Opinion
NO. 2023 CU 1004
03-22-2024
Steven Charles WEICKS and Kristine Lynn Chauvin Weicks v. Eric Robert STROMBERG
Michael D. Conroy, Nisha Sandhu, Covington, Louisiana, Attorneys for Appellant, E.R.S. Tammy M. Nick, Slidell, Louisiana, Attorney for Appellees, S.C.W. and K.L.C.W.
Appealed from the 22nd Judicial District Court, Parish of St. Tammany, State of Louisiana, No. 2020-15323, The Honorable Dawn Amacker, Judge Presiding
Michael D. Conroy, Nisha Sandhu, Covington, Louisiana, Attorneys for Appellant, E.R.S.
Tammy M. Nick, Slidell, Louisiana, Attorney for Appellees, S.C.W. and K.L.C.W.
BEFORE: WELCH, WOLFE, AND STROMBERG, JJ.
WOLFE, J.
2The biological father appeals a judgment that awarded sole custody of his minor child to the maternal grandparents after the death of the child’s mother. We affirm.
FACTS
E.S.S. (the child) is the biological child of E.R.S. (the father) and A.S.W. (the mother). The parents met in 2011, during the mother’s senior year of high school, when the mother was eighteen years old and living with her parents, S.C.W. and K.L.C.W. (the grandparents). The father was seventeen years old. When the father could no longer live at the home in which he was staying, he moved into the grandparents’ home. The mother and the father moved to an apartment while the mother attended college, but they moved back in with the grandparents after the mother became pregnant in 2012. E.S.S. was born June 24, 2013. The mother, the father, and the child lived with the grandparents until the parents ended their relationship in 2014. The father briefly returned to live in the grandparents’ home when he and the mother reconciled; however, the relationship soon permanently ended.
The initials of the child, the parents, and the grandparents tire used herein in accordance with Uniform Rules - Courts of Appeal, Rule 5-2.
No formal custody arrangement was reduced to writing; however, the child continued living with the mother and the grandparents after the father moved out of the grandparents’ home. The father began paying child support in 2015, but was often unable to pay due to his unstable employment status. The father remained in contact with the child as the mother allowed or as he was inclined. The father moved to Oregon in 2017, where he obtained employment and married in 2018. After relocating to Oregon, the father had some video communications with the child, and 3he began communicating with the child through video games after he bought the child a Nintendo Switch when she was four years old.
The mother died of fentanyl poisoning on December 6, 2020. The grandparents promptly instituted this suit, seeking custody of the seven-year-old child, including an emergency ex parte award of temporary custody. They alleged that they had raised, housed, and provided for the child since birth, that the father had not seen the child in more than four years, that his address was unknown, that he had only sporadic contact with the child, and that he had not consistently provided child support. Based on the allegations, the trial court granted emergency ex parte custody of the child to the grandparents and set the matter for hearing.
The next day, the father filed a motion to dissolve or modify the trial court’s ex parte custody order. He confirmed that he was domiciled in Oregon and alleged that historically, he had been denied visitation with the child, but he regularly communicated with her via FaceTime calls. He accused the grandparents of failing to notify him of the mother’s death and misrepresenting that they did not know his address, that he failed to pay child support, and that they notified him of their intent to seek ex parte custody of the child. To the contrary, the father alleged that his address was on a package recently delivered to the grandparents’ home, that his wages had been garnished during the preceding ten months to satisfy his child support obligation, and that the grandparents failed to tell him they were seeking ex parte custody of the child despite his attendance at the mother’s funeral, which took place after the grandfather signed the affidavit verifying the allegations of the custody request. The father claimed that, since his arrival in Louisiana on the day before the mother’s funeral, he was allowed only one FaceTime call with the child and only one visit with the child, which occurred at the mother’s funeral, despite the fact that he was still in Louisiana at the time his motion was filed, four days later. The father asked the trial court to dissolve the ex parte custody order or, 4alternatively, to modify the order and grant him visitation with the child during his stay in Louisiana. Considering the motion, the trial court modified its ex parte custody order to award the father limited visitation, with the restriction that the child remain in the jurisdiction of the court.
