FROM THE THIRTEENTH JUDICIAL DISTRICT COURT PARISH OF
EVANGELINE, NO. 74286-B HONORABLE RONALD D. COX, JUDGE AD HOC
A. Duhon Attorney at Law COUNSEL FOR PLAINTIFF/APPELLANT:
Anthony Jerome Fontana, Jr. Attorney at Law COUNSEL FOR
PLAINTIFF/APPELLANT: Phillip Vidrine
Kenneth Ray Rush Attorney at Law COUNSEL FOR
DEFENDANT/APPELLEE: Danielle Vidrine
composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery,
E. CONERY, JUDGE
child custody modification case, the father appeals a
judgment maintaining the parties' prior consent judgment
on custody (the judgment) and joint custody implementation
plan (JCIP), asserting the trial court abused its discretion
when it failed to find a material change in circumstances
warranting modification of the judgment and JCIP. The father
specifically requests that he be named domiciliary parent and
that physical custodial periods be modified from an
alternating fourteen-day rotation. For the following reasons,
we find that the trial court's factual finding that there
was not a material change in circumstances is unsupported by
the record and was an abuse of the trial court's
discretion. We further find that the trial court committed
legal error when it failed to recognize that the re-marriage
of the father constituted a change in circumstances as
provided in the parties' prior consent judgment and when
it failed to designate a domiciliary parent. After reviewing
the record de novo, we find that material changes in
circumstances occurred and modification of the parties'
prior custody judgment is in the minor child's best
interest. We reverse the trial court's judgment and
render judgment in favor of the father maintaining joint
legal custody, naming the father domiciliary parent, and
modifying the parties' physical custodial schedule.
and Danielle Vidrine were married in 2008 and are the parents
of one child, E.V., who was born on October 30, 2009. Mr.
Vidrine filed a petition for divorce in accordance with
La.Civ. Code art. 102 on August 15, 2013. Shortly
thereafter, the parties confected an agreement on custody,
which was reduced to writing and signed as a consent judgment
by the trial court on September 9, 2013.In the stipulated
custody judgment, the parties agreed to joint legal custody
of E.V. and co-domiciliary status, with each parent serving
as the domiciliary parent during their respective physical
custodial periods. They further agreed to share physical
custody on a fourteen-day rotation to coincide with the
father's then offshore employment schedule.
initial pleading giving rise to this appeal was Mr.
Vidrine's November 6, 2015 rule for emergency
ex-parté custody pursuant to La.Code Civ.P. art. 3945,
and to modify legal and physical custody of
Mr. Vidrine alleged that he should be granted temporary sole
custody of E.V. because Ms. Vidrine frequently drove with the
minor child in her vehicle after she had been drinking, had
developed an alcohol and substance abuse addiction, had anger
management issues rendering her unable to provide the child
with safety and a stable and secure home environment,
mismanaged the child's medical needs, and was unable to
exercise her physical custodial rights because of her alcohol
addiction. He further alleged that these acts also evidenced
material changes of circumstances warranting a permanent
change in legal and physical custody. The ex-parté
relief was denied by Judge Ortego and the issues were
initially fixed for contradictory hearing on November 23,
Ms. Vidrine was not properly served, the hearing was
continued until January 25, 2016. On January 22, 2016, before
the January 25 hearing, Ms. Vidrine hired counsel who filed a
reconventional demand on her behalf for modification of legal
and physical custody of E.V., including a request that Mr.
Vidrine have supervised visitation with E.V., a protective
order prohibiting Mr. Vidrine from mentally and physically
harassing and abusing Ms. Vidrine, for interim spousal and
child support, and for all costs and attorney fees. The
January 25, 2016 hearing was continued and re-fixed by the
court for March 7, 2016.
February 17, 2016, Mr. Vidrine filed a motion to supplement
and amend his November 6, 2015 rule to modify custody, adding
allegations that Ms. Vidrine had physically abused E.V., and
Ms. Vidrine's thirteen-year-old half-sister, E.S., had
sexually abused E.V.  
