Jacqueline Tess Murlin v. Jimmy Lee Dale Pearman, Jr.

Norman, Oklahoma family law lawyers represented the Plaintiff and Defendant in a protective order proceeding.



The Plaintiff/Appellee, Jacquelyn Tess Murlin (Tess), filed a petition for a victim protection order (VPO) against her ex-boyfriend, the Defendant/Appellant, Jimmy Lee Dial Pearman, Jr. (Pearman). After text messages between the alleged victim and Pearman's ex-wife, Theresa Marie Pearman (Theresa) revealed that the VPO filing was a collaboration between the Tess and Theresa to obtain custody in a child custody dispute against Pearman, Tess withdrew the petition. Pearman sought to have the VPO filing declared frivolous, and to recover attorney fees and costs, pursuant to 22 O.S. Supp. 2013 §60.2. The trial judge denied his request. The Court of Civil Appeals affirmed. We hold that, pursuant to 22 O. S. 2013 §60.2, the matter was frivolously filed and victimless, and that attorney fees and costs should have been awarded.



* * *



The hearing on Tess's VPO was held on May 19, 2014. At the hearing, Theresa's attorney also represented Tess without charge. Most of the hearing concerned many text messages between Theresa and Tess regarding the VPO and their friendship and sex lives. Because of concerns about attorney-client privilege, the text messages were examined by both attorneys during a recess. Pearman's attorney used the text messages to establish the motive for filing VPO as merely an attempt to affect the ex-wife's child custody case. The court recessed so that the lawyers could review the text messages together. After recess and review of the messages, the attorney for Tess stated that:



You know, we could go and have a full hearing and you can decide whether a protective order is warranted. But the bottom line is there were texts from my client admitting, look, this happened, so on and so forth, but if it weren't for your custody case and your kids, I wouldn't even bother with a VPO.

So, you know, with that in mind, regardless, it shows that, hey, I don't need a protective order. So I advised my client to dismiss and that's what we're going to ask the Court for.



Subsequently, the trial court granted the motion to withdraw and dismissed the case. When asked to determine the matter frivolous and award attorney fees and costs, the trial court, remarked that, while the whole matter was a soap opera, embarrassing, and absurd, the ex-husband did not show that it was frivolously filed. Consequently, the trial court refused to award attorney fees and costs. A journal entry was filed on July 18, 2014.

We recognize the importance of a VPO and that its purpose is obviously aimed at helping to stop violent and harassing behavior and to protect a person or their family from the person causing harm. The Legislature also recognizes this purpose by waiving filing fees so that anyone who feels threatened can legally pursue a VPO without regard to monetary resources. At the same time, VPOs are not to be used to harass or for other reason than their intended purpose. The Legislature also recognizes this by allowing court costs and attorney fees to be recovered by either party in the event the VPO was sought for an unsavory or frivolous purpose. Under the facts of this cause, the purpose of helping to stop violent and harassing behavior was not the purpose for which this VPO was primarily sought. Accordingly, the cause is reversed and remanded to the trial court to make that award and determine the appropriate amount of attorney fees, court costs and filing fees to award.



COURT OF CIVIL APPEALS' OPINION VACATED;

TRIAL COURT REVERSED AND REMANDED WITH INSTRUCTIONS TO

AWARD ATTORNEY FEES AND COSTS.