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Melancon v. Russell

Court of Appeals of Louisiana, Fifth Circuit

October 17, 2018





          Panel composed of Judges Marc E. Johnson, Hans J. Liljeberg, and John J. Molaison, Jr.


         Defendant/father appeals the trial court's judgment awarding sole custody of the parties' minor children to the plaintiff/mother pursuant to the Post-Separation Family Violence Relief Act. He also challenges the denial of his Motion for New Trial. For the following reasons, we affirm.


         The parties, Elizabeth Melancon and Darielle Russell, are the parents of two minor children, O.T.R. (born 3/22/09) and S.G.R. (born 3/26/12). The parties were never married. On June 12, 2015, they entered into a stipulated judgment, providing that Elizabeth would have sole custody of the minor children, with Darielle to have one telephone call per week with the children. The record reveals Darielle was incarcerated at the time the parties entered into this judgment.

         On November 10, 2016, Darielle filed a Motion to Modify Child Custody, in which he indicated that he was no longer incarcerated and that joint custody would be in the best interest of the children. On December 12, 2016, the trial court approved a "Court Form Stipulation," providing that Elizabeth would maintain sole custody of the children, pending further orders of the court. It further provided that Darielle would have supervised visitation with the children, with his mother present at all times.[1]

         Thereafter, on February 6, 2017, Elizabeth filed an Answer and Reconventional Demand, seeking to maintain sole legal custody of the children. In her pleading, she asserted that she has been the primary caretaker of the children due to Darielle's "drug abuse and violent lifestyle." Elizabeth asserted that Darielle has an extensive criminal history, as well as a history of domestic violence against her. She also requested that Darielle be ordered to resume payment of his child support obligation, which was suspended during his incarceration, and that he be ordered to make payments toward his child support arrears, which exceeded $21, 000.

         On July 13, 2017, the trial court held a hearing on Darielle's Motion to Modify Custody and Elizabeth's Reconventional Demand, as well as other motions not at issue on appeal. At the hearing, Darielle testified that he was released from jail in December of 2015, and that he is currently employed. Darielle testified that he has a good relationship with his daughters, who were ages eight and five at the time of the hearing, that he has never abused them, and that he was seeking joint custody. He admitted that he has smoked marijuana in the past, but he indicated that he took a drug test a few days before this hearing and it was "clean."

         On cross-examination, Darielle acknowledged that he has failed to pay child support since he was released from jail, claiming "I don't know where [Elizabeth] stays at." He also admitted that he did not pay child support prior to his incarceration because he was not talking to Elizabeth, and that he has not paid child support in at least five years. Darielle acknowledged that his visitation with the children pending this hearing was ordered to be supervised, and he denied that he ever exercised his visitation without his mother being present.[2] Darielle testified that he has never hit Elizabeth or threatened her with harm. He admitted that he was incarcerated in 2015 because he had shot someone.

         Elizabeth testified that she has experienced domestic abuse at the hands of Darielle on more than one or two occasions. She recalled an incident in 2009 when she was pregnant during which Darielle pushed her out of the door and slammed the door on her stomach, causing her to be hospitalized for complications with her pregnancy. Elizabeth also testified regarding an incident in 2009, during which she was driving with Darielle and baby O.T.R. as passengers. She stated that they got into an argument and Darielle put his hands around her neck and slammed her head against the window. Then, as she drove over some railroad tracks, Darielle put her car in neutral, causing the car to stop on the tracks. She stated that after "struggling a little bit," she was able to put the car in drive and leave the railroad tracks.

         Elizabeth also testified regarding an incident in December of 2010, when Darielle hit her three or four times in the face while she was holding O.T.R., causing her face to hit O.T.R.'s cheek. She also testified about an incident in May 2012 when Darielle broke into her parent's house through a kitchen window, and she had to leave the house and go down the street to her uncle's house to call the police.[3] Additionally, Elizabeth testified about an incident when O.T.R. was one or two years old, where Darielle put his hands around her neck and threatened to hit her.[4]

         Elizabeth also testified that on many occasions, Darielle has threatened to kill her, and she has filed for protective orders several times. She testified about threatening text messages she received from Darielle, and the printouts from several text messages were admitted into evidence.

         Elizabeth testified that S.G.R. has told her that Darielle said he shot someone because they were "messing" with him. She believes the girls are scared of Darielle, and she has obtained mental health treatment for O.T.R. for anxiety and other emotional issues that have arisen since he was released from jail and "got back into their lives." According to Elizabeth, O.T.R. has also expressed that she is afraid she may go to jail if she makes a bad choice. Elizabeth requested that the trial court deny Darielle's Motion to Modify Custody "due to the instability and the violence and the drugs" she believes he would bring into the children's lives.

         At the conclusion of the hearing, the trial court found that Darielle has a history of perpetuating family violence on Elizabeth, triggering the application of the Post-Separation Family Violence Relief Act, La. R.S. 9:361, et seq. ("PSFVRA"). In accordance with the provisions of the Act, the trial court awarded sole custody to Elizabeth, with Darielle to have supervised visitation every Saturday from 2:00 p.m. to 6:00 p.m., as well as specified holidays. The trial court ordered that the supervisor for visitation shall be a police officer or other competent professional, and not a relative, friend, therapist, or associate of Darielle. Finally, the trial court ordered that unsupervised visitation shall only be allowed if it is shown by a preponderance of the evidence that Darielle has successfully completed a court-approved domestic abuse intervention ...

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