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Szwak v. Szwak

Court of Appeal of Louisiana, Second Circuit

April 15, 2015

DAVID ANTHONY SZWAK, Defendant-Appellant

Page 912

Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana. Trial Court Nos. 114,695 and 139,040 respectively. Honorable Michael O. Craig, Judge.

AYRES, WARREN, SHELTON & WILLIAMS, By: Curtis R. Shelton, Counsel for Appellant.

BOWERS LAW FIRM, L.L.C., By: Gary A. Bowers, Counsel for Appellee.



Page 913

[49,938 La.App. 2 Cir. 1] BROWN, CHIEF JUDGE

David Anthony Szwak appeals from a trial court judgment awarding, inter alia, him and Samantha Earnest Szwak joint custody of their two minor children, with Samantha being named domiciliary parent. For the reasons stated herein, the judgment of the trial court is affirmed in part and reversed in part.

Facts and Procedural Background

This consolidated appeal consists primarily of a custody dispute between David Anthony Szwak (" David" ) and Samantha Earnest Szwak (" Samantha" ) (trial court no. 114,695, 26th JDC, Bossier Parish). David and Samantha married in 1998 and divorced in 2004; two children were born of this marriage, a daughter, SES (who is currently 15), and a son, SJS (who is currently 12). In accord with an interim order and a subsequent joint custody plan recommendation devised by Dr. Susan Vigen, Ph. D., a court appointed mental health evaluator, David and Samantha maintained joint custody and co-domiciliary status over the children. This agreement stayed in place without issue until 2009, at which time the trial court, in response to petitions filed by both parties to establish custody, appointed a parenting coordinator and the parties agreed to a slightly modified interim custody schedule.

On May 12, 2012, David was arrested for committing a battery upon JDS, his 17-year-old son, from a prior marriage. David allegedly slapped JDS across the face and hit him with an umbrella. David was found not guilty in the matter of State v. David Anthony Szwak (trial court no. 194,129, 26th JDC, Bossier Parish). This trial was before a different judge [49,938 La.App. 2 Cir. 2] than the judge handling the domestic matters. The judge in the criminal matter concluded that David's actions were appropriate, as the 17-year-old boy was aggressively cursing his father. Using this incident, on May 16, 2012, Samantha filed her third petition for protection from abuse against David (trial court no. 139,040, 26th JDC, Bossier Parish). Two prior petitions for protection from abuse filed by Samantha had been dismissed. David alleges that these petitions were lodged to disrupt his previously scheduled vacations with the children. On May 23, 2012, David filed a motion for dissolution of the protective order (trial court no. 139,040, 26th JDC, Bossier Parish), as well as a reconventional demand seeking increased physical custody of the children.

As to the protective order action, the trial court conducted three hearings in May and June of 2012. In a written judgment filed on July 5, 2012, the trial court granted a final protective order against David after finding him to be " a credible threat to the physical safety of" Samantha and their two minor children. Under the order of protection, David was limited to supervised visitation following, inter alia, an evaluation by a domestic violence specialist. Over the next two years David was limited to supervised visitation of varying degrees.

Coinciding with the protective order proceedings, on May 23, 2012, David filed a pleading in the divorce proceeding (trial court no. 114,695) styled " Motion and Rule to Show Cause for Various Relief." In this motion, David asserted reconventional demands against Samantha in response to

Page 914

her petition for protection from abuse, as well as a request for additional visitation with the children. In response, Samantha filed a reconventional [49,938 La.App. 2 Cir. 3] demand seeking sole custody of the children and the appointment of a mental health professional to conduct an evaluation pursuant to La. R.S. 9:331. On June 20, 2012, a consent judgment was rendered appointing Dr. Richard Williams to perform a mental health evaluation of David, Samantha, and the children. Dr. Williams was also ordered to supply the court with a written report of his findings, conclusions, and recommendations as to custody.

In the following months, David filed an amended petition seeking, among other things, an increase in visitation, and two supplemental petitions seeking an ex parte order of temporary custody. David's supplemental petitions were based upon his claims that Samantha's actions presented a danger of immediate and irreparable harm to their children and that they would be safer in his custody. The actions referenced in these supplemental petitions are: (1) Samantha's January 31, 2013, car crash and subsequent arrest for driving while intoxicated; [1] and (2) SJS's breaking of his femur bone while riding an ATV under Samantha's supervision. The ex parte orders of temporary custody sought were denied by the trial court and the subsequent supervisory writs sought by David were denied by this court.

On April 8, 2013, the trial court entered an order consolidating the child custody proceedings in trial court no. 114,695 with the protective order proceedings in trial court no. 139,040. For purposes of this appeal, we note that on January 7, 2014, David filed a motion to vacate the protective [49,938 La.App. 2 Cir. 4] order. The trial court deferred consideration of this motion to the merits to be determined at the conclusion of the child custody trial.

On August 13, 2013, the child custody litigation began. The matter was heard on 11 occasions over a period of 10 months and consisted of testimony from 14 witnesses. The trial court limited each side to a total of 25 hours of witness examination. On October 7, 2014, the trial court rendered its written opinion awarding the parties joint custody of the children and designating Samantha as the domiciliary parent. Additionally, the trial court denied David's requests to vacate the final order of protection and to seal the record in its entirety. All costs of the proceedings were assessed to David. Final judgment and the joint custody implementation plan (" JCIP" ) were signed by the trial court on November 6, 2014.

Now appealing, David has raised the following five issues: (1) whether an award of sole custody in favor of David is in the best interest of the minor children; (2) whether, alternatively, it is in the best interest of the minor children to spend more custodial time with David; (3) whether the July 5, 2012, judgment of final protective order should be vacated; (4) whether David should have been assessed with all costs of these proceedings; and, (5) whether the court should have ordered that the record of these proceedings be sealed.


Best Interest of the Child

In his first assignment of error David seeks to be awarded sole custody, and in his second, he alternatively seeks an ...

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