REANDA PIERRE NO. 23-CA-470
VERSUS FIFTH CIRCUIT
PARIS PHILLIP PIERRE COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT PARISH OF ST. CHARLES, STATE OF LOUISIANA NO. 87,657, DIVISION "D" HONORABLE M. LAUREN LEMMON, JUDGE PRESIDING
February 21, 2024
SCOTT U. SCHLEGEL JUDGE
Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and Scott U. Schlegel
AFFIRMED SUS SMC SJW COUNSEL FOR PLAINTIFF/APPELLEE, REANDA PIERRE Reanda Pierre
COUNSEL FOR DEFENDANT/APPELLANT, PARIS PIERRE Eric E. Malveau SCHLEGEL, J.
Appellant, Paris Phillip Pierre, appeals the trial court’s judgment of March
28, 2023, which granted to Reanda Pierre, appellee, sole custody of the couple’s
four minor children pursuant to the Post-Separation Family Violence Relief Act,
La. R.S. 9:361, et seq. (PSFVRA), with supervised visitation by Mr. Pierre
according to the conditions set forth in the judgment. For the following reasons,
we affirm the judgment of the trial court.
Background and Procedural History
Mr. and Ms. Pierre were married on April 20, 2011. Four children were
born of the marriage: PPP (born 2013); PP (born 2015); Ed.P (born 2016); and
El.P (born 2019). On March 2, 2020, Ms. Pierre filed a petition for divorce under
La. C.C. art. 103(1). The petition did not raise any issues of domestic violence.
On December 17, 2020, the trial court granted an Article 103(1) divorce, and reset
the issues of custody and domiciliary status to March 23, 2021.
On March 23, 2021, Mr. Pierre and Ms. Pierre both appeared by Zoom as
self-represented litigants and were sworn in. The trial court conducted the hearing
in a manner similar to a settlement conference. During the hearing, they discussed
Mr. Pierre and Ms. Pierre’s work schedules; arrangements regarding physical
custody of the children; the children’s schools and teachers; potential doctor visits;
and other issues as to conflicts and potential counseling. There was no testimony
or allegations about domestic violence. In fact, the trial court stated: “[s]top. I
don't want to talk about anything previous. We are moving forward and we have an
agreement. There is no reason for either of y’all to bring up the previous. I am not
doing that. We are moving forward.” The court minutes indicate that the “[p]arties
reach[ed] an agreement.”
The judgment from the March 23, 2021 hearing ordered that the parties were
to have joint physical custody of the minor children, and stated that “[b]ecause this
23-CA-470 1 is a high conflict matter, Ms. Pierre is designated as the domiciliary parent.” The
judgment further designated a specific custody schedule, including transportation
of the children for custody; implemented rules as to how the non-custodial parent
was to FaceTime with the children; ordered that communication was to occur only
through Our Family Wizard; ordered that Mr. and Ms. Pierre were to attend co-
parenting counseling; and ordered separate counseling for Mr. Pierre and Ms.
Pierre.
On April 30, 2021, only one month after entering into the consent judgment,
Ms. Pierre filed a petition for protection from stalking. The petition related the
most recent incident of stalking that occurred when she traveled to Ponchatoula,
Louisiana for her scheduled custody time with the children, which occurred on
April 26, 2021. The petition also referred to previous incidences of domestic
abuse, including an occurrence on January 3, 2021, in which Mr. Pierre choked
Ms. Pierre while the children were in the home; an occurrence on April 15, 2016
that included Mr. Pierre grabbing Ms. Pierre by the neck, picking her up and
throwing her to the ground; and an occurrence on February 3, 2014 in which Mr.
Pierre choked Ms. Pierre in the presence of his parents. A temporary restraining
order was granted, and the hearing on the protective order was set for May 19,
2021.
At the May 19, 2021 hearing on Ms. Pierre’s petition for protection,1 the
trial court granted the Protective Order, and ordered Mr. Pierre not to go within
100 yards of Ms. Pierre, her residence, or her place of employment, and not to
contact family members or acquaintances of Ms. Pierre. The protective order
again ordered the parties to exchange information regarding the children only on
Our Family Wizard; ordered that neither party post on social media about the other
1 The trial court’s Reasons for Judgment indicate that the hearing was on May 20, 2021, but the hearing occurred on May 19, 2021, with the order signed the same day. The Clerk’s Office docketed the order on May 20, 2021.
23-CA-470 2 party; ordered Mr. Pierre to enroll in domestic violence counseling and co-
parenting classes; and ordered Ms. Pierre to enroll in trauma counseling. The
Protective Order was effective until November 19, 2022.
Six months later, on December 17, 2021, Mr. Pierre filed a petition for ex
parte temporary sole custody alleging, inter alia, that Ms. Pierre had removed the
children and enrolled them in school in Florida, and that she told him only after she
had moved them to Florida. On that date, the trial court ordered that Mr. Pierre be
awarded temporary physical custody of the children; that Ms. Pierre return
physical custody of the children to Mr. Pierre; that a civil warrant be issued for the
children to be returned to Mr. Pierre, as temporary custodial parent; and that Ms.
Pierre be given restricted and supervised visitation rights with the children pending
a hearing on January 18, 2022.
