Opinion
2019 CA 1692R
08-24-2022
James W. BAKER v. Danielle PERRET
Nisha Sandhu, Covington, Louisiana and John Allen, Franklinton, Louisiana, Counsel for Plaintiff/Appellant James W. Baker Elizabeth O. Rome, Metairie, Louisiana and Erin A. Fisher, Metairie, Louisiana, Counsel for Defendant/Appellee Danielle Perret
Nisha Sandhu, Covington, Louisiana and John Allen, Franklinton, Louisiana, Counsel for Plaintiff/Appellant James W. Baker
Elizabeth O. Rome, Metairie, Louisiana and Erin A. Fisher, Metairie, Louisiana, Counsel for Defendant/Appellee Danielle Perret
BEFORE: HOLDRIDGE, LANIER, AND HESTER, JJ.
LANIER, J.
This is an appeal from a judgment wherein the trial court found that plaintiff/father, James W. Baker, was a perpetrator of domestic violence under the Post-Separation Family Violence Relief Act ("PSFVRA") La. R.S. 9:361, et seq ., granted sole custody of the minor children to defendant/mother, Danielle Perret, and awarded attorney fees in favor of Ms. Perret in the amount of $15,272.72. The case is before us on remand from the Louisiana Supreme Court. For the reasons that follow, we affirm.
Although the trial court's reasons for judgment indicate that attorney fees in the amount of $15,275.72 were awarded, the judgment provides for an award of $15,272.72.
FACTS AND PROCEDURAL HISTORY
This contentious child custody matter involves the two minor children of Mr. Baker and Ms. Perret-C.B., born May 1, 2013, and A.B., born November 25, 2014. Ms. Perret has a third child, C.A.B. Mr. Baker is neither the biological father or the adoptive father of C.A.B. These proceedings began in 2015 when Mr. Baker filed a petition to establish paternity and custody, seeking sole custody of C.B., A.B., and C.A.B., with reasonable visitation granted to Ms. Perret. Ms. Perret filed an answer and reconventional demand, seeking sole custody of the children and alleging that Mr. Baker had an extensive history of physically abusing her and the children. The parties participated in a court-ordered hearing officer conference on May 22, 2015, after which the hearing officer recommended that the parties have joint custody of C.B. and A.B., that Mr. Baker be designated the domiciliary parent, and that Ms. Perret be granted supervised visitation. Mr. Bakers motion for sole custody of C.A.B. was denied. The hearing officer also recommended that the parties submit to a custody evaluation by Dr. Andre S. Judice. These recommendations by the hearing officer became temporary orders of the trial court, and later, by stipulation of the parties, the interim judgment of the trial court. The judgment also included a grant of temporary physical custody of C.A.B. to Mr. Baker, subject to Ms. Perret having frequent and continuous contact with C.A.B.
According to the record, the custody issues regarding C.A.B. were resolved prior to the start of the custody hearing in March 2017. We note that C.A.B. was seventeen at the time of the March 2017 custody hearing and is no longer a minor.
On November 6, 2015, the parties participated in another hearing officer conference to address a motion for contempt and modification of custody that was filed by Ms. Perret. After hearing testimony from both parties, the hearing officer issued recommendations, including co-parenting guidelines that the parties should follow, contempt findings against Mr. Baker, and denying Ms. Perret's request for temporary custody of the children pending the completion of the custody evaluation. On March 18, 2016, the parties entered into two separate stipulated judgments concerning the issues addressed at the hearing officer conference, including increased visitation between the two minor children and Ms. Perret and reunification therapy between Ms. Perret and C.A.B. Dr. Barbara Mitchell was agreed upon as the reunification therapist.
