Opinion
NO. 2021 CU 1430
06-03-2022
Gerald Joseph MOORE, III v. Leslie Carol PRATER
Richard Ducote, Victoria McIntyre, Covington, Louisiana, Attorneys for Defendant/Appellant, Leslie Carol Prater Tammy Karas Griggs, Covington, Louisiana, Attorney for Plaintiff/Appellee, Gerald Joseph Moore, III
Richard Ducote, Victoria McIntyre, Covington, Louisiana, Attorneys for Defendant/Appellant, Leslie Carol Prater
Tammy Karas Griggs, Covington, Louisiana, Attorney for Plaintiff/Appellee, Gerald Joseph Moore, III
BEFORE: McDONALD, LANIER, AND WOLFE, JJ.
WOLFE, J. In this child custody case, the mother appeals a judgment that designates the father the domiciliary parent and sets forth a physical custody schedule, and also appeals the judgment denying her motion for new trial. We affirm.
FACTS
Gerald Joseph Moore, III, and Leslie Carol Prater are the parents of D.G.M., born on June 26, 2017. After the parties’ romantic relationship ended, Mr. Moore filed a petition to establish paternity and custody. The parties participated in a court-ordered hearing officer conference where they entered into a consent judgment that acknowledged Mr. Moore is D.G.M.’s biological father and awarded the parties "joint shared custody." The consent judgment contained an interim order that provided the parents would share physical custody in an equal manner according to an alternating weekly schedule, with provisions for dividing holidays, special occasions, and vacations. The issue of which parent would be designated the domiciliary parent was deferred. In an appendix to the consent judgment, the parties certified that to the best of their knowledge, neither party had a history of perpetrating family violence, domestic abuse, or sexual abuse. The consent judgment was signed by the trial court on October 18, 2019.
On April 15, 2020, the parties participated in another conference with the court's hearing officer to address the issues of domiciliary parent designation and the physical custody schedule. The parties acknowledged that an alternating weekly custody schedule would be unfeasible once D.G.M., who was then four years old, started school, given that Ms. Prater moved from St. Tammany Parish (where Mr. Moore lives) to Gonzales, in August 2019. After hearing testimony from both parents, the hearing officer concluded that although both parties seemed capable of providing care and affection for D.G.M., Mr. Moore seemed to be in a better position to provide a stable environment. The hearing officer recommended that the parties continue to share joint custody, with Mr. Moore designated as the domiciliary parent. With regard to the physical custody schedule, the hearing officer recommended that Mr. Moore have primary physical custody during the school year with Ms. Prater having physical custody on alternating weekends, and that Ms. Prater have primary physical custody during the summer months with Mr. Moore having physical custody on alternating weekends. The hearing officer additionally made recommendations for dividing physical custody times on holidays, special occasions, and vacations.
Ms. Prater filed a timely objection to the hearing officer's conference report, specifically objecting to the hearing officer's recommendation of naming Mr. Moore the domiciliary parent, the recommended physical custody schedule, and the characterization of Mr. Moore as better able to provide a stable environment for D.G.M. The trial court set the matter for hearing, making the hearing officer's recommendations the temporary order of the court. The hearing was continued after Ms. Prater obtained new counsel. In the meantime, Ms. Prater filed a motion to vacate the trial court's ruling that made the hearing officer's recommendation the temporary order of the court, which the trial court denied.
The hearing was held on August 17, 2020, and both parties testified, called witnesses, and presented evidence. At the conclusion of the hearing, the trial court named Mr. Moore the domiciliary parent. The trial court noted that both parties asked for a physical custody schedule more consistent with joint custody rather than joint and shared custody, which it considered to be an expansion of the pleadings. The trial court stated that a physical custody schedule would be provided in forthcoming written reasons.
On December 28, 2020, the trial court issued written reasons for judgment, stating that Ms. Prater lacked credibility and that the evidence presented was more favorable to Mr. Moore and less favorable to Ms. Prater. Based on those findings, the trial court ordered that the parties exercise physical custody as recommended by the hearing officer, with Mr. Moore having primary physical custody and Ms. Prater having physical custody on alternating weekends during the school year, and Ms. Prater having primary physical custody and Mr. Moore having physical custody on alternating weekends during the summer months. The trial court additionally set forth a physical custody schedule for holidays and vacations. A written judgment memorializing the trial court's rulings on domiciliary parent status and the physical custody schedule was signed on April 13, 2021. Ms. Prater filed a motion for new trial, which the trial court denied.
