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Bourgeois v. Bourgeois

Court of Appeals of Louisiana, Fifth Circuit

April 12, 2017





          Panel composed of Jude G. Gravois, Robert M. Murphy, and Hans J. Liljeberg





         In this child custody matter, defendant/appellant Dr. Danny Bourgeois appeals a trial court judgment that maintained the parties' shared custody of their minor son, A.C.B., [1] but awarded domiciliary status to Dr. Bourgeois's ex-wife, plaintiff/appellee Dr. Shahrzad Talebinejad, after she had sought a modification of the parties' prior Consent Judgment on custody. Dr. Talebinejad sought the custody modification on the basis that A.C.B. was then three and a half years old and would soon be eligible to enroll in a "pre-K 4 program, " and because of her desire to enroll him full time in a pre-kindergarten program in Metairie, Louisiana.

         On appeal, Dr. Bourgeois argues that the trial court erred in finding that Dr. Talebinejad proved a material change in circumstances warranting a modification of the previous custody judgment because as a four-year-old, A.C.B. was not of "school age" as per La. R.S. 17:221 and 17:222. He further argues that it is not in A.C.B.'s best interest for A.C.B. to have to travel more than 90 miles twice per day to and from school in Metairie, Louisiana, during the weeks that Dr. Bourgeois exercises physical custody of A.C.B. at his home in Zachary, Louisiana. Next, he argues that the trial court erred in granting Dr. Talebinejad domiciliary status when she failed to rebut the presumption against custody found in La. R.S. 9:364, specifically that Dr. Talebinejad's history of violence and abuse towards him is sufficient to deny her domiciliary status. He also argues that the trial court erred in denying his request to admit into evidence an alleged text message between the parties as evidence of her abusive behavior. Finally, he argues that if a modification of the Consent Judgment on custody is warranted, he should be named as domiciliary parent.

         For the following reasons, finding no merit to Dr. Bourgeois's assignments of error, we affirm the trial court's judgment under review.


         The record reflects that the parties, Dr. Bourgeois and Dr. Talebinejad, met in 2008 in Metairie, Louisiana, when Dr. Bourgeois was a surgical resident at Ochsner Hospital in Metairie and Dr. Talebinejad was a medical student. The parties had a stormy and troubled relationship, and both agreed that the relationship would have ended had Dr. Talebinejad not gotten pregnant in 2011. Prior to being married in October of 2011, the parties resided in Jefferson Parish. A.C.B, their son, was born on April 11, 2012.

         After Dr. Bourgeois completed his surgical residency in 2013, he obtained a job as a surgeon at Lane Memorial Hospital in East Baton Rouge Parish. Meanwhile, Dr. Talebinejad entered a surgical residency at Ochsner Hospital in Metairie. In an effort to balance the needs of their careers and their child, in 2013 the parties purchased a home in LaPlace, Louisiana, which was approximately one-third closer to Dr. Bourgeois's job in Zachary. However, the parties' relationship continued to be troubled. Dr. Bourgeois was unfaithful several times, which led to numerous fights between the couple, some where Dr. Talebinejad lost her temper and admittedly caused some minor property damage at their home. The parties decided to separate and divorce. In June of 2014, Dr. Talebinejad moved back to Jefferson Parish.

         Dr. Bourgeois filed for divorce in St. John the Baptist Parish (40th Judicial District Court) on July 7, 2014. On August 21, 2014, the parties entered into a Consent Judgment in the divorce proceeding regarding child custody, with the parents being awarded "joint/shared" custody of A.C.B., with alternating weeks of physical custody, and co-domiciliary status.[2] Dr. Bourgeois continued living in LaPlace until April of 2015, when he moved to Zachary, where he is from, to live in his grandmother's house and to be close to his job and his extended family. The parties were divorced in October of 2015 by judgment of the 40th Judicial District Court. They continued with shared custody under the Consent Judgment, with A.C.B. spending one week at a time in the physical custody of each parent respectively.[3] When with his father, A.C.B. attended Bright Beginnings Day Care, which is close to Dr. Bourgeois's home in Zachary, where A.C.B. had been enrolled since 2013. When with his mother in Metairie, A.C.B. was cared for by a nanny when his mother worked in her residency.