On June 1, 2016, Ms. Perret filed a Petition For Ex Parte Order Of Emergency Temporary Custody And Contempt. Ms. Perret alleged that according to Dr. Mitchell, C.A.B. was suffering from Parental Alienation Syndrome and his mental and physical health was at severe risk. The trial court denied Ms. Perret ex parte relief, but set the matter for a hearing officer conference and a contradictory hearing. According to the record, Mr. Baker failed to appear at the August 5, 2016 hearing officer conference, although notice on Mr. Baker for said hearing was confirmed at the time of the hearing. After considering the evidence, the hearing officer recommended that the parties be awarded joint custody of C.B. and A.B., with Ms. Perret designated as the domiciliary parent; that Ms. Perret be granted sole custody of C.A.B. and they resume reunification therapy; and that Mr. Baker be held in contempt. These recommendations became the temporary orders of the trial court on August 26, 2016, pending a hearing on the matter. According to the August 26, 2016 minutes, after hearing testimony from C.A.B., Ms. Perret, and Dr. Mitchell, the trial court ordered that C.A.B. "have lunch or dinner with his mother" and that all other matters would be continued to a special setting.
On January 13, 2017, the parties entered into an interim consent judgment whereby Ms. Perret was to have two overnight visitations per month and two full weekends per month with C.A.B. The consent judgment was signed on February 17, 2017. The custody hearing was later set for March 20, 2017, at which time Ms. Perret moved to have Mark Ball, C.A.B.'s biological father, named as an indispensable party. The trial court granted the motion, and Mr. Ball was joined as an indispensable party to the action. The hearing continued over a two-day period, concluding on March 24, 2017. Both parties testified, called witnesses, and presented evidence. At the conclusion of the hearing, the trial court found that Mr. Baker was a perpetrator of domestic violence under the PSFVRA, La. R.S. 9:361, et seq ., and accordingly granted sole custody of C.B. and A.B. to Ms. Perret, with supervised visitation granted to Mr. Baker upon enrollment and participation in the 26-week Duluth program (domestic abuse intervention program) pursuant to the PSFVRA. The trial court further ordered that Mr. Baker's son from a previous marriage, Jimmy, was not to be allowed around the minor children until further orders of the court. The trial court signed a judgment on June 23, 2017, in accordance with these findings. The judgment also included an order for attorney fees, as follows:
Following the June 23, 2017 judgment, Mr. Baker filed a motion for new trial, which was later denied by the trial court.
IT IS FURTHER ORDERED ADJUDGED AND DECREED that the entirety of Ms. Perret's attorney's fees be paid for by Mr. Baker.
....
IT IS FURTHER ORDERED ADJUDGED AND DECREED that Mr. Baker shall reimburse Ms. Perret for any and all attorney's fees, court cost, and all other expenses she incurred associated with this litigation, which include any and all cost and fees Ms. Perret incurred since the initial filing by Mr. Baker.
In Baker v. Perret , 2018-0812 (La. App. 1 Cir. 12/28/18) (Baker I ), 304 So.3d 860, this court dismissed Mr. Baker's appeal of the June 23, 2017 judgment based on a lack of subject matter jurisdiction. Citing Advanced Leveling & Concrete Solutions v. The Lathan Company, Inc ., 2017-1250 (La. App. 1 Cir. 12/20/18), 268 So.3d 1044, 1047 (en banc), this court held that "[t]he indefinite award of attorney fees render[ed] the entire judgment non-appealable." Baker I , 304 So.3d at 861.
On remand, the parties appeared before the trial court on May 17, 2019, to address the issue of attorney fees. After hearing from the witnesses and considering the documentary evidence introduced, the trial court made the following findings:
I appreciate the testimony and the documents that came into evidence. I've taken them all into consideration in finding that the original order certainly applied to all attorney's fees, court costs and any other expenses associated with the litigation, and that's because of the finding that Mr. Baker was a perpetrator of family violence. And the Court does find that the amount of $15,275.72 is a reasonable attorney s fee. I know that he has billed you far in excess of that, ma am, but the Court finds that that is the reasonable attorney fee that was incurred in connection with this matter ... and should be paid. Because of the domestic violence, I am going to order therefore that that amount be made executory ... in favor of Ms. Perret and against Mr. Baker in that total amount and that those attorney's fees be paid within 60 days hereof to Ms. Perret in full by Mr. Baker. And that is the ruling of the Court.
