ALVAREZ v. ALVAREZ (2026)

Appellant, Robert Michael Alvarez, appeals the trial court's judgment denying his motion to terminate the non-expiring provisions of a protective order issued against him under the Domestic Abuse Assistance statutes, La. R.S. 46:2131, et seq. After review, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This matter originally came to the trial court on August 17, 2015, on the petition for divorce filed by Mekel Smith Alvarez (“Mekel”). After a three-day contradictory hearing, wherein Mekel established a pattern of physical and verbal abuse by Robert, the trial court granted an order of protection from abuse pursuant to La. R.S. 46:2131 on December 4, 2018, against Robert Alvarez (“Robert”) for the protection of Mekel and the then minor child, Alexis Alvarez. Alexis is now 20 years old. Some of the provisions of the protective order were made non-expiring, including the following:

1. THE DEFENDANT IS ORDERED NOT to abuse, harass, assault, stalk, follow, track, monitor, or threaten the protected person(s) in any manner whatsoever. This prohibition includes the use, attempted use, or threatened use of physical force that would reasonably be expected to cause bodily injury.

2. THE DEFENDANT IS ORDERED NOT to contact the protected person(s) personally, through a third party, or via public posting, by any means, including written, telephone, or electronic (text, email, messaging, or social media) communication without the express written permission of this Court.

3. THE DEFENDANT IS ORDERED NOT to go within 250 feet (distance) of the protected person(s), without the express written permission of this Court.

4. THE DEFENDANT IS ORDERED NOT to go within one hundred (100) yards of the residence without the express written permission of this Court.

5. THE DEFENDANT IS ORDERED TO STAY AWAY from protected person(s) place of employment/school and not to interfere in any manner with such employment/school.

E. THE COURT FINDS THAT THE DEFENDANT REPRESENTS A CREDIBLE THREAT TO THE PHYSICAL SAFETY OF A FAMILY MEMBER, HOUSEHOLD MEMBER, OR DATING PARTNER. THEREFORE, PURSUANT TO R.S. 46:2136.3, THE DEFENDANT IS PROHIBITED FROM POSSESSING A FIREARM FOR THE DURATION OF THIS ORDER.

The record does not show that Robert timely filed a motion for new trial or an appeal from the December 4, 2018 protective order.

On April 23, 2024, Robert filed a Motion to Terminate Non-Expiring Provisions of Protective Order, requesting that the non-expiring provisions of the order of protection be terminated. Robert asserted that the existence of the ongoing protective order was presenting challenges to his economic livelihood as a financial advisor in the insurance industry.¹ He claimed that he only became aware of the non-expiring provisions when he received a copy of a background check after applying for licensure in another state.

Robert filed an amended motion on September 13, 2024, which added his assertion that the existence of the protective order prevents him from being able to obtain a concealed carry permit for firearms needed for his protection and the protection of his family.

In support of his request to terminate the non-expiring provisions, Robert averred that he has not violated the provisions of the protective order, nor has there been any proceedings alleging a violation, evidencing that the protective order at issue is no longer necessary.

Robert's motion came for hearing on December 3, 2024, wherein both parties were represented by counsel, and testimony and evidence were placed into the record. At the hearing, Robert testified that the existence of the protective order provisions currently in place threaten his ability to get licensed in other states and with various carriers. He argued that since 2020, he was under the assumption that there was no protective order in place. For these reasons, Robert requested that the trial court exercise its “discretion” to release him from the restrictions of the protective order.

In opposition to Robert's motion, Mekel submitted into evidence a National Insurance Producer Registry Application completed by Robert, which clearly demonstrated that not a single question contained in the application was specific to or required a response that involved the disclosure of the protective order currently in place. Mekel argued that there were numerous items in the application that Robert was required to disclose—none of which pertained in any way to the existence of a protective order—which would more likely than not be the reason for any difficulty he allegedly experiences in obtaining licensure in other states and/or with other carriers. Further, Mekel provided documentation evidencing, that in 2019, after the trial court's issuance of the protective order, Robert was charged with simple battery on a colleague.

Finally, Mekel testified regarding five instances where Robert contacted her in contravention of the provisions of the protective order. These incidents spanned from June 4, 2020—the very day Robert believed the protective order expired—through April 24, 2024. Specifically, the improper contact included two visits to her home, a text, an email, and physical contact upon seeing Mekel at a public festival, each of which was a violation of the protective order.