         When A.C.B. approached the age of four and became eligible to enroll in pre-kindergarten, Dr. Talebinejad sought to enroll him in the program at Metairie Academy, a well-regarded public magnet elementary school close to her home. A.C.B. was accepted into the program, but Dr. Bourgeois disagreed with A.C.B.'s enrollment at Metairie Academy. Initially Dr. Bourgeois felt that their son could remain at day care in Zachary and with the nanny in Metairie and not start school until kindergarten. He later proposed that A.C.B. could attend Metairie Academy every other week, when he was with his mother, or could attend another school in Zachary on the weeks when A.C.B. was with Dr. Bourgeois.

         After being unable to resolve the issue of their son's schooling and custody, on November 12, 2015 Dr. Talebinejad filed a Rule to Show Cause why custody should not be modified, arguing that a modification was warranted given that A.C.B. was then three and a half years old and would soon be eligible to enroll in a "pre-K 4 program" and that it was in his best interests to attend school full time.[4]She sought domiciliary custody, primary physical custody, and permission to enroll A.C.B. in pre-kindergarten for the 2016-2017 school year in Jefferson Parish, particularly at Metairie Academy.

         On February 1, 2016, Dr. Bourgeois filed a reconventional demand, alleging a material change in circumstances since the custody decrees were rendered, seeking to be named domiciliary parent, and seeking an order for permission to enroll A.C.B. in the Zachary Community School District "when he reaches the age of preschool enrollment."[5] On February 2, 2016, the parties stipulated to the appointment of Dr. Karen Van Beyer to conduct a custody evaluation of the parties and A.C.B. The trial court conducted a custody hearing on July 13, 2016, in which the parties and several witnesses testified, including Dr. Van Beyer, whose report was entered into evidence. The trial court took the matter under advisement and rendered a judgment in open court on July 21, 2016, with the parties present, granting Dr. Talebinejad's request to be named as domiciliary parent and giving permission for A.C.B. to be enrolled full time in pre-kindergarten classes at Metairie Academy, but maintaining the parties' shared week-to-week custody arrangement. A written judgment and reasons for judgment were also rendered that same day.[6] This timely appeal followed.


         As noted by the court in Hanks v. Hanks, 13-1442 (La.App. 4 Cir. 4/16/14), 140 So.3d 208, 214-215 (internal citations omitted):

         In child custody cases, the following principles are well-settled:

• Appellate courts will not disturb a trial court's custody award absent a manifest abuse of discretion.
• In most child custody cases, the trial court's rulings are based heavily on its factual findings. "[A] court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of 'manifest error' or unless it is 'clearly wrong.'"
• "[E]ach child custody case must be viewed in light of its own particular set of facts and circumstances, with the paramount goal of reaching a decision that is in the best interest of the child."
• In determining the best interest of the child, "[e]ach case must be viewed in light of the child's age, the situation of the parents, and any other factor relevant to the particular case."
• To aid courts in making this factual determination, La. C.C. art. 134 enumerates twelve factors for the court to consider. ...
• The best interest of the child standard-codified in La. C.C. arts. 131 and 134-is "a fact-intensive inquiry requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case."

• "Because the trial judge is in the best position to ascertain the best interest of the child based on the particular circumstances of the particular case, the trial court's custody determination is entitled to great weight and will not be disturbed by an appellate court absent a clear showing of abuse of discretion."

         When a party seeks to change custody entered pursuant to a consent judgment or stipulation of the parties, the party seeking modification must prove "(1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child." Evans v. Lungrin, 97-0541 (La. 2/06/98), 708 So.2d 731, 738 (internal citation omitted). This is a lesser burden of proof than required when a party seeks modification of a "considered decree."[7] Id.

         La. C.C. art. 134 provides that the court shall consider all relevant factors in determining the best interest of ...

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