Opinion
23-CA-336
12-27-2023
TODD BORDELON v. LATOSHA THIELE
COUNSEL FOR PLAINTIFF/APPELLANT, TODD BORDELON Bennett Wolff Scott C. Stansbury. COUNSEL FOR DEFENDANT/APPELLEE, LATOSHA THIELE Arita M. L. Bohannan
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 831-441, DIVISION "E" HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, TODD BORDELON Bennett Wolff Scott C. Stansbury.
COUNSEL FOR DEFENDANT/APPELLEE, LATOSHA THIELE Arita M. L. Bohannan
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst
SUSAN M. CHEHARDY, CHIEF JUDGE
SMC
JGG
SJW
This is a dispute over child custody. The father challenges the trial court's February 24, 2023 judgment, which awarded sole custody of the minor child to the child's mother, and granted him supervised visitation. He asks us to reverse the trial court's judgment and to maintain the parties' prior 50/50 shared custody arrangement, and to designate a specified unsupervised visitation schedule. For the following reasons, we affirm the trial court's judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Todd Bordelon ("Todd") and Latosha Thiele ("Tosha") have never been married to each other nor resided together; however, the parties maintained an intimate sexual relationship that resulted in the birth of the minor child, BB. Todd formally acknowledged BB by signing his birth certificate and as such is listed as the father of the minor child. At the time of trial, BB was nine years old.
Pursuant to Uniform Rules-Courts of Appeal, Rules 5-1 and 5-2, the initials of the minor child will be used to protect and maintain the privacy of the minor child involved in this proceeding.
For the majority of BB's young life, Todd and Tosha maintained a harmonious co-parenting, shared custody arrangement of BB. Until 2022, the parties had never sought legal recourse for purposes of establishing custody, visitation, or child support, as they had a verbal agreement between them that was working relative to these matters. In fact, Todd and Tosha, who have known one another for twenty-eight years, referred to one another as "best friends."
The record shows that since BB was an infant, the parties had an agreement that Todd would pay, and did voluntarily pay, $300 per month in child support. The parties also voluntarily shared custody of BB, without a formal visitation schedule.
Unfortunately, the parties' co-parenting relationship began to deteriorate in the spring of 2022. Todd contends their relationship worsened when he became engaged to Jordan Pembo ("Jordan"). According to Tosha, the relationship began to decline on the day Tosha graduated from nursing school, and Jordan brought BB to a family dinner "reeking of marijuana." Evidence presented at trial established that both Todd and Jordan consumed alcohol on a regular basis, often to excess, and were known to engage in occasional physical altercations in the presence of BB. Although the evidence showed that Todd has a loving bond with BB, and BB obviously loves Todd, the testimony at trial indicated that when Todd and Jordan consumed alcohol and became physical, this caused BB to become fearful of being with his father. There was also testimony that when Todd and/or Jordan became intoxicated while BB was in their care, and on occasion when the police were called to intervene in a domestic disturbance created by Todd and/or Jordan, Tosha was called to come retrieve BB in order to keep him safe and out of harm's way.
Todd began to date Jordan in or about 2018, and had been living with her for approximately four years prior to trial. The testimony at trial suggested that the couple had actually become engaged a year prior to March 2022. According to Todd, after the engagement, Tosha became a "woman scorned," or jealous of his relationship with Jordan, and that this was the reason the co-parenting relationship worsened. Tosha, however, denied that she was ever jealous of Todd's relationship with Jordan, as she has been engaged to another man, Kenneth Duzat, for the last several years.
In his brief on appeal, Todd concedes that "because of the influence and control of [Jordan] over [him], he engaged in questionable and erratic behavior." Tosha testified at trial that she has between 3040 text messages from over the past seven years where Todd texted her to come get BB because he was too drunk to take care of him.
Formerly, Todd was a deputy with the Jefferson Parish Sheriff's Office ("JPSO") for fourteen years. After the relationship between Todd and Tosha began to decline, and BB began expressing trepidation about being with Todd, Tosha started making requests of the JPSO to conduct wellness checks while BB was in Todd's custody. Tosha's complaints to the Sheriff's Office about Todd's conduct, included a complaint to Internal Affairs. Todd contends that all of Tosha's many complaints were unsubstantiated, and that no drug, alcohol, or physical abuse by Todd was ever confirmed. Todd testified at trial that he eventually resigned from the JPSO out of fear of being terminated due to the many complaints made by Tosha, and he did not want to jeopardize his pension.