On January 10, 2022, before the hearing, Ms. Pierre filed an exception of no
right of action and an ex parte petition for temporary custody, civil warrant, and
sanctions against Mr. Pierre, and an answer and reconventional demand to the ex
parte petition filed by Mr. Pierre.
On February 2, 2022, the trial court was set to hear the outstanding matters
that had been filed by both parties. But before the hearing began, the parties
entered into a consent judgment, which was read into the record and agreed to by
the parties after they were both placed under oath. The judgment was signed by
the trial court on May 5, 2022. Under the consent judgment, Mr. Pierre was
provided supervised visitation with the minor children until he completed a
domestic violence program, at which point custody would revert back to the
schedule contained in the judgment of March 23, 2021. The judgment again
provided that neither party was to post about the children on social media, and that
the parties were to use the Family Wizard Program.
23-CA-470 3 Only two months later, on April 13, 2022, Ms. Pierre filed a rule to modify
the February 2, 2022 consent judgment on the grounds that Mr. Pierre’s visitations
had not been supervised. She further alleged that he was alienating the children
from her. Ms. Pierre sought to be awarded sole custody, and an order that Mr.
Pierre’s visitations with the children were to be supervised by a third-party who
was not a family member of his until co-parenting counseling was successfully
completed. Ms. Pierre also filed a rule for contempt. The rules were set for May
26, 2022.
On May 26, 2022, the trial court heard limited testimony before suspending
the hearing. Ms. Pierre testified that she suffered significant domestic violence
during their relationship, including strangulation and sexual abuse. And Mr. Pierre
played a video of conflict by the oldest child towards Ms. Pierre that raised grave
concerns for the trial court. Due to the serious allegations made at the onset of the
hearing, the trial court terminated the proceedings, ordered the parties to revert
back to the February 2, 2022 consent judgment, but with supervised visitation for
Mr. Pierre, and ordered a custody evaluation. Dr. Ashley Weiss was appointed as
the custody evaluator on August 16, 2022. Two days later, on August 18, 2022,
the trial court continued the previously set trial dates until the custody evaluation
could be completed.
On July 21, 2022, Ms. Pierre filed a request for clarification of order from
May 26, 2022. On October 31, 2022, the trial court entered an Order Clarifying
Visitation Pending Custody Evaluation and Subsequent Hearing, which clarified
that the parties would be governed by the February 2, 2022 consent judgment, with
visitation by Mr. Pierre to be supervised. On December 15, 2022, the Court
entered a judgment from the May 26, 2022 hearing, which also clarified the
custody schedule set forth in the March 23, 2021 judgment. This “interim
judgment” recognized that no written judgment had been filed after the May 26,
23-CA-470 4 2022 hearing, and indicated that the court “now issues said judgment.” The
interim judgment provided that Mr. Pierre was permitted supervised visitation of
the children on specified days. Of particular significance, the interim judgment
voided the provision of the February 2, 2022 consent judgment that would have
permitted a return to the custody schedule set forth in the March 23, 2021
judgment upon proof of Mr. Pierre’s successful completion of a domestic violence
program.
On November 18, 2022, Ms. Pierre filed a motion to modify the protective
order that had been previously granted by the Court on May 19, 2021. The duty
judge granted a temporary restraining order, and set a hearing on the protective
order for November 29, 2022. After considering testimony and evidence, the trial
court granted Ms. Pierre’s motion to modify protective order and made it
permanent, with a “Does Not Expire” notation. The trial court further ordered that
the children’s cell phones and tablets were to stay at Mr. Pierre’s home.
The custody trial that began on May 26, 2022 was eventually completed and
held over another six days: February 10, 22, 23, 24, and March 6 and 7, 2023. On
March 28, 2023, the trial court issued a Judgment on Custody and Incidental
Matters and Incorporated Reasons for Judgment from the custody trial. The
judgment ordered that:
(1) Ms. Pierre was given sole custody of the minor children pursuant
to the PSFVRA;
(2) Mr. Pierre was to have supervised visitation of the minor children
by a competent professional approved by the court before the supervised
visits begin;
(3) Ms. Pierre was to continue trauma therapy;
(4) Mr. Pierre was to seek individual therapy for batterers;
23-CA-470 5 (5) the two oldest children were to attend reunification therapy, and
the two youngest children would also participate if the therapist determined
it was needed;
(6) neither party nor their families were allowed to post on social
media regarding the other party, custody, visitation, or any court proceeding;
and
(7) Ms. Pierre was to have exclusive use and occupancy of the former
marital home, with Mr. Pierre remaining responsible for the mortgage
pending partition, while reserving his rights to rental reimbursement.
On April 12, 2023, Mr. Pierre filed a notice of appeal from the March 28,
2023 judgment, and also filed a motion for suspensive appeal. The trial court
granted the motion for suspensive appeal on April 14, 2023.
Assignments of Error
Mr. Pierre asserts that the trial court erred in rendering the judgment of
March 28, 2023 as follows:
the trial court erroneously found a material change in circumstances
to modify custody;
the trial court erred in admitting evidence of abuse prior to the
February 2, 2022 consent judgment and the judgment of March 23, 2021;
the trial court erred in applying the PSFVRA;
after applying the PSFVRA, the trial court erred by finding that Mr.
