STATE OF LOUISIANA IN THE INTEREST OF C.D. & C.D.
FROM JUVENILE COURT ORLEANS PARISH NO. 2018-145-06-DT-A,
SECTION "A" Honorable Ernestine S. Gray, Judge
Lewis Kramer Attorney at Law COUNSEL FOR APPELLANT
LaKeisha N. Jefferson JEFFERSON LAW FIRM, APLC COUNSEL FOR
composed of Judge Roland L. Belsome, Judge Sandra Cabrina
Jenkins, Judge Paula A. Brown
JENKINS, J., DISSENTS WITH REASONS
A. Brown Judge
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.
AND PROCEDURAL HISTORY
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.
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")-Ms. Dymond's boyfriend at that
time-from being in the presence of the minor children.
April 23 2018, Mr. Culotta, appearing pro se, filed
a petition for protection from abuse in civil district court
(the "CDC Petition") pursuant to the Domestic Abuse
Assistance statues promulgated in La. R.S. 46:2131 et
seq. 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.
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.,
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.
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
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.
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.
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.
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.
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). In his opposition, Mr. Culotta filed a
motion to strike Ms. Dymond's post-trial memorandum.
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, ...