APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF
ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 71, 41, DIVISION
"A" HONORABLE MADELINE JASMINE, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, DEXTER JOHNSON Rachel L.
composed of Judges Jude G. Gravois, Robert A. Chaisson, and
Hans J. Liljeberg.
G. GRAVOIS JUDGE.
Dexter Johnson, appeals the trial court's October 26,
2017 judgment which established custody and visitation of his
minor twin children. For the following reasons, because the
record contains inadequate information, we vacate the portion
of the trial court's judgment that named
defendant/appellee, Tomika Clofer, the twins' mother, as
domiciliary parent, and remand the matter to the trial court
for further proceedings.
AND PROCEDURAL HISTORY
August 4, 2017, Dexter Johnson filed a "Petition to
Establish Filiation, Custody and Visitation" on behalf
of Tiarrah Johnson and Tyrann Johnson, twins born on June 24,
2014. Tomika Clofer, the twins' mother, was made the
respondent. In his petition, Mr. Johnson stated that he is
named as the twins' father on their birth certificates,
and that since the twins' birth, he and Ms. Clofer have
"openly, publicly and expressly acknowledged" that
he is their natural father. As such, he prayed to be filiated
in the eyes of the law. He further noted that he has been an
integral part of the twins' lives since their birth, has
provided financially for them, and has them on his insurance
plan. He stated that he is current on his monthly child
support obligation. Mr. Johnson prayed that he be granted
shared custody and the right to take the tax dependency
exemption on the twins each year.
matter came on for a hearing on September 22, 2017. Ms.
Clofer was not present for the hearing. At the hearing,
Mr. Johnson testified that he has spent time with the twins
since their birth, including "extended time." He
stated that the twins would come over and spend the night
"every so often," and this included them staying
more than one day consecutively with him. According to Mr.
Johnson, at times Ms. Clofer would "keep the kids away
from [him]." Mr. Johnson testified that he is familiar
with the twins' educational and physical needs and pays
82% of their child support obligation. He currently lives
with his wife five miles from the twins. He testified that he
last saw the twins three weeks prior to the hearing. Mr.
Johnson submitted as evidence a proposed parenting plan in
which he noted that the parties had agreed to maintain joint
legal custody of the twins and to a 3-3-4-4 shared physical
judgment dated October 26, 2017, the trial court found Mr.
Johnson to be the legal and natural father of the twins. The
trial court awarded custody of the twins to the parties,
jointly, and designated Ms. Clofer as the primary domiciliary
parent. Additionally, a detailed visitation schedule was
established. Mr. Johnson was granted visitation every other
weekend and for two consecutive weeks in June and July for
vacation purposes. The parties would share holidays as
detailed in the judgment. The trial court denied Mr.
Johnson's request to have the tax dependency exemption on
the twins each year. The trial court noted that the
provisions of La. R.S. 9:315.18(B)(1)(b) had not been
established, but upon a proper showing, Mr. Johnson would be
entitled to claim the tax dependency in alternating years.
November 9, 2017, Mr. Johnson filed a motion for a new trial,
asserting that the trial court's findings were contrary
to the law and to the only evidence introduced at the
hearing. Following a hearing on December 22, 2017, the trial
judge orally denied the motion for a new trial. In her oral
reasons for judgment, the trial judge stated that nothing
from Ms. Clofer was considered in rendering her judgment
since she had arrived after the case had already concluded.
The trial judge stated that she had considered all the
evidence and testimony presented. Specifically, the court
noted that it considered the age of the children, Mr.
Johnson's testimony about his time spent with the
children, and the fact that Mr. Johnson was asking for 50/50
custody and Ms. Clofer was not there to present evidence.
Based on the evidence submitted, the trial court found that
the parenting plan submitted by Mr. Johnson was not in the
best interest of the children.
Johnson filed a motion to appeal the judgments of October 26,
2017 and December 22, 2017. This appeal followed.
appeal, Mr. Johnson argues that the trial court abused its
discretion in designating Ms. Clofer as the primary
domiciliary parent based on the evidence presented. Mr.
Johnson argues that, considering the best interest factors of
La. C.C. art. 134, there was no evidence nor testimony
presented regarding: Ms. Clofer's moral fitness as it
affects the welfare of the children; the adequateness and
stability of the home environment of Ms. Clofer; and the
capacity and disposition of Ms. Clofer to give the twins
love, affection, and spiritual guidance and to continue the
education and rearing of the children. Further, Mr. Johnson
argues that as a matter of law, the trial court erred in
disregarding the unchallenged testimony and evidence he
proceeding for divorce or thereafter, the court shall award
custody of a child in accordance with the best interest of
the child. La. C.C. art. 131. La. C.C. art. 134 sets out 12