FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2009-05499,
DIVISION “H-12” Honorable Monique E. Barial,
Nicholas J. Hite THE HITE LAW GROUP, LLC COUNSEL FOR
APPELLEE, MINOR CHILDREN Y.P., A.P., J.P., AND B.P.
Lakeisha N. Jefferson JEFFERSON LAW FIRM, APLC N. Kim Ngyen
COUNSEL FOR PLAINTIFF/APPELLANT, IVAN S. PREVOST
composed of Judge Terri F. Love, Judge Edwin A. Lombard,
Judge Rosemary Ledet, Judge Sandra C. Jenkins, and Judge Dale
F. LOVE JUDGE.
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.
BACKGROUND AND PROCEDURAL HISTORY
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.
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
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.
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.
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
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.
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
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).
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.
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).
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.
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
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
Bergeron, 492 So.2d at 1200.
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, our analysis does not extend that far
because the June 2015 judgment was not a decree of permanent
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.