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Johnson v. Clofer

Court of Appeals of Louisiana, Fifth Circuit

June 27, 2018




          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg.


         Plaintiff/appellant, Dexter Johnson, appeals the trial court's October 26, 2017 judgment which established custody and visitation of his minor twin children.[1] 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.


         On 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.[2]

         The matter came on for a hearing on September 22, 2017. Ms. Clofer was not present for the hearing.[3] 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 custody schedule.

         By 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.

         On 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.[4] 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.

         Mr. Johnson filed a motion to appeal the judgments of October 26, 2017 and December 22, 2017. This appeal followed.


         On 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 presented.

         In a 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 ...

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