Opinion
NO. 2013 CU 0685
2013-09-13
WAYNE NOBLE AND STEPHANIE NOBLE v. BRANDON PICOU AND JILL WESLEY
Mary E. Heck Barrios Denham Springs, LA Attorney for Plaintiffs-Appellants, Wayne Noble and Stephanie Noble Thomas E. Gibbs Baton Rouge, LA Attorney for Defendant-Appellee, Brandon Picou Jill Wesley St. Gabriel, Louisiana Defendant-Appellee In Proper Person
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
21 st Judicial District Court,
In and for the Parish of Livingston,
State of Louisiana
Trial Court No. 137,126
Honorable Robert H. Morrison, III, Judge Presiding
Mary E. Heck Barrios
Denham Springs, LA
Attorney for Plaintiffs-Appellants,
Wayne Noble and Stephanie Noble
Thomas E. Gibbs
Baton Rouge, LA
Attorney for Defendant-Appellee,
Brandon Picou
Jill Wesley
St. Gabriel, Louisiana
Defendant-Appellee
In Proper Person
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
HIGGINBOTHAM, J.
This matter is before us on appeal by Stephanie and Wayne Noble, the maternal grandmother and step-grandfather of M.P., from a judgment denying their request for custody and, in the alternative, visitation of M.P. For the following reasons, we affirm.
Pursuant to Uniform Rules-Courts of Appeal, Rule 5-2, we use initials throughout to protect the identity of the minor.
FACTUAL AND PROCEDURAL HISTORY
On July 20, 2007, M.P. was born out of a relationship between Jill Wesley and Brandon Picou. Ms. Wesley and Mr. Picou were never married but resided together at the time of M.P.'s birth. Shortly after M.P.'s birth, Ms. Wesley moved out, and she and M.P. began to live with her mother, Ms. Stephanie Noble, and her stepfather, Mr. Wayne Noble. Around the age of two, M.P. began to reside primarily with Mr. Picou but frequently visited with the Nobles, including extended overnight visits. During this time, Ms. Wesley was struggling with drug addiction and occasionally visited with M.P. at both households. Initially, Mr. Picou worked well with the Nobles, allowing them significant time with M.P., including holidays and vacations. There were, however, some problems communicating, and Mr. Picou was frustrated when he determined that Ms. Noble allowed Ms. Wesley to take M.P. by herself.
Unfortunately, everything changed in the spring of 2012 when the Nobles came to Mr. Picou's home and claimed that M.P. told them Mr. Picou's son was touching M.P. inappropriately. According to Ms. Noble, in early May 2012, while M.P. was staying with them, M.P. expressed that bad things were happening to her at her father's house. This included allegations of sexual abuse by M.P's half-brother, the eleven-year-old son of Mr. Picou. When the Nobles went to Mr. Picou's home to discuss the allegations with him, he quickly became defensive and asked them to leave. Since that time, the parties have been unable to agree regarding visitation of M.P. Mr. Picou subsequently questioned his son multiple times about the veracity of the allegations. His son sincerely and unwaveringly denied that anything happened.
Upon learning of the allegations, Ms. Noble brought M.P. to her pediatrician, Dr. Joseph Thomas. In his deposition, Dr. Thomas stated that Ms. Noble appeared in a highly agitated state and urged M.P. to "tell him; tell him." Dr. Thomas could not confirm any sexual abuse, but he deferred this consideration to the Department of Children and Family Services (the Department) and the Livingston Parish Sheriff's office. The Department thought that some inappropriate touching had occurred, but it did not validate the allegations of abuse. However, the Department did recommend that Mr. Picou not leave M.P. alone with her half-brother. The Livingston Parish Sheriff's office also investigated the allegations, but took no further action.
M.P. was taken on multiple occasions to see Dr. Mary Lou Kelley, a clinical psychologist specializing in children, adolescents, and families. Dr. Kelley spoke with Ms. Noble, Mr. Picou, M.P., and Mr. Picou's son. She also reviewed the interview by the Department, the deposition of Dr. Thomas, the criminal investigation, and the medical records. Dr. Kelley discussed her concerns about the way the Department conducted its interview of M.P. Dr. Kelley stated that at one point during her sessions with M.P., subsequent to the Department's interview, M.P. said that her half-brother touched her where her "Poo comes out." However, during a separate session with Dr. Kelley, M.P. voluntarily denied that her half-brother ever touched her. In Dr. Kelley's deposition, she stated that given the number of people who had discussed the situation with M.P., "there is no way of knowing what happened. I could not tell you one way or another whether anything [M.P.] said was true." Dr. Kelley did testify that she thought Ms. Noble absolutely believed the allegations were true. Dr. Kelley also recommended that Mr. Picou's son and M.P. not be left unsupervised, for her protection as well as his.
Prior to the current litigation, there was no custody judgment in place. After the allegations of abuse, on May 8, 2012, the Nobles filed a "Petition for Ex Parte Custody and Change of Custody" against Mr Picou, requesting custody of M.P. until a full hearing on the matter. As a result, they were granted temporary custody of M.P. by an order signed the next day.
On May 9, 2012, Mr. Picou and Ms. Wesley filed a joint petition in a separate suit number (137,136) captioned "In Re: Custody of [M.P.]" seeking joint custody of M.P. A judgment of custody in conformance with the parents' joint petition was signed on June 4, 2012, granting the parties joint custody and designating Mr. Picou as the primary domiciliary parent.
On May 30, 2012, after a telephone conference with the attorneys and upon obtaining information from child protection officers that no abuse or neglect had been validated, the trial court recalled the ex parte custody order and ordered that M.P. be surrendered to the custody of Mr. Picou.