Because of the continuous alcohol abuse and intermittent volatility BB experienced while in Todd's household, the once harmonious relationship between Todd and Tosha became acrimonious to the extent that it finally collapsed, resulting in both parties pursuing legal intervention for the first time since BB was born.
In August 2022, Todd filed a petition to establish paternity, and for custody and visitation. Specifically, Todd petitioned for joint custody, and that he be designated as the primary custodial parent. In response, Tosha filed a reconventional demand seeking sole custody, child support, and supervised visitation. A hearing officer conference was held on September 14, 2022, and was continued to October 3, 2022, wherein the parties consented to interim joint and shared custody of BB, with a 2-2-3 arrangement, as per the hearing officer's recommendations and/or stipulations. Tosha was designated as the domiciliary parent. Both parties timely filed objections to the hearing officer's recommendations and/or stipulations on October 7, 2022. The matter was then sent to the trial court for a trial on the merits.
According to Tosha, Todd's petition was precipitated by her formally pursuing child support. The voluntary child support payments that Todd had been paying since BB's birth stopped in March 2022, prompting Tosha to file a petition to establish child support.
In the September 14, 2022 stipulations and/or recommendations by the hearing officer, it was recommended and agreed to by the parties that they "shall not consume alcohol beverages of all types or kind within 24 hours before, or during the time they have physical custody of [BB]." Additionally, the parties stipulated that BB not be allowed to be around Jordan or allowed to sleep in the bed with her. On October 3, 2022, the hearing officer granted shared custody with a "two, two, three" schedule.
On October 4, 2022, the trial court signed an interim judgment to this effect.
Also on October 7, 2022, Tosha filed a petition for protection from abuse seeking a temporary restraining order ("TRO"), alleging that after BB was returned to Tosha on September 26, 2022, she noticed a large bruise on his hip that he had sustained while in his father's custody. After presenting BB to Children's Hospital where he was examined, BB was interviewed at the Audrey Hepburn Center, where he reported that he was afraid when at his father's house because of the physical fighting between his father and Jordan. Todd timely answered Tosha's petition denying the allegations contained therein, and averred that the petition was "frivolous, baseless, invalid, unfounded, in bad faith, and was interposed for an improper purpose ... and to harass [him]."
Tosha claimed that the main reason she filed the petition for protection was because the case manager at the Audrey Hepburn Center requested that she do so, as did the Internal Affairs surgeon. The recording of BB's interview with the Audrey Hepburn Center was played for the judge at trial. In the recording, which is not contained in the record on appeal, BB allegedly reported that Todd and Jordan had taken him on a trip to Alabama where they were physically fighting and his father had hit Jordan. BB told the interviewer that he could not remember how he got the bruise on his hip that weekend. When Tosha questioned Todd about how BB got the bruise, he told her that it was none of her "f**king" business what happens to BB while he is in Todd's custody.
Tosha's petition for protection from abuse was denied, but the matter was originally set for hearing on October 27, 2022. A copy of Tosha's petition is not contained in the record on appeal; however, Todd's answer to the petition, which was filed on October 12, 2022, is in the record.
A trial on the merits before Judge Frank A. Brindisi was held on February 10, 2023, where numerous witnesses testified, and extensive evidence was introduced. At issue was custody, visitation, a protective order, and the parties' respective rules for contempt. The following testimony was adduced at trial.
Latosha "Tosha" Thiele
Tosha testified regarding the deterioration of her once harmonious coparenting relationship with Todd, whom she had considered her best friend. Tosha stated that Todd was a great father until he started dating Jordan about three years ago, and that the previous year was when it started to be unsafe to have BB around her. She testified that the "triggering" event was in 2019, when she was called by the JPSO from Todd's telephone in the middle of the night to come pick BB up because Todd was being arrested on domestic violence charges for a physical altercation with Jordan that resulted in serious facial injuries. Tosha stated that when she arrived at Todd's house, he and Jordan were intoxicated, and she saw broken glass and upturned furniture all over the house. Tosha claimed that she begged Todd to stop drinking, to get counseling, and to stop drinking when BB was in his custody, to no avail. Tosha stated that before Todd began to "spiral[] out of control," he never so much as called her a derogatory name, never raised his voice, and was never disrespectful towards her. It was in 2022 when Todd began to verbally assault her in front of BB, telling her that he was going to make her "pay for this," that she was a miserable c*nt, and that he was going to make sure she was miserable for the rest of her life.
