STATE OF LOUISIANA
FIRST CIRCUIT
NO. 2024 CU 0692
I
VERSUS
CARLEY WEBSTER
Judgment Rendered: ZZM,
On Appeal from the 18th Judicial District Court Parish of lberville, State of Louisiana Trial Court No. 79230
The Honorable Elizabeth A. Engolio, Judge Presiding
Vincent A. Safflotti Attorney for Plaintiff A - ppellee, Natalie C. Neale Lance Boudreaux Baton Rouge, Louisiana
Nicole Dufrene Streva Attorney for Defendant -Appellant, Morgan City, Louisiana Carley Webster
BEFORE: WOLFE, MILLER, AND GREENE, JJ.
1` 4 WOLFE, J.
In this matter, the mother appeals from two trial court judgments. The first
established the father as the domiciliary parent. The second granted an award of
attorneys' fees to the father for the mother' s frivolously filed Petition for Protection from Abuse. For the following reasons, we affirm both judgments.
FACTS
This child custody litigation was previously before this court in May 2023 and
portions of this section are taken from this court' s prior opinion in Boudreaux v.
Webster, 2022- 1282 ( La. App. 1st Cir. 5/ 19/ 23), 2023 WL 3573901 ( unpublished),
writ denied, 2023- 00848 (La. 9/ 6/ 23), 369 So. 3d 1269.' Lance Boudreaux (" Lance")
and Carley Webster (" Carley") had a romantic relationship and are the parents of
one child, Wyatt Paul Webster (" Wyatt"), born on: August 18, 2019. Id. at * 1. The
parties previously entered into a stipulated judgment on February 27, 2020, which
awarded them joint custody, with Carley designated as the domiciliary parent,
established child support, and decided other matters. Later, on May 13, 2020, the
parties entered into another stipulated judgment, providing for alternate weekend visitation for Lance, as well as various other incidental matters. Eventually, the
parties entered into a third stipulated judgment, which was signed by the trial court on October 21, 2021. The third judgment provided for joint custody, with equal
shared physical custody on a rotating schedule, and continued Carley as the
domiciliary parent. Id. at * 2.
On February 16, 2022, Lance filed a rule to modify custody, asserting a
material change in circumstances. He sought to be designated the domiciliary parent, in addition to a modification of physical custody so that Wyatt would primarily reside with him. Carley filed a responsive pleading and averred that the
I As discussed later, the record as designated by Carley, the appellant, is silent as to any proceeding prior to April 27, 2023.
2 parties agreed to an extrajudicial, week -to -week rotating custody schedule as Wyatt
would soon be attending school. Carley requested that physical custody be modified
and that Wyatt be allowed to reside primarily with her during the school year and
spend alternate weekends with Lance. The matter proceeding to trial on August 1,
2022. At the conclusion, the trial court ordered that joint custody continue, with
continuing equal physical custody on an alternating weekly basis, and designated
Lance and Carley as co -domiciliary parents., The trial court signed the judgment on
September 1, 2022. Lance appealed the judgment to this court. Id. at * 2. On review,
this court reversed, in part, the trial court' s designation of Lance and Carley as co -
domiciliary parents, and remanded the matter "to the trial court for a prompt hearing and determination of a domiciliary parent unless there is an implementation order to
the contrary or for other good cause shown." Id. at * 5.
Following this court' s May 19, 2023 ruling, a number of motions and
pleadings were filed with the trial court, convoluting the procedural history. On May 23, 2023, Carley filed a Petition for Protection from Abuse, claiming Lance
physically abused her by pushing her, and that she " fear[ ed] [ for her] life around
Lance]." Later, on September 20, 2023, Carley filed a Motion to Recuse Judge Alvin Batiste, Jr., who presided over the earlier August 1, 2022 custody trial, due to
a conflict with her counsel of record. The trial court granted the recusal on
September 21, 2023, and the matter was then allotted to Judge Elizabeth A. Engolio. Also on September 21, 2023, Carley filed a second Petition for Protection from
Abuse, this time on behalf of Wyatt, asserting allegations of sexual assault against Wyatt by Lance. A hearing on Carley' s May 23, 2023 Petition for Protection from
Abuse was held on October 4, 2023 at which time the trial court denied Carley' s petition, found it was frivolously filed, and awarded $ 8, 565. 75 in attorneys' fees to Lance. As to Carley' s second filed Petition for Protection from Abuse, the parties
began discussing the matter during court on October 4, 2023, but the hearing was
3 continued to October 18, 2023 on Carley' s motion. When the matter was taken up
again, Carley voluntarily dismissed her second Petition for Protection from Abuse,
at which time Lance requested additional attorneys' fees. A signed judgment
resulting from the October 4 and 18, 2023 hearings memorialized the trial court' s
granting of attorneys' fees regarding Carley' s first Petition for Protection from
Abuse, noted the dismissal of Carley' s second Petition for Protection from Abuse,
and stated the hearing on the domiciliary parent designation was set for December 20, 2023.