Pierre did not meet the requirements for custody under La. R.S. 9:364 and
that granting him custody of the minor children was not in the children’s
best interest; and
the trial court erred in granting Ms. Pierre exclusive use of the
family home.
23-CA-470 6 Law and Discussion
A. Standard of Review
Every child custody case must be viewed in light of its own particular set of
facts and circumstances. Olavarrieta v. Robeson, 22-158 (La. App. 5 Cir. 7/6/22),
345 So.3d 1103, 1107. The trial court is therefore in the best position to determine
the best interest of the child given each unique set of circumstances. Id.
A trial court's determination in a child custody case will not be disturbed
unless there is a clear abuse of discretion. Obi v. Onunkwo, 23-116 (La. App. 5
Cir. 12/6/23), 2023 WL 8446297 at *4. Additionally, it is well-settled that an
appellate court cannot set aside the family court’s findings of fact in the absence of
manifest error or unless those findings are clearly wrong. Id.; Bordelon v. Thiele,
23-336 (La. App. 5 Cir. 12/27/23), 2023 WL 9317788 at *8. 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. Obi v. Onunkwo, 2023 WL
8446297 at *4; Bordelon v. Thiele, 2023 WL 9317788 at *8. 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 and manifestly erroneous. Id. at *8. The trial court has vast discretion in
custody determinations. Guidry v. Guidry, 18-639 (La. App. 5 Cir. 5/22/19), 274
So.3d 709, 715.
B. Whether the judgment of March 23, 2021 was a considered decree or a consent judgment
Mr. Pierre argues that the trial court’s judgment of March 28, 2023
erroneously found a change in circumstances from previous judgments. He further
argues that the previous judgment of March 23, 2021 was a considered decree
23-CA-470 7 because it was rendered after testimony. As such, a higher standard of proof would
be required before the trial court could change it.
Accordingly, we first consider whether the March 23, 2021 judgment was a
considered decree or a consent judgment.
The Louisiana Supreme Court recognizes a distinction between two types of
custody awards. E. R. v. T. S., 18-286 (La. App. 5 Cir. 10/11/18), 256 So.3d 551,
557, writ denied, 18-1843 (La. 2/18/19), 264 So.3d 451. One type of custody
award is a “considered decree”, which is an award of permanent custody in which
the trial court receives evidence of parental fitness to exercise care, custody, and
control of children. Id. The second type of custody award is a “stipulated
judgment” or “consent judgment”, which a court renders when the parties consent
to a custodial arrangement, and no evidence of parental fitness is taken. Id.;
Boesch v. Boesch, 16-526 (La. App. 5 Cir. 2/8/17), 210 So.3d 937, 944.
Different burdens of proof apply to each of the two types of custody awards.
E. R., 256 So.3d at 557. The jurisprudential requirements of Bergeron v.
Bergeron, 492 So.2d 1193 (La. 1986), are applied to actions to change custody
rendered in considered decrees. Id. That is, the proponent of change must show
that a change of circumstances materially affecting the welfare of the child has
occurred since the prior order respecting custody. Id. Additionally, for considered
decrees, the party seeking a change bears the heavy burden of proving that the
continuation of the present custody is so deleterious to the child as to justify a
modification of the custody decree, or of proving by clear and convincing evidence
that the harm likely to be caused by a change of environment is substantially
outweighed by its advantages to the child. Id. at 557-58.
In contrast to considered decrees, in cases where custody has been
established by a stipulated judgment or consent judgment, the party seeking
modification must prove: (1) that there has been a material change of
23-CA-470 8 circumstances since the original custody arrangement was entered, and (2) that the
proposed modification is in the best interest of the child. Id. at 558; Bourgeois v.
Bourgeois, 16-676 (La. App. 5 Cir. 4/12/17), 218 So.3d 684, 689.
In the case at bar, the March 23, 2021 judgment is entitled “Judgment”, not
“Interim Judgment”, and uses decretal language, “the court orders, adjudges, and
decrees”. This suggests it is a considered decree. But the Reasons for Judgment
state: “[o]n March 23, 2021, the Court heard some testimony from Mr. Pierre and
Ms. Pierre. Thereafter, the parties entered another interim agreement of joint
custody, with Ms. Pierre being designated the domiciliary parent.” (Emphasis in
original). Further, Mr. Pierre and Ms. Pierre appeared by Zoom, were sworn in
and questioned by the Judge as if it was a settlement conference rather than a
contradictory hearing. During the hearing, the trial court and parties discussed Mr.
Pierre and Ms. Pierre’s work schedules, living arrangements, and the children’s
schools. The trial court even stopped the parties at one point and stated: “[s]top. I
don't want to talk about anything previous. We are moving forward and we have an
agreement. There is no reason for either of y’all to bring up the previous. I am not
doing that. We are moving forward.”
Thus, we conclude that the March 23, 2021 judgment was a consent
judgment, not a considered decree.
C. Whether the trial court erred by considering evidence of abuse prior to the consent judgments of March 23, 2021 and February 2, 2022
On February 2, 2022, the parties entered into a consent judgment, which was
signed by the trial court on May 5, 2022. This judgment provided for supervised
visitation of Mr. Pierre with the minor children until he completed the domestic
violence program, at which point custody would revert to the schedule in the
judgment of March 23, 2021. Thereafter, on April 13, 2022, Ms. Pierre filed a
motion to modify the February 2, 2022 consent judgment. This motion to modify
23-CA-470 9 custody filed by Ms. Pierre led to the judgment of March 28, 2023, which is the
subject of this appeal.
