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State ex rel. C.D.

Court of Appeals of Louisiana, Fourth Circuit

December 19, 2018

STATE OF LOUISIANA IN THE INTEREST OF C.D. & C.D.

          APPEAL FROM JUVENILE COURT ORLEANS PARISH NO. 2018-145-06-DT-A, SECTION "A" Honorable Ernestine S. Gray, Judge

          Andrew Lewis Kramer Attorney at Law COUNSEL FOR APPELLANT

          LaKeisha N. Jefferson JEFFERSON LAW FIRM, APLC COUNSEL FOR APPELLEE

          Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown

          JENKINS, J., DISSENTS WITH REASONS

          Paula A. Brown Judge

         This matter arises out of petitions for protection from abuse filed in Civil District Court for the Parish of Orleans ("civil district court") and in Orleans Parish Juvenile Court ("juvenile court"). Appellant, Eleanor Dymond ("Ms. Dymond"), appeals the juvenile court's August 23, 2018 judgment which denied her motion to dismiss for lack of subject matter jurisdiction and granted the petition for protection from abuse filed by Appellee, Christian Culotta ("Mr. Culotta"). For the reasons that follow, we affirm the judgment.

         FACTUAL AND PROCEDURAL HISTORY

         Ms. Dymond and Mr. Culotta are the parents of two minor children, C.D, born July 12, 2012, and C.D., born July 7, 2013 (collectively, "the minor children"). Ms. Dymond and Mr. Culotta never married.

         In December 2013, Ms. Dymond filed a petition for custody of the minor children in civil district court. On October 6, 2016, the district court signed a stipulated consent judgment ("Consent Judgment"). The parties agreed to joint custody. Primarily, Ms. Dymond had physical custody of the minor children during the school week and Mr. Culotta had physical custody on most weekends. The Consent Judgment also contained a proviso that prohibited Antoine Saacks, III ("Mr. Saacks")[1]-Ms. Dymond's boyfriend at that time-from being in the presence of the minor children.

         On April 23 2018, Mr. Culotta, appearing pro se, filed a petition for protection from abuse in civil district court (the "CDC Petition")[2] pursuant to the Domestic Abuse Assistance statues promulgated in La. R.S. 46:2131 et seq.[3] Mr. Culotta alleged, in part, that Mr. Saacks and Ms. Dymond engaged in physical altercations with one another; the minor children witnessed these acts; Ms. Dymond allowed Mr. Saacks to spank the youngest daughter; and Ms. Dymond had violated the Consent Judgment by permitting Mr. Saacks to be around the children. Mr. Culotta obtained an ex parte Temporary Restraining Order ("TRO"), which granted Mr. Culotta immediate temporary custody of the children, pending a show cause hearing on the merits on May 22, 2018.

         On May 17, 2018, Mr. Culotta, through counsel, filed a supplemental petition and amended petition for protection from abuse (the "Amended Petition") in civil district court. In contrast to the original CDC Petition, the Amended Petition was filed under La. Ch.C. art. 1564, et seq., [4] the Children's Code Domestic Abuse Assistance Chapter. Mr. Culotta alleged in the Amended Petition that Ms. Dymond allowed Mr. Saacks to physically abuse the youngest child, and to physically harm and discipline the minor children. Mr. Culotta also alleged the Department of Children and Family Services ("DCFS") had launched an on-going investigation into these abuse allegations.

         On May 22, 2018, Ms. Dymond and Mr. Culotta appeared in civil district court on a motion to clarify, enforce, and/or modify consent judgment ("Motion to Modify"), filed by appointed counsel on behalf of the minor children. Mr. Culotta's TRO was also fixed on the same day.[5] During the pre-trial conference on both matters, Mr. Culotta's counsel informed the district court that Mr. Culotta intended to seek relief on his CDC and Amended Petitions in juvenile court as she did not believe civil district court had jurisdiction over the allegations raised in the Amended Petition.

         Following the conference, the district court conducted a hearing only on the Motion to Modify. The district court, after hearing argument of counsel, ordered the removal of the provision within the Consent Judgment which barred Mr. Saacks from being in the presence of the minor children.[6]

         As to the TRO, again, counsel for Mr. Culotta urged that his petitions be transferred to juvenile court due to civil district court's lack of jurisdiction. Thereafter, on May 29, 2018, the district court denied Mr. Culotta's proposed judgment to transfer the CDC and Amended Petitions to juvenile court. The district court judge also wrote the word "moot" on the Amended Petition as it pertained to the order for Ms. Dymond to show cause on May 22, 2018 why the TRO should not be made a protective order. The TRO expired on May 22, 2018 at 11:59 p.m.

         On May 25, 2018, three days after the expiration of the TRO, Mr. Culotta filed a petition for protection from abuse in juvenile court (the "JC Petition") pursuant to La. Ch.C. art. 1564, et seq. The JC Petition raised essentially the same allegations as pled in the Amended Petition. In response to the JC Petition, Ms. Dymond filed a motion to dismiss based on exceptions of lis pendens and res judicata. On June 19, 2018, after a hearing on the exceptions, the juvenile court denied the motion to dismiss and the exceptions.[7]

         On July 11, 2018, the juvenile court conducted a hearing on the merits of the JC Petition. The juvenile court took the matter under advisement and allowed the parties to submit post-trial memoranda. Ms. Dymond's post-trial memorandum included a motion to dismiss for lack of jurisdiction pursuant to La. Ch. C. art. 303(9).[8] In his opposition, Mr. Culotta filed a motion to strike Ms. Dymond's post-trial memorandum.

         Following an August 23, 2018 hearing on the post-trial motions, the juvenile court denied Ms. Dymond's motion to dismiss for lack of jurisdiction and granted Mr. Culotta's JC Petition. The protective order-made effective through January 23, 2019-granted Mr. Culotta temporary custody of the children. Ms. Dymond was awarded unsupervised visitation rights and physical custody on most weekends, ...


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