Following the dismissal of both of Carley' s Petitions for Protection from
Abuse, on October 24, 2023, Lance filed a Rule for " Make Up" Custodial Periods, wherein he requested additional custodial time with Wyatt for the time missed due
to the temporary restraining orders put in place, as well as a specific request for
attorneys' fees for having to defend against Carley' s second Petition for Protection from Abuse. This Rule was set for hearing on December 20, 2023, the same date
the trial court was set to determine domiciliary parent status.
Further, on October 30, 2023, Carley filed a Motion to Recuse Judge Elizabeth
A. Engolio based on a statement she made during a pretrial conference that she could
not rule on the pending domiciliary issue " in a vacuum" or " in a bubble[,]" to which
Carley assumed this implied Judge Engolio would " take into consideration the
pleadings, evidence, and trial testimony from the two ( 2) petitions for protection
from abuse that were filed by [ Carley] after the original custody trial was had and after the First Circuit remanded, which is outside the records to decide the issue at hand." Carley stated that, " after having the pretrial conference and being told that
she will not be able to rule on the domiciliary issue without taking other evidence into consideration, [ Carley] believes that Judge Engolio is unable to render an
impartial decision in this matter." A hearing was held on December 1, 2023, at
which time, Judge Guy Holdridge, ad hoc, denied Carley' s motion, ruling, "[ t]he
F fact that Judge Engolio has heard other matters involving the parties does not show that she is bias[ ed] for or against either party."
Finally, on January 10, 2024, a hearing was held regarding domiciliary parent status, pursuant to this court' s remand, and on Lance' s Rule for " Make Up"
Custodial Periods. Following the hearing, the trial court designated Lance as
Wyatt' s domiciliary parent, and a judgment to this effect was signed on February 6, 2024. Additionally, the trial court signed a second, separate judgment on February 6, 2024, wherein it granted Lance' s Rule for "Make Up" Custodial Periods, and also
granted Lance' s request for attorneys' fees in the amount of $3, 854.26 in response
to Carley' s September 21, 2023 Petition for Protection from Abuse. It is from these
two judgments that Carley appeals.
DISCUSSION
As noted above, this court, in its previous ruling, remanded the matter to the trial court " for a prompt hearing for the determination of a domiciliary parent or an implementation order in accordance with La. R.S. 9: 335." Id. Carley claims this
court ordered the trial court to " conduct a hearing[;] [ n] ot render a decision based on a reading of the record." She continues, arguing the trial court " should have
conducted a hearing on everything that transpired from the original trial date on August 1, 2022 to January 10, 2024 —not just take into consideration the record and
the two subsequent protective order hearings." Carley concludes, stating, "[ b] y
failing to conduct an actual hearing, [ her] fundamental right to due process was violated."
During the October 18, 2023 hearing on Carley' s second Petition for
Protection from Abuse, the trial court and counsel discussed the upcoming domiciliary parent hearing: Counsel for Lance: So we' re not preparing — or we' re just appearing for [ a] discussion and ruling from the [ c] ourt?
5 Trial court: Yeah, I mean, when I get a better handle on the record I may have some instructions, maybe we' ll get on a telephone status and we can talk about them —
Counsel for Lance: Okay.
Trial court: -- if I' m expecting something from y' all on this particular day. I was just trying to pick a day while I had you here.
Counsel for Carley: Okay. That' s a great question ` cause I didn' t know what I was suppose to be preparing either other than appearing.
Trial court: Right. Right now, you know, nothing because I don' t have anything else. And I want to give you a date to also consider the things that we talked about in [ c] hambers and possibly get a resolution.
Later, on December 12, 2023, Judge Engolio' s law clerk emailed counsel for both
parties, noting, "[ w]hen the trial date was scheduled, back in October, Judge Engolio
indicated that she would read the transcript of the previous domiciliary trial held before Judge Batiste and let you know if she needed more evidence or information."
Further, on December 18, 2023, Judge Engolio' s law clerk emailed counsel for both
parties again, stating, " Judge Engolio is not requesting the production of any further
evidence or information for the hearing Wednesday." However, on January 10,
2024, the day of the domiciliary parent designation hearing, counsel for Carley, for the first time, noted she was " prepared to have a hearing on [ the] matter, [ and]
t]here' s no instruction for the [ c] ourt to review the record and render a ruling." The
trial court responded, "[ w]hy — why are you telling me this different now that that' s
your appreciation after we had an extensive, detailed conversation on whether or not
there needed to be a hearing? And you argued to the [ c] ourt in [ c] hambers that there
was to be nothing new."