The grandparents thereafter filed a supplemental and amended petition that included allegations that the father had threatened suicide on multiple occasions, was controlling and physically abusive to the mother, was financially irresponsible and failed to support the child until compelled to do so by child support enforcement, and had an unstable employment history that included having been fired in 2013 from his job at a residential care facility for threatening to kill patients. They further alleged that the father never had a bonded relationship with the child, having had only limited contact with her before the mother died. The grandparents contended that an award of joint or sole custody to the father would result in substantial harm to the child.
An emergency custody hearing was conducted on January 28, 2021. Although the father had not yet responded to the allegations of the grandparents’ supplemental and amending petition, it was agreed that those allegations would be considered along with those of the original petition. The parties additionally agreed to the appointment of Dr. Kristen Luscher to conduct a full custody evaluation before the full custody hearing.
After hearing testimony from the father and the grandparents, the trial court found that because of the "chaotic relationship" between the mother and the father, the only stability the child had ever known was with the grandparents, with whom she had lived in a wholesome and stable environment for almost her entire life. Recognizing that the father was "trying in his way to have a relationship with his child," the trial court stated it had "some grave concerns in this case." The trial court explained that it believed the father had a history of domestic violence toward the 5mother, had anger issues, possible substance abuse and mental health issues, had a history of financial instability and lack of responsibility, lacked candor and insight, and had made disturbing social media posts relative to drug use and suicide. The trial court found that substantial harm would result to the child in the event that joint or sole custody was awarded to the father, at least during the pendency of a full custody evaluation that could explore the trial court’s noted concerns. Thus, the trial court awarded temporary sole custody of the child to the grandparents. The father was awarded visitation to occur in Louisiana, which could be supervised or unsupervised at the grandparents’ discretion. The trial court also ordered the father to add the child to his insurance so that the child could begin seeing a therapist, who could provide guidelines for the father’s continued communication with the child. The trial court urged the parties to move past their bitterness and work toward a goal of the father having increased time with the child, subject to decreased conditions and restrictions.
Dr. Luscher’s custody evaluation took more than one year to complete and included multiple interviews with the father and his wife, the grandparents, the child, and other witnesses; psychological testing of the father and the grandfather; and observation of the child with the father and the grandparents. In her May 26, 2022 report, Dr. Luscher recommended that the father and the grandparents share joint legal custody of the child, with the grandparents retaining domiciliary custody of the child in Louisiana. Dr. Luscher recommended that the father have liberal periods of custody while the child was out of school and that the parties implement a long-term plan to increase the father’s custodial time.
6In advance of the full custody hearing, the father requested a Watermeier hearing to permit the child to express her preference on the issue of custody. Over the grandparents’ objection, the trial court granted the father’s request and conducted the Watermeier hearing on March 9, 2023, the date of the custody hearing. The trial court determined that the child, who was then nine years old, was "of an age and competent to testify in connection with [the] matter," and interviewed the child about her preference. During the custody hearing, the trial court accepted Dr. Luscher as an expert in the field of child custody and the custody evaluation was introduced into evidence. The father, his wife, and the grandparents then testified as to both the issues covered at the emergency custody hearing and those that had arisen since entry of the temporary custody order and receipt of Dr. Luscher’s report. Notably, the father had visited the child in Louisiana only a few times, had once more changed jobs, and had moved with his wife from Oregon to Las Vegas, Nevada. Based on the testimony and evidence presented, in a judgment signed on May 4, 2023, the trial court again found that the father had a history of perpetrating family violence against the mother and, based on the entirety of the evidence, that an award of joint or sole custody to the father would result in substantial harm to the child. The trial court awarded sole custody of the child to the grandparents and granted the father supervised visitation.
A Watermeier hearing is a closed hearing, held outside the presence of the parents but in the presence of their attorneys, on the record, in which the judge may interview the child after determining that the child is "a person of proper understanding." See Watermeier v. Watermeier, 462 So.2d 1272, 1274 (La. App. 5th Cir.), writ denied, 464 So.2d 301 (La. 1985); see also State v. Titus, 2018-1511 (La. App. 1st Cir. 2/28/19), 274 So.3d 591, 598.
The father now appeals, arguing that the evidence does not support a finding of domestic violence against him and that there is not clear and convincing evidence to support an award of sole custody to the grandparents.