At the conclusion of the hearing, noting that Robert failed to identify any factual or legal basis that would require it to remove the non-expiring provisions of the December 4, 2018 protective order, and considering Robert's continued disregard for the trial court's orders, the trial court orally denied Robert's motion. A written judgment to this effect was signed on December 9, 2024, and written reasons for judgment were issued on January 10, 2025.

On December 18, 2024, the trial court signed a subsequent non-expiring protective order, ordering Robert “NOT TO abuse, harm, assault, stalk, follow, track, monitor, or threaten [Mekel] in any manner whatsoever.” Additionally, among other delineated prohibitions, Robert was ordered not to “contact [Mekel] personally, through a third party, or via public posting, by any means, including written, telephone, or electronic (text, email, messaging, or social media) communication, without the express written permission of [the] court.”²

This timely appeal of the trial court's judgment followed.

ASSIGNMENT OF ERROR

On appeal, Robert avers the trial court erred in denying his motion to terminate the non-expiring provisions of the protective order when he proved (1) there had been no violations of the protective order since it was issued, and that (2) the continued existence of the protective order presented challenges to his day-to-day freedoms and his employment as a financial advisor in the insurance business.

DISCUSSION

Protective orders are issued in domestic violence matters pursuant to the Domestic Abuse Assistance statutes, La. R.S. 46:2131, et seq. A court may issue a domestic abuse protective order, if the court has jurisdiction over the parties and the subject matter, and if reasonable notice of an opportunity to be heard is given to the person against whom the order is sought, such that his due process rights are protected. See La. R.S. 46:2136(B)(2); Compton v. Chatman, 21-706 (La. App. 1 Cir. 2/25/22), 341 So.3d 581, 585, writ denied, 22-527 (La. 5/3/22), 337 So.3d 154. The court may issue the protective order for “good cause shown,” which requires a showing of immediate and present danger of abuse. La. R.S. 46:2135(A); La. R.S. 46:2136; Compton, 341 So.3d at 585.

Except as provided in La. R.S. 46:2136(F)(2), any final protective order shall be for a fixed period of time, not to exceed 18 months; however, the court has express statutory authority and broad discretion to make protective order provisions under the abuse act non-expiring and to deny requests to terminate or remove them. La. R.S. 46:2136(F)(1). La. R.S. 46:2136(F)(2)(a) specifically authorizes a trial court to issue protective orders for an indefinite period of time, on its own motion or by motion of the petitioner, after a hearing, for core safety provisions, limited to the portion of the protective order that directs a defendant to refrain from abusing, harassing, or interfering with the protected persons.

Louisiana courts consistently apply an abuse of discretion standard when reviewing both the initial issuance of non-expiring protective orders and denials of motions to modify or terminate such orders. See State v. Fink, 20-139 (La. App. 5 Cir. 6/1/20), 296 So.3d 1270, 1277-78; see also Riviere v. Bello, 23-372 (La. App. 5 Cir. 5/17/24), 389 So.3d 273, 280; Lepine v. Lepine, 17-45 (La. App. 5 Cir. 6/15/17), 223 So.3d 666, 674. The movant seeking modification or termination bears the burden of proving that circumstances have changed and that the protective measure are no longer warranted. Compton, 341 So.3d at 589. The court may deny such motions to modify or terminate when defendants fail to demonstrate good cause or changed circumstances warranting termination, particularly when victim safety remains a concern. Id.

The trial court's findings of fact, including its assessment of the weight of the evidence and the credibility of witnesses, may not be set aside absent manifest error. Lepine, 223 So.3d at 674. In matters of credibility, appellate courts must give deference to the trial court's findings because the trial court is in the best position to view the witnesses’ demeanor and mannerisms. S.M. v. T.M., 19-369 (La. App. 5 Cir. 12/26/19), 289 So.3d 141, 146. When conflicting testimony exists, absent manifest error, appellate courts cannot disturb the trial court's reasonable credibility evaluations and reasonable factual inferences. Id.; Stobart v. State, through Dept. of Transp. and Development, 617 So.2d 880, 882-83 (La. 1993).

To reverse a trier of fact's determination in an action seeking protection from an abuse order, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and that the record establishes that the finding is clearly wrong. Rabalais v. Nash, 06-999 (La. 3/9/07), 952 So.2d 653, 657; Oliva v. Jones, 22-385 (La. App. 5 Cir. 3/29/23), 360 So.3d 573, 578. Where the trier of fact's findings are reasonable, in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that it would have weighed the evidence differently and reached a different result. Id.