Despite Carley' s argument to the contrary, without the filing of any new pleading which might allow for the introduction of alleged new evidence, the trial
2 court' s January 10, 2024 hearing to determine domiciliary parent status was limited to the record as presented to the trial court. This court remanded the matter back to
the trial court for the straightforward determination of which party is to be Wyatt' s domiciliary parent. Moreover, the definition of a " hearing" does not automatically
require the introduction of new evidence. Rather, it is a " formal, scheduled setting in which an affected person presents arguments to a decision maker." Black' s Law
Dictionary 1760 ( 12th ed. 2024). There is no requirement that argument and
evidence be presented at a hearing. Based on our review of the record, this was the
appreciation of the trial court and counsel for the parties leading up to the January 101 2024 hearing.
Second, and in a one paragraph argument, Carley claims the trial court erred
in designating Lance as Wyatt' s domiciliary parent, arguing, "[ she] is entitled by
law to present her evidence showing that Lance is not the right parent to be
designated as the domiciliary parent. Until [ she] is afforded her day in court, she
cannot show Lance' s actions over the past two ( 2) years included but not limited to
excessive working hours while he supposedly has Wyatt, passing Wyatt off to his parents to raise[,] and having multiple live-in partners. Once she is able to present
her evidence of these events, Carley is confident that the [ c] ourt will see she is the
proper parent to be designated as the domiciliary." During the January 10, 2024 hearing, the trial court designated Lance as
Wyatt' s domiciliary parent, stating: Thank you. All right, so here' s my ruling on the domiciliary status. Carley] had been acting as the domiciliary parent without prejudice, and that was pursuant to the Dearing Officer' s recommendation or huh, yeah, it was her recommendation. As such, we' ve seen deficiencies in her duties and judgment as domiciliary parent.
The domiciliary parent is expected to make all decisions affecting the child. And failure to confer with the other parent, the non -domiciliary parent regarding health, education, and welfare would be considered a deficiency in her duties.
VA Carley] failed to communicate her move to Acadia Parish prior to moving. [ Carley] failed to timely communicate health information regarding the child' s ear tube surgery, and even in the hearing transcript from August 1 st of 2022, [ she] was evasive with questions regarding the child' s pediatrician at the time of the hearing. She answered with one pediatrician, and then later when she was being asked questions by a different lawyer[,] she gave information on a different pediatrician.
She also failed to confer with [Lance] regarding daycares that she was exploring. Also, it was seen that she failed to exercise good judgment in filing a frivolous Petition for Protection first alleging domestic abuse, which was denied by the [ c] ourt and also deemed frivolous. During the taking of evidence by huh —from [ Carley], the [ c] ourt found and noted in its ruling that [ her] testimony was impeached by her own witnesses.
Then her allegations of sexual abuse, which she did not —she dismissed on her own motion, presumably due to lack of evidence, following that, or in the midst of that[,] the [ c] ourt shared with counsel in [ c] hambers that the minor child seemed to be coached in each of the recordings of the child, namely [ Carley' s] cell phone video, the Audrey Hepburn Center' s audio interview, and the Child Advocacy Center' s video. Further, [ Carley' s] filing of sex abuse allegations resulted in [ Lance] losing time with the minor child, and as of a December 18th email between my law clerk and Mr. Saffiotti, and I believe Ms. Streva was on it, the [ c] ourt was informed by counsel that [ Carley] had not yet allowed any make- up time.
The [ c] ourt' s decision to name [ Lance] domiciliary parent at this time is in an effort to achieve the child' s best interest since [ Carley] has demonstrated an interim —on an interim basis her inability and intention as domiciliary parent, which has been found to be unacceptable to this c] ourt for the reasons I' ve stated.
Despite Carley' s claim that the trial court erred in designating Lance as the
domiciliary parent, on appeal, this court has nothing to review. The record as
designated on appeal is silent as to any proceeding in this matter prior to April 27, 2023. As such, all of the evidence, transcripts, etc. which formed the basis of the
August 1, 2022 trial are not in the record. An appellate court cannot review evidence
that is not in the record on appeal and cannot receive new evidence. City of
Hammond v. Parish of Tangipahoa, 2007- 0574 ( La. App. 1 st Cir. 3/ 26/ 08), 985 So. 2d 171, 176. Further, the appellant is charged with the responsibility of
completeness of the record for appellate review, and the inadequacy of the record is imputable to her. See Niemann v. Crosby Dev. Co., L.L.C., 2011- 1337 ( La. App. 1st Cir. 5/ 3/ 12), 92 So. 3d 1039, 1044. While Carley objects to the trial court' s
designation of Lance as Wyatt' s domiciliary parent, this court does not have any
ability to review the record on which the trial court made such a determination.