March 7, 2016, Judge Ortego, who had not yet recused himself
from the proceedings, signed Ms. Vidrine's opposed motion
to continue and re-fixed the hearing for May 3,
2016. Judge Ortego also signed an order
appointing Dr. Kenneth Bouillion to complete a 'family
consultation' for purposes of the pending custody
issues. Dr. Bouillion rendered his report on April
Dr. Bouillion submitted his report, Ms. Vidrine filed a
motion for mental health evaluations pursuant to La.R.S.
9:331. Ms. Vidrine sought a child custody
evaluation and/or psychological evaluations of the parties by
an independent evaluator. Her motion was fixed for hearing on
May 20, 2016.
3, 2016, Mr. Vidrine filed a second rule for emergency
ex-parté custody based on the conclusions,
recommendations, and confirmations of abuse in Dr.
Bouillion's report. Mr. Vidrine's request for
ex-parté relief was denied and set for hearing on May
20, 2016, after hearing argument by counsel, the trial court
denied Ms. Vidrine's motion for appointment of a mental
health professional. The court authorized each party to hire
their own mental health expert for trial if they chose. Also,
on May 20, 2016, E.V. was privately interviewed by Judge
Ortego in chambers. Neither the parties nor the court
reporter were present, and the attorneys, though present,
were prohibited from asking questions. The interview was
audibly recorded, and the audio recording was eventually
filed in evidence.
20, 2016, the parties ultimately stipulated "on the
record"  to unknown terms including, we deduce,
an injunction prohibiting E.V. from attending therapy
sessions with Ms. Lori Romero, a licensed professional
counselor initially selected by Mr. Vidrine to assist
E.V.'s transition between households, except in the case
of an emergency.
parties' custody trial initially began on June 30, 2016,
before Judge Ortego. Unable to complete the trial in a single
day, a second day was fixed for August 18, 2016. During
testimony on the second day of trial, counsel for Mr. Vidrine
orally moved to recuse Judge Ortego. He was given ten days to
file a written motion. In his written motion, Mr. Vidrine
alleged that the trial judge failed to inform the parties and
their counsel that "he had knowledge of the two (2)
criminal investigations [of Ms. Vidrine and E.S.] conducted
by the Evangeline Parish Sheriff's Office which contained
the same facts and issues in this custody matter." The
motion also alleged that after obtaining independent
knowledge of the facts and issues relevant to the custody
matters pending before it, Judge Ortego granted numerous
opposed motions to continue filed by Ms. Vidrine, denied two
emergency ex-parté custody requests filed by Mr.
Vidrine, and refused to sign a warrant for Ms. Vidrine's
arrest properly requested by law enforcement officers. The
recusal motion was fixed for hearing on September 30, 2016
before ad hoc Judge Harry Randow. On the day the recusal
motion was fixed for hearing, but before it was heard, Judge
Ortego recused himself. An ad hoc judge was requested, and
the supreme court appointed Ronald Cox to preside ad hoc over
the pending matters.
15 and 16, 2017, the competing custody modification motions
were finally tried on the merits. The trial court took the
matter under advisement and rendered written and oral reasons
for ruling on May 19, 2017. The trial court found neither
party met its burden of proving a material change in
circumstances sufficient to warrant modification of custody
and it maintained the parties' September 2013 consent
judgment on custody with accompanying joint custody
implementation plan. On June 16, 2017, a final judgment was
signed. Mr. Vidrine filed a timely appeal.
appeal, Mr. Vidrine assigns eight errors:
1. The trial court committed legal error in failing to find a
material change in circumstance sufficient to justify a
modification of custody.
2. The trial court committed legal error in denying
Appellant's rule to modify custody.
3. The trial court committed legal error in valuing the
"cooperative parent factor" above all else as a
matter of law.
4. The trial court committed legal error in maintaining
co-domiciliary parent status.
5. The trial court committed manifest error in finding that
Appellant has been "uncooperative for years."
