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Starks v. Starks

Court of Appeals of Louisiana, Third Circuit

June 27, 2018



          Richard Ducote Attorney at Law COUNSEL FOR PLAINTIFF/APPELLANT: Danae Marie Guillot Starks

          T. Taylor Townsend Attorney at Law COUNSEL FOR DEFENDANT/APPELLEE: Brad Dyson Starks

          Danae Marie Guillot Starks In Proper Person PRO SE: Danae Marie Guillot Starks

          Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.


         Danae Marie Guillot Starks appeals the trial court judgment awarding interim custody of the two minor children to the paternal grandparents with the parents having supervised visitation. For the following reasons, we affirm.


         Danae Marie Guillot Starks (Danae), the mother of the two minor children, Eastin, born 7/25/08 and Kennadi, born 10/11/12, appeals the trial court's judgment awarding custody to the paternal grandparents and granting her supervised visitation. Danae and the defendant-appellee, Bradley Starks (Brad), were married in September 2007. On February 22, 2015, Danae was shot in the head and arm. In March 2015, she filed a petition for a divorce alleging that Brad had been physically abusive to her "on a repetitive basis throughout the marriage." While the petition alleged that Danae "suffered a gunshot wound to her left-upper forehead with the bullet traveling through her face and exiting her lower left jaw," Brad was not named as the shooter. The petition states that the "facts surrounding the event remain under investigation by the Sabine Parish Sheriff's Office." Danae requested sole custody of the children with supervised visitation rights by Brad. Numerous procedural motions were subsequently filed relating to venue, and the matter was subsequently moved to Natchitoches Parish from Sabine Parish.

         Brad filed an answer and requested that he be awarded sole custody due to Danae's "severe mental illness." Brad thereafter filed a petition for temporary custody and an ex parte order urging that Danae suffered a self-inflicted gunshot wound and was refusing to seek mental health and/or psychiatric counseling for the issues that led to the self-inflicted gunshot wound. He further argued that Danae attempted to check-out their children from school, which resulted in the school going on "lockdown." Brad was granted temporary custody, and Danae was given supervised visitation and prohibited from entering the children's school. In May 2015, Danae filed a declinatory exception of lis pendens arguing that the same matter was pending in Avoyelles Parish. Danae filed a petition for divorce in Avoyelles Parish on April 16, 2015. In June 2015, the trial court denied Danae's exception of lis pendens.

         Following a June 2015 hearing, the trial court, Judge Lala Sylvester presiding, ordered all of the parties to undergo mental health evaluations with Dr. John C. Simoneaux.

         In July 2015, Brad filed a motion and order for writ of injunction to prohibit Danae from posting on social media that he had shot her and on a website that offers free reconstructive surgery to victims of domestic abuse. Brad attached numerous records in support of the writ. In July 2015, the trial court ordered all parties to undergo mental health evaluations with Shreveport-based Dr. Mark P. Vigen. Following a July 2015 hearing, all parties and the court agreed to have a hearing to determine culpability in the shooting of Danae (the shooting hearing) separately from the custody hearing while psychological evaluations were pending.

         In August 2015, the trial court granted Danae supervised visitation with her children every Saturday. That same month, Brad filed a rule to fix child support. In November 2015, Danae filed a motion for temporary custody because Brad had been arrested in March 2015 and charged with possession of schedule IV controlled dangerous substance (Xanax), DWI, and possession of marijuana, had entered into a pre-trial diversion program, and had his driver's license suspended.

         In January 2016, following five days of trial only relating to the shooting, Judge Lala Sylvester found that the gunshot wounds to Danae's head and forearm were self-inflicted. In eleven pages of reasons for judgment, Judge Sylvester concluded that Brad proved beyond a reasonable doubt that the shooting was a failed suicide attempt. Danae filed a motion to designate the January 2016 judgment as a final appealable judgment. Danae also appealed the January 2016 judgment. Danae's motions to appeal the findings were denied.