Additionally, although Carley claims she has evidence which might support a
finding that she is the suitable domiciliary parent, she did not file any appropriate
motion which might allow the introduction of such evidence, therefore it was not
considered by the trial court and cannot be considered by this court. Carley' s own
appellant brief admits such evidence was not before the trial court: "[ u] ntil Carley
is afforded her day in court, she cannot show Lance' s actions [... ]" effectively
disqualified him from being Wyatt' s domiciliary parent. Moreover, while the trial
court did consider Carley' s two Petitions for Protection from Abuse in its ruling, we
find no error by the trial court. These petitions were filed by Carley and the trial
court could not " unhear" the arguments and proceedings presented before it on these
petitions at the later held domiciliary parent hearing.
The trial court' s determination on child custody matters is entitled to great
weight, and its discretion will not be disturbed on review in the absence of a clear
showing of abuse. Mulkey v. Mulkey, 2012- 2709 (La. 5/ 7/ 13), 118 So. 3d 357, 368.
As the record before this court is silent as to the August 1, 2022 proceedings, which
the trial court used and reviewed in making its domiciliary parent determination, and
as Carley did not file any appropriate pleading which might allow for the
introduction of new evidence before the trial court made its domiciliary parent
ruling, it is impossible for us to find any abuse of discretion by the trial court in
designating Lance as Wyatt' s domiciliary parent.
Lastly, Carley claims the trial court erred in awarding Lance attorneys' fees in response to her September 21, 2023 Petition for Protection from Abuse. She
argues she " voluntarily dismissed her [petition] [... ] after she was able to review all
of the child' s medical records and the CAC interview[, ultimately] realizing that she
I would likely not be able to meet her burden of proof. [... ] However, this does not
mean that her filing was frivolous." Moreover, Carley asserts "[ t]he record shows
there was never a finding by the [ trial court] that [ her petition] was frivolous."
Accordingly, Carley states the award of attorneys' fees to Lance was made in error.
Louisiana Revised Statutes 46: 2136. 1, which governs the costs to be paid in
proceedings made under the Domestic Abuse Assistance Act, authorizes sanctions
for frivolously filing a Petition for Protection from Abuse:
A. Except as provided in Subsection B of this Section, all court costs, attorney fees, costs of enforcement and modification proceedings, costs of appeal, evaluation fees, and expert witness fees incurred in maintaining or defending any proceeding concerning domestic abuse assistance in accordance with the provisions of this Part shall be paid by the perpetrator of the domestic violence, including all costs of medical and psychological care for the abused adult, or for any of the children, necessitated by the domestic violence.
B. If the court determines the petition was frivolous, the court may order the nonprevailing party to pay all court costs and reasonable attorney fees of the other party. Failure to appear at a hearing on the petition shall not on its own constitute grounds for assessing court costs and fees against the petitioner.
Absent a determination that a Petition for Protection from Abuse is frivolous, a trial
court is not authorized to assess costs of the proceedings against the petitioner. See
Rogers v. Rogers, 2019- 0143 ( La. App. 1st Cir. 9/ 27/ 19), 287 So. 3d 749, 752.
During the October 18, 2023 hearing on Carley' s September 21, 2023 Petition
for Protection from Abuse, Carley voluntarily dismissed this pleading, at which time
Lance' s counsel requested attorneys' fees " for having to prepare for this[.]" The
trial court asked Lance' s counsel to " reconsider [his] position" since " we didn' t have
to go forward with testimony today[.]" However, a formal ruling on the issue of
attorneys' fees was not made by the trial court at that time. Lance repeated his
request for attorneys' fees in his October 24, 2023 Rule for " Make Up" Custodial
Periods. Later, during the January 10, 2024 hearing, Lance' s counsel again
reiterated his request for attorneys' fees, arguing:
10 Your Honor, I know from that hearing that I asked for attorneys' fees, and the [ c] ourt asked me to think about the matter and we would take it up later. There' s no way that I don' t recall that having occurred, and she dismissed her pleadings with prejudice after we spent a day and a half trying them. She, herself, obviously, believe[ s] that her pleadings were frivolous and unfounded. So I believe I have the right to ask for attorneys' fees for that and to take up that matter with the [ c] ourt today, which I' m asking to do.