The trial court signed a judgment on June 28, 2019, that ordered attorney fees and other costs associated with this litigation to paid within sixty days by Mr. Baker to Ms. Perret in the amount of $15,272.72. In a subsequent opinion, Baker v. Perret , 2019-1692 (La. App. 1 Cir. 11/4/21) (Baker II ), 332 So.3d 673, this court considered the appeal of the June 28, 2019 judgment concerning the award of attorney fees and litigation costs in favor of Ms. Perret. By order of this court, the matter was remanded under La. Code Civ. P. art. 1918(A) for the limited purpose of instructing the trial court to sign an amended judgment addressing the deficiencies in the June 28, 2019 judgment on appeal, i.e ., that the judgment did not contain any decretal language specifically adopting the rulings made in the June 23, 2017 judgment (which addressed custody), leaving uncertain whether all issues had been resolved. The June 28, 2019 judgment was amended by the trial court on September 23, 2021. However, the substance of the amended judgment remained unchanged. The judgment again addressed attorney fees only and did not reference or adopt the June 23, 2017 custody judgment. Moreover, there was no reference to the June 23, 2017 judgment in the motion and order for appeal. Thus, after a limited review, this court found that the only issues before us were whether Mr. Baker's due process rights were violated because the PSFVRA was not specifically pled and whether the award of attorney fees was granted in error. Finding no error by the trial court, we affirmed. Baker II , 332 So.3d at 676-678.
Thereafter, the Louisiana Supreme Court granted Mr. Baker's application for writ of certiorari, finding that the June 23, 2017 judgment was interlocutory and thus reviewable on appeal after the final judgment was rendered on September 23, 2021. The supreme court vacated our opinion in Baker II and remanded the case with instructions that this court render a new opinion after considering all assignments of error raised in the appeal. Baker v. Perret , 2021-01816 (La. 2/8/22), 332 So.3d 629.
DISCUSSION
Citing La. Civ. Code art. 132, Mr. Baker argues that Ms. Perret was required to prove her entitlement to sole custody by clear and convincing evidence. He asserts further that sole custody in favor of Ms. Perret is not in the best interest of the children as the evidence presented demonstrated that she is a threat to herself and to the children. Mr. Baker further points to the trial court's failure to consider the proffered depositions of people who allegedly witnessed Ms. Perret abuse Mr. Baker, as well as the failure of the trial court to enforce the subpoena of Dr. Judice, the court appointed expert who failed to appear on the day of the hearing. Mr. Baker maintains that these legal errors interdicted the fact-finding process such that a de novo review by this court is required.
According to Mr. Baker's counsel, although Dr. Judice was subpoenaed to appear for the March 20, 2017 hearing, Dr. Judice required a nonrefundable deposit of close to $2,000.00. Because of the pending, uncertain joinder of Mr. Ball, and "out of an abundance of caution," Mr. Baker's counsel decided not to pay Dr. Judice to appear at the hearing. We note that pursuant to a March 6, 2017 order of the trial court, the parties were made aware that "if the expert is not called as a witness and arrangements are not made to secure the appearance of the expert by the parties then the expert report shall be admitted into the evidence." Thus, we find no error in the trial court's decision to allow Dr. Judice's report into evidence.
Ms. Perret notes that Mr. Baker's argument ignores the provisions of the PSFVRA, which prohibits parents with a history of family violence from being awarded sole or joint custody of children. La. R.S. 9:364(A). Thus, Ms. Perret maintains, once the trial court made a finding that Mr. Baker had a history of family violence, there is a statutory presumption against Mr. Baker being awarded sole or joint custody of the children. We agree.