6. The trial court committed legal error in disregarding
7. The trial court abused its discretion in failing to give
any weight to expert testimony.
discuss all seven assignments together.
action to modify a custody decree, the trial court must first
determine whether the decree is a considered decree or a
consent decree. See Moss v. Goodger, 12-783 (La.App.
3 Cir. 12/12/12), 104 So.3d 807. When the underlying decree
is a stipulated judgment (i.e. no evidence of parental
fitness was taken by the court), the moving party has the
burden of proving that a material change in circumstances has
occurred since rendition of the underlying decree, and that
the modification will be in the child's best interest.
See Evans v. Lungrin, 97-541 (La. 2/6/98), 708 So.2d
material change in circumstance is a change that
"negatively impacts the welfare of the child."
LeBlanc v. LeBlanc, 06-1052, p. 9 (La.App. 3 Cir.
2/14/07), 951 So.2d 500, 507. A trial court's
determination of whether a material change in circumstances
has occurred is a factual finding. See Kyle v. Kier,
17-134 (La.App. 3 Cir. 11/15/17), 233 So.3d 708; See also
Bonnecarrere v. Bonnecarrere, 09-1647 (La.App. 1 Cir.
4/14/10), 37 So.3d 1038, writ denied, 10-1639 (La.
8/11/10), 42 So.3d 381. The trial court's factual
conclusions are given substantial deference by appellate
courts in child custody matters. Steinebach v.
Steinebach, 07-38 (La.App. 3 Cir. 5/2/07), 957 So.2d
291. Unless there is a legal error, "[t]he
determinations made by the trial judge as to custody  will
not be set aside unless it clearly appears [from the record]
that there has been an abuse of discretion." Nugent
v. Nugent, 232 So.2d 521, 523 (La.App. 3 Cir. 1970);
See also Mulkey v. Mulkey, 12-2709 (La. 5/7/13), 118
So.3d 357. "The basis for this principle of review is
grounded not only upon the better capacity of the trial court
to evaluate live witnesses, but also upon the proper
allocation of trial and appellate functions between the
respective courts." McCorvey v. McCorvey,
05-174, p. 4 (La.App. 3 Cir. 11/2/05), 916 So.2d 357, 362,
writ denied, 05-2577 (La. 5/5/06), 927 So.2d 300.
legal error, appellate courts must "review the record in
its entirety and (1) find that a reasonable basis does not
exist for the finding, and (2) further determine that the
record clearly establishes that the fact finder is clearly
wrong or manifestly erroneous" before a court's
factual findings and conclusions can be reversed.
Moss, 104 So.3d at 810. If the trial court's
findings of fact are reasonable, appellate courts should not
reverse them. See Moss, 104 So.3d 807. However,
appellate courts are also prohibited from simply
rubberstamping a trial court's findings of fact.
Id. Instead, we are constitutionally mandated to
review all the facts contained in the record and determine
whether the trial court's findings are reasonable
considering the entire record. Id.
the court of appeal has a constitutional function to perform,
it has every right to determine whether the trial court
[judgment] was clearly wrong based on the evidence, or
clearly without evidentiary support. When a fact finder
abuses its discretion, de novo review by appellate courts is
warranted. See Green v. K-Mart Corporation, 03-2495
(La. 5/25/04), 874 So.2d 838.
when a trial court applies incorrect legal principles and
these errors materially affect the outcome of a case and
deprive a party of substantial rights, legal error occurs.
Evans v. Lungrin, 97-541, p. 7 (La. 2/6/98), 708
So.2d 731, 735. "[W]here one or more trial court legal
errors interdict the fact-finding process, the manifest error
[(or abuse of discretion)] standard is no longer applicable,
and, if the record is otherwise complete, the appellate court
should make its own independent de novo review of
the record and determine a preponderance of the
case, we find two legal errors that interdicted the trial
court's fact-finding process and further find abuse of
the trial court's discretion in its overall decision.
