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Schmidt v. Schmidt

Court of Appeals of Louisiana, Fourth Circuit

March 4, 2015

DOUGLAS M. SCHMIDT
v.
IRINA V. DANVILOVA SCHMIDT

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2003-XXXXX, [1] DIVISION "K" Honorable Bernadette D'Souza, Judge.

Court composed of Chief Judge James F. McKay, III, Judge Dennis R. Bagneris, Sr., Judge Max N. Tobias, Jr. [2]

Max N. Tobias, Jr., Judge.

This case arises out of a petition for protection brought pursuant to La. R.S. 46:2131, the Domestic Abuse Assistance Act. The trial court rendered judgment on 3 October 2013, granting a protective order on behalf of I.D.S.[3] and her two minor children, D.S. and M.S., against D.M.S. From that judgment, D.M.S. appeals.[4] After a thorough review of the record on appeal and finding no abuse of discretion or legal error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On 6 February 2013, D.S., the then 12-year-old son of the petitioner, I.D.S., and her ex-husband/appellant, D.M.S., presented on his own accord to the school counselors at St. Christopher's School with complaints that he and his younger brother, M.S., were being physically and verbally abused by their father.[5] D.S. recounted several incidences of recent abuse and expressed that he was "tired" of it happening. D.S. also complained that D.M.S had made verbal threats to him about inflicting physical harm upon his mother. That same day, D.S.'s allegations of abuse and verbal threats were corroborated by M.S., then 10 years old, who made similar complaints to the counselors of physical and verbal abuse against himself by D.M.S.[6] Specifically, the boys shared that their father hit them in the stomach, pulled their hair, called them derogatory names, required them to fend for themselves when it came to meals, and often threatened them. Both boys expressed their fear of their father.

After listening to their particular allegations of abuse, the counselors directed the boys to memorialize their complaints in writing. D.S.'s written statement, dated 6 February 2013, which was introduced into evidence, contained the following:

My dad hit us alot [sic] and yells at us and he is mean. He hurts us for little things. He hits and hurts us[, ] pulls hair[, ] hits with fist and hand back[, ] stomach[, ] arms mess us up he hurts us. He said he would. [A]bout a month ago he said he would kill her. . . .He said he hurt us and would teh [sic] us to lie. We were afraid to tell the truth. I don't want he [sic] to know . . . tell [sic] next week. He came to the game and yelled at my coach and was mean and would not calm down. My dad is getting medical procedure. We do not ever eat food when we are with my dad. He makes us write notes forces us.

M.S.'s written statement, also dated 6 February 2013, states:

He hit us in like the stomach and kicked us. He kicks us[, ] yells[, ] he throws his phone[, ] hits us with his fist when we get in troble [sic][.] He said he would get a gun or a bat and kill her [their mother] in her house[.] My step mom is aware that he hits us[.] She got hit once[.]

The boys' mother, I.D.S., was summoned to the school and, at the direction of the school counselors, they relayed to her the repeated abuses upon them by their father. Thereafter, a legally mandated report was made to the Louisiana Department of Children and Family Services ("DCFS") by the school counselors. Two days later, on the morning of 8 February 2013, the boys advised the school counselors of additional abuse having occurred the previous evening while in the care and custody of D.M.S. According to the boys, after failing to retrieve coins stuck in the gear shift of their father's car in a timely manner, D.M.S. slapped M.S., pulled his hair hard, and slammed his head on the armrest. In an effort to stop the abuse, M.S. scratched his father, at which time his father threatened to "punch him in the face like a man and knock him out" if M.S. ever touched him again. M.S. also complained that, on that same evening, his father shoved him across the floor. Upon hearing these new allegations, the school counselor initiated a second report of abuse to DCFS. After the complaints of abuse by the minor children were authenticated by DCFS, DCFS ordered the boys' mother to seek a temporary restraining order ("TRO") on behalf of herself and her children against D.M.S.