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. 1 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. 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, 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. Gutierrez v. Bruno , 2019-1537 (La. App. 1 Cir. 8/5/20), 310 So.3d 560, 565.
At the time of the hearing, La. Civ. Code art. 134 provided 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. Article 134(A) pertinently provided that the court shall consider all relevant factors in determining the best interest of the child," which include:
We note that Article 134 was subsequently amended by La. Acts 2018, No. 412, § 1, eff. May 23, 2018 to add two additional factors to be considered, the "potential for the child to be abused, as defined by Children's Code Article 603" and the "history of substance abuse, violence, or criminal activity of any party."
(1) The love, affection, and other emotional ties between each party and the child.
(2) 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.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.
The weight to be given each factor is left to the discretion of the trial court. Hodges v. Hodges , 2015-0585 (La. 11/23/15), 181 So.3d 700, 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 and circumstances in light of Article 134 and other relevant factors. Underwood , 332 So.3d at 140. 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, 1378-1379 (La. 1984)).
The PSFVRA was designed to protect a child's interest by restricting the rights of visitation of an abusing parent in families with a history of family violence. Michelli v. Michelli , 93-2128 (La. App. 1 Cir. 5/5/95), 655 So.2d 1342, 1346. The statute creates a presumption that "no parent who has a history of perpetrating family violence" shall be awarded sole or joint custody of the children. La. R.S. 9:364(A). "Family violence" is defined in the PSFVRA as including, but not limited to, physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injuring and defamation, committed by one parent against the other parent or against any of the children. La. R.S. 9:362(4). A history of family violence can be found if there is one incident of family violence that results in serious bodily injury or if there is more than one incident of family violence. La. R.S. 9:364(A). Moreover, if the court finds that a parent has a history of perpetrating family violence, the court shall allow only supervised child visitation with that parent. LSA-R.S. 9:364(C).
Louisiana Revised Statutes 9:364 was subsequently amended by La. Acts 2018, No. 412, § 2, eff. May 23, 2018, to add domestic abuse and sexual abuse as additional reasons to restrict the rights of an abusive parent in families with a history of family violence.
Following the amendments to the PSFVRA in 2018, this provision is now set forth in La. R.S. 9:364(E).
This court has found that the PSFVRA only requires evidence of past events of family violence and does not require that the events be frequent or continuous. Michelli , 655 So.2d at 1349. Neither the provisions of the PSFVRA nor jurisprudence requires that relief under the PSFVRA be specifically pleaded, where the allegations of abuse have been raised in the pleading or tried by the express or implied consent of the parties. See Nettles v. Nettles , 2013-1164 (La. App. 1 Cir. 12/27/13), 2013 WL 6858325, *2, n.2 (unpublished); Dufresne v. Dufresne , 2008-215 (La. App. 5 Cir. 9/16/08), 992 So.2d 579, 583-587, writ denied, 2008-2843 (La. 12/17/08), 996 So.2d 1123.
In the present case, Mr. Baker argues that he was denied due process by Ms. Perret's failure to specifically plead for relief under the PSFVRA. He further asserts that the PSFVRA "was incorrectly and improperly applied" and "used instead to ambush" him in this matter. Finally, Mr. Baker contends that because the PSFVRA should not have been applied in these proceedings, the award of attorney fees was improperly assessed and should be vacated. In response, Ms. Perret notes that Mr. Baker failed to preserve this due process argument for appellate review because it was neither raised nor objected to at the trial below.
Mr. Baker does not challenge the amount of attorney fees awarded by the trial court in the June 28, 2019 judgment, nor the manner in which they were calculated. Because we ultimately affirm the trial court's ruling regarding the applicability of the PSFVRA to these proceedings we likewise affirm the award of attorney fees in favor of Ms. Perret pursuant to the provisions of the PSFVRA.
