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Laurent v. Prevost

Court of Appeals of Louisiana, Fourth Circuit

July 11, 2018


          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2009-05499, DIVISION “H-12” Honorable Monique E. Barial, Judge



          Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Sandra C. Jenkins, and Judge Dale N. Atkins

          TERRI F. LOVE JUDGE.

         Ivan Prevost ("Mr. Prevost") seeks appellate review of the trial court's modification of custody. We conclude, after review of the record, that the trial court was presented with two permissible views of the evidence as to whether use of kneeling as a form of discipline was abusive requiring modification of the interim custody plan. We cannot say the trial court's finding was manifestly erroneous. Similarly, we find the trial court's appointment of counsel for the minor children was not in contravention to La. R.S. 9:345. We do, however, find ordering Mr. Prevost to obtain the services of an outside supervisor, at his expense, in order to exercise visitation with his children to be an abuse of discretion. Accordingly, we amend the trial court's interim judgment to permit Mr. Prevost visitation with his children under the supervision of a family member.


         This appeal arises from a change in custody of four minor children. Plaintiff Mr. Prevost and Kristen Laurent ("Ms. Laurent") were never married but became intimately involved, and as a result four children were born of the relationship: Y.P., J.P., A.P., and B.P.[1]

         In March 2015, Mr. Prevost filed a petition for protection from abuse against Ms. Laurent, in which he alleged that an investigation by the Department of Children and Family Services (DCFS) was launched as a result of B.P. bringing marijuana to school. B.P. had retrieved the marijuana from Ms. Laurent's kitchen table and brought it to school and was demonstrating for other students how to roll it up and smoke it. B.P. allegedly also told other children and the school social worker, Stephanie Anderson ("Ms. Anderson") that there was a large amount of marijuana at Ms. Laurent's home and that he had only brought a small portion to school with him. A temporary restraining order was issued along with an award of temporary custody in favor of Mr. Prevost.

         After a hearing on the petition for protection from abuse, the trial court rendered an interim judgment, which was signed on June 1, 2015. The interim judgment dismissed Mr. Prevost's petition for failure to prove by the appropriate standard the allegations contained in the petition, granted the parties joint custody of the minor children, and limited Ms. Laurent's physical custodial periods with the minor children. When the temporary restraining order was issued in March 2015, Mr. Prevost acted as the de facto domiciliary parent and continued primary physical custody of the minor children based on the June 2015 interim judgment. Ms. Laurent did not appeal the judgment of custody and visitation.

         In December 2015, a hearing was held on Ms. Laurent's rule for contempt against Mr. Prevost. A number of issues were addressed at the hearing including Ms. Laurent's allegations of denial of visitation, denial of telephone communication with the minor children, Mr. Prevost's failure to participate in the custody evaluation, and Ms. Laurent's failure to pay child support. At the hearing, Ms. Laurent also alleged that Mr. Prevost was physically abusive. The trial court, on its own motion, appointed an attorney to represent the minor children. The judgment was signed in January 2016.

         In July 2017, appointed counsel filed an "Ex-Parte Motion for Temporary Protective Order for Minor Children, Temporary Relocation of Minor Domicile, Contempt of Court, and Modification of Physical Custody." The ex-parte motion sought relief pursuant to La. C.C.P. art. 3945, which alleged Mr. Prevost was physically abusive. However, the ex-parte motion did not include specific dates or incidents when the abuse allegedly occurred. Based on various exceptions filed by Mr. Prevost, appointed counsel amended his pleadings to include more specific allegations. In addition, appointed counsel filed a motion for contempt and a motion to request a Watermeier hearing.[2]

         Thereafter, Mr. Prevost filed a "Motion and Order to Terminate and Vacate Ex-Parte Order of Custody, Motion and Order to Strike Petitioner's Verification Affidavit, Rule for Contempt for Failure to Comply with La. C.C.P. art. 3945 and/or Motion and Order for Imposition of Sanctions, Fees, and Costs, Peremptory Exceptions of No Cause of Action and/or No Right of Action and Dilatory Exceptions of Vagueness and Incorporated Memorandum in Support and Rule for Contempt for Failure to Abide by Judgment." He also filed his opposition to the request for a Watermeier hearing and a "Motion and Order for Imposition of Sanctions, Fees and Costs and Dilatory Exceptions of Vagueness" in response to the motion for contempt filed by appointed counsel for the minor children.

