All court costs and attorney fees must be paid by the abusive party, and a court may not cast a petitioner with court costs unless it determines that the petition was frivolous.1 A petition is not frivolous just because a petitioner failed to meet her burden or prove her case and was denied an order of protection.
In order to cast costs against a petitioner, the petition must be dismissed and the protective order denied, and the court must then make an explicit finding that the petition is frivolous.2 A finding of frivolousness must be based upon testimony or evidence presented during a separate hearing on the issue of frivolousness.3 Even a petitioner who files a frivolous action need not necessarily be cast with costs.4
- 1La. R.S. 46:2136.1(A)–(B) (updated in 2022 to include that a petitioner cannot be cast with costs for failing to appear for PO hearing); see Lassair ex rel. T.P.J. v. Paul, 2022-0320 (La. App. 4 Cir. 12/14/20), 2022 WL 17813208.
- 2Vallius v. Vallius, 2010-CA-0807, p. 6 (La. App. 4 Cir. 12/8/10), 53 So. 3d 655, 658; see also Jimenez v. Jimenez, 05-CA-645, p. 4 (La. App. 5 Cir. 1/31/06), 922 So. 2d 672, 674 (reversing trial court order that cast costs to petitioner decided before frivolous provision); Lassair, 2022-0320, 2022 WL 17813208, at *10 (finding that “there must be a finding of frivolousness prior to casting costs against the petitioner; there must be evidence to support that the petition was frivolous to assess costs; and the failure to meet the burden of proof to show a protective order is warranted does not equate with a finding of frivolity”).
- 3See La. C.C.P. art. 863(F); State v. Joseph, 22-65 (La. App. 5 Cir. 12/21/22), 2022 WL 17826647, at *4.
- 4La. R.S. 46:2136.1(B).