First, the parties specifically stipulated in their JCIP that
remarriage of either party provided an avenue for either
party to seek modification of the custodial agreement. We
find that in this instance, de novo review was intended by
both parties. Mr. Vidrine married Taylor Vidrine after he and
Ms. Vidrine's 2013 stipulation. At the time of trial,
Phillip and Taylor Vidrine had two children together who are
E.V.'s only siblings. Therefore, Mr. Vidrine was entitled
to a de novo custody trial without having to prove a material
change in circumstances. Especially in light of the original
stipulated judgment so providing, Mr. Vidrine's
re-marriage, change of address and work schedule, and the
birth of two additional children certainly constituted a
"material" change of circumstances that the
evidence showed positively impacted E.V.
the parties had agreed to shared physical custody on a
fourteen-day rotation because at that time Mr. Vidrine was
working offshore in fourteen-day shifts. Uncontroverted trial
testimony was that Mr. Vidrine no longer does shift or
offshore work. When asked if he thought the 2013 consent
judgment was in E.V.'s best interest at the time it was
confected, Mr. Vidrine testified that he "had nowhere
else for [E.V.] to go when [he] was gone for fourteen
days." Mr. Vidrine's substantial change in his
fourteen (14) on and fourteen (14) off schedule and work
location, and feasibility of Mr. Vidrine having physical
custody of E.V. more frequently than every fourteen days, is
likewise a material change in circumstances that positively
the trial court failed to designate a domiciliary parent. The
trial court's failure to designate a domiciliary parent
pursuant to La.R.S. 9:335.1 and the supreme court's
holding in Hodges v. Hodges, 15-585 (La. 11/23/15),
181 So.3d 700 constituted legal error. "Appellate review
of questions of law is simply to determine whether the trial
court was legally correct or legally incorrect. If the trial
court's decision was based on its erroneous
interpretation or application of the law, rather than a valid
exercise of discretion, such incorrect decision is not
entitled to deference by the reviewing court." Citgo
Petroleum Corp. v. Frantz, 03-88, p. 3-4 (La.App. 3 Cir.
6/4/03), 847 So.2d 734, 736, writ denied, 03-1911
(La.10/31/03), 857 So.2d 484 (citations omitted).
will discuss below, all three of these legal errors warrant a
de novo review of the record by this court without deference
to the trial court's factual findings. Accordingly, we
have reviewed this case de novo, giving no weight to
the trial court's judgment or underlying findings of
fact. See Domingue v. Boden, 08-62 (La.App. 3 Cir.
11/4/08), 996 So.2d 654 ("under the de novo standard of
review, the appellate court assigns no special weight to the
trial court and, instead, conducts a de novo review of
questions of law and renders judgment on the record.")
In our de novo review, we review the entire record and make
independent findings of fact and legal conclusions. See
Ferrell v. Fremen's Fund Ins. Co., 94-1252 (La.
2/20/95), 650 So.2d 142; See also Clement v. Citron,
13-63 (La.App. 3 Cir. 6/19/13), 115 So.3d 1260 (when the
court of appeal finds that a . . . manifest error of material
fact was made in the trial court, it is required, whenever
possible, to redetermine the facts de novo from the entire
record and render a judgment on the merits; and
Lasha v. Olin Corp., 625 So.2d 1002 (La.
1993). Nevertheless, based on the record before us, we
further find that Mr. Vidrine did prove a material change in
circumstances had occurred and that it is in E.V.'s best
interest that he be named E.V.'s domiciliary parent.
Change in Circumstances
review of the entire record convinces us that Ms. Vidrine is
now incapable of ensuring E.V.'s safety and acting in his
best interest. Ms. Vidrine has behaved in ways that have
physically and emotionally harmed E.V. The record is rife
with consistent statements made by E.V. to multiple
individuals, including physicians, mental health
professionals, child advocates, law enforcement, and his
father and step-mother over the course of several months,
that his mother was physically abusive toward him, had thrown
a remote control device at him after he accidentally dropped
a kindle in the bathtub, that she called him the 'f'
word and the 'a' word, and that the remote left a
bruise on his back; that his mother whipped him all the way
down the hall to her room for accidentally spilling milk one
evening, then locked him in her room, telling him he would
stay in there for the rest of the year. E.V. testified that
he heard her hollering and throwing chairs or other objects
in other parts of the house.