7 DISCUSSION
[1] 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. See La. Civ. Code art. 131; Cook v. Sullivan, 2020-01471 (La. 9/30/21), 330 So.3d 152, 157. However, consideration of the best interest of the child must be balanced with the fundamental rights of the parent to make decisions concerning the care, custody, and control of his child. See Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000); Cook, 330 So.3d at 158.
[2] When a non-parent seeks custody of a child, the parent’s right to custody is superior unless the parent is unable or unfit, having forfeited parental rights. Cook, 330 So.3d at 158. La. Civ. Code art. 133 sets forth the standard applicable to such disputes, stating:
If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.
[3] In recognition of the parent’s paramount right to custody, La. Civ. Code art. 133 requires the court to first determine that an award of custody to the parent would cause substantial harm to the child before it deprives the parent of custody. Cook, 330 So.3d at 158; see also La. Civ. Code art. 133, Revision Comments - 1993, comment (b). Thus, the non-parent seeking custody bears the initial burden of proving by clear and convincing evidence that awarding custody to the parent would result in substantial harm to the child. Cook, 330 So.3d at 158. Only if the non-parent meets this heightened burden of proving that substantial harm to the child would result from an award of custody to the parent does the court proceed to consider the best interest of the child and award custody to a non-parent with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment. See 8La. Civ. Code art. 133; Cook, 330 So.3d at 158; Carpenter v. McDonald, 2012-1460 (La. App. 1st Cir. 2/13/13), 2013 WL 557020, *2 (unpublished), writ denied, 2013-0747 (La. 4/26/13), 112 So.3d 850.
[4, 5] It is well-settled that an appellate court cannot set aside a trial court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). The manifest error standard demands great deference to factual findings that are based on credibility determinations. Rosell, 549 So.2d at 844. A 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. Baker v. Perret, 2019-1692 (La. App. 1st Cir. 8/27/22), 349 So.3d 594, 600, writ denied, 2022-01444 (La. 11/1/22), 349 So.3d 1.
[6] The father’s arguments on appeal focus primarily on his contention that there was insufficient evidence to support the trial court’s finding that he was a perpetrator of family violence. At trial, the grandfather testified that the father and the mother had a "tumultuous" relationship, which he personally observed while the father lived in the grandparents’ home. The grandfather asked the father to move out of his house twice as a result of issues that included the father’s inability to get and keep a job, refusal to assist in caring for the child, gambling rather than providing for the child, and unfaithfulness to the mother.
When asked if he observed incidents of domestic violence, the grandfather answered that "[t]he biggest thing" occurred while the mother and the father were living in Hammond. The grandfather explained that the mother called, "frantic," saying that she and the father argued and that the father choked her. When the 9grandparents arrived at the apartment, the father "couldn't be found" and the mother "had obvious choke marks on her neck [that] you could see." When asked if he observed other incidents, the grandfather explained that the father had "violent outbursts," which included "pushing back and forth, things of that nature," when fighting with the mother.
At the emergency custody hearing, the father objected to testimony about what the mother said as hearsay. The trial court stated that it understood the objection since the mother was unable to testify, but it allowed the testimony about what the mother "told [the grandfather] personally," since the potential for domestic violence was the "number one consideration" in any custody award. No further objections were made and no arguments related to the admission of hearsay testimony have been raised on appeal.
The grandfather described the same choking incident at the January 28, 2021 emergency custody hearing. The grandfather testified that after the incident, he told the father to "never lay his hands on" the mother again. The grandfather recalled that the father acknowledged he would never do so. The grandfather additionally described that the father would often "get angry," stating "[t]hat’s his MO."
At the emergency custody hearing, the grandmother similarly described the choking incident, stating that they arrived at the apartment to find the mother crying, with marks on her throat. The grandmother described the mother as "frightened" and "afraid," but unwilling to call the police because "[the mother] loved him." The grandmother recalled that the mother seemed to accept blame for the incident. The grandmother further testified that she wanted the child to have a father but did not believe that the child would be safe with him.
Throughout this proceeding, the father denied any history of abuse and specifically denied choking the mother. He testified that he first heard of the choking incident on the day of the emergency custody hearing and denied that either of the grandparents talked to him about it. When asked if the mother ever had "choke marks" on her neck, he answered "[n]one that I know of." The father additionally affirmed that after the alleged incident he was invited to move back into the grandparents’ home with the mother.