On 8 February 2013, at the direction of DCFS and pursuant to La. R.S. 46:2131, et seq., I.D.S. filed a petition for protection from abuse ("the Petition") on behalf of herself and her minor children, D.S. and M.S., alleging that D.M.S. regularly "slapped, scratched, kicked, " punched, shoved, and threatened each of the boys "when they are in [his] custody, " and that D.M.S. had threatened her life. Additionally, the Petition averred that the most recent incident of abuse precipitating the filing of the Petition occurred on 7 February 2013, when D.M.S. "hit [M.S.] in the head and pulled the children's hair" when M.S. failed to quickly remove coins from the stick shift of their father's vehicle. Upon the filing of the Petition, a TRO was issued that day awarding I.D.S. temporary sole custody of the minor children and enjoining D.M.S. from abusing, harassing, stalking, threatening, et cetera, I.D.S. and the children, and prohibiting D.M.S. from being within 100 yards of them. Following the issuance of the TRO, the children were returned to the custody of I.D.S., where they have since remained.

Upon gaining custody of the minor children and learning of the alleged repeated abuses upon both of them by their father, I.D.S. took the boys to be evaluated at Children's Hospital in New Orleans on 11 February 2013. At that time, the boys were each examined and interviewed separately by Dr. Neha Mehta, a forensic physician, regarding the alleged abuse. Dr. Mehta is the medical director of Child Abuse Pediatrics at the Audrey Hepburn CARE Center located at Children's Hospital. The boys, individually, reiterated in detail the events they had previously shared with their mother and school counselors. While no objective physical findings were noted on D.S.'s examination, M.S.'s evaluation indicated "slight residual scalp swelling with reported tenderness to palpation."

Due to several delays and continuances, many of which were at the behest of D.M.S., it was not until six months after the TRO had been issued that the trial of the order of protection commenced. A week before the start of trial, on 12 September 2013, the trial judge conducted a Watermeier hearing in chambers, meeting with each of the minor children separately in order to assess their competency. See Watermeier v. Watermeier, 462 So.2d 1271 (La.App. 5th Cir. 1985). Prior to the Watermeier hearing, counsel for I.D.S. and D.M.S. were each provided the opportunity to present suggested questions to assist the trial judge in her questioning of the children. Additionally, each party was allowed to have counsel present in chambers to observe the judge's questioning and the minor children's respective responses.

The trial judge first met with D.S., who expressed that his father hits him daily "for no reason." D.S. proceeded to recount numerous specific occasions of recent physical abuse at the hands of his father, as well as verbal abuse, which included being called pejorative names, being slapped in the face, having his hair pulled and sustaining a cut near the corner of his eye when D.M.S. threw a remote game controller at him after having defeated D.M.S. in a video game. D.S. stated that the abuse by his father started approximately five years earlier when he was about six or seven years old. He told the judge that he was afraid to tell anyone about it for fear that his father would hurt him even more badly or possibly even kill him. He deduced that because his father has a short temper and is easily agitated, and because he has verbally threatened him to kill his mother, his father could possibly do the same thing to him. D.S. also related that his father did not feed him and M.S. breakfast before school and that often times for dinner, they were given money and left to their own devices to purchase snack food or microwave dinners from a drug store located across the street from his father's home. According to D.S., the reason he went to the school counselor to tell her about the abuse was because he was "tired of being beaten" and is afraid of his father, so much so that he has to sleep at night with the light on when he is at his father's house. The trial judge's interview with D.S. concluded with D.S. expressing to her that he was terrified of his father and that he wanted his father to change and to never touch him again.

The trial judge next met with M.S., who reiterated several of the same incidences of abuse related to her by D.S. Additionally, M.S. described in detail the occasion where his father scratched his face and pulled his hair when he couldn't timely remove the penny that was stuck in the car's stick shift. He described his father as "freaking out" when M.S. tried to defend himself by scratching D.M.S. M.S. stated that every time he and D.S. are with their father (which is every other week), they are abused by being kicked, stepped on, thrown, or having their hair pulled, and that the abuse had been "going on for years." M.S. also told the judge about the incident where his father told him of his intent to one day shoot his mother and grandmother. He described having had to go to bed hungry on several nights while in his father's care. M.S. also stated to the trial judge that he was scared to return to his father's home for fear of being attacked and hurt.

