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Joubert v. Joubert

Court of Appeals of Louisiana, Third Circuit

October 9, 2019

HALEY PRUDHOMME JOUBERT
v.
JOBY CHASE JOUBERT

          APPEAL FROM THE THIRTEENTH JUDICIAL DISTRICT COURT PARISH OF EVANGELINE, NO. 76114-A HONORABLE GARY J. ORTEGO, DISTRICT JUDGE

          K. Ray Rush Attorney at Law COUNSEL FOR PLAINTIFF/APPELLANT: Haley Prudhomme Joubert

          Gilbert J. Aucoin II Attorney at Law COUNSEL FOR PLAINTIFF/APPELLANT: Haley Prudhomme Joubert

          Jacob B. Fusilier Fusilier & Associates COUNSEL FOR PLAINTIFF/APPELLANT: Haley Prudhomme Joubert

          Chris Villemarette Attorney at Law COUNSEL FOR DEFENDANT/APPELLEE: Joby Chase Joubert

          Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar, Judges.

          SHANNON J. GREMILLION JUDGE.

         The plaintiff, Haley Prudhomme Joubert (Haley), appeals the trial court's judgment in favor of the defendant, Joby Chase Joubert (Chase)[1], finding that La.R.S. 9:361 et seq. (Post-Separation Family Violence Relief Act) was inapplicable to her claims for full custody of their son. For the following reasons, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         Haley and Chase married in December 2014, and one child was born of the marriage, C.J.[2] In March 2016, Haley filed for divorce and requested injunctive relief alleging that Chase had a history of physically and verbally abusing her. A temporary restraining order was issued on March 30, 2016. The parties entered into a consent judgment in November 2016, in which both parties were given joint custody of C.J. with Haley being designated domiciliary parent. Chase was awarded weekend visitation.

         In January 2017, Haley filed a rule for emergency modification of custody and visitation and a rule for contempt. In that rule she alleged that upon picking C.J. up from Chase, he had bruising and swelling on his lower back and buttocks and that emergency room personnel told her that sexual abuse may be the cause of the bruising and swelling. Chase filed a motion and order for contempt alleging that Haley was not allowing him to have his scheduled visitation with C.J.

         In April 2017, Haley filed a petition for judgment of divorce in accordance with La.Code Civ.P. art. 3952, the passage of 365 days of living separate and apart. The trial court rendered an interim judgment on May 10, 2017, maintaining the consent judgment entered into by the parties except that Chase "shall have no visitation with the minor child pending further order of this Court." That same day a judgment of divorce was granted.

         On March 26, 2018, the parties entered into a stipulated judgment reinstating the consent judgment of November 2016 except for changes in the payment of child support and the location of the exchange of C.J.

         In September 2018, Haley filed a petition for protection under La.R.S. 9:361 and a rule for modification of custody, alleging that C.J. suffered serious emotional and physical abuse at the hands of Chase. Attached to that petition were medical documents reflecting a quarter-sized burn on C.J.'s ankle from a minibike motorcycle. The trial court denied the temporary restraining order Haley requested. Haley filed supervisory writs with this court. She also requested an expedited consideration on the stay of visitation, which the trial court denied. Chase answered Haley's petition and filed a rule for modification of custody and for contempt. In it, he denied all allegations of abuse, stating that Haley was fabricating claims against him.

         On October 25, 2018, we granted Haley's writ and ordered the issuance of a temporary restraining order. Following a two-day hearing on October 31, 2018 and November 30, 2018, the trial court found that "the injury to the minor child was accidental and not as the result of abuse or neglect. The court finds no changes in the circumstances warranting a modification of custody." Haley's motion was denied, and the consent judgment of November 2016 was reinstated. In November 2018, Chase filed a motion for contempt against Haley.

         Haley now appeals and assigns as error:

The trial court erred as a matter of law by applying the "material change of circumstances" standard and by failing to find appellee, Joby Chase Joubert, had a history of perpetuating family violence, such that the ...

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