Opinion
NO. 2012 CU 1087 2012 CU 1088
11-02-2012
ANGIE M. PERSICK v. WILLIAM C. RAINACH REX D. RAINACH AND LYNN C. RAINACH v. ANGIE M. PERSICK AND WILLIAM C. RAINACH
Jerold E. Knoll Marksville, LA Attorney for Appellant, Angle Persick William C. Rainach Monroe, LA Appellant In Proper Person Deborah P. Gibbs Baton Rouge, LA Attorney for Appellees, Rex D. Rainach and Lynn C. Rainach
NOT DESIGNATED FOR PUBLICATION
On Appeal from
The Family Court,
In and for the Parish of East Baton Rouge,
State of Louisiana
Trial Court No, 180567 consolidated with 153826
Honorable Pamela J. Baker, Judge Presiding
Jerold E. Knoll
Marksville, LA
Attorney for Appellant,
Angle Persick
William C. Rainach
Monroe, LA
Appellant
In Proper Person
Deborah P. Gibbs
Baton Rouge, LA
Attorney for Appellees,
Rex D. Rainach and Lynn C. Rainach
BEFORE: WHIPPLE, McCLENDON, AND HIGGINBOTHAM, JJ.
HIGGINBOTHAM , J.
In this child custody case, a mother appeals a trial court judgment awarding joint custody to the paternal grandparents of her minor children and granting her limited visitation rights. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Angie Persick and William Rainach (Will) are the parents of Ethan Rainach, born April 1, 2003, and Aaron Rainach, born May 15, 2007. Prior to the birth of Aaron, in a stipulated judgment signed on March 29, 2005, the parties agreed to share joint custody of Ethan.
In June 2009, Angie and Will were arrested in a drug raid at their home. Both parties entered into a pre-trial diversion program and attended a treatment facility for drug rehabilitation. At the time of their arrest, Will's parents, Lynn and Rex Rainach, began sharing physical custody of the children with each other.They have shared physical custody of Ethan and Aaron since that time. On June 16, 2011, Rex and Lynn filed a petition for custody against Angie and Will seeking joint legal custody of the minor children. On June 17, 2011, Angie filed a petition requesting custody and child support against Will. On November 7, 2011, Will filed, in proper person, an answer requesting that the custody of minor children be granted to his parents or in the alternative to him. These matters were consolidated and heard on November 10, 2011, after which judgment was signed on February 14, 2012, awarding joint custody of Ethan and Aaron to Lynn and Rex Rainach and visitation to Angie every other weekend from Friday after school until Sunday at 6:00 p.m. It was ordered that Angie remain in the Baton Rouge area while exercising visitation with the minor children.
Lynn and Rex Rainach were divorced at this time and are both presently remarried.
It is from this judgment that Angie appeals, citing the following assignments of error: (1) the trial court erred in granting custody of the minor children to non- parents without a finding of "substantial harm" as to both parents; (2) the trial court erred in failing to recognize the conflict of interest presented by the dual representation of the Rainachs and their son Will by the same attorney, where the parties' positions were directly adverse to one another; and (3) the trial court committed several manifest errors of fact in its decision to divest Angie of custody of her children when she is now sober and ready to revive their relationship; or in the alternative, (4) the trial court committed manifest error in awarding Angie only-restricted visitation with her children within Baton Rouge.
SUBSTANTIAL HARM AS TO WILL
(Assignment of Error No. 1)
Angie contends that the trial court erred in granting custody of the minor children to non-parents without a finding of "substantial harm" as to both parents in accordance with La. Civ. Code art. 133. Specifically, she alleges that the trial court did not find substantial harm would result to the children if Will was granted custody of them. Will's answer to Angie's petition for custody stated "he desires and consents to the rendition of a judgment of custody herein granting unto Lynn C. Rainach and Rex D. Rainach the joint care, custody and control of the minor children Ethan and Aaron Rainach." Will was asked during the hearing if that was still his position, and he testified that it was. Will never contested custody being granted to his parents and only requested custody if it was not granted to his parents. Therefore, because the trial court granted custody to Will's parents with his consent, the court was not required to find substantial harm would result if custody was awarded to him.