The trial of the matter commenced on 27 September 2013 and concluded on 3 October 2013. At the outset of the hearing, the trial judge explained to the parties that the issue to be determined on the Petition was a narrow one: Did D.M.S., more likely than not, commit acts of abuse upon his minor sons and threaten I.D.S. in the presence of the minor children giving rise to the filing for protection in February 2013? Accordingly, after noting that this was not a child custody proceeding or a fault trial, the trial judge advised the parties and their counsel that she was limiting the evidence and the testimony to the "four corners of the petition, " a statement she repeated throughout the two-day trial.[7]

I.D.S. bore the burden of proof as to the allegations contained in the Petition by a preponderance of the evidence. At trial, I.D.S. testified that D.M.S. was physically and verbally abusive towards her throughout their five-year marriage.[8]I.D.S. identified photographs of herself and of the boys depicting physical injuries they had allegedly sustained at the hands of D.M.S. over the years.[9] She described her ongoing rancorous relationship with D.M.S. and stated that she took seriously the verbal threats D.M.S. made to the boys about wanting to inflict serious bodily harm upon her.

Ruth Meche, principal at St. Christopher's School, and the school counselor, Sheila Nicholson, both testified at trial. According to Ms. Meche, even though she did not observe any bruising or marks on either of the boys in February 2013, she considered their allegations of abuse by D.M.S. to be credible. Ms. Nicholson testified that both boys expressed fear that their father would continue to physically harm them and fear that he would potentially kill or injure their mother. Based on the events described to her by the boys, first on 6 February 2013 and then again on the morning of 8 February 2013, Ms. Nicholson determined that the severity of the abuse was sufficient to warrant involvement by DCFS.[10]

Lucille Perry, Ph.D., LPC, also testified on behalf of I.D.S. Dr. Perry stated that she has been counseling both of the boys since approximately 2005, and is familiar with patterns of abuse. In this regard, Dr. Perry testified that over the years of counseling the boys, they have expressed to her their fear of D.M.S. and she has observed, based upon their description of their father's explosive behavior, a pattern escalating from his making mere verbal statements to them, to slapping, pushing, and pulling their hair. Dr. Perry described the situation between the boys and their father to be a "high-risk situation, " in which, on impulse, D.M.S. could potentially "snap." Additionally, Dr. Perry testified that the boys were fearful regarding their father's potential retribution upon them for "telling" others about what he had been doing to them.

The records from Children's Hospital were jointly admitted into evidence, which included transcripts of the interviews of D.S. and M.S. conducted by Dr. Mehta on 11 February 2013. During these interviews, which occurred separately, the boys related histories of ongoing "episodes of physical abuse" by D.M.S. and recounted the same occasions of verbal and physical abuse as reported previously to their counselors. Additionally, the boys identified photographs of themselves and described to Dr. Mehta in detail the circumstances and events that occurred resulting in the injuries depicted in each of the photos. The episodes described by each child separately to Dr. Mehta did not differ in any significant respect when compared to one another. Moreover, no inconsistencies were noted when the physical findings were compared to the history provided. In fact, the finding of "slight residual scalp swelling with tenderness to palpation" during the physical examination of M.S. was consistent with the boys' rendition of the most recent incident involving D.M.S. pulling M.S.'s hair.