Judge Mary C. Devereux, now retired, conducted the hearing, made the oral rulings on domiciliary parent status and the physical custody schedule, and issued the written reasons for judgment. The April 13, 2021 judgment was signed by Judge Devereux's successor, Judge Patrice W. Oppenheim, who also rendered the judgment on the motion for new trial. See La. R.S. 13:4209.
Ms. Prater now appeals, asking this court to reverse and vacate the April 13, 2021 judgment and either render judgment designating Ms. Prater the domiciliary parent and primary custodian or remand the case for a new trial to determine the best interest of the child.
DISCUSSION
Each child custody case must be viewed in light of its own particular set of facts and circumstances, with the paramount consideration being the best interest of the child. La. Civ. Code art. 131 ; Underwood v. Underwood, 2021-0277 (La. App. 1st Cir. 10/21/21), 332 So.3d 128, 139. It is the child's emotional, physical, material, and social well-being and health that are the court's very purpose in child custody cases, and the court must protect the child from the real possibility that the parents are engaged in a bitter, vengeful, and highly emotional conflict. See C.M.J. v. L.M.C., 2014-1119 (La. 10/15/14), 156 So.3d 16, 28. The trial court is in the best position to ascertain the best interest of the child given the unique circumstances of the particular case; thus, the trial court's custody determination is entitled to great weight and will not be disturbed on appeal unless an abuse of discretion is clearly shown. Yepez v. Yepez, 2021-0477 (La. App. 1st Cir. 12/22/21), 340 So.3d 36, 40–41 (2021 WL 6065805, *3).
In this case, the parties were awarded joint custody in the October 18, 2019 consent judgment. When joint custody is ordered, La. R.S. 9:335 governs the details of the custody arrangement, including physical custody, as well as the legal authority and responsibility of the parents, providing:
At the August 17, 2020 hearing, Ms. Prater, through her newly retained counsel, argued that the joint custody award was not a final judgment and therefore the entire custody arrangement was at issue. The trial court disagreed, stating the only issues before the court were domiciliary parent status and the physical custody schedule. On appeal, Ms. Prater again attempts to challenge the award of joint custody, arguing that Mr. Moore should not have been awarded any form of custody based on the evidence she presented. Ms. Prater did not file a motion to modify the consent judgment; therefore, the trial court correctly determined that joint custody was not at issue at the August 17, 2020 hearing. Consequently, the award of joint custody is not at issue in this appeal and will not be addressed herein. Accord K.S. v. K.J.S., 2020-0857 (La. App. 1st Cir. 2/25/21), 2021 WL 727666, *4 n.5 (unpublished).
A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.
(2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
(b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.
(c) The implementation order shall include a provision that when either party is required to evacuate this state with a minor child because of an emergency or disaster declared under the provisions of R.S. 29:721 et seq., or declared by federal authority and it becomes impossible for the parties to exercise custody as provided in the judgment, the parties shall engage in continuous communication regarding the safe evacuation of the child, the location of the child during and after the emergency or disaster, and an interim custody plan for the child until the custody provisions of the judgment can be resumed.
(3) The implementation order shall allocate the legal authority and responsibility of the parents.
B. (1) In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.
(2) The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents.
(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.
C. If a domiciliary parent is not designated in the joint custody decree and an implementation order does not provide otherwise, joint custody confers upon the parents the same rights and responsibilities as are conferred on them by the provisions of Title VII of Book I of the Civil Code.
The language of La. R.S. 9:335 illustrates that the paramount consideration in establishing the details of the custody arrangement, just as in the determination of whether joint custody is appropriate, is the best interest of the child. See Aucoin v. Weaver, 2020-0364 (La. App. 1st Cir. 11/6/20), 315 So.3d 296, 299. The trial court enjoys great procedural flexibility in crafting a custody arrangement tailored to the specific facts and circumstances of the individual case that promotes the child's best interest. Hodges v. Hodges, 2015-0585 (La. 11/23/15), 181 So.3d 700, 709 ; see also La. Civ. Code art. 131.
Louisiana Civil Code article 134(A) provides a non-exclusive list of factors that the trial court shall consider, along with any other relevant factors, in determining the best interest of the child. The weight to be given each factor is left to the discretion of the trial court. Hodges, 181 So.3d at 703. In making its determination, the trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in Article 134, but should decide each case on its own facts in light of those factors. Underwood, 332 So.3d at 140.
Louisiana Civil Code article 134(A) pertinently provides:
[T]he court shall consider all relevant factors in determining the best interest of the child, including:
(1) The potential for the child to be abused, as defined by Children's Code Article 603, which shall be the primary consideration.
(2) The love, affection, and other emotional ties between each party and the child.