Throughout the course of these proceedings, Ms. Perret denied ever physically abusing her children or Mr. Baker. However, when asked if Mr. Baker had ever hit her, Ms. Perret testified to multiple incidents involving Mr. Baker strangling her, pulling her, punching her, and dragging her. She explained that on two occasions, this had happened in front of the children and once in front of Kelly Perret. Ms. Perret added that Kelly Perret had actually cleaned the blood out of her clothes following one of these incidents.
According to the record, Kelly Perret, Ms. Perret's stepmother, had been helping Ms. Perret and Mr. Baker with the children and the house while Ms. Perret was on bed rest during her pregnancies. And, although Kelly and Mr. Baker were married in October 2015, it was not until shortly before the March 2017 custody hearing that Ms. Perret learned of the marriage.
In an interview with Dr. Judice, Staci Baker, Mr. Baker's former wife, recounted a story told by Kelly Perret that involved Kelly Perret witnessing a past incident of Ms. Perret being beaten by Mr. Baker and Kelly Perret helping Ms. Perret wash blood and gravel out of her clothes.
Similarly, Mr. Baker denies ever being physical with Ms. Perret during their relationship. However, in response to questioning by the trial court he admitted to being involved in two separate incidents with his ex-wife Staci Baker that resulted in his arrest for domestic violence. In 2004, he plead guilty to and was convicted of domestic violence and was ordered to attend an anger management course, which he indicated he completed. Later, in 2009, he was arrested a second time for domestic violence, entered a diversion program, and again completed an anger management course. Nevertheless, when questioned at a later time during the hearing, Mr. Baker denied that he had ever hit his ex-wife.
Concerning the children, Mr. Baker testified that he has spanked his children when needed but as far as beating on them, no." He did admit to one incident when he kicked C.A.B. in the groin, which led to an investigation by the Louisiana Department of Children and Family Services ("DCFS"). Mr. Baker explained that he was frustrated with how C.A.B. had been treating Ms. Perret over the course of the prior weeks leading up to the incident and indicated that he wished he had handled the situation differently.
As noted by the trial court, Dr. Judice's report was very thorough and detailed. Dr. Judice reviewed several records in preparing her summary and recommendations, including emails and texts between the parties, various court/sheriff records, Family Wizard Messages, Facebook records, medical records, letters from DCFS regarding the investigation of abuse, photos of the children with injuries, and a written account of the relationship history from both parties. Dr. Judice conducted individual interviews with both Ms. Perret and Mr. Baker and observed them separately during visits with the children. She also interviewed the two older children involved, C.A.B. and Jimmy, and collected information from fourteen other "important reporters regarding the events or parenting skills relevant" to her evaluation. Among the people she interviewed were friends, family, school personnel, co-workers, therapists, and other medical providers. Dr. Judice also reviewed what she described as a "copious amount" of documentation that Ms. Perret provided, including text messages and Facebook posts. Moreover, Dr. Judice requested that Dr. Dawn S. Sharpless, a licensed clinical psychologist, perform a psychological evaluation of the parties concerning their parenting capacity and personality as it relates to parenting. After several days of testing and interviews with the parties, Dr. Sharpless provided a detailed report regarding the strengths and weaknesses demonstrated by both parties. During his interview with Dr. Judice, C.A.B. reported that Ms. Perret had physically abused him once when he told her he needed a tutor for schoolwork. He also indicated that his mother beats him "for no reason" and "looks for the smallest stuff to scream about. Regarding Mr. Baker, C.A.B. reported a good relationship with him and denied that he was ever abusive to him or any of the children. He described punishment by Mr. Baker as getting "whooped" with a belt or being grounded. C.A.B. did acknowledge, however, that DCFS had been called after Mr. Baker had kicked him.