Mr. Pierre argues that the trial court erred in admitting evidence of abuse
prior to the February 2, 2022 consent judgment and the consent judgment of March
23, 2021. More specifically, Mr. Pierre argues that Ms. Pierre should have been
limited to presenting only incidents that took place after the February 2, 2022
consent judgment. He submits that allegations of abuse prior to these judgments
are barred by the doctrine of res judicata. In response, Ms. Pierre argues that Mr.
Pierre did not preserve the issue of hearing testimony prior to February 2, 2022, so
it may not be reviewed on appeal, and further that Mr. Pierre’s notice of appeal
was from the March 28, 2023 considered decree, not the other consent judgments.
The doctrine of res judicata, set forth in La. R.S. 13:4231, provides:
Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.
Therefore, a second action is precluded when all of the following are
satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the
same; (4) the cause or causes of action asserted in the second suit existed at the
time of final judgment in the first litigation; and (5) the cause or causes of action
asserted in the second suit arose out of the transaction or occurrence that was the
23-CA-470 10 subject matter of the first litigation. La. R.S. 13:4231; Duncan v. Duncan, 18-85
(La. App. 5 Cir. 12/19/18), 262 So.3d 435, 439, writ denied, 19-0119 (La.
2/25/19), 266 So.3d 291, citing Burguieres v. Pollingue, 02-1385 (La. 2/25/03),
843 So.2d 1049, 1053.
La. R.S. 13:4232 sets forth exceptions to the general rules of res judicata. It
provides that in actions for matters incidental to divorce, “the judgment has the
effect of res judicata only as to causes of action actually adjudicated.” La. R.S.
13:4232(B). Child custody and visitation are matters incidental to divorce. La.
C.C. art. 105. Because child custody is a matter incidental to divorce, when a party
raises new allegations pertaining to changes in circumstances affecting a child’s
best interest, the limitation to the general res judicata rules set forth in La. R.S.
13:4232(B) applies. See Duncan, 262 So.3d at 439 (The limitation of La. R.S.
13:4232(B) applies to child support, as a matter incidental to divorce under La.
C.C. art. 105, when a party raises new allegations pertaining to changes in
circumstances affecting a child’s best interest.)
Judgments awarding custody and child support are always subject to
modification and are thus never final. Olavarrieta, 345 So.3d at 1108. When
considering the safety and best interest of the child, ordering supervised visitation
is within the trial court’s vast discretion. Guidry, 274 So.3d at 715. Every child
custody case must be viewed within its own peculiar set of facts. Theriot v.
Theriot, 15-311 (La. App. 5 Cir. 10/14/15), 177 So.3d 759, 765, citing Raney v.
Wren, 98–869 (La. App. 1 Cir. 11/6/98), 722 So.2d 54, 56. The trial judge is in the
best position to ascertain the best interest of the child given each unique set of
circumstances. Id.
Although evidence of abuse that occurred prior to consent judgments would
generally be inadmissible under the doctrine of res judicata, under the
circumstances of this case, the trial court appropriately considered the evidence of
23-CA-470 11 strangulation and abuse by Mr. Pierre that occurred prior to the consent judgments
of March 23, 2021 and February 2, 2022, as discussed more fully below.
In Manno v. Manno, 49,533 (La. App. 2 Cir. 11/19/14), 154 So.3d 655, 664,
because the original custody decree was a consent judgment, the Louisiana Second
Circuit Court of Appeal affirmed the trial court’s conclusion that in order to
modify the prior custody arrangement, either party must show a material change in
circumstances after the consent judgment. The Second Circuit affirmed the trial
court’s conclusion that the parties had previously had a full and fair opportunity to
litigate sexual abuse charges.
In the pending case though, there was ample evidence of a material change
in circumstances after the consent judgments that the trial court could have relied
upon without considering the abuse that occurred prior to the consent judgments.
In addition, at the hearings, Mr. Pierre objected to Ms. Pierre testifying about prior
incidences of strangulations based upon relevancy of the evidence, not res
judicata. Whether evidence is relevant or not is within the discretion of the trial
court, and its ruling will not be disturbed absent a clear abuse of discretion. Raney,
722 So.2d at 57. As further explained in Raney v. Wren,
However, application of the change in circumstances rule to this case does not automatically preclude the introduction of all evidence of facts occurring prior to the stipulated custody judgment. The trial court should not exclude evidence in a custody modification proceeding if that evidence is relevant and material to an issue which the parties have not previously had ‘a full and fair opportunity to litigate’. (Citation omitted).
Id. See also Gonzales v. Gonzales, 21-172 (La. App. 5 Cir. 7/2/21), 2021 WL
2766900 at *2, writ denied, 21-01211 (La. 11/10/21), 326 So.3d 1251 (“Given that
the best interests of the child is of paramount consideration, and the relief sought in
the petition for protection from abuse necessarily involves a custody determination,
the trial court was within its discretionary authority in ruling that a relaxed
evidentiary standard applies here.”)