In defense against the allegations set forth in the Petition, D.M.S. testified that he was blindsided by service of the Petition because he has never once hit or otherwise physically abused either of the boys. He denied that any of the incidents as described by the boys ever occurred, but rather, contends that the boys misconstrued, exaggerated, and/or fabricated the events altogether. D.M.S. accused I.D.S. of "coaching" the boys to make the allegations regarding what to say to their school counselors, the case workers at the DCFS, and the physicians at Children's Hospital, based on the fact that in 2011, I.D.S. had previously involved DCFS and Children's Hospital with similar complaints in an effort to systematically alienate the boys from him. According to D.M.S., the investigations conducted by DCFS on I.D.S.'s previous complaints had been largely unsubstantiated and, consequently, eventually dropped. As to the allegations in the Petition describing when and how he purportedly abused the boys in February 2013, D.M.S. introduced personal medical records from Tulane Hospital to suggest that on the specified days in question, he was actually physically incapacitated and could not possibly have abused the boys as alleged. Specifically, D.M.S. showed that he had been undergoing a colonoscopy preparation and then the colonoscopy procedure itself on the very days the boys alleged he physically abused them. He further testified that the reason D.S. went to the school counselors when he did was in retaliation for D.M.S. not allowing him to attend one of his school's basketball games during that timeframe. Regarding the photographs identified by I.D.S. and the boys, he claims that the scratches and bruising shown were a result of the boys fighting with one another and/or occasioned during one of their sporting events. In short, according to D.M.S., the boys - and their mother - lied about him verbally and physically abusing them.

The court also heard the testimony of D.M.S.'s current wife, L.S., [11] who stated that, in the time that she has been in relationship with D.M.S., he has always had a very close relationship with D.S. and M.S. L.S. denied ever striking the boys herself or witnessing D.M.S. physically strike either of the boys. She also testified that, while the boys are close to one another, they daily physically fight with one another when in her and D.M.S.'s custody and care. Additionally, L.S. testified that she nightly fixed dinner for the family and denied that the boys ever went without breakfast or were left to "fend for themselves" for dinner while at D.M.S.'s home. As to the specific days in February 2013 when the boys claim in the Petition that they were physically abused by D.M.S., she verified D.M.S.'s weakened physical condition due to the colonoscopy preparation and his having undergone the colonoscopy procedure and stated that she did not witness nor did she believe that any physical abuse as described by the boys could have or actually did occur.

In D.M.S.'s defense, three of his adult daughters from his first marriage testified. First, his 23-year-old daughter, Mi.S., testified that, while she had on occasion seen her father yell when he got angry, he had never physically abused her nor had she ever witnessed him physically striking any of her younger brothers. She stated that she never considered D.M.S. to have anger-management issues. She described the relationship between D.M.S. and all of his eight children to be a very close, tight-knit relationship. She also stated that D.S. and M.S. were typical brothers who constantly physically fought one another. In particular, Mi.S. testified about a fight that broke out between her brothers over the Mardi Gras weekend (which was in the days immediately following the boys having made the claims of abuse to their school counselors and DCFS, but prior to their mother obtaining the TRO and regaining their physical custody), which started when M.S. blew a horn into D.S.'s ear. D.S. then chased M.S. and "clipped him, " causing M.S. to fall head over heels. According to Mi.S., this type of physical behavior between her brothers was typical.

R.S., the eldest daughter of D.M.S., testified that he was close to all of his children and very active in their lives and activities. She denied that D.M.S. ever physically abused her or that she had ever witnessed him abusing any of her siblings. Additionally, R.S. confirmed that on 5 February 2013, her father was undergoing a colonoscopy preparation and in bed most of that day. Because of his condition and inability to drive, R.S. picked D.S. and M.S. from school and brought them to D.S.'s basketball practice that afternoon and then to his game that evening. Once the game was over, she returned the boys to her father's home. According to R.S., when they got there, she went with the boys into their father's bedroom to visit with him for a brief time as it was late in the evening. Once the conversation ended, she left and the boys went to bed. She did not witness any verbal or physical altercation that night. The following morning, 6 February 2013 (the day D.S. reported to his counselors the abuse by his father), R.S. claims that she drove her father to the hospital for his colonoscopy procedure and brought him home thereafter. Because he was very tired, her father went straight to bed. R.S. testified that later that afternoon, she again picked the boys up from D.S.'s basketball practice and took them to his basketball game that evening. She denied that the boys seemed upset or acted unusual in any way. Following the game, R.S. stated that she brought the boys back to their father's house. When they arrived home, R.S. claims she ...


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