On June 14, 2012, the Nobles filed a "First Amending and Supplemental Petition" requesting that if they are not awarded custody of M.P. that they be awarded fixed visitation. In addition, they added Ms. Wesley as a defendant and requested that the suit be consolidated with suit number 137,136. The matters were consolidated and set for hearing.
In July 2012, Ms. Wesley was arrested for a violation of her probation and was in prison at the time of trial. The trial was held on August 21, 2012, and held open for submission of the deposition of Dr. Kelley. After the deposition was introduced, the trial court took the matter under advisement. On October 31, 2012, judgment was signed denying the Nobles' request for custody and their alternative request for visitation.
It is from this judgment that the Nobles appeal, asserting that the trial court abused its discretion in denying both the Nobles' petition for custody and their request for visitation.
LAW AND ANALYSIS
I. SOLE CUSTODY
The Nobles contend that the trial court erred in granting sole custody to Mr. Picou. Louisiana Civil Code article 133 provides as follows:
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.As grandparents seeking custody, the Nobles bear the burden of proving that substantial harm would result to M.P if Mr. Picou maintains custody of her. See La. Civ. Code art. 133. The Nobles contend that awarding custody of M.P. to Mr. Picou would result in substantial harm to her because she was not adequately supervised by her father, and after the allegations of abuse he did not heed the advice of the professionals to not allow his son to be with her unsupervised. The Nobles based their request for custody solely on the alleged abuse. They made no other allegations that Mr. Picou's behavior was harmful to the well-being of M.P.
The Nobles introduced testimony of a private investigator who stated he saw M.P. and Mr. Picou's son alone together after the alleged incident. Mr. Picou testified that because of the layout of his house, it would have been impossible for the private investigator to determine if the children were left unsupervised. He further stated that he did not leave the children alone and unsupervised.
The trial court rendered extensive, thoughtful written reasons for judgment and concluded, "[g]iven all of the testimony and other evidence presented, this Court has definite doubts as to whether any abuse took place at all, as opposed to some account by [M.P.] which was either false or pressured." Further, the trial court made no determination that Mr. Picou failed to adequately supervise the children after the alleged incident. Therefore, the trial court found the Nobles did not meet their burden of proving that substantial harm would result to M.P. if Mr. Picou was granted custody.
On appeal, we are required to give great weight to the factual conclusions of the trial court where they are based on reasonable evaluations of credibility and reasonable inferences of fact. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La. 1978). A trial court's determination regarding child custody will not be disturbed absent a clear abuse of discretion. Martello v. Martello, 06-0594 (La. App. 1st Cir. 3/23/07), 960 So.2d 186, 191-92. This court has carefully reviewed the record and does not find that the trial court's finding of fact is clearly wrong or manifestly erroneous. Given the trial court's conclusion regarding the alleged abuse, we find no clear abuse of discretion in the trial court's denial of the Nobles' request for custody.
II. VISITATION
The Nobles, in their amended petition, stated that they have a "close loving, and supportive relationship" with M.P., and requested that if they are not awarded custody that they be awarded "regular fixed visitation." In brief, the Nobles argued that the trial court should have applied La. R S. 9:344(B) to award visitation of M.P. to them, because Ms. Wesley was incarcerated at the time of trial. Ms. Wesley was arrested in July 2012 and was incarcerated at the time of trial. Ms. Wesley was, however, not incarcerated at the time the Nobles filed their amended petition on June 14, 2012. The only information this court has regarding Ms. Wesley's release date is her testimony that she thought she would be released in February 2013. The trial court determined that La. R.S. 9:344(B) was not applicable because Ms. Wesley was not incarcerated at the time the Nobles filed their petition for custody, nor was the trial court given proof that she was incarcerated at the time the case was submitted for decision.
The matter was submitted two months after the hearing, after being held open for introduction of Dr. Kelley's deposition.
Louisiana Revised Statutes 9:344 B provides as follows:
B. When the parents of a minor child or children live in concubinage and one of the parents dies, or is incarcerated, the parents of the deceased or incarcerated party may have reasonable visitation rights to the child or children during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.
Louisiana Revised Statutes 9:344(B) applies when "parents of a minor child or children live in concubinage." (Emphasis added.) Grandparents seeking visitation rights must prove that the parents live in concubinage. Matter of Tuccio, 95-0302 (La. App. 1st Cir. 11/16/95), 665 So.2d 531, 536. The jurisprudence defines "concubinage" as a relationship of sexual content in which man and woman live together as husband and wife in a state of affairs approximating marriage. Polk v. Polk, 626 So.2d 1233, 1237 (La. App. 4th Cir. 1993), writ denied, 94-0066 (La. 2/11/94), 634 So.2d 381. While Mr. Picou and Ms. Wesley testified that they lived together at the time of M.P.'s birth and briefly thereafter, according to both of them, they do not currently live together, have not lived together in several years, and did not live together at the time of Ms. Wesley's incarceration. The evidence in the record does not establish that Mr. Picou and Ms. Wesley live in concubinage. Therefore, we find no error in the trial court's determination that La. R.S. 9:344(B) does not apply to the Nobles' request for visitation of M.P.
We did not address whether Ms. Noble was incarcerated for purposes of La. R.S. 9:344(B) at the time the decision was rendered, as we determined that, the statute does not apply to the Nobles' request for visitation because the parties did not live in concubinage.
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CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed. All costs of the appeal are assessed to appellants, Stephanie and Wayne Noble.
AFFIRMED.