On appeal, Robert avers the trial court abused its discretion when it denied his request to terminate the non-expiring provisions of the December 4, 2018 protective order, as there was no evidence presented at the hearing showing that he had violated any of the provisions after the protective order was issued and the filing of his motion to terminate; in particular, as to firearms. A review of the transcript, however, does not support Robert's contention. At the hearing, Mekel testified regarding five instances wherein Robert violated the protective order, in that he contacted her by phone, text message, and email; he came within 100 yards of her residence; he came within 250 feet of her person; and he physically shoved her. Specifically, Mekel testified as to the following violations:

1. On June 4, 2020—the very date that certain provisions of the protective order actually expired (and Robert believed that the entire protective order had expired)—Robert unexpectedly arrived at Mekel's home on Metairie Road, and knocked on her door for purposes of picking up their daughter, despite a standing agreement that Robert was to pick Alexis up at a designated drop-off/pick-up location elsewhere. The incident caused their daughter to become upset.

2. On December 28, 2021, Robert appeared at Mekel's home on North Turnbull Drive to pick up their daughter, and began knocking on the front door, causing a scene. Thereafter, he called Mekel's cell phone, which she did not answer.

3. On May 14, 2023, Robert sent a text message to Mekel stating, “Happy Mother's Day.” Mekel did not respond.

4. On March 30, 2024, Robert approached Mekel at the Freret Festival and “shoved” her on the right shoulder in an effort to get her attention. He proceeded to ask her questions and speak to her.

5. On April 24, 2024, Robert emailed Mekel requesting that she remove the protective order.

Additionally, there was testimony that in 2019, Robert was arrested for simple battery on a colleague, Stephen Barbe’, for which he entered a plea of nolo contendere. Subsequently, Mr. Barbe’ filed a civil petition for damages against Robert in First Parish Court for the Parish of Jefferson, Stephen Barbe’ v. Robert Michael Alvarez, NOLA Financial Wealth Management, International Assets Advisory, LLC, and XYZ Insurance Company.

Robert does not dispute that he did, in fact, commit these five violations. Instead, he attempts to minimize his actions by describing them as non-egregious, “momentary contacts” over a five-year period, none of which Mekel reported to the Court or any other authority. He argues that none of these violations prove an “immediate and present danger of abuse” by him towards Mekel, and were not “in any way, shape, or form, harassment.” As to his simple battery arrest, Robert attempts to downplay the incident, claiming that it was against an unrelated third party, it occurred after the issuance of the protective order, it in no way involved Mekel, and it was resolved with no ramifications to her.

At the hearing, Mekel testified that she continues to feel threatened by Robert and fears for her safety if he is to be released from the non-expiring provisions of the protective order. She stated it is her understanding that, with the protective order in place, Robert is not allowed to possess guns, and that the thought of having the protective order removed, and Robert then being allowed to possess a concealed firearm, is very concerning to her. Mekel emphasized that Robert's violent temper has not changed, and he has not changed. She claimed that under these circumstances, she is concerned that “he would even think about having weapons.”

A trial court has vast discretion to consider “all history of abuse or threats, past and present,” in determining whether there is the existence of an immediate and present danger of abuse. See La. R.S. 46:2135; Aguillard v. Aguillard, 19-757 (La. App. 3 Cir. 7/8/20), 304 So.3d 473, 487. There is no requirement that the abuse itself be recent, immediate, or present. Id.; Milam v. Hughes, 22-407 (La. App. 1 Cir. 12/29/22), 360 So.3d 852, 858.

Here, the trial judge presiding over the hearing on Robert's motion to terminate, had also presided over the initial three-day contradictory hearing in 2018. He properly took judicial notice of the evidence previously presented by the parties at that time, resulting in his decision to grant the original protective order and to order that certain provisions be non-expiring. See Aguillard v. Aguillard, 20-64 (La. App. 3 Cir. 11/4/20), 305 So.3d 955, 964-65. The trial judge also properly took judicial notice of the history of the parties’ past physically violent and tumultuous relationship, including Robert's history of abusing and threatening Mekel, when finding that good cause was shown in granting Mekel's original request for a protective order. The judge obviously believed Mekel's testimony at the motion hearing, that she continues to fear for her safety if Robert is released from the non-expiring provisions. After reviewing the record in its entirety, including the transcripts of the December 3, 2024 motion hearing and the 2018 proceedings, we cannot say that the trial court abused its discretion. This assignment of error is without merit.