23-CA-470 12 Similarly, the Second Circuit Court of Appeal in Crowson v. Crowson,
32,314 (La. App. 2 Cir. 9/22/99), 742 So.2d 107, 110, recognized that whether
evidence is relevant or not is within the discretion of the trial court. Crowson
found that evidence of incidents prior to entry of the stipulated judgment may not
be relevant to prove a change in circumstances, but may remain relevant to the
issue of the best interest of the child. Id. Crowson concluded that the trial court
should not exclude evidence in a custody modification proceeding if that evidence
is relevant and material to an issue which the parties have not previously had a full
and fair opportunity to litigate. Id.
While we agree that the evidence of strangulation, prior to the consent
judgments, would generally be inadmissible under the doctrine of res judicata, we
find that it is certainly relevant in this specific case. The abusive behavior did not
cease after the consent judgments and thus, it was necessary for the trial court to
hear the evidence of abuse perpetrated by Mr. Pierre against Ms. Pierre prior to the
consent judgments, because it related to the history and high parental conflict
between them. An understanding of the history was necessary for the trial court to
determine the best interests of the children.
Notably, Mr. Pierre was under a protective order when the parties entered
into the February 2, 2022 consent judgment, and before its expiration, Ms. Pierre
filed a motion to modify protective order, which was granted and made permanent
on November 29, 2022. The testimony about the strangulations was so interwoven
with the parties’ history that it would have been virtually impossible for the trial
court to separate out the events that occurred only after the consent judgments
without considering the events that occurred before the consent judgments.
Thus, considering the unique set of circumstances of this case, we find that
the trial court did not abuse its discretion in considering Mr. Pierre’s history of
23-CA-470 13 physical abuse that occurred before the consent judgments of March 23, 2021 and
February 2, 2022.
D. Whether the trial court erred in finding a material change in circumstances from the February 2, 2022 consent judgment
Mr. Pierre argues that the trial court erred in finding a material change in
circumstances to modify custody.
In order to modify the February 2, 2022 consent judgment, Ms. Pierre had
the burden to prove: (1) that there was a material change of circumstances since the
original custody arrangement was entered, and (2) that the proposed modification
was in the best interest of the children.
Hearings after February 2, 2022
Based upon the evidence presented, we cannot say that the trial court erred
when it found that Ms. Pierre had proved a change in circumstances following the
February 2, 2022 consent judgment. After the February 2, 2022 consent judgment,
Ms. Pierre continued filing motions to bring new facts to the court’s attention and
to have the court’s judgments enforced:
Apr. 13, 2022 – Rule to modify custody from February 2, 2022 consent judgment; Apr. 13, 2022 – Rule for contempt; Nov. 18, 2022 – Motion to modify the protective order of May 19, 2021.
On May 26, 2022, the Court heard Ms. Pierre’s rule to modify custody and
rule for contempt. Ms. Pierre alleged that Mr. Pierre’s visitations had not been
supervised; he had told the children that it was Ms. Pierre’s fault that he couldn’t
see the children more; he was alienating the children; and he sent his mother to
harass Ms. Pierre. Ms. Pierre sought sole custody and supervised visitation with a
neutral third-party, who was not a family member, until co-parenting therapy was
successfully completed.
The trial court heard brief testimony, which included allegations that Ms.
Pierre had suffered serious domestic violence, strangulation, and sexual abuse from
23-CA-470 14 Mr. Pierre. Specifically, the trial court heard testimony that Mr. Pierre had choked
Ms. Pierre with the children present in the house on numerous occasions. The
court also heard testimony about a time when the oldest child threw his phone after
Ms. Pierre told him to brush his teeth, screamed that Ms. Pierre was a witch, and
said she was going to poison him. Ms. Pierre testified that this was not normal
behavior for her children. The trial court also viewed a video introduced by Mr.
Pierre of high conflict by the oldest child towards his mother. The trial court
found: “I saw a sick child”, and “[t]his is a mentally ill situation. Y’all are in
crisis. Y’all are in chaos. This dance has been going on for a very long time.”
Based on the seriousness of the testimony, the trial court reset the trial on Ms.
Pierre’s rule to modify custody, reinstituted supervised visitation for Mr. Pierre and
appointed a custody evaluator. A trial date was then set for September 6 and 7,
2022, to give the custody evaluator time to complete the evaluation.
As noted above, Ms. Pierre filed a motion to modify protective order on
November 18, 2022 because she still feared for her safety and for her life. She
testified as to threats of violence upon her that came up during the custody
evaluation with Dr. Weiss on November 18, 2022. She referred to a “death
parable” that Mr. Pierre told the children about King Solomon. She stated that
during a meeting with Dr. Weiss, Mr. Pierre said that if Ms. Pierre wanted their
children to be safe or for there not to be threats, she would not ask for sole custody.
She stated:
If I was the real parent then I would not be willing to take the kids away from him because the parable is where each mother is claiming that the child should be with them individually and that is what we were having a conversation with Dr. Weiss over. The real mother would give up the child because she loved the children. If not, the king would kill them or kill the child. For me, it was either not ask for sole custody or lose my kids. And I called him out on that in front of Dr. Weiss. The conversation was recorded. I asked for permission. And I told him that you are doing it again. You are using scripture to manipulate and to threaten me to give you what you want.