consistently stated that his mother has punched holes in the
walls when angry with him, threatened to take him away from
his father, directed E.V. to lie to the DCFS investigator,
his therapist, and his father about various events that had
occurred during her custodial periods, and had also
instructed E.V. not to tell anyone about what happens when he
is at her home.
record supports the fact that Ms. Vidrine habitually visited
bars on her way home from work. According to E.V., "mom
goes to the bar a lot[, ]" "she usually goes to the
bar." E.V. claimed that he frequently went to his
maternal grandparents' home after school during his
mom's physical custodial time, and was often picked up
late at night, around ten p.m. He was tired at school the
next day. E.V. made consistent claims that his mother drinks
significantly in his presence, which intensified her anger.
There have been several instances in which the mother
consumed alcohol before driving, and more than once she drove
while believed to be intoxicated with E.V. in the vehicle.
record indicates that, especially when drinking, Ms. Vidrine
makes poor and selfish judgment calls, disregarding the best
interest of E.V. For example, while drinking at a softball
game, Ms. Vidrine left E.V. in a dug out babysitting a
three-year-old; Ms. Vidrine forced E.V. to go to a cook off
even though he was sick and running a fever and she refused
to take him home; and Ms. Vidrine tried to leave E.V. at a
Halloween party so that she could go to an adults-only party.
Once, Ms. Vidrine left E.V. in the car in the parking lot of
Piggly Wiggly while she went inside to buy beer and an
unknown individual got in the car. E.V. was scared.
reasons for ruling, the trial court stated: Mr. Vidrine
"has pictures of bruises on [E.V.] from 2012 and there
has been no testimony of [Ms. Vidrine] beginning to drink
after that [(the September 9, 2013 stipulated)] Judgment. The
trial court found "the circumstances existed prior to
the date of the Judgment." The trial court further
explained: "I don't think she's [(Ms. Vidrine)]
changed her discipline. I don't think she's changed
whether or not she drinks or likes to go out. I don't
think she's changed any of that since September the
9th, 2013. I think the situation is not -- there
is not a material change; they're the same."
not agree with the trial court that escalation of Ms.
Vidrine's anger and alcohol problems precludes finding a
material change in circumstances because some problems may
have existed in and before 2013. There is no evidence in the
record to support a finding that Ms. Vidrine drove E.V. while
intoxicated, left him alone in parking lots, or left him with
caretakers until late at night while she was at bars before
record also lacks any substantial evidence that Ms. Vidrine
physically and emotionally abused E.V. on a regular basis in
and prior to 2013. Although Mr. Vidrine testified that during
their marriage, Ms. Vidrine punched a hole in a wall once and
hit E.V. across the face after he threw up once when he was
two, the record is otherwise void of any evidence to support
a finding that Ms. Vidrine's behavior has not changed and
her actions have not escalated since 2013. To suggest that
because Mr. Vidrine believed Ms. Vidrine had anger issues
before 2013, he is precluded from using Ms. Vidrine's
present and increasingly harmful and violent behavior as a
basis for showing a material change in circumstance is
unreasonable and certainly not in E.V.'s best interest.
The evidence clearly shows that Ms. Vidrine's anger and
alcohol problems are manifesting themselves in increasingly
more abusive behaviors and their escalation is negatively
impacting E.V. physically and emotionally.
importantly to this court, prior to the parties' 2013
consent judgment, there was no evidence of sexual abuse of
E.V., whose complaints of repeated sexual abuse by his
mother's half-sister, E.S., have been consistent and
found to be credible by both Dr. Bouillion and Lori Romero.
The record also indicates that Ms. Vidrine refused to keep
her son away from her half-sister, E.S., who, according to
E.V., has sexually abused him on many occasions. In fact,
after being told by the DCFS worker to keep E.S. away from
E.V., Ms. Vidrine ignored those orders and the sexual abuse
continued, according to E.V. After being ordered by the trial
court not to allow E.S. and E.V. to be alone together, the