Tosha further testified that Todd and Jordan's drinking scares her, and she believes that BB is in danger when he is with his father. Despite several negative alcohol and drug tests taken by Todd, Tosha claimed that Todd violated the hearing officer's September 14, 2022 recommendations and/or stipulations by continuing to drink while BB was in his care. During Tosha's testimony at trial, numerous exhibits were photographs were introduced into evidence, including photographs showing drug paraphernalia at Todd's house, medical records, and audio recordings of BB, all suggesting alcohol and possibly drug abuse by Todd. She further testified regarding text messages between herself and Todd, where Todd admitted to excessive drinking with Jordan, driving while drinking, and promising her that he would not do it again.
Tosha stated that in her opinion, Todd was not only getting rougher with her, he was also getting rougher with BB. Tosha testified that while Todd has never physically harmed BB to her knowledge, their son has been emotionally and psychologically damaged. Tosha claimed that, while in the past Todd had been a good father, and she knows he absolutely loves BB and that BB loves him, she was no longer "ok" with shared custody of BB. She averred that it would be more detrimental to BB if he was to see his father get in an accident and kill himself or someone else due to his drinking and driving. She claimed that BB no longer "feel[s] safe around [his] father with a girlfriend due to alcohol and drug abuse."She testified that BB wants to be around the father that he once knew - not the father Todd is today. Her main concerns are substance abuse issues and the ongoing threats made against her.
There was no testimony or direct evidence in the record showing that Todd ever abused any narcotics. There was, however, testimony and photographs suggesting that may have smoked marijuana.
Todd Bordelon
At trial, Todd denied that his life was spiraling out of control, and claimed that everything was being overly exaggerated and is based on "bold-face lies." Nonetheless, Todd conceded that he lost his job, his home, the great relationship he once had with Tosha, and his fiance, Jordan Pembo, who is now incarcerated for the attempted second degree murder of Tosha. Todd also admitted that BB has told him that he does not like it when Todd drinks and drives. Todd further admitted to the occasion where Tosha was called to pick BB up from his home following an altercation between himself and Jordan, where the police were summoned. Todd denied that he was ever actually arrested for domestic violence.
Jordan was also charged with battery with a dangerous weapon and two counts of aggravated criminal damage to property.
Todd testified that Jordan Pembo will never see BB again, that he will never drink alcohol again in BB's presence, and that BB is his number one priority. He claimed that he feels bad about what Jordan did to Tosha and what Tosha is having to go through. Todd asserted that he is currently living with his friend, Andreas Gonzales, and there is a separate bedroom for BB. Photographs at trial showed a bedroom, which Todd stated was BB's, where BB has his own bed, and keeps his PlayStation and iPad.
Todd stated that he worked with the JPSO for 13.5 years and loved his job. He denied that he was fired, but rather, claimed that he resigned in December 2022, because of the many false police reports and false complaints that Tosha had made, and the numerous emails she had sent to Internal Affairs. Todd claimed that he believed that, with all of the harassment and police reports made by Tosha, she was eventually going to have him arrested and that he would be in danger of losing his pension. He retired only to protect his pension.
Regarding a trip to Alabama, Todd claimed that as they were leaving to go on the trip, he advised Tosha that he was taking BB to Orange Beach and that they would be staying at the Phoenix. He admitted that he was not specific about which of the 24 Phoenix properties they would be staying, and that when she asked him for more information, he told her that it was none of her "f**king business" what happened while BB was in his custody. Todd denied that he drank any alcohol on that trip, that he hit or abused BB in any way, or that he and Jordan fought on that trip. He denied having any knowledge about how BB sustained the contusion to his hip.
Todd testified that the recording of what BB said in his interview at the Audrey Hepburn Center-i.e., when BB told the interviewer that he shares a room with his dad, that he is scared because his dad drinks and drives, and that he has seen Todd physically hit Jordan-is untrue. He does not believe that BB was actually lying, but rather, BB was "being led" in what he said. According to Todd, the several negative alcohol and drug tests that he has voluntarily taken substantiate that he does not drink while BB is in his custody.