         In May 2016, a La.Civ.Code art. 102 divorce was granted. In July 2016, the trial court denied Danae's motion to designate the January 2016 judgment as a final appealable judgment and denied her motion to appeal. In August 2016, Danae filed a motion for access to school campus & education records, for court ordered drug testing, and for modification of custody. In October 2016, Danae filed a motion to recuse Judge Sylvester based on allegations of ex parte communications with the children's school. Judge Sylvester recused herself, not conceding that any legal grounds existed to mandate the recusal, but because Danae believed that the Court was not impartial. The supreme court appointed Judge Eric Harrington to preside ad hoc.

         Danae filed another ex parte motion for modification of custody. Following an October 24, 2016 hearing, temporary custody of the children was granted to Ken Starks (Brad's father) and his wife, Barbara Jan Starks, who are to be assisted as needed by Sherrie Moore (Brad's mother) and Tom Moore. Brad was granted "closely supervised" visitation and Danae was granted custody three weekends each month from Friday until Sunday.

         In February 2017, Judge Harrington, after considering the findings from the shooting hearing and the testimony of the evaluating psychologists and witnesses relating to the custody issue, rendered an interim custody order in April 2017. He issued extensive oral reasons for his judgment maintaining the placement of the children in the custody of the paternal grandparents while allowing the parents visitation with mandatory drug-testing. Judge Harrington found both Danae and Brad were unfit to have custody of their minor children and that it was in the best interest of the children to be placed in the paternal grandparents' custody. Detailed instructions were provided in the custody order. In part, Danae was ordered to undergo counseling for a year until she was emotionally stable, and Brad was ordered to maintain sobriety for one year and undergo random drug testing. Danae's weekend visitations were modified to require supervision by her parents.

         Danae now appeals both the January 2016 judgment finding that the gunshots wounds were self-inflicted and the April 2017 interim custody order. Danae assigns as error:

1.The trial court, Judge Sylvester, clearly erred as a matter of law and abused its discretion in refusing to hear the testimony of the parties' then 7-year-old son that he personally witnessed his father threatening his mother with a gun at the car window.
2.The trial court, Judge Sylvester, clearly erred as a matter of law and manifestly abused its discretion in allowing into evidence purported expert testimony regarding the location of Mr. Stark's cell phone before, during, and after the shooting.
3.The trial court, Judge Sylvester, clearly erred as a matter of law and manifestly abused its discretion in refusing to admit into evidence proof of how easily Danae Stark's handwriting could be copied by anyone.
4.The trial court, Judge Sylvester, erred as a matter of law and manifestly abused its discretion in finding beyond a reasonable doubt that Danae Starks shot herself.


         Standard of Review in Custody Matters

         In making decisions regarding custody, the best interests of the child are of paramount importance. La.Civ.Code art. 131. Numerous factors are at the trial court's disposal in making this determination and are set forth in La.Civ.Code art. 134. However, the trial court is not limited to considering the factors enunciated but should consider the totality of the facts and circumstances in the particular situation. Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, writ denied, 96-1650 (La. 10/25/96), 681 So.2d 365.

         A trial court's determination in a child custody case will not be disturbed unless there is a clear abuse of discretion. Id. Additionally, the trial court's finding is entitled to great weight on appeal as it is in a superior position to assess what the children's best interests are based on its consideration of the testimony of the parties and witnesses. Id.


         First, we note the somewhat unusual procedural posture of this case to which all parties agreed, at a hearing on July 14, 2015, to litigate only the issue of culpability in the shooting of Danae as a factual matter to be determined before the custody motions could be settled, along with the resolution of the injunction filed by Brad to prevent Danae from posting claims on the internet claiming that he shot her. In Danae's pre-trial motion, she phrased the issue as, "At the July 14, 2015, conference it was agreed that the central question related to both the custody and injunction proceedings was whether Ms. Starks shot herself or whether Mr. Starks was involved in the shooting." Danae argued that Brad bore the burden of proving that she shot herself.

         Brad's pre-trial brief states that contrary to Danae's pre-trial brief, "The only issue before the Court . . . is regarding the Writ of Injunction. The issue of custody is not before the Court. The custody issue can only be heard after the completion of Dr. Mark Vigen's evaluation." In his appellate brief, Brad argues that Danae bore the burden of proving that Brad shot her.

         Clearly, the issue of whether Danae shot herself was a significant underlying factor in the overall custody determination, which was not held until February 2017.

         The ...

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