(3) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(4) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(5) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(6) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(7) The moral fitness of each party, insofar as it affects the welfare of the child.
(8) The history of substance abuse, violence, or criminal activity of any party.
(9) The mental and physical health of each party. Evidence that an abused parent suffers from the effects of past abuse by the other parent shall not be grounds for denying that parent custody.
(10) The home, school, and community history of the child.
(11) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(12) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child's safety or well-being while in the care of the other party.
(13) The distance between the respective residences of the parties.
(14) The responsibility for the care and rearing of the child previously exercised by each party.
On appeal, Ms. Prater contends the trial court failed to engage in a best interest of the child analysis and abused its discretion in "rooting its custody decision in hollow ipse dixit ‘credibility’ determinations that are wholly unsupported on the record." She further contends that no reasonable consideration and examination of the record and evidence supports the trial court's ruling, arguing instead that the only custody judgment that should have been rendered was one placing the child in her custody.
In a custody proceeding, the trial court "sits as a sort of fiduciary on behalf of the child, and must pursue actively that course of conduct which will be of the greatest benefit to the child." C.M.J., 156 So.3d at 28 (quoting Turner v. Turner, 455 So.2d 1374, 1379 (La. 1984) ). The trial court is not bound to make a mechanical evaluation or provide a literal articulation of the best interest of the child factors listed in Article 134. See Underwood, 332 So.3d at 140 ; Manno v. Manno, 49,533 (La. App. 2nd Cir. 11/19/14), 154 So.3d 655, 663. Nor is the trial court required to specifically explain its weighing and balancing of the Article 134 factors. Manno, 154 So.3d at 663 ; see also Bergmann v. Nguyen, 2021-0553 (La. App. 4th Cir. 4/27/22), ––– So.3d ––––, ––––, (2022 WL 1238232, *12). Rather, the trial court should decide each case on its own facts and circumstances in light of the Article 134 and other relevant factors. Underwood, 332 So.3d at 140.
Before making its oral ruling at the conclusion of the hearing, the trial court confirmed its obligation to act in the best interest of the child. The trial court's subsequent review of the evidence indicates that it properly considered the totality of the facts and circumstances of this case in light of the Article 134 factors. Ms. Prater's arguments that the trial court's reasons per se interdict the validity of its judgment and require de novo review by this court are without merit.
In its oral reasons, the trial court stated that based on the testimony and evidence presented, it was convinced the parties were "two very flawed people," each having past and present problems. The trial court acknowledged that the six-minute recording of Mr. Moore screaming at Ms. Prater and repeatedly telling her to leave, which Ms. Prater submitted as evidence, was "bad." However, the trial court applauded Mr. Moore's decision to subsequently participate in an anger management program to address his behavior. The trial court stated it did not believe Ms. Prater's testimony about the child exhibiting sexual behavior or her claims that Mr. Moore physically abused her. However, the trial court indicated it did believe Mr. Moore's testimony about the child repeatedly becoming upset about returning to Ms. Prater's home after spending custodial time with Mr. Moore.
In its written reasons, the trial court reiterated its credibility determinations, stating:
During the August 17, 2020, trial of this matter, [Ms.] Prater and [Mr.] Moore ... both testified regarding their relationship and parenting. [Mr.] Moore ... called two witnesses .... The Court heard the testimony of the parties and the witnesses, and found Ms. ... Prater to lack credibility. The Court found Mr. Moore to be a more credible witness based on his testimony and the testimony of the witnesses he called in support.
Accordingly, the trial court named Mr. Moore the domiciliary parent and awarded him primary custody during the school year, with Ms. Prater having primary custody during the summer months.
When presented with two permissible views of the evidence, the trial court's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State through Department of Transportation and Development, 617 So.2d 880, 882-83 (La. 1993). Furthermore, it is well-settled that where there is a conflict in testimony, the trial court's reasonable evaluations of credibility and reasonable inferences of fact are not to be disturbed by a reviewing court. Moore v. Moore, 2018-1713 (La. App. 1st Cir. 5/1/19), 276 So.3d 1063, 1068. If documents or objective evidence so contradict a witness's story, or the story itself is so internally inconsistent or implausible that a reasonable fact finder would not credit it, the reviewing court may find manifest error or clear wrongness, even in a finding purportedly based upon a credibility determination. But in the absence of such factors, where the finding is based on the trial court's decision to credit the testimony of one party over the other, the finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-45 (La. 1989). One court has observed:
In child custody cases where two parents are fervently competing for custody and domiciliary status of the children, frequently the trial court must determine the best interest of the children solely from the testimony of the parents and their respective relatives or friends. This naturally passionate and self-interested testimony is rarely objective, leaving it to the trial court, who is in the best position to view firsthand the demeanor and tone of the witnesses, to assess the credibility of the witnesses, and decide how much weight to give the testimony in light of the factors in [ Article] 134.