Following additional oral argument between the parties, the trial court ruled,
expressly finding that Carley' s September 21, 2023 Petition for Protection from
Abuse was frivolously filed, as follows: " And at this time, I understand that it was
dismissed on [ Carley' s] own motion due to lack of evidence; I think that' s
tantamount to frivolousness. And I will find —this [ c] ourt will make a finding that
it was frivolous." The trial court went on to state that the video of Wyatt submitted
with Carley' s September 21, 2023 Petition for Protection from Abuse was taken by
her and " it appears [... ] that the child [ was] coached. So she had access to that prior
to fling the petition." Ultimately, the trial court awarded $ 3, 854. 26 in attorneys'
fees to Lance for Carley' s frivolously fled September 21, 2023 Petition for
Protection from Abuse.
A trial court' s factual determination as to whether a Petition for Protection
from Abuse was frivolously fled is subject to a manifest error standard of review.
See Mason v. Thompson, 2023- 0730 ( La. App. 1st Cir. 2/ 1/ 24), 2024 WL 446043,
4 ( unpublished), writ denied, 2024- 00273 ( La. 4/ 23/ 24), 383 So. 3d 607; cf Landry
v. Landry, 2021- 0337 ( La. App. 1st Cir. 10/ 8/ 21), 331 So. 3d 351, 356, writ denied,
2022- 00044 ( La. 3/ 2/ 22), 333 So.3d 835 ( a trial court' s determination regarding the
imposition of sanctions pursuant to La. Code Civ. P. art. 863 is subject to the
manifest error standard of review). The manifest error standard of review obligates
an appellate court to give great deference to the trial court' s findings of fact. We
will not reverse factual determinations, absent a finding of manifest error. Almon
v. Almon, 2005- 1848 ( La. App. 1st Cir. 9/ 15/ 06), 943 So. 2d 1113, 1115.
11 Accordingly, and contrary to Carley' s argument, during the January 10, 2024
hearing, the trial court clearly made a factual finding that the September 21, 2023
Petition for Protection from Abuse was frivolously filed, particularly in light of the
coaching of Wyatt by Carley regarding the allegations of sexual abuse. On review,
we find no manifest error in the trial court' s decision.
CONCLUSION
The trial court' s February 6, 2024 judgments, first designating Lance
Boudreaux as domiciliary parent and, second, granting an award of attorneys' fees in the amount of $ 3, 854.26 to Lance Boudreaux for Carley Webster' s frivolously
filed September 21, 2023 Petition for Protection from Abuse, are affirmed. All costs
of this appeal are assessed to the appellant, Carley Webster.
JUDGMENTS AFFIRMED.
12 STATE OF LOUISIANA
COURT OF APPEAL VERSUS
DOCKET NUMBER 2024 CU 0692
MILLER, J., dissenting.
I respectfully dissent from the majority' s opinion herein.
The trial court, at this court' s direction, determined which parent should be
designated the domiciliary parent. The trial. court' s determination was based upon
the record that was before the court of appeal, but also was in consideration of other
evidence that had accumulated in the interim. The additional evidence considered
by the trial court included evidence presented in a protective order hearing, which
was ultimately denied and determined to be frivolous, and the filing of a second
protective order that was dismissed before it was heard. When choosing the
domiciliary parent, the trial court could not ignore what had occurred in court
between the appeal of the September 1, 2022 judgment and the January 10, 2024
hearing to designate a domiciliary parent. Trial courts should not feign ignorance
when deciding matters before them — in particular when deciding custody matters.
However, I believe the parties should have been given the opportunity to confront
this evidence at the hearing ordered by this court. In denying this opportunity, I
believe the trial court erred.
As to the award of attorney' s fees associated with the filing of the second
protective order, I am unable to discern how the court determined the filing was
frivolous as the matter was dismissed before it could be heard. While I am aware
that such filings are often made in bad faith and as a litigation tactic, I do not
necessarily believe that the voluntary dismissal of a petition due to a lack of evidence
is tantamount to a finding that its filing was frivolous. Often times, litigants are
1 unable to present the evidence they intended, have reevaluated said evidence, or their
fortitude fails in the end. See Lassair on Behalf of T.P. J. v. Paul, 2022- 0320 ( La.
App. 4th Cir. 12/ 14/ 20), 353 So. 3d 1048, 1055 (" the fact that Plaintiff did not meet
her burden of proof on a protective order ... does not necessarily establish that the
action was frivolous"). Thus, I conclude the trial court' s award of attorney' s fees
for the second protective order application was error.