         A hearing commenced on all pending matters in September 2017, including the ex-parte motion filed on behalf of the minor children. The trial court granted sole legal custody of the minor children to Ms. Laurent and granted Mr. Prevost liberal supervised visitation with the minor children. Mr. Prevost timely appeals.


         "In child custody cases, appellate courts will not disturb an award of custody absent a manifest abuse of discretion in the trial court." Leard v. Schenker, 09-1438, p. 2-3 (La.App. 4 Cir. 3/24/10), 35 So.3d 1152, 1154 (citing La. C.C. art. 134, Revision Comments-1993, Comment (b)); Bergeron v. Bergeron, 492 So.2d 1193, 1196 (La. 1986) (stating "the determination of the trial judge in child custody matters is entitled to great weight, and his discretion will not be disturbed on review in the absence of a clear showing of abuse"). "'[T]he trial court sitting as a trier of fact is in the best position to evaluate the demeanor of the witnesses, and its credibility determinations will not be disturbed on appeal absent manifest error.'" Alfonso v. Cooper, 14-0145, p. 14 (La.App. 4 Cir. 7/16/14), 146 So.3d 796, 805 (quoting Ruiz v. Ruiz, 05-0175, p. 4 (La.App. 5 Cir. 7/26/05), 910 So.2d 443, 445).

         When factual findings are based on determinations of the credibility of witnesses, the manifest/clearly wrong standard of review "demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said." Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). "[W]here two permissible views of the evidence exist, the fact-finder's choice cannot be manifestly erroneous or clearly wrong." D.M.S. v. I.D.S., 14-0364, p. 19 (La.App. 4 Cir. 3/4/15), 225 So.3d 1127, 1140.

         However, when the trial court commits a legal error, de novo review is required. Evans v. Lungrin, 97-0541, p. 6-7 (La. 2/6/98), 708 So.2d 731, 735. "When such a prejudicial error of law skews the trial court's finding of a material issue and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo." Id., 97-0541, p. 7, 708 So.2d at 735 (citation omitted).

         Mr. Prevost asserts that the trial court abused its discretion in finding that his actions rose to the level of abuse warranting a change in custody; that the trial court committed legal error when it granted Ms. Laurent custody of the minor children in contravention to Bergeron; and that the trial court committed legal error when it appointed an attorney to represent the minor children in contravention of the law.


         Since the second assigned error concerns the burden of proof relating to the modification of a contested custody judgment, we address this assigned error first. Mr. Prevost contends that the June 2015 judgment was a considered decree and therefore could not be modified unless the heavy burden imposed in Bergeron was met. The Louisiana Supreme Court stated:

When a trial court has made a considered decree of permanent custody the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.

Bergeron, 492 So.2d at 1200.

         Counsel for the minor children submits that the June 2015 judgment is not subject to the heightened requirements of Bergeron because the judgment is not a considered decree. Counsel argues that the record is silent as to whether any evidence was provided relative to parental fitness and relies on a judgment drafted by Mr. Prevost's counsel and the handwritten note from the trial court thereon, which counsel claims demonstrates that the parties had a stipulated agreement. Although we find this argument meritless[3], our analysis does not extend that far because the June 2015 judgment was not a decree of permanent custody.

         The June 2015 judgment is not subject to Bergeron standards because it was an interim custody plan, and Bergeron only applies to a "considered decree of permanent custody." Id. Therefore, the burden of proof in this case requires that the party seeking a change in the custody arrangement prove: "1) a change in circumstances affecting the welfare of the [child] had occurred since the original decree; and 2) the proposed modification is in the best interests of the [child]." Cerwonka v. Baker, 06-856, p. 6 (La.App. 3 Cir. ...

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