Fuller v. Fuller, 54,098 (La. App. 2nd Cir. 7/21/21), 324 So.3d 1103, 1114, writ denied, 2021-01223 (La. 9/27/21), 324 So.3d 621 (citation omitted).
Here, the trial court was required to make a credibility determination to confect a custody arrangement that is in D.G.M.’s best interest. After careful review of the record, we find that the trial court's determination that Mr. Moore was more credible than Ms. Prater is reasonably supported by the record. Based primarily on its credibility determination, the trial court found that naming Mr. Moore the domiciliary parent was in D.G.M.’s best interest. Giving deference to the credibility determinations made by the trial court, we find no error in the trial court's decision to name Mr. Moore the domiciliary parent. Further, we find no error in the physical custody schedule set forth by the trial court. The parties conceded at the hearing officer conference that a rotating shared custody schedule would be unworkable once D.G.M. started school. The trial court's physical custody schedule reflects its attempt to balance the parties’ physical custody time in light of the child's school obligations and the distance between the parties’ homes. Finding no manifest error or abuse of discretion, we defer to the trial court's ruling.
On appeal, Ms. Prater contends that "significantly damning documentary and audio evidence against Mr. Moore" undermines the trial court's endorsement of his credibility. (Appellant's supp brief p.4) However, the trial court addressed the audio recording in its oral reasons and clearly chose to give it less weight than other evidence. On appeal, a trial court's assessment of the probative value of evidence is accorded great weight and will not be disturbed absent a clear abuse of discretion. In re Custody of Ricard, 2004-2573 (La. App. 1st Cir. 2/11/05), 906 So.2d 544, 546.
Finally, Ms. Prater contends that the trial court manifestly abused its discretion in denying her motion for new trial, despite "essentially agree[ing] with the premise of the new trial motion[.]"
Interlocutory judgments, such as the denial of a motion for new trial, may be considered as part of an unrestricted appeal from a final judgment. Succession of Coon, 2020-0673 (La. App. 1st Cir. 12/30/20), 318 So.3d 947, 949 n. 1, writ denied, 2021-00126 (La. 3/16/21), 312 So.3d 1101.
A new trial shall be granted upon contradictory motion of any party when the judgment appears clearly contrary to the law and the evidence, or when the party has discovered new evidence that she could not have obtained before or during trial. See La. Code Civ. P. art. 1972. Additionally, a new trial may be granted in any case if there are good grounds therefor. See La. Code Civ. P. art. 1973. A new trial should be ordered when the trial court, exercising its discretion, is convinced by its examination of the facts that the judgment would result in a miscarriage of justice. Henry v. Sullivan, 2016-0564 (La. App. 1st Cir. 7/12/17), 223 So.3d 1263, 1272. The denial of a motion for new trial, whether on peremptory or discretionary grounds, should not be reversed unless there has been an abuse of the trial court's discretion. Rao v. Rao, 2005-0059 (La. App. 1st Cir. 11/4/05), 927 So.2d 356, 361, writ denied, 2005-2453 (La. 3/24/06), 925 So.2d 1232.
The motion for new trial was presented to Judge Oppenheim, the successor judge to Judge Devereux, who presided over the hearing and made the custody rulings. In her motion, Ms. Prater essentially made the same arguments as in this appeal. Judge Oppenheim denied the motion, noting the legal principle that trial court judges are presumed to have followed the law. Judge Oppenheim noted that she would have articulated her application of the Article 134A factors differently than Judge Devereux had in her written reasons; but, Judge Oppenheim also pointed out that Judge Devereux's reasons stated that she had considered the evidence presented and applicable law. Thus, Judge Oppenheim interpreted the written reasons to mean that all of the Article 134 factors were considered. Ms. Prater's bold assertion that Judge Oppenheim essentially agreed with her motion is unsupported by the record. For the same reasons that we find no error in the trial court's custody judgment, we find no abuse of discretion in the trial court's denial of the motion for new trial.
CONCLUSION
The trial court's April 13, 2021 judgment naming Gerald Joseph Moore, III, the domiciliary parent and the parties’ physical custody schedule is affirmed, as is the trial court's August 16, 2021 judgment denying Leslie Prater's motion for new trial. Costs of this appeal are assessed to Leslie Carol Prater.