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Vidrine v. Vidrine

Court of Appeals of Louisiana, Third Circuit

May 2, 2018



          Gabe A. Duhon Attorney at Law COUNSEL FOR PLAINTIFF/APPELLANT: Phillip Vidrine

          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

          Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges.


         In this 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.


         Phillip 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.[1] 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.[2]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.

         The 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 E.V.[3] 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, 2015.[4]

         Because 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.

         On 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. [5] [6]

         On 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.[7] Judge Ortego also signed an order appointing Dr. Kenneth Bouillion to complete a 'family consultation' for purposes of the pending custody issues.[8] Dr. Bouillion rendered his report on April 27, 2016.

         After Dr. Bouillion submitted his report, Ms. Vidrine filed a motion for mental health evaluations pursuant to La.R.S. 9:331.[9] 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.

         On May 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.

         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.

         On May 20, 2016, the parties ultimately stipulated "on the record" [10] 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.[11]

         The 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.[12]

         On May 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.


         On 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 expert testimony.
7. The trial court abused its discretion in failing to give any weight to expert testimony.

         We will discuss all seven assignments together.


         Standard of Review:

         In an 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 731.

         A 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.

         Absent 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.

         "Because 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.

         Additionally, 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 evidence." Id.

         Legal Error

         In this 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.

         Second, 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 impacted E.V.

         Third, 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).

         As we 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.

         Material Change in Circumstances

         Our 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.

         E.V. 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.

         The 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.

         The 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.

         In its 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."

         We do 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 2013.

         The 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.

         More 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 ...

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