23-CA-470 15 She also testified that Mr. Pierre was keeping track of her whereabouts by
using the trackers on the children’s cell phones and tablets. If she tried to take
away their cell phones and tablets, the children got angry. Mr. Pierre had told the
children that Ms. Pierre was controlling whether or not they could talk to him.
Mr. Pierre denied that he was following Ms. Pierre. As to the parable, Mr.
Pierre testified:
I did bring up the parable for -- with the kids to show how during that parable, the mother did not want their child to be subjected to pain and that’s how the king found out who the mother was. That was a comparison to what she is doing with our kids. She’s currently and constantly subjecting them to emotional, mental, and physical abuse. And it’s been going on since June 2022 of this year -- since our last court date on May 26th.
He also accused Ms. Pierre of emotional, mental, and physical abuse, by denying
custody exchanges. The allegations of physical abuse involved the recordings of
the oldest child allegedly abusing himself while in the care of Ms. Pierre.
At the conclusion of the hearing on November 29, 2022, the trial court
granted Ms. Pierre’s motion to modify protective order, with the notation that the
order “Does Not Expire”. Mr. Pierre did not object to the entry of a protective
order against him. The protective order required Mr. Pierre not to abuse or stalk
Ms. Pierre, not to contact Ms. Pierre personally or through a third party, not to go
within 100 yards of her home or work, not to contact family members or
acquaintances of Ms. Pierre, and to exchange information via Our Family Wizard
only. The order further required that the children’s cell phones and tablets were to
stay at Mr. Pierre’s home.
The Trial
During the seven-day custody trial, the trial court heard extensive
testimony, appropriately considered the history of the interactions between the
parties, and received numerous exhibits. At the conclusion, the court found that
“Mr. Pierre has strangled her on five occasions, two of which Mr. Pierre admitted
23-CA-470 16 to during the trial.” The Reasons further indicated that Mr. Pierre’s parents
witnessed at least one strangulation, and all grandparents had witnessed a
significant amount of the parties’ high conflict.
During the trial, Ms. Pierre testified that following the 2016 strangulation,
her eyes were starting to get blurry, she screamed “Jesus”, and looked down and
saw her three-year old, PPP (born 2013), in the kitchen, where they were. She said
that Mr. Pierre minimized the strangulation, telling her “[i]t wasn't that bad, that I
wasn’t in the hospital, I didn’t have black eyes, although I had to go to the ER and
get an X-ray because I could not put my head down to look at my child.” She said
the strangulations got progressively worse. Mr. Pierre admitted that he initiated
the April 2016 choking incident. She stated that the worst (and last) strangulation
occurred on January 3, 2021, following their divorce on December 17, 2020. She
could not breathe afterwards, and if Mr. Pierre’s brother had not pulled him off of
her, “I did not know if I would still be alive.”
Ms. Pierre testified that after an incident in February 2014 when he choked
her, she told him she wanted a divorce. They argued about who would get custody
of their child, and Mr. Pierre said “[i]f you ever take our child from me, he won’t
have any parents because I’ll kill you . . . yeah. If you ever take the children –
well, the child, I’ll kill you and I guess he won’t have any parents because I’m not
going to jail and I’ll kill myself, too.” The trial court considered this testimony,
finding “Ms. Pierre alleged that in 2014, she discussed divorce with Mr. Pierre, and
that Mr. Pierre told her that if his children were ever taken from him, he would kill
her.” This testimony was particularly relevant to understand the death parable
story and why Ms. Pierre continued to fear for her life and safety after entering into
the February 2, 2022 consent judgment.
23-CA-470 17 Testimony on Custody Evaluation
The trial court considered the testimony and custody evaluation of Dr.
Ashley Weiss, who recommended that the parties share custody. The trial court
found that Dr. Weiss did not address the PSFVRA or focus on issues surrounding
domestic violence. Further, the trial court considered that this was Dr. Weiss’s
first unsupervised custody evaluation, and that she had a minimum level of training
and experience in custody matters and evaluations and in family dynamics. The
trial court pointed out that Dr. Weiss did not contact the co-parenting therapist who
had discontinued co-parenting therapy due to the parties’ high conflict, nor did she
deem it necessary to contact Mr. Pierre’s therapist. The trial court also found:
Interestingly, the custody evaluator testified that when she interviewed the children, she asked what brought them to see her. The oldest child responded they were there for a custody evaluation because of the kidnaping [sic]. Considering all of the above, the Court cannot accept the evaluator’s recommendation of joint custody and ‘co-domiciliary’ status for the parties.
The trial court also heard testimony from Mary Jo Devlin, LCSW, who
provided trauma therapy for Ms. Pierre, and found her to be more credible. Ms.
Devlin specializes in trauma resolution therapy, family systems therapy, and
parental roles in relationships involving trauma, including how family violence
impacts children. Ms. Devlin, who has 51 years of experience in her field, testified
that batterers have an attitude of ownership and possession towards their partners.
She also opined that strangulation, even without marks, is the deadliest form of
domestic violence and a strong predictor of homicide.
Ms. Devlin opined that the strangulations are always a message by the
batterer that the batterer is in control of the victim’s life and death, and that Mr.