Jimmy advised Dr. Judice that he did not want any relationship with Ms. Perret as he believes that she hates him. He described Ms. Perret's emotional reactions as severe, resulting in her screaming and throwing things on a frequent basis. Jimmy indicated that his father never realized how bad things were until he witnessed a big fight between Jimmy and Ms. Perret. Jimmy denied any abuse by his father. He stated that his father has the ability to "give him a look" when he is getting out of line and will punish him, which sometimes includes a whipping with a belt. Jimmy did acknowledge, however, that his father has a temper. Moreover, Jimmy reported that DCFS had been called by a teacher on two different occasions in two different school years. He explained that he was only making "jokes" about being hit by his father and that both cases were closed and not pursued.
Before making its oral ruling at the conclusion of the hearing, the trial court noted its lengthy involvement with this "extremely high-conflict case" and confirmed its obligation to act in the best interest of the children. The trial court reasoned that because there had been some changes in the last year since Dr. Judice s extensive evaluation," said changes "would have also factored into Dr. Judice s report had she known of those as well." The trial court further noted that Dr. Judice had done an excellent job with her report, describing it as "one of the most extensive and detailed evaluations" the court had ever seen. The trial court's subsequent review of the evidence indicates that in makings its determination on custody, it properly considered the totality of the facts and circumstances of this case, including the Article 134 factors, and assessed the credibility of all the witnesses who testified at the hearing.
After considering all of the evidence presented, the trial court found that Mr. Baker qualified as a perpetrator of domestic violence under the PSFVRA and offered the following oral reasons for judgment:
This is an initial setting of custody between parents of two very young children. ... It's involved many different proceedings -- protective order proceedings, civil custody proceedings, many things, many hearings. I've heard testimony ... on many occasions, from your clients and from witnesses on their behalf ....
The biggest factor in this case that is determinative of the custody arrangement between the parties is domestic violence. I have been hearing for a long time in this case about domestic violence. It is clear that Mr. Baker is a perpetrator of domestic violence. He has previously been adjudicated as such in connection with his former wife. It is clear that he has had a criminal conviction and, later, Diversion. He has not apparently learned anything from what anger management that he was sent to, or therapy in connection with those instances, but has continued to perpetrate domestic violence. And it is clear to this court beyond any doubt that he has done so against Ms. Perret, and on more than
one occasion, and serious domestic violence.
As a victim of domestic violence, as you see Dr. Judice go into, there are reactions. And some of those are reactions that sometimes may not even be in the best interest of children because victims are powerless at times to protect themselves and even protect their children.
You see Ms. Perret do some things, as I believe she put it, in her words, just begging for help or crying out for help. She definitely developed mental health issues, some problems possibly with substance abuse, lashing out at others. But, in the Court's opinion, much of this is a reaction to domestic violence. Because of his history and long history of domestic violence, which to this day Mr. Baker denies that he's ever done one thing, whether to her, to his former wife, and even to Cade, who he kicked in the groin, none of that was domestic violence.
Because he continues to be in denial about that, the Court is making a finding that not only does he qualify as a perpetrator of domestic violence under the [PSFVRA] in the State of Louisiana but that he must complete, before he can have any unsupervised visitation with the two and the three-year-old, a 26-week Duluth program under the statute. At the conclusion of that, the Court will consider whether or not he is eligible to have any unsupervised visitation with those children. In the meantime, Ms. Perret will have sole custody.
The record before us clearly shows that allegations of family violence were at issue throughout the proceedings in this case. In Ms. Perret's Answer and Reconventional Demand, while she did not specifically ask for relief under the PSFVRA, she did specifically allege a history of family violence as a ground for seeking sole custody of the minor children. Ms. Perret alleged as follows:
6.
The Defendant-in-Reconvention has an extensive history of physically abusing the Petitioner. In the latest incident, which just occurred in early 2015, the Defendant-in-Reconvention pulled your Petitioner across the concrete driveway by pulling her by hair. He went on a vicious assault on the Petitioner, kicking, punching, and straggling [sic] the Petitioner. The Defendant-in-Reconvention habitually assaulted the Petitioner in a manner described above.
7.
