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Abrams v. Turner

Court of Appeals of Louisiana, Second Circuit

September 25, 2019

MICHAEL ABRAMS Plaintiff-Appellee
v.
BRITTANY TURNER Defendant-Appellant

          Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 2017-2618 (Civil) Honorable Alvin R. Sharp, Judge

          FAMILY JUSTICE CENTER Counsel for Appellant

          Sophia Dixon Brown MICHAEL ABRAMS In Proper Person

          Before WILLIAMS, MOORE, and COX, JJ.

          MOORE, J.

         Brittany Turner, a single mother residing in New Orleans, appeals a judgment that awarded her and her former partner joint custody of their two boys; however, the court named the father, Michael Abrams, who resides in Monroe, the domiciliary parent with primary custody of the boys during the school year. Ms. Turner alleges that the trial court clearly abused its discretion and argues that the weight of the evidence favored making her the domiciliary parent under La. C.C. art. 134.

         For the following reasons, we affirm the trial court judgment.

         PROCEDURAL HISTORY

         Michael Abrams filed a petition against Brittany Turner for sole custody of their two minor male children, Jayden and Amir, ages 10 and 5 years, respectively, alleging that Brittany had abandoned the children by dropping them off at her father's house in Shreveport and did not return to get them. Brittany answered denying that she abandoned her children, and filed a reconventional demand seeking sole custody of them on grounds that they have lived most of their lives with her with very little assistance from Michael.

         A Hearing Officer Conference ("HOC") was held on October 16, 2017, after which the hearing officer filed a report recommending that both parents share joint custody of the two children, but that Michael be designated the domiciliary parent. Brittany objected to the HOC report and its recommendations, and requested a trial on the matter. Pending trial, the court temporarily adopted the HOC joint custody implementation plan giving Michael primary custody and Brittany biweekly visitation. However, she did not exercise her visitation the seven months prior to trial.[1]

         At trial of the matter, July 9-11, 2018, both parents and two witnesses testified, and the court kept the record open until it held a Watermeir inquiry with the oldest child, Jayden, who by then was 11 years old. There was no interview with the younger boy, six-year-old Amir.

         On August 14, 2018, the court filed a judgment finding that of the factors listed in La. C.C. art. 134, factors (1), (6), (7), (10) and (11) were equal, but factors (2), (3), (4), (5), (8) and (9) weighed in favor of the father, and factor (12) favored the mother. Based in part on these findings, it awarded the parents joint custody of the children and named Michael, who lives in Monroe, the domiciliary parent, subject to reasonable visitation for Brittany. Michael was ordered to submit a visitation plan within 15 days. Neither party appeared at a subsequent hearing, set for September 14, 2018; correspondence in the record indicates that neither Michael nor Brittany's counsel received the judgment allegedly mailed on August 15, 2018. Michael notified the clerk's office on August 17, 2018, two days after the judgment was mailed, of a change of address and counsel notified the clerk's office that it did not receive the judgment. Subsequently, Michael submitted a proposed visitation plan on September 10, 2018, that lacked a determinate visitation schedule.

         This appeal followed.

         FACTS

         Brittany Turner and Michael Abrams began dating in the fall of 2006, while she was living and working as a medical coder in Houston, Texas. Although she is from New Orleans, Brittany moved to Houston in the aftermath of Hurricane Katrina. Michael works as a barber and instructor at Delta Community College in Monroe.

         Two children were born from the relationship. The first, Jayden, now age 12, was born on August 16, 2007, in Houston; the second, Amir, was born on November 13, 2012, in Monroe, and is now 6.

         Michael testified that Brittany called him in Monroe when the baby was six months old and told him he was the father.[2] He said he immediately went to Houston, accepted that he was the father, and began giving financial support to Brittany. Eventually Michael adopted the child and the boy's name was changed to Jayden Michael Abrams. For the next year and a half, the long-distance relationship continued with Brittany in Houston and Michael in Monroe.

         Brittany moved to Monroe in 2009 when Jayden was two years old. By 2011, the couple moved in together. She testified that she and Michael lived together a total of three years over the entirety of their relationship – from 2011 to 2013, and the year of 2016. She testified that Michael did not provide her with consistent support, and particularly he gave no financial support – only contributions of clothing and shoes and other items for the children.

         By contrast, Michael testified that between 2009 and 2014, when Brittany moved back to Houston, they lived together most of the time, but they occasionally split up temporarily over disagreements. He estimated they lived together four years out of that five-year period. He testified that he gave Brittany financial support.

         Brittany's main complaints regarding the rocky relationship with Michael were lack of financial support and Michael's very controlling and overbearing character. She said he would treat her kindly or help her financially only when she followed his rules. Toward the end of their relationship, she said that he harassed her at work with telephone calls belittling her and restricting her to her apartment. She said he referred to her as a "clown."

         Michael admitted that he has a lot of rules when he answered the court's questions regarding why he thought it would be advantageous for Jayden to live with him rather than Brittany. Contrary to Brittany's testimony, he said that when they lived together in Monroe, he paid the larger monthly bills and she paid the smaller bills.

         In 2014, Brittany went back to Houston, ostensibly to interview for a job at a medical billing facility. She testified that she and Michael discussed the job and interview before she left. Conversely, Michael testified that there was no discussion; he woke up and she was gone, leaving only a note on her pillow with an ultimatum that either they take the next step and get married or, presumably, it was over between them. She did not take the children with her.

         After a few weeks, she came back to Monroe to get Jayden, but left Amir with Michael. Both parents decided that Amir should stay in Monroe because he was so young. She also testified that for the next year and a half, she drove to Monroe once or twice a month. Once for a two-week period she kept Amir with her in Houston. She said that Michael drove to Houston to see the children only "about two times." Michael agreed that Brittany did most of the driving between Houston and Monroe, but he said that he had Amir with him almost the entire time except for the two-week visit in which he let her take Amir back with her. He confirmed that he and Brittany agreed that they would separate the kids during that period.

         Early in 2016, Brittany apparently became unemployed and returned to Monroe. By this time, Michael was in a new relationship with another woman. Apparently both children lived with Brittany at this time, and she came to Monroe without the means to get a place of her own. They moved into the home of a friend from the church she attended. This arrangement was short-lived for unspecified reasons. From there, she moved with the children into the home of another friend from the church. Finally, on June 1, 2016, Michael signed a lease for a duplex apartment for her, but he testified that Brittany paid the deposit. There is disputed testimony as to how much he assisted her with the rent or whether she paid it all herself. She testified that he helped her with the rent for two months, while he testified he helped her for four or five months and said he had checks to prove it.

         Even with this arrangement, their troubles continued. Brittany testified that during the one-year period from June of 2016 to June of 2017, when she moved out of the apartment, Michael came and went from the apartment unannounced, letting himself in while she was gone even though he did not live there. She said that he became controlling and ...


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