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S.L.B. v. C.E.B.

Court of Appeals of Louisiana, Fourth Circuit

July 27, 2018

S.L.B.
v.
C.E.B. STATE OF LOUISIANA THROUGH THE DEPARTMENT OF CHILDREN AND FAMILY SERVICE, CHILD SUPPORT ENFORCEMENT IN THE INTEREST OF D.B. AND J.B. MINOR CHILD(REN) OF S.B.
v.
C.E.B. S.L.B.
v.
C.E.B.

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-10320 C\W 2015-11856, 2016-08619, DIVISION "DIV. K-02" Honorable Bernadette D'Souza, Judge.

          Bennett Wolff WOLFF & WOLFF COUNSEL FOR PLAINTIFF/APPELLANT

          Pierre G. Walker, III REASONOVER & BERG, LLC COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins

          Daniel L. Dysart, Judge.

         This is an appeal of a trial court judgment granting an Order of Protection ("Order"), effective through March 19, 2019, issued to protect two minor children, J.B. and D.B., [1] from acts of abuse by their mother, appellant, S.L.B. For the reasons that follow, we find no abuse of the trial court's discretion in issuing the Order and we affirm that ruling.

         FACTUAL AND PROCEDURAL BACKGROUND

         This protracted and contentious family matter commenced with the filing, on October 31, 2013, of a Petition for Divorce Pursuant to Louisiana Civil Code Article 102 ("Divorce Petition") by S.L.B.[2] According to the Divorce Petition, appellant, S.L.B., and appellee, C.E.B., were married on September 3, 2000 and established their matrimonial domicile in Orleans Parish. D.E.B. subsequently moved to Mobile, Alabama, for a medical residency program. J.B. and D.B. were born during the marriage. At the time of the Divorce Petition's filing, the children were ages eight and ten, respectively.

         Over the ensuing several years, various pleadings were filed and hearings held in the matter, resulting in trial court rulings not pertinent to this appeal.

         In 2016 and by consent of the parties, the case was consolidated with two cases pending in other divisions and filed subsequent to the instant suit. The first of these suits, filed in 2015 and entitled "State of Louisiana, et al. v. [C.E.B.].," sought to establish C.E.B.'s child support obligations and to require C.E.B. to maintain health insurance for the children. The second suit, filed in 2016 and entitled "[S.L.B.] v. [C.E.B.]," was a divorce proceeding (with incidental matters) based on the parties' living separate and apart pursuant to La. C.C. art. 103.1.

         Other than the consolidation of the cases in 2016, nothing of record took place in the cases between September 8, 2014, and March 2, 2017, when C.E.B. filed a Petition for Protection From Abuse ("Petition"). A temporary restraining order ("TRO") was issued in connection with the Petition, effective through March 16, 2017, the date on which a hearing was set. C.E.B. then filed, on March 7, 2017, a motion to terminate child support on the basis that custody of the children should remain with C.E.B. and therefore, there would be "no further need or requirement for child support."

         In open court on March 16, 2017, the parties agreed to continue the hearing on the Petition and the TRO was extended. The hearing was continued on several other occasions by consent of the parties and ultimately took place on September 7 and 19, 2017. At the conclusion of the hearing, the trial court found that C.E.B. "has met his burden of proof by a preponderance of the evidence that [J.B.] was physically abused by his mother . . . and that the abuse occurred in the presence of [D.B.]." The trial court placed both children in the temporary custody of C.E.B. subject to supervised visitation with S.L.B. The court also ordered S.L.B. to attend anger management and parenting classes. The trial court denied the request for attorney's fees and ordered the parties to bear their own respective costs.

         The written Order, memorializing the trial court's oral judgment, was then issued on September 19, 2017, finding that S.L.B. "represents a credible threat to the physical safety of a family member" and issuing an injunction (an Order of Protection in the form of a "P.O./Preliminary or Permanent Injunction"), effective until March 19, 2019. The trial court also issued a judgment assessing costs against S.L.B. in the amount of $258.00.[3]

         S.L.B. has devolutively appealed the September 19, 2017 Order.[4]

         DISCUSSION

         This case arises under the Domestic Abuse Assistance Act, La. R.S. 46:2131, et seq. (sometimes hereafter referred to as "the Act"), a law enacted for the purpose of "provid[ing] relief to victims of domestic violence by establishing a civil remedy for domestic violence that affords the victim(s) immediate and easily accessible protection." Dvilansky v. Correu, 16-0279, p. 6 (La.App. 4 Cir. 10/26/16), 204 So.3d 686, 689, writ denied, 16-2081 (La. 1/9/17), 214 So.3d 871, citing Alfonso v. Cooper, 14-0145, p. 13 (La.App. 4 Cir. 7/16/14), 146 So.3d 796, 805.

