 30-5-2.

[fn2] In Haraway v. Phillips, 841 So.2d 275 (Ala.Civ.App.
2002), this court concluded that the Act did not apply to a
person who previously dated one of the alleged victims for
a brief time. The evidence reflected that the alleged
perpetrator in Haraway was never married to his former
girlfriend (one of the alleged victims); that he was not
related to his former girlfriend’s husband (the other
alleged victim); and, that, according to the opinion, he
“was never a `household member’ in either [the husband’s]
or the [former girlfriend’s] household.” Id. At 276.
Haraway does not reflect whether the alleged perpetrator
ever resided with his former girlfriend.

[fn3] The Act states that “[t]erms not otherwise defined by
this chapter shall have the meaning given to them in Title
13A, (commencing with Section 13A-1-1), known as the
Alabama Criminal Code or other provisions of law, as the
case may be.” Ala. Code 1975, § 30-5-2(b). The
Alabama Criminal Code does not provide a definition for the
term “household member,” although a few sections of the
Criminal Code discuss the crime of domestic violence as
involving a victim who is “a current or former spouse,
parent, child, any person with whom the defendant has a
child in common, a present or former household member, or a
person who has or had a dating or engagement relationship
with the defendant.” Ala. Code 1975, §§
13A-6-130(a), 13A-6-131(a), and 13A-6-132(a). We have been
directed to no other pertinent “provision of law” defining
the term “household member.”