After trial, the trial court found "that [the father] committed domestic violence years ago against the … mother. This resulted in serious injury to the … mother, and [the father] was, also, both physically and verbally abusive to the … mother 10during her lifetime." The trial court explained that it considered the testimony presented at both the emergency hearing and at trial and specifically found that the grandparents’ testimony was credible and the father’s testimony was not credible.
[7] On the issue of domestic violence, the trial court was required to weigh conflicting testimony and determine which was more credible. 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. See Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (1993); Moore v. Prater, 2021-1430 (La. App. 1st Cir. 6/3/22), 342 So.3d 994, 1001. After review, we find that the trial court’s credibility determination is supported by the record and entitled to deference from this court. See State in Interest of L.P., 2019-1023 (La. App. 1st Cir. 7/8/20), 2020 WL 3840734, * 15 (unpublished). Consequently, we cannot say that the trial court’s finding in this regard was manifestly erroneous or clearly wrong.
[8] Furthermore, the finding of history of domestic violence was but one of the findings that the trial court enumerated as the basis for its determination that an award of joint or sole custody to the father would result in substantial harm to the child. The trial court also found that the father did nothing to gain custody of the child after the mother confided in him about her and her boyfriend’s serious drug use. The trial court also found that the father refused to support the child financially until ordered to do so by the court and maintains that he should not have to repay any arrearages to the grandparents. The trial court noted that "one of the most concerning things that’s happened since [the issuance of] Dr. Luscher’s report" was 11that the father chose not to exercise his right to visit liberally and consistently with the child. The trial court observed that most of the father’s communication with the child was by FaceTime and tangential to the videogames the father and the child played together, which the trial court found was "not a parental connection." The trial court found that the father continued to exhibit instability in his life, noting that "[h]e changes residence and jobs continuously." Additionally, the trial court found that despite having been diagnosed with lifelong depression and anxiety, the father refused to take medication or seek individual therapy. The trial court specifically referenced the father’s "disturbing" social media posts, which were also addressed at the emergency custody hearing, describing them as immature at best and absolutely inappropriate. The trial court stated that the father described the grandparents as "the enemy" despite the fact that they raised his child "very successfully" with little to no help from him, and that the father lacked credibility in his testimony. The trial court also found that the father continued to deny his history of anger and abuse and had not taken steps to address those issues. The trial court referenced the Watermeier hearing and the child’s desire to have a relationship with the father but found that the child "would be devastated" if uprooted from the only life and stability she had ever known. The trial court concluded that the father "continue[d] to do what he want[ed] to do rather than consider the best interest of his child."
The grandparents denied any knowledge of the mother’s drug use, pointing out that the mother had joined the military and was subject to regular drug testing. At the time of the emergency custody hearing, the grandparents were awaiting the coroner’s final toxicology report. By the time of the custody trial, the grandparents had filed a civil suit against the mother’s boyfriend, arising out of the mother’s death.
The record includes evidence of social media posts made by the father in 2018 and 2019, to the public portion of his Facebook page, which referenced recreational drug use and suicide. One was a graphic that the father made the cover photo of his Facebook account, which showed a female with cables attached from her arm to a laptop computer on which a brain sat, who was firing a gun at her temple with icons for social media platforms exploding from her head. The father disputed the grandparents' description of the image as a photograph of a young person committing suicide by shooting themselves in the head, explaining that it was not a photograph but "an art piece" that was "a metaphor for how social media is the death of our young generation." The trial court specifically questioned and clarified that, although much of his Facebook account was restricted so that it could not be accessed by the public, the graphic was posted to the public part of his account.
12After careful review, we find no error in the trial court’s determination that the grandparents met their burden of proving by clear and convincing evidence that an award of joint or sole custody to the father would result in substantial harm to the child. We further find no error or abuse of discretion in the trial court’s determination that the child had been living with the grandparents "in a wholesome and stable environment" and that it was in the best interest of the child to award sole custody the grandparents. See La. Civ. Code arts. 133 and 134. The father’s arguments challenging the psychological health and fitness of the grandparents are without merit, particularly in light of the credibility determination made by the trial court in this case.
CONCLUSION
The May 4, 2023 judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellant, E.R.S.
AFFIRMED.