         Under the Act, a parent "may seek relief on behalf of any minor child . . . by filing a petition with the court alleging abuse by the defendant." La. R.S. 46:2133 D. The court may then "grant any protective order . . . to bring about a cessation of domestic abuse as defined in R.S. 46:2132, or the threat or danger thereof, to . . . any minor children." La. R.S. 46:2136 A. Domestic abuse, as incorporated within this statute," includes but is not limited to physical or sexual abuse and any offense against the person, physical or non-physical, as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family member, household member, or dating partner against another . . . ." La. R.S. 46:2132 (4).

         We note that, as pertains to a TRO, the statute indicates that "[u]pon good cause shown in an ex parte proceeding, the court may enter a temporary restraining order, without bond, as it deems necessary to protect from abuse . . . any minor children . . . ." La R.S. 46: 2135 A. Our jurisprudence has interpreted the "good cause shown" requirement to apply to both TROs and to other protective orders. See Dvilansky, 16-0279, p. 6, 204 So.3d at 689 ("La. R.S. 46:2135 and 46:2136 require that there be 'good cause shown' for the issuance of a protective order."); See also D.M.S., 14-0364, p. 15, 225 So.3d at 1137.

         The Act specifically indicates that "[a]ny person who shows immediate and present danger of abuse shall constitute good cause." La. R.S. 46:2135 A; See also Dvilansky, 16-0279, p. 6, 204 So.3d at 689; D.M.S., 14-0364, p. 15, 225 So.3d at 1137. La. R.S. 46:2135 A also indicates that "[t]he court shall consider any and all past history of abuse, or threats thereof, in determining the existence of an immediate and present danger of abuse. There is no requirement that the abuse itself be recent, immediate, or present."

         In the instant matter, the trial court found that C.E.B. "met his burden of proof by a preponderance of the evidence that [J.B.] was physically abused by his mother, S.L.B., and that the abuse occurred in the presence of the minor child, [D.B.]" On that basis, the trial court "placed both children in the temporary care and custody of C.E.B. subject to supervised visitation with the mother at the Harmony House program and Kingsley House every other Saturday for a period for two to four hours depending on the availability of the Center."

         Standard of Review

         The abuse of discretion standard of review by an appellate court of a trial court domestic protective order is clear. As this Court indicated in Rodriguez v. Claassen, 16-0610, pp. 3-4 (La.App. 4 Cir. 12/21/16), 207 So.3d 490, 493, quoting D.M.S., 14-0364, p. 16, 225 So.3d at 1138:

An appellate court reviews domestic protective orders for abuse of discretion. Alfonso v. Cooper, 14-0145, p. 13 (La.App. 4 Cir. 7/16/14), 146 So.3d 796, 805.
Moreover, the standard of review applicable to fact findings of the trial court has been clearly enunciated by our Supreme Court in Rabalais v. Nash, 06-0999, p. 4 (La. 3/9/07), 952 So.2d 653, 657:
It is well-settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of manifest error or unless it is clearly wrong .... To reverse a fact-finder's determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). Where the [fact-finder's] findings are reasonable, in light of the record reviewed in its entirety, the court of appeal may not reverse. Even where the court of appeal is convinced that it would have weighed the evidence differently to reach a different result, reversal of the trial court is improper unless the trial court's ruling is manifestly erroneous, or clearly wrong.

         With this standard of review in mind, we now address S.L.B.'s assignments of error.

         Reasonable discipline

         In her first assignment of error, S.L.B. maintains that the trial court erred in granting the Petition and issuing the Order.[5] While S.L.B. concedes that an altercation took place on February 20, 2017, she contends that the discipline she administered was "reasonable and was within the ambit of C.C. art. 228." She argues that "[p]arents under Louisiana law may administer corporal punishment" and that "Louisiana law permits corporal punishment when used in a reasonable manner for disciplinary reasons."

         Under the recently enacted article 228 of the Louisiana Civil Code, which became effective on January 1, 2016:

A child shall obey his parents in all matters not contrary to law or good morals. Parents have the right and obligation to correct and discipline the child in a reasonable manner.[6]

         The Revised Official Comments (a) and (b), respectively note that a "child's obligation of obedience serves as the foundation for the parental right of correction," while the article "bestows upon parents the right to correct their child in a reasonable manner." There are no cases interpreting this article or defining what is considered to be a reasonable manner of discipline.[7] However, it is clear that the right of correction in a "reasonable manner" does not include what are the grounds for a protective order under the Act - "domestic abuse" which is defined, in part, as "physical . . . abuse . . . committed by one family member . . . against another." La. R.S. 46:2132 (4). We, therefore, look to the Act for guidance as to what constitutes "physical abuse."

         There are few cases under the Act addressing the issue of domestic abuse by a parent of a child. In Vital v. Francois, 12-1279 (La.App. 3 Cir. 5/1/13), 2013 WL 1846626, for example, the court found no error in the trial court's issuance of a protective order based on the limited record before it. Noting that the trial court's judgment was based on evidence that the father had "whipp[ed] [the child] several times with a belt which caused her to fall to the floor and caused bruises on her leg" and had "grabb[ed] [the child] by her neck, throwing her to the ground, and continuing to whip her," the court found that the discipline was not reasonable but was "something beyond discipline and more in the nature of excessive [and] abusive," which was "beyond the bounds of what the law would expect a parent to do to a child during the disciplinary action." Id., at *2.