Next, Robert argues that he demonstrated to the court that the continued existence of the protective order was presenting challenges to his “day-to-day freedoms and his employment as a financial advisor in the insurance industry.” He claims that any testimony to the contrary was merely “a circuitous effort by [Mekel] to say that maybe [his] applications for insurance permits were denied due to ‘other matters,’ ” however, that “specious speculation was never proven.”

While Robert concedes that the background questions on the licensure applications have nothing to do with the civil protective order at issue, he argues that “the existence of the protective order was certainly a known negative factor the governing insurance agencies considered.” However, other than his own self-serving testimony to this effect, Robert presented no evidence to establish that the existence of the protective order was a reason for the rejection of his application(s). What the evidence does show, however, is that Robert responded affirmatively to questions contained in the application—none of which related to the existence of the protective order—regarding (1) whether he had been named or involved as a party in an administrative proceeding including FINRA (Financial Industry Regulation Authority) sanctions or arbitration proceeding regarding any professional or occupational license; (2) whether a judgment had been rendered against him for overdue money by an insurer, insured, or producer; (3) whether he is a party to a lawsuit or had been found liable for fraud, misappropriation, conversion of funds, misrepresentation, or breach of duty; and (4) whether he had been terminated for alleged misconduct. The trial court found that it is more likely that these infractions or issues led to the rejection of his application, not the protective order. We agree. The record simply does not support Robert's contention that the existence of the non-expiring provisions of the protective order in any way affect his livelihood or threaten his ability to get licensed and appointed with insurance carriers in other states. This assignment of error is without merit.

Lastly, Robert claims that the existence of the protective order infringes upon his every day freedoms and prevents him from obtaining a firearm and/or obtain a concealed carry permit for his and his family's protection and for traditional hunting activities. He argues that the protective order is no longer necessary and no longer serves a purpose. He claims that under the circumstances, the continued existence of the non-expiring provisions, especially as it relates to possessing a firearm, is not warranted and that the detriment placed upon him “far outweighs the potential for any harm” to Mekel.

As to Robert's contention that the protective order impedes his ability to move about freely in the New Orleans area, Robert's own testimony refutes this argument. Specifically, Robert testified as to a single incident in the six years the protective order has been in place, where he had “an accidental and incidental” encounter with Mekel in public at the Freret Festival. On that occasion, he approached Mekel, physically shoved her shoulder, and attempted to initiate conversation. This single chance encounter hardly establishes any infringement or restriction on Robert's freedom of movement.

Regarding Robert's argument that the continued existence of the protective order prevents him from possessing a firearm, we note that the necessity of the protective order at issue does not hinge on whether it is an imposition on Robert. All protective orders, by definition, serve to inhibit or impose restrictions on the party against whom they are rendered for the safety of the protected person. The fact that Robert experiences the impact of the protective order does not constitute good cause to terminate it.

After a thorough review of the record, we conclude the trial court did not abuse its vast discretion nor manifestly err in concluding that Robert failed to show cause for terminating the non-expiring provisions of the protective order. The trial court heard the parties’ conflicting testimony regarding their domestic relationship following issuance of the protective order, which demonstrated that Robert violated the protective order on several occasions. Although the parties’ testimony conflicted, we give great deference to the trial court, which was in the best position to view the demeanor and mannerisms of Robert and Mekel and to assess their credibility. This court cannot disturb the trial court's reasonable credibility evaluations and reasonable factual inferences. Stobart, 617 So.2d at 882-83. We do not find that the record demonstrates the lack of a reasonable basis for the trial judge's judgment, which would warrant a reversal of the December 9, 2024 judgment.

DECREE

For the reasons stated herein, we affirm the trial court's December 9, 2024 judgment, denying Robert's motion to terminate the non-expiring provisions of the December 4, 2018 protective order.

AFFIRMED

FOOTNOTES

1.   Robert averred that it was his understanding that all provisions of the December 4, 2018 protective order expired on June 4, 2020, eighteen months after its issuance, in accordance with La. R.S. 46:2136.

2.   The protective order noted an exception, when contact with Mekel “is necessary for family intervention and treatment agreement.”

CHEHARDY, C.J.