Todd admitted that he has purposely withheld child support payments to punish Tosha because of all of the problems that have occurred, and because Tosha starting withholding BB from him for no reason. He stated that, at the time, he was not under a court order to pay child support. He testified that another reason he stopped paying was because Tosha owed him approximately $500 for a cell phone balance that she refused to pay.
Todd testified about the day his fiance (Jordan) ran over Tosha with her vehicle. He explained that after one of BB's flag football games, he was walking to his vehicle with BB, with plans to take BB and two friends to get snowballs.
They were walking alongside two of BB's friends and the friends' mothers. Todd testified that BB and his two friends were already in the car while he was loading a cooler, when he heard a car crash. He claimed that he walked into the parking lot to see what had happened, and saw that Jordan's car had backed into another car. According to Todd, he left BB in the car, knowing there were other adults present, so that he could go to Jordan and attempt to de-escalate the situation. He denied that BB had witnessed the horrible event. Todd admitted that the incident occurred approximately 20-25 parking spots from where his car was parked, but explained that he believed BB to be safe as there was another parent nearby, and that he was needed to restrain Jordan from causing further damage or injury. Todd further explained that he witnessed "five people on top of Jordan," and that several people were fighting. He claimed that he went into "cop-mode" and restrained Jordan until the Kenner police got to the scene to arrest her. Todd denied that he knew that Jordan was going to show up after BB's game that day or that anything untoward was going to happen to Tosha.
Todd was questioned about an incident involving Jordan's mother and verbal threats her mother made against the lives of Tosha and Tosha's mother. He stated that after the continuance of a court appearance, he suspected that Jordan may have told her mother that the "antagonizing by Tosha towards Jordan" was going to continue. Shortly afterwards, he received a call from Jordan's mother, who told him that she was going to look for "this bi**h", meaning Tosha. Todd denied that he told Jordan's mother where Tosha lived, but instead, testified that he told her to "turn her ass around and go back home." However, Jordan's mother kept screaming that she was going to get Tosha. Knowing that Tosha was at her mother's house, which happened to be only blocks away from Jordan's mother, Todd claimed that he could have called the police, or at least called Tosha to warn her, but admittedly, did neither. Instead, Todd called Jordan to tell her to have her mother go home. Jordan's mother, however, proceeded to Tosha's mother's home, where she made verbal threats against Tosha's life-that she was going to "come for you," and threatened to put Tosha "under concrete"-while BB stood nearby and watched. Tosha happened to videotape the entire incident with her phone, and the video was showed to the judge at trial.
Todd denied the allegations that he was ever arrested by the JPSO for domestic violence or for striking Jordan. According to Todd, Jordan was drinking and got angry about something, then slammed the back door of Todd's home and locked it. Todd explained that because he did not have a key, he began banging on the door and kicking it. Eventually, the door swung open and accidently struck Jordan resulting in a cut over her eye. Todd admitted that he had been drinking at the time. BB was in his custody when this occurred, and Tosha was called to retrieve him from Todd's home. Todd testified that, while the JPSO did come to his house, and that he did have to go to the detective bureau and give a statement, the case was closed by the following morning. Todd denied that the JPSO detectives covered up for him on that occasion, or on any other occasion. Although Todd conceded that he and Jordan did have occasional arguments, he claimed that Tosha's allegations of his "getting in fights with Jordan [are] very exaggerated."
At trial, Tosha introduced text messages from Jordan on the night of the incident, claiming she needed stitches and might have broken her fingers and that Todd "was wrong for what he did." In the texts, Jordan stated that BB was asleep during the incident.
Todd further testified about an incident of violence involving Tosha's fiance, Kenneth Duzat, while BB was in Tosha's custody. According to Todd, Tosha called him looking for a place to stay because Kenneth was destroying their house, had a knife, and that she had to climb out of the bathroom window with BB to get away from Kenneth. Todd described another incident involving Kenneth and the Harahan police, where they were going to arrest Kenneth. Todd claimed that he talked the police into letting Kenneth come with him instead of taking him to jail. According to Todd, Kenneth had been drinking alcohol on both of those occasions.