         S.L.B. cites the case of Mason v. Hadnot, 08-2015, p. 9 (La.App. 1 Cir. 2/13/09), 6 So.3d 256, which involved motions for contempt in a child custody dispute. While the case did not address the Act specifically (and the issue did not concern domestic abuse allegations), the court, "mindful that corporal punishment, when reasonable in degree, used by a parent of a minor child for disciplinary reasons is permitted in Louisiana," found that the father's admission to striking a child "10 to 15 times with a belt . . . did not constitute reasonable discipline so as to be considered corporal punishment." Id., pp. 9-10, 6 So.3d at 261.

         S.L.B. also cites State in Interest of BS v. PS, 542 So.2d 1163, 1166 (La.App. 3 Cir. 1989) for the position that a mother's making a "linear mark on her four (4) year old daughter's face," as a "single occurrence of corporal punishment . . . was insufficient to prove a child is in need of care." Our review of this case reflects that the court was focused on whether the child was in need of custody by the State. Whether the mark on the child's face was caused by the mother was not definitive and the court's finding was based on a concession that the mark was, in fact, caused by the mother.

         Similarly, S.L.B. relies on Griffith v. Latiolais, 10-0754 (La. 10/19/10), 48 So.3d 1058, a child custody case, again for the principle that "[i]n Louisiana, a parent is permitted to use corporal punishment to discipline a child provided it is done in a reasonable manner." Id., p. 21, 48 So.3d at 1072. In Griffith, the mother admitted to spanking the child with a wooden spoon on a few occasions, but had been counseled on using "time outs" and agreed to do so; there were no further instances thereafter. Thus, the Court found that "it was unnecessary for the trial court to prohibit corporal punishment in this case" and commented that "if any party uses corporal punishment in an unreasonable manner, that issue will have to be addressed at that time." Id. The Court made no express finding as to whether the use of a wooden spoon to spank the child was unreasonable.

         Other cases decided under the Act are also instructive. In McCann v. McCann, 09-1341 (La.App. 3 Cir. 3/10/10), 33 So.3d 389, 394, during an altercation between separated spouses, the husband grabbed keys from the wife, who demanded them back. He then slung his arm at her, causing a cut on her arm by the keys, which was identified by a photograph showing "her right arm with a deep scratch and bruise." Id., p. 3, 33 So.3d at 392. Affirming the trial court's issuance of a protective order under the Act, the Third Circuit found that "[the] act of striking [the wife] on the arm with her keys amounted to domestic abuse." Id., p. 7, 33 So.3d at 395.

         In Paschal v. Hazlinsky, 35, 513 (La.App. 2 Cir. 12/19/01), 803 So.2d 413, the court found no error in the granting of a protective order from abuse where the testimony was that, during an altercation with her daughters, a mother was hit in the chest which resulted in a large bruise. The court found that there was no abuse of discretion by the hearing officer who "weighed the credibility of the witnesses and concluded that the evidence showed that the daughters had caused the bruise on Eva's chest (of which there was photographic evidence) and that they had physically restrained her at some point during the dispute." Id., p. 9. 803 So.2d at 419.

         S.L.B. concedes that an altercation occurred between her and J.B. on February 20, 2017. She argues, however, that, when J.B. argued with her about who should have to clean the dishes, she started taking away points from him which escalated the situation.[8] J.B. then used profane language towards her, after which she "swatted [him] in the mouth with the tip of her fingers" and she "inadvertently hit his nose causing it to bleed." She contends that J.B. then "balled up his fists and . . . perceiv[ing] that he was going to attack her . . . she plac[ed] him on the ground with her on top of him." When he "continued to curse and scream" at her, and "said that he was going to kill her," she "tapped him on the mouth" with each use of "the 'f' word."

         On cross-examination, S.L.B. was questioned further about the manner by which she struck J.B., as evidenced by the following colloquy:

Q. According to El Charrita Craig, of DCFS, you admitted hitting him in the mouth. Is that what you told El Charrita Craig?
A. I sure did.
Q. Okay. So, you didn't swat him in the mouth, you hit him in the mouth.
A. And so, by hitting and swatting, help me understand the difference between the two.
Q. I'll leave that to the Court to decide. When you hit him, so you hit him in the mouth but it caused a nosebleed.
A. Yes.

         Citing Articles 223, 226 and 228, S.L.B. contends that the disciplinary measures she used were not only appropriate, but also that under Article 228, there was an "obligation to correct and discipline" J.B. because he used "totally inappropriate language towards her and . . . she feared that he might take aggressive actions against her." (Emphasis supplied). She also points to other testimony in the record from C.E.B. and Rochelle Gauthier, a counselor at J.B.'s school, that J.B. has a history of behavioral issues.[9]

         S.L.B. argues that the nature of J.B.'s nose bleed "was minor and transitory." In support, she notes that, when C.E.B. brought J.B. to the emergency room on February 22, 2017, there were no signs of physical injury. He likewise, had no sign of injury ...


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