Martin v. Dupont

748 So. 2d 574, 1999 WL 1140393
CourtLouisiana Court of Appeal
DecidedDecember 8, 1999
Docket32,490-CA
StatusPublished
Cited by9 cases

This text of 748 So. 2d 574 (Martin v. Dupont) 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
Martin v. Dupont, 748 So. 2d 574, 1999 WL 1140393 (La. Ct. App. 1999).

Opinion

748 So.2d 574 (1999)

Troy MARTIN, individually and on Behalf of Zachary Cane Dupont, minor, Plaintiff-Appellee,
v.
Donna DUPONT, Defendant-Appellant.

No. 32,490-CA.

Court of Appeal of Louisiana, Second Circuit.

December 8, 1999.

*575 David S. Williams, Shreveport, Counsel for Appellant.

Wayne E. Webb, Shreveport, Counsel for Appellee.

Before WILLIAMS, GASKINS and PEATROSS, JJ.

GASKINS, J.

Donna Dupont, the mother of Zachary Cane Dupont, appeals from a trial court judgment awarding custody of her son to a nonparent, Troy Martin, the man she led to believe was the boy's father. She contends that the evidence does not support a finding that the child would be at risk of "substantial harm" if his custody was awarded to her. We affirm the judgment of the trial court.

FACTS

On May 16, 1997, Troy Martin filed a petition for determination of paternity and related custody matters. He asserted that he and Donna Dupont were the parents of an illegitimate child, Zachary Cane Dupont (DOB 6/22/94). He alleged that Ms. Dupont had represented to him and others that he was the child's father and that they had shared custody of the child. She refused to list him as the father on the child's birth certificate; however, she accepted the $50 in weekly child support which Mr. Martin voluntarily paid her.

In his petition, Mr. Martin alleged that Ms. Dupont's live-in boy friend was a violent person who had choked Zachary's maternal grandmother until she passed out and held up a dog by its collar while instructing the child to beat the animal. He also asserted that drugs were used and sold in Ms. Dupont's household, creating a dangerous environment for the child. The court signed an ex parte order granting Mr. Martin provisional custody of the child pending further order of the court.

At a hearing on July 31, 1997, the results of the paternity test were received; they excluded Mr. Martin as the biological father. Temporary custody of the child was granted to Ms. Dupont.

Trial was held on September 22, 1997, before Judge Fred Sexton sitting pro tern. In addition to his own testimony, Mr. Martin presented that of James Martin, his father; Beverly Ann Hubbs, the maternal grandmother; Lorrie Bosley, a friend of Ms. Hubbs; and Christy Darner, Mr. Martin's fiancee. The parties stipulated that the testimony of Mr. Martin's mother, Donna Martin, would be repetitious of his father's testimony. Ms. Dupont testified on her own behalf.

According to the testimony of Mr. Martin and his father, they were led to believe from the time of the child's birth that Mr. Martin was the father. In fact, Mr. Martin testified that Ms. Dupont contacted him when she was in labor and told him to come to the hospital immediately if he wanted to see "his" child born. He and Ms. Dupont's mother were present at the birth. For her part, Ms. Dupont admitted that she and Mr. Martin had a sexual relationship but asserted at trial that she was already pregnant when it began and that he was aware of her pregnancy. Although she admitted calling him while in labor, she purported to be surprised when he came up to the hospital for the child's birth. She also testified that he and her *576 mother were present in the delivery room without her permission.

The maternal grandmother, who conceded that she had a history of psychiatric illness, testified about her troubled relationship with her daughter and her fears for the safety of her grandson. Although her testimony was frequently confused, many of the disturbing incidents she recounted were corroborated by her best friend, Ms. Bosley. In particular, they testified about Ms. Dupont's live-in boy friend, Waylon Ray McGaha, an ex-convict. They testified that Mr. McGaha tried to force the child to drink whiskey while declaring that he intended to teach the child "to drink like a man and fight like a motherf—er." On another occasion, according to Ms. Bosley, he held a neighbor's dog in the air by its collar and tried to induce the child to hit the animal. The women, who briefly lived next to the mother, testified that while Ms. Dupont and Mr. McGaha slept until early afternoon, the child would wander out of their house half-dressed and come next door to seek food. On one occasion, Ms. Bosley went into their house to ask Ms. Dupont if she needed anything from the store and surprised Ms. Dupont and Mr. McGaha having sex while the child slept in the same bed. On another occasion, Ms. Bosley found pornographic photographs of Ms. Dupont and Mr. McGaha in an area accessible to the child.

Mr. Martin and his witnesses testified that since the child's birth, he and Ms. Dupont had been sharing custody of the child. The Martins picked up the child around Thursday of every week and kept him until Sunday or Monday.[1] Additionally, Mr. Martin voluntarily paid child support of $50 a week; initially his parents contributed half of these payments. Because Ms. Dupont could not cash a check due to her lack of a bank account or identification, they paid her in cash; according to the Martins, Ms. Dupont's permission for them to see the child was contingent upon her receipt of these funds. Ms. Dupont denied that she shared custody of the child, admitting only that the child stayed with the Martin family several weekends. She also denied receiving child support from Mr. Martin.

Mr. Martin testified that at the age of only two, the child displayed grossly inappropriate sexual behavior toward women. Like Ms. Hubbs and Ms. Bosley, the Martins testified that Ms. Dupont's residence was frequently filthy, with cats and dogs roaming the house, and that she often had little or no food in the house. In one place where she and the child lived, she had no refrigerator and no gas service. Although Ms. Dupont testified that she was employed in cleaning and child care and that Mr. McGaha was a painter, the other witnesses testified that neither of them worked. Mr. Martin testified that Ms. Dupont was engaged in the sale of illegal drugs.

Several witnesses testified that they feared for the child's safety because Ms. Dupont refused to keep a large snake away from him. A photo of the child with the snake draped around his neck was admitted into evidence; Mr. Martin's father testified that Ms. Dupont showed the photo to his wife in an attempt to upset her after his wife repeatedly urged Ms. Dupont to keep the snake away from the child. He also testified as to other conduct by Ms. Dupont and Mr. McGaha which seemed to be designed to shock. On one occasion, they brought to the Martin residence two hitchhikers who they had picked up and kept overnight. On another, Mr. McGaha told the Martins how he would like to shoot one of their cows and watch it bleed to death.

*577 The evidence showed that Mr. Martin had a misdemeanor criminal history. He had a conviction for negligent injury for stabbing someone in a fight as a teenager; the original charge was attempted second degree murder. He also had a few convictions for marijuana possession. However, at the time of trial, he was employed and engaged to be married in one month to a surgical technology intern. He credited his fiancee with helping him to give up the use of marijuana.

The testimony also showed that while she had no drug charges, Ms. Dupont had been arrested for simple battery several times and she had had no driver's license for three years due to her traffic violations. She admitted never having paid income taxes despite her claims of employment.

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Cite This Page — Counsel Stack

Bluebook (online)
748 So. 2d 574, 1999 WL 1140393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-dupont-lactapp-1999.