Todd was questioned about a recent bond reduction hearing that was held in Jordan's criminal case, where he was present. Todd denied that he was there to testify as a witness on his fiance's behalf to get her bond reduced. According to Todd, he wants nothing more to do with Jordan; he was at the hearing only to see what was going on in the case.
Susanne Gioiello
Ms. Gioiello is Tosha's mother and BB's grandmother. She testified that she has known Todd for most of his life and once had affection for him. Ms. Gioiello testified that she received a text message from Todd that read, "I'm going to ruing [sic] my f**king career because I'm going to take [BB] by any means necessary." She understood this message to mean that Tosha might lose her life.
Ms. Gioiello described an incident that occurred on October 31, 2022, when Jordan's mother pulled up to her home and threatened Tosha, as well as BB, who was standing nearby, and said she would see us all "in cement." Ms. Gioiello saw the woman point to Tosha and say that she was coming for her, causing Ms. Gioiello to fear for her Tosha's life.
Ms. Gioiello described another incident that occurred a month later on December 2, 2022, when she stood outside of the courtroom following a hearing on Tosha's petition for a protective order. Ms. Gioiello stated that as she was walking outside the courthouse with Tosha, she was attacked by Jordan Pembo. At that point, Ms. Gioiello felt like her life was in danger as well. She testified that she only knows Jordan Pembo through Todd - there was no other connection.
Ms. Gioiello described a third incident that occurred on December 3, 2022, the day following the court hearing where she was attacked by Jordan. She stated that after one of BB's flag football games, as she was getting into the passenger front seat of her vehicle, she heard screeching tires. Ms. Gioiello stated that after visually locating her youngest daughter, Samantha, she then looked for Tosha. As she proceeded towards Tosha's car, Jordan got out of her own vehicle and began to physically attack Ms. Gioiello. At this point, Ms. Gioiello still had not located Tosha. She had another daughter who was also involved. In total, there were five people that Jordan physically injured that day. She soon learned Tosha had been intentionally struck by Jordan Pembo's car. Ms. Gioiello testified that Tosha's ankle was basically crushed, requiring five surgeries, and that she still needs at least two more. A photo of Ms. Gioiello introduced into evidence shows scrapes on her forehead, which were from Jordan's attack the day before, but all of the other injuries shown were from the day of this incident.
A video recording of this incident was shown to the judge at trial. In the video, Todd is shown holding Jordan Pembo while on the ground. Ms. Gioiello testified that when the impact occurred, Todd was actually walking with BB towards his own car, but immediately thereafter, instead of staying with BB, Todd abandoned him in the parking lot so that he could run to Jordan.
Ms. Gioiello testified that BB witnessed the accident and saw his mother almost get killed by Jordan. Instead of making sure that BB, who was his responsibility that day, was okay after witnessing the horrific event, Todd went running to Jordan.
David Ziegler
David testified that he and Todd have been friends for the past seven years. Todd told him that he was not allowed to drink any alcohol within 24 hours of having BB or when BB was in his care. David stated that since being ordered not to, he has not seen Todd drink alcohol when BB is present. On cross-examination, David was confronted with a video taken on September 15, 2022, the day after the initial hearing officer conference. The video was recorded at Hooters showing both Todd and BB, and showing beer glasses on their table. Although BB claimed that Todd was drinking that night, David denied that Todd had even one sip of alcohol. According to David, Hooters serves beer and water in the same glasses.
David described Todd's relationship with BB as "[b]etter than anybody I know." He stated that Todd "loves [BB] more than anything ... BB is his number one." David denied that he had ever seen BB afraid when he was with Todd. He also denied that Todd was "unstable" or suicidal.
Andres Gonzales
Andres, a former New Orleans Police Officer, claimed that after being evicted from his apartment approximately one month prior, Todd moved in with him at his three bedroom home. Andres testified that he was injured in the line of duty and is now disabled, and that Todd "sits" with him, which Andres claimed to be a help. He stated that when BB is in Todd's care, BB has his own bedroom. Andres testified that Todd is very verbal about the fact that BB means everything to him, and that Todd definitely loves BB. Andres denied that BB has ever been left at home alone with him, or that BB has ever been in danger while with Todd at his home.
Andres confirmed an incident that occurred on New Year' Eve 2022, a couple of weeks prior to trial, where Todd poured lighter fluid on fireworks and lit them in the backyard with BB in close proximity. Andres denied that Todd is unstