Ariatti v. Plaisance

255 So. 3d 1239
CourtLouisiana Court of Appeal
DecidedSeptember 13, 2018
DocketNO. 18-CA-84
StatusPublished
Cited by7 cases

This text of 255 So. 3d 1239 (Ariatti v. Plaisance) 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
Ariatti v. Plaisance, 255 So. 3d 1239 (La. Ct. App. 2018).

Opinion

WINDHORST, J.

Appellant, Patrice Ariatti, appeals the judgment of the trial court regarding custody of the minor child and other related orders, as well as the dismissal of her petition for protection from abuse against appellee, Keith Plaisance. For the following reasons, we affirm the trial court's judgment.

FACTS AND PROCEDURAL HISTORY

Ms. Ariatti and Mr. Plaisance were married on May 21, 2011, and they had a child on February 24, 2014. The couple's marriage began to deteriorate in 2015. Their problems escalated on March 8, 2016 during a disagreement regarding Ms. Ariatti's decision to take their child to her parents' house for an extended period of time while she recovered from a surgery. Ms. Ariatti asserts, during this disagreement, that Mr. Plaisance committed two separate acts of domestic violence. That day, the parties physically separated, and the following day, Ms. Ariatti filed a petition for divorce and a separate petition for protection from abuse pursuant to La. R.S. 46:1231 et seq ., Domestic Abuse Assistance Act, in the Twenty-fourth Judicial District Court for Jefferson Parish. A judgment of divorce was granted on May 19, 2017.

The Petition for Protection

In her petition for protection, Ms. Ariatti alleged that, on March 8, 2016, Mr. Plaisance attempted to prohibit her from leaving their home with their child and committed two acts of domestic violence against her and the child, specifically that he grabbed her by the arms and shoved her up against a wall, and threw plastic hangers that allegedly hit both her and their child in the chest. On April 11, 2016, the parties appeared with counsel before the domestic commissioner for a full evidentiary hearing on appellant's petition for protection. Ms. Ariatti, Mr. Plaisance, and the two officers who responded to the call from the parties' home that day all testified.

The record indicates that at the time of the alleged incidents, the parties were arguing about whether Ms. Ariatti was going to take their son to her parents' house while she recovered from a surgery. Mr. Plaisance testified that Ms. Ariatti lunged at him while he was sitting on the couch as *1243if she would choke him. He grabbed her wrists as he stood up and backed her up from him. Ms. Ariatti confirmed that she was standing over him and yelling at him a few inches from his face, when he grabbed her wrists. She also confirmed that she was not injured during this incident. Ms. Ariatti also asserts that on this evening, Mr. Plaisance picked up several hangers with clothing and threw them at her and the child, hitting them both. Contrary to this, Mr. Plaisance testified that he dropped the hangers and clothing in her suitcase.

Ms. Ariatti called the police that evening, but when they arrived, she made no allegations of domestic abuse. Ms. Ariatti advised the police that they were having an argument about relationship problems. The record indicates that Mr. Plaisance did nothing to physically prevent Ms. Ariatti from leaving the house and no one was harmed. She ultimately left the house with the child and most of their belongings that night and went to stay with her parents.

At the conclusion of the hearing, the Commissioner found that the evidence did not establish domestic violence, but that the parties had a family argument. He stated that "Ms. [Ariatti] admits that she goes and gets in Mr. Plaisance's face. He then grabs her by the wrists and restrains her. I don't think this is domestic violence. The testimony on the hanger incident, that is just contradictory. I don't think there is evidence one way or the other." Based on these findings, the Commissioner dismissed Ms. Ariatti's petition for protection.

Ms. Ariatti filed an objection to the dismissal of her petition for protection, and requested a stay of the interim order and the appointment of a custody evaluator. On May 25, 2017, there was a hearing before the trial court on Ms. Ariatti's petition for protection. The transcript of the proceedings before the Commissioner was entered into evidence by Mr. Plaisance without objection at the hearing before the trial court. The trial court only allowed new evidence and testimony to be presented because there was a full trial on the merits that was transcribed before the Commissioner. Ms. Ariatti's counsel asserted she should be allowed to have her witnesses re-testify before the trial court and objected on the record to the trial court not hearing the entire matter de novo .

In making its determination, the trial court reviewed the transcript of the proceedings before the Commissioner. The trial court found that there was no basis for the petition for protection from abuse based on the police officers' testimony that there were no complaints of abuse made on the night of the incident, there were no marks on Ms. Ariatti and there were no allegations of injury to her or the child. The trial court dismissed the petition for protection.

The Custody Proceedings

On May 25, 2017 and August 29, 2017, the trial court also heard testimony regarding the custody issues. The trial court found that the custody evaluator, Dr. Karen Van Beyer (the "C.E."), qualified as an expert in custody evaluations and allowed her to testify.1 On the custody issues, the C.E., Ms. Ariatti, Mr. Plaisance, and Mr. Plaisance's supervisor testified.

The C.E. testified that Ms. Ariatti is the primary caretaker and an excellent mother.

*1244As to Mr. Plaisance, she found that there is a positive, secure attachment and a loving relationship between father and son, and that he is capable of parenting his son. During a meeting with the C.E., both parents acknowledged that the child needs both parents in his life. The C.E. recommended joint custody, with Ms. Ariatti as the domiciliary parent with whom the child should primarily reside during the week. With regard to schooling, however, the C.E. recommended that if the parties cannot agree on a school, then Mr. Plaisance should make the decision. The C.E. made this recommendation because Ms. Ariatti was clear that if she made the decision, she would choose a school in St. Bernard, which would be exceedingly inconvenient for the father, while Mr. Plaisance indicated he would choose one that is equidistant. The C.E. also recommended that if the parties cannot agree as to which extracurricular activities the child should participate in, the child should not be allowed to participate. She explained that she generally makes this recommendation in hopes that parents realize they are depriving their child of participating in extracurricular activities and will find a way to allow the child to participate in some extracurricular activities.

According to the C.E.'s testimony, she advised Ms. Ariatti that during exchanges with Mr. Plaisance, she should not engage in protracted good-byes. She testified that she was aware of the exchange of the child involving the parties and Ms. Ariatti's father, which resulted in a violent altercation between Mr. Plaisance and Ms. Ariatti's father. The C.E. testified that this situation could have likely been avoided if Ms. Ariatti had not engaged in a protracted good-bye with the child. She further testified that there was not anything to indicate Mr. Plaisance has a history of abuse.

Ms. Ariatti testified that she has concerns regarding whether Mr. Plaisance can properly care for their child.

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Cite This Page — Counsel Stack

Bluebook (online)
255 So. 3d 1239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ariatti-v-plaisance-lactapp-2018.