Pierre wanted to move forward and not keep talking about the strangulations. He
also apparently did not like the word “strangulation” when testifying, and preferred
the word “choking”. She testified that there is a difference between choking and
strangulation: “Choking is when you have something caught in your windpipe that
23-CA-470 18 doesn’t allow you to breathe correctly. Strangulation means you put your hands
around somebody’s throat and try to cut off the air that way.”
Ms. Devlin also testified that once batterers cannot get to their victims, they
use the children to inflict pain on their victims. She further opined that batterers
have an attitude of ownership and possession of their children as well as their ex-
partners, and often “weaponize” their children against their ex-partners.
The trial court heard from Ms. Pierre that the children told her that Mr.
Pierre called Ms. Pierre a “thief” because she steals Mr. Pierre’s visitation time
with the children. Mr. Pierre also played a recording of a physical conflict
between Ms. Pierre and the oldest child, demonstrating that the oldest child is
angry and aggressive. The oldest child is heard saying that his mother makes
potions and makes people bad. Mr. Pierre argued that the oldest child physically
abused himself because of trauma caused by the actions of parental alienation
caused by Ms. Pierre.
During Ms. Devlin’s testimony, she described an additional audio of the
oldest child yelling at Ms. Pierre, saying he would mess her up, calling her stupid
and a witch, and undermining her authority. Ms. Pierre had previously testified
that throughout their relationship, Mr. Pierre often told her he would “mess her up”
and that she needed to “get her head straight.” Ms. Devlin opined that children of
batterers curry the batterers’ favor by mimicking the behaviors of the batterers that
children think this behavior is acceptable, and that this type of behavior will
typically only happen at the mother’s house, not in the home of the batterer.
Mr. Pierre attempted to downplay his part in the conflict and abuse. He
testified several times that he did not want to focus on the past and just wanted to
move forward. He did not want the abuse to be part of the trial, saying, “the past
does not determine the future.” Mr. Pierre testified that he had initiated the
23-CA-470 19 physical fights with Ms. Pierre only one time, and that otherwise, Ms. Pierre
started the physical conflicts that led him to strangle her.
Ms. Devlin further opined that batterers try to create allies in their families
and in ex-partners’ families to interfere with their ex-partner’s relationships with
family members and to make the ex-partners look bad. Ms. Pierre testified and
introduced text messages to show that Mr. Pierre often sent group texts and called
her parents, siblings, and aunt, driving a wedge in her family of origin
relationships.
The trial court found that significant evidence demonstrated that Mr. Pierre
weaponizes the children, especially the oldest child, and that the second child’s
anger toward Ms. Pierre is increasing. The parties were ordered not to discuss
custody matters with the children, not to discuss the other parent with the children,
and not to discuss visitation issues with the children. The trial court found,
however, that Mr. Pierre’s actions have caused and continue to cause substantial
harm to the children. As to Ms. Pierre, the trial court found that she was not
violent or an abuser and that Mr. Pierre was not a victim. Both parties testified that
the physical violence usually started with some disagreement or behavior, such as
taking a cell phone or a video game.
Considering the evidence elicited over the seven-day custody trial and after a
careful review of the record, we cannot find that the trial court erred when it
concluded that there has been a material change in circumstances since the
February 2, 2022 consent judgment was entered.
E. Best interest of the children / Post-Separation Family Violence Relief Act
We consider the second prong for modifying a consent judgment – whether
the proposed modification is in the best interest of the child – in conjunction with
our analysis of the PSFVRA, La. R.S. 9:361, et seq.
23-CA-470 20 Mr. Pierre argues that the allegations of abuse that the trial court relied on in
its ruling all took place prior to March 23, 2021 or February 2, 2022. As discussed
previously, we conclude that the trial court did not abuse its discretion by
considering evidence of abuse prior to the consent judgments of March 23, 2021
and February 2, 2022.
Alternatively, Mr. Pierre argues that even if the allegations of abuse were
found to be admissible, he would meet the requirements of La. R.S. 9:364 and thus,
be allowed to have custody and unsupervised visitation with the minor children.
La. R.S. 9:364, the provision of the PSFVRA that concerns child custody
and visitation, provides in pertinent part:
A. There is created a presumption that no parent who has a history of perpetrating family violence, as defined in R.S. 9:362, or domestic abuse, as defined in R.S. 46:2132, or has subjected any of his or her children, stepchildren, or any household member, as defined in R.S. 46:2132, to sexual abuse, as defined in R.S. 14:403, or has willingly permitted another to abuse any of his children or stepchildren, despite having the ability to prevent the abuse, shall be awarded sole or joint custody of children. The court may find a history of perpetrating family violence if the court finds that one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence.
B. The presumption shall be overcome only if the court finds all of the following by a preponderance of the evidence:
(1) The perpetrating parent has successfully completed a court- monitored domestic abuse intervention program as defined in R.S. 9:362, or a treatment program designed for sexual abusers, after the last instance of abuse.
(2) The perpetrating parent is not abusing alcohol or using illegal substances scheduled in R.S. 40:964.
(3) The best interest of the child or children, considering the factors listed in Civil Code Article 134, requires the perpetrating parent’s participation as a custodial parent because of the other parent’s absence, mental illness, substance abuse, or other circumstance negatively affecting the child or children.
C. The fact that the abused parent suffers from the effects of the abuse shall not be grounds for denying that parent custody.
...
23-CA-470 21 E. If the court finds that a parent has a history of perpetrating family violence, the court shall allow only supervised child visitation with that parent pursuant to R.S. 9:341.
Consequently, La. R.S. 9:364(A) creates a presumption that the parent with a
history of perpetrating domestic abuse shall not be awarded sole or joint custody of
the children. La. R.S. 9:364(E) further provides that the parent with a history of
perpetrating domestic abuse shall be allowed only supervised child visitation with
that parent.
The trial court found that Mr. Pierre has a history of perpetrating family
violence, and that the provisions of the PSFVRA apply. As set forth above, this
finding of the trial court was not an abuse of discretion.
La. R.S. 9:364(B) provides that the presumption shall be overcome “only if
the court finds all of the following by a preponderance of the evidence.” La. R.S.
9:364(B) (emphasis added). We thus consider each of the three factors of Section
La. R.S. 9:364(B).
The trial court acknowledged that Mr. Pierre completed the domestic abuse
intervention program as set forth in La. R.S. 9:364(B)(1) and further found that the
provisions of La. R.S. 9:364(B)(2) did not apply because the evidence did not
support that Mr. Pierre abuses alcohol or illegal drugs. But the third prong of La.
R.S. 9:364(B)(3) requires an analysis of the best interest of the children
considering the factors listed in La. C.C. art. 134.
The trial court conducted an extensive analysis of the twelve factors of the
best interest of the children under La. C.C. art. 134, and found that limited,
supervised visitation by Mr. Pierre was in the best interest of the children.
As an appellate court, we will not second-guess the district court’s
credibility determinations. E. R., 256 So.3d at 562. Where conflict exists in the
testimony, a factfinder’s reasonable evaluations of credibility and reasonable
inferences of fact should not be disturbed upon review, even though an appellate
23-CA-470 22 court may feel its own evaluations and inferences are more reasonable than the
factfinder’s. Id.
The trial court analyzed the evidence from the seven-day custody trial at
great length and analyzed the factors of the best interest of the children. We
conclude that the trial court did not abuse its discretion.
Finally, we consider La. R.S. 9:364(C), which provides that: “[t]he fact that
the abused parent suffers from the effects of the abuse shall not be grounds for
denying that parent custody.” On this point the trial court found:
No evidence was presented demonstrating any behavior by Ms. Pierre that negatively affects the children. Ms. Pierre suffers from the effects of abuse by Mr. Pierre. Mary Jo Devlin testified at length that Ms. Pierre has worked to overcome and heal from the effects of abuse. Further, Ms. Pierre’s testimony and demeanor support the Court’s conclusion that she is invested in the healing process.
The trial court made extensive findings of fact and conclusions of law. The trial
court found that “Ms. Pierre suffers from a history of mental, verbal, and physical
abuse by Mr. Pierre. Further, the Court finds that Mr. Pierre perpetrated that
violence, physical and mental abuse, and manipulation toward Ms. Pierre
throughout their relationship.”
Again, the trial court held a custody trial over seven days. The court heard
from numerous witnesses, including Ms. Pierre, Mr. Pierre, several family
members, Dr. Weiss, and Ms. Devlin. The trial court’s well-reasoned decision was
amply supported by the evidence. Thus, we cannot say that the trial court’s
conclusions as to the best interest of the children was an abuse of discretion.
Further, the trial court did not abuse its discretion when it awarded Ms. Pierre sole
custody of the children with supervised visitation by Mr. Pierre in accordance with
the provisions of La. R.S. 9:364(B) of the PSFVRA.
23-CA-470 23 F. Exclusive use and occupancy of the family home
Finally, Mr. Pierre argues that Ms. Pierre was erroneously granted the
exclusive use of the family home because of the custody determination.
LSA–R.S. 9:374(B) provides:
When the family residence is community property or is owned by the spouses in indivision, or the spouses own community immovables . . . , after or in conjunction with the filing of a petition for divorce, either spouse may petition for, and a court may award to one of the spouses, after a contradictory hearing, the use and occupancy of the family residence and use of community immovables or the community manufactured home pending partition of the property or further order of the court, whichever occurs first. In these cases, the court shall inquire into the relative economic status of the spouses, including both community and separate property, and the needs of the children, if any, and shall award the use and occupancy of the family residence and the use of any community immovables or the community manufactured home to the spouse in accordance with the best interest of the family. If applicable, the court shall consider the granting of the occupancy of the family residence and the use of community immovables or the community manufactured home in awarding spousal support.
(Emphasis added).
Considering the testimony and evidence, particularly the evidence that Mr.
Pierre has a regular job and income, while Ms. Pierre has less regular income and
is the primary caregiver of four children, we cannot say that the trial court erred in
concluding that awarding use and occupancy of the family home to Ms. Pierre was
in the best interest of the family.
Conclusion
For the foregoing reasons, we affirm the trial court’s judgment of March 28,
2023.
AFFIRMED
23-CA-470 24 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
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23-CA-470 E-NOTIFIED 29TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE M. LAUREN LEMMON (DISTRICT JUDGE) ERIC E. MALVEAU (APPELLANT)
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