Louisiana Civil Code article 133 states:
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.
CONFLICT OF INTEREST
(Assignment of Error No. 2)
Angie alleges that the trial court erred in failing to recognize the conflict of interest presented by the alleged dual representation of the Rainachs and their son, Will, by the same attorney. According to the record, Will filed his answer in proper person and his parents' attorney never appeared on his behalf. The trial court gave him the opportunity to cross examine the witnesses. Angie's attorney questioned Will regarding his representation, and Will stated he was representing himself, but his parents' attorney drafted his answer to the lawsuit. Although Angie's attorney questioned Will about his representation, he never raised an objection about the alleged conflict of interest before the trial court. "The well-settled jurisprudence of this court establishes that as a general matter, appellate courts will not consider issues raised for the first time, which are not pleaded in the court below and which the [trial] court has not addressed." LeBlanc v. Guillory, 10-164 (La. App. 3rd Cir. 5/5/10), 38 So.3d 490, 493-494, citing Council of City of New Orleans v. Washington, 09-1067 (La. 5/29/09), 9 So.3d 854, 856. A careful review of the record reveals that this issue was not raised at the trial court verbally or through a filed motion. Accordingly, we will not consider this assignment of error.
ERRORS OF FACT AND SUBSTANTIAL HARM
(Assignment of Error No. 3)
Angie contends that the trial court committed errors of fact in its decision to divest Angie of custody of her children when she is now sober and ready to revive their relationship. The best interest of the children is the guiding principle in all child custody litigation. La. Civ. Code arts. 131, 134. Against a nonparent, the parent enjoys a paramount right to custody and may be deprived of this right only for compelling reasons. Wood v. Beard, 290 So.2d 675, 676-677 (La. 1974); Martin v. Dupont, 32,490 (La. App. 2nd Cir. 12/8/99), 748 So.2d 574, 578. At an initial custody contest between a parent and a nonparent the burden of proof is on the nonparent to show that granting custody to the parent would result in substantial harm to the child, thus necessitating an award of custody to the nonparent. La. Civ. Code arts. 131, 133. The concept of substantial harm under art. 133 includes parental unfitness, neglect, abuse, abandonment of rights, and is broad enough to include "any other circumstances, such as prolonged separation of the child from its natural parents, that would cause the child to suffer substantial harm." Hughes v. McKenzie, 539 So.2d 965, 970 (La. App. 2nd Cir.), writ denied 542 So.2d 1388 (La. 1989). Because of the trial court's better opportunity to evaluate witnesses, and taking into account the proper allocation of trial and appellate court functions, great deference is accorded to the decision of the trial court. A trial court's determination regarding child custody will not be disturbed absent a clear abuse of discretion. Martello v. Martello, 2006-0594 (La. App. 1st Cir. 3/23/07), 960 So.2d 186, 191-92.
In this case, as in most custody cases, the trial court's determination was based on factual findings, which are subject to the manifest error standard of review. Specifically, 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). 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. Id. at 844. In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, through Dep't of Transp. and Dev., 617 So.2d 880, 882 (La. 1993). Thus, when there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous. Id. at 883.
Initially, Angle argues that the trial court made manifest errors of fact when it failed to take into account the testimony of her substance abuse counselor and found Aaron to be a child with special needs without expert testimony. As the trier of fact, the court was free to accept or reject, in whole or in part, the testimony of any witness. Morrison v. Morrison, 97-0295 (La. App. 1st Cir. 9/19/97), 699 So.2d 1124, 1127. The trial court did not mention the testimony of Angie's counselor, Kevin James, in its written reasons; however, that alone is not sufficient to find the court did not consider his testimony. We note that the trial court's findings were consistent with the testimony of James. James, when asked if Angie was prepared to parent her children testified that he "would put [Angie's] sobriety up against anybody's [sic],.. Sobriety has to come first. It has to. And without that, you can kiss everything else goodbye..." He did not go as far as to say she is ready to be a parent. The trial court in its written reasons did not dispute James' assertion that Angle was committed to her sobriety stating, "It is clear Angie is dedicated to maintaining her sobriety."
