AEB v. JBE

741 So. 2d 189, 1999 La. App. LEXIS 2275, 1999 WL 598500
CourtLouisiana Court of Appeal
DecidedAugust 11, 1999
DocketNo. 32,647-CA
StatusPublished
Cited by3 cases

This text of 741 So. 2d 189 (AEB v. JBE) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
AEB v. JBE, 741 So. 2d 189, 1999 La. App. LEXIS 2275, 1999 WL 598500 (La. Ct. App. 1999).

Opinion

JjDREW, J.

The mother (AEB) appeals the trial court’s judgment which modified a considered joint custody decree and changed the primary domiciliary parent of the now six-year-old son (JE) from the mother to the father (JBE). In addition to complaining that the trial court erred in denying her motion for involuntary dismissal, the mother contends that the trial court improperly applied the law and rendered a judgment which is unsupported by the evidence. The judgment is reversed and the matter is remanded with instructions for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Married in August 1986, AEB and JBE had one child, JE, born 9/17/92. The parties separated in October 1993, and both parties sought custody of their son. Following a hearing, the trial court concluded that joint custody was in JE’s best interests. The April 22, 1994 judgment, a considered decree, made AEB the primary domiciliary parent subject to the father’s liberal visitation set out in a joint custody and visitation plan. At that time, JE resided with his mother and two half-brothers from AEB’s previous marriage. AEB’s two older sons were GP, 15 in the fall of 1996 and MP, 14 in the fall of 1996.

In the summer of 1996, AEB married DB, who moved into the her home along with his two children, a son BB (approximately four to five years older than JE) and a daughter, HB (approximately 6 years old). In September 1996, JE reported to his father and his paternal grandmother that he had been subjected to oral sexual contact by BB, his step-brother. In response, the father immediately reported the matter to the mother and to law enforcement personnel. JBE also took JE to physicians and mental health professionals.

Eight months later on May 20, 1997, JBE filed a petition to modify custody of the four-year-old JE so that JBE would be primary domiciliary parent of his son. 12JBE’s initial petition was limited to allegations that substantial changes in JE’s circumstances warranted the custody change and that continuation of the mother as domiciliary parent was so deleterious that modification was essential. Answering, AEB denied the allegations of the petition and filed an exception of no cause of action, interrogatories and notices of depositions.

Another seven months thereafter on February 28, 1998, JBE filed an amended petition. He asserted that significant discovery including depositions of the parties and Dr. Webb Sentell, a psychologist, had occurred. In the amended petition, JBE first alleged that his four-year-old son, JE, had been subjected to sexual molestation by BB, his step-brother who was approxi[191]*191mately nine years old at the time of the molestations. Specifically, JBE asserted that in August and/or September 1996 and November and/or December 1996, BB placed JE’s penis in his mouth. Because the children resided in the same household, JBE contended that JE was at risk for further inappropriate sexual behavior. JBE urged these acts were a great change in circumstance that made modification of the custody decree essential. JBE also alleged that he had taken JE to two physicians, a social worker, and a clinical psychologist, all of whom would testify that JE’s reports of sexual molestation were credible. JBE also requested that AEB be held in contempt for violations of the visitation order.

AEB made a general denial to JBE’s amended petition. In April 1998, the father’s previous attorney withdrew and his present counsel enrolled. Attorneys for both parties jointly obtained a September 8, 1998 trial date. In August 1998, the mother sought an increase in child support and modification of custody and visitation. On that same day, the father sought a continuance because the mother’s attorney had not responded to his requests for discovery. On September 4, the trial 13court continued the trial without fixing another trial date. By joint motion in November, the parties’ attorneys obtained a January 22,1999 trial date.

During the trial, the parties stipulated that the case was investigated by the De-Soto Parish Child Protection Agency in accordance with their policies and procedures. The investigation did not reveal any culpability on the part of the parents. The agency had knowledge that there had been a prior contested case involving the child.

REASONS FOR JUDGMENT

Following the two-day hearing on January 22 and 25, 1999, the trial court issued a written ruling and made the following factual findings (in which initials have been substituted for names):

At the time of the original considered decree, [AEB] had not re-married and [JE] was to live with his mother and two (2) step-brothers, [AEB]’s sons by a pri- or marriage. [AEB] subsequently married [DB] in the fall of 1996 and he, along with his two children BB and HB, began living with [AEB], [JE] and his two step-brothers. At some point in time in December of 1996 [JE] began to be subjected to inappropriate oral sexual contact by BB. [JE] reported this to his father, [JBE] and his grandmother, [ME]. [JBE] confronted [AEB] with these allegations and this Court concludes that [AEB] failed to take sufficient steps to protect [JE],
[JE] was examined and evaluated by Dr. Webb Sentell and Dr. Bruce McCormick. [JE] has behaved in an inappropriate “acting out” fashion by attempting to bite others on the buttocks and placing his face in others’ crotches.
The evidence indicated that [AEB] and her present husband have taken some steps to minimize the opportunity for unsupervised contact between BB and [JE], including the placing of a hidden audio monitoring device in [JE] ’s bedroom. Yet, [AEB] and other family members and friends deny that any inappropriate conduct has occurred with [JE]. In their denial this Court believes further harm has been done to [JE].

Based upon the mother’s remarriage, the introduction of BB into JE’s life and the “proven incidences of inappropriate sexual contact by BB upon [JE],” the trial court concluded that the father met the heavy burden of Bergeron v. Bergeron, |4 492 So.2d 1193 (La.1986) by showing a change of circumstances that materially affected JE’s welfare. Therefore, the trial court determined it had the authority to consider a significant change in the custody order.

The trial court evaluated the competing parents’ circumstances. Single and living alone, the father’s life revolved around JE [192]*192and his work. The paternal grandparents were found to be loving, concerned and active grandparents. The trial court acknowledged that the mother clearly loved JE and was not the direct cause of the immediate harm to JE. In all other respects, the trial court concluded the home of AEB and her new husband was a stable, comfortable environment for a child. The court found that there was insufficient proof that she had encouraged JE to deny the allegations. Because of the mother’s denials of the harmful situation and her plan to minimize unsupervised contact between JE and BB, the court concluded that JE was having to suffer the situation alone. Although the experts could not quantify the danger, the court opined that the risk of harm was too great to ignore.

While maintaining joint custody, the trial court found JE’s interests would be better served by placing him in the primary and domiciliary care of his father. Visitation consistent with that previously granted to the father was awarded to the mother subject to a number of restrictions to insure JE was never alone with BB at any time.

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Related

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256 So. 3d 551 (Louisiana Court of Appeal, 2018)
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Cite This Page — Counsel Stack

Bluebook (online)
741 So. 2d 189, 1999 La. App. LEXIS 2275, 1999 WL 598500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aeb-v-jbe-lactapp-1999.