The Defendant-in-Reconvention has an extensive history of abusing the children. On several occasions, the Department [of] Children and Family Services conducted investigations regarding the Defendant-in-Reconvention abusing and neglecting his children. The Department of Children and Family Services found the allegations of the Defendant-in-Reconvention to be valid.
Mr. Baker was clearly put on notice that family violence was an issue in this proceeding, and the trial court specifically found a history of family violence. Moreover, testimony and evidence regarding that violence was presented at trial without objection. See Dufresne , 992 So.2d at 587.
The best interest of the child standard is a fact-intensive inquiry that requires the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented. C.M.J ., 156 So.3d at 33. 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). An appellate court is required to give great deference to the factual conclusions of the trial court that are based on reasonable evaluations of credibility and inferences of fact. Kirsch v. Kirsch , 2015-0281 (La. App. 1 Cir. 7/29/15), 180 So.3d 417, 422, writ denied, 2015-1626 (La. 9/18/15), 178 So.3d 153. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Additionally, where the fact finder's conclusions are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell , 549 So.2d at 844.
With these principles in mind, we have thoroughly reviewed the record before us, including the depositions proffered by Mr. Baker. Given the acrimonious nature of the parties' relationship demonstrated by the record before us, and given the trial court's knowledge of that relationship and its knowledge of the particular facts and circumstances of this case, we find no legal or manifest error in the trial court's conclusion regarding Mr. Baker's history of perpetrating family violence. Moreover, as the trial court noted, although Dr. Judice had recommended shared custody and unsupervised visitation for Mr. Baker, "time [had] passed" and pursuant to the provisions of the PSFVRA, the trial court has no discretion regarding custody and visitation once there is a finding that a parent is a perpetrator of family violence. See La. R.S. 9:364(A) ; La. R.S. 46:2132. Based on our review of the record and given the deference owed to the trial court in its factual findings below, we find that the trial court's determination that the PSFVRA is applicable herein was overwhelmingly supported by the testimony and evidence. Thus, we find no abuse of discretion in the trial court's award of sole custody to Ms. Perret with supervised visitation to Mr. Baker. Moreover, we find no error in the trial court's award of $15,272.72 in attorney fees to Ms. Perret pursuant to the PSFVRA.
DECREE
For the above and foregoing reasons, we affirm the judgment of the trial court and assess all costs associated with this appeal against James W. Baker.
AFFIRMED.
Holdridge, J., Agrees in part and dissents in part for reasons assigned.
Holdridge J., agreeing in part and dissenting in part.
I agree the trial court did not abuse its discretion in finding Mr. Baker was a perpetrator of family violence under La. R.S. 9:361 et seq. However, I dissent from that portion of the majority's opinion that affirms the trial court's award of sole custody of C.B. and A. B. to Ms. Perret. In making that award, the trial court failed to comply with the mandatory provisions of both La. R. S. 9:364(D) and La. Civil Code article 133, because it failed to first determine that the award of sole custody to Ms. Perret would not result in substantial harm to the children. Based on the record before us, it appears Ms. Perret also has a history of perpetrating family violence and also has demonstrated other behavior that resulted in her mental fitness being questioned. As such, she previously had been granted only supervised visitation of C.B. and A.B. Louisiana Revised Statutes 9:364(D) mandates, in pertinent part, "If the court finds that both parents have a history of perpetrating family violence, custody shall be awarded solely to the parent who is less likely to continue to perpetrate family violence." However, Louisiana Civil Code article 133 provides, "If an award 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 ." (Emphasis added). The provisions of La. R.S. 9:364(D) must be applied in conformity with the provisions of La. C.C. art. 133.
If the court does in fact determine the children can safely be placed in the custody of one parent, in such case. "[T]he court shall mandate completion of a court-monitored domestic abuse intervention program by the custodial parent." La. R.S. 9:364(D). In this case, the record fails to show that the trial court complied with the entirety of the mandatory provisions of both La. C.C. art. 133 and La. R.S. 9:364(D), with respect to Ms. Perret.