Aaron was described by Lynn and Rex Rainach as a very active child who has trouble remaining still. They each testified that he has been difficult to discipline. However, Lynn and Rex testified that while he has been in a more structured environment, his behavior has greatly improved. Although there was no expert evidence regarding the special needs of Aaron, we find the testimony of the lay witnesses was sufficient to prove that Aaron excels in a more structured environment and a move from this structure would be detrimental to him.
Angie contends that the trial court's reasons were based largely on mistakes of her past and not her current situation. We disagree. There was no dispute that prior to Angie's arrest and attendance at the treatment program at Hope Center in Marksville, La., she had a long history of drug abuse. The record revealed that she and Will lived in deplorable conditions with the children before their arrest, including having rats and fleas in the home. Angie left when Ethan was a baby for long periods of time and Aaron was born addicted to heroin because of her heavy drug use during her pregnancy.
The trial court did address the difficulties in Angie's past; however, it also acknowledged that Angie received treatment for her drug addiction in June 2009 and that she has been sober since that time. In detailed written reasons the trial court discussed why, given Angle's present circumstance, a change in custody to Angie would result in substantial harm to the children. The court noted the length of time that Angie has not been a part of the children's lives, the stability the Rainachs have provided the children, and that the children would be removed from their support system. According to the record, Angie presently relies mostly on former addicts at the Hope Center as her support group. She is currently in a romantic relationship with Jeff Simmons, who is also a recovering alcoholic and has a criminal history. She recently had a relationship with a man in Baton Rouge while still involved with Jeff, and while she was in Baton Rouge to see her children. Angie's friend, Beth Smith, testified that Angle's relationship with the children lacked nurturing and that she has spoken to them inappropriately.
The trial court found Angie lacked maturity and has shown little interest in what is going on in her children's lives. She has never shown any initiative to get involved with the children's school or doctor's appointments and has never been financially responsible for them. Rex Rainach testified that Angie has shown a "great lack of interest in [the children's] well-being, their schooling, their medical history and everything else." Angie told Lynn that her plan was to remove the children from Baton Rouge and have them live with her in Marksville. Lynn testified that Angie said she would go on welfare to meet their financial needs. The court found that "forcing the children to move now would be yet another trauma that these already traumatized children would have to endure."
In written reasons for judgment, the trial court acknowledged that the Rainaichs had the burden of proving an award of custody to Angie would result in substantial harm to the children. After detailed reasons for judgment the trial court found if custody were to be awarded to Angie substantial harm would result to the children. After careful review of the record, we find no manifest error in the fact findings of the court or abuse of discretion in its determination that substantial harm would result if Angie was awarded custody.
RESTRICTION OF VISITATION
(Assignment of Error No. 4)
In the alternative, Angie contends that the trial court abused its discretion in awarding Angie only restricted visitation with her children within the Baton Rouge area. Louisiana Civil Code article 136A states, "A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child." Much discretion is vested in the trial court in determining times and conditions under which a parent may have access to his child, Steagall v. Steagall, 442 So.2d 732, 735 (La. App. 1st Cir. 1983). The trial court's judgment will not be disturbed absent an abuse of that great discretion. Fountain v. Fountain, 93-2176 (La. App. 1st Cir. 10/7/94), 644 So.2d 733, 737. In written reasons for judgment, the trial court found that Angie's home in Marksville was disarrayed, Angie's support system there is mostly recovering addicts, and Angie smokes in her car and Aaron has allergies. The trial court also determined that it must be cognizant of the possibility of a relapse. Considering the extensive reasons given by the trial court, we find no abuse of its discretion in limiting Angie's visitation with Ethan and Aaron to the Baton Rouge area. There was ample justification for restricting her visitation at this time.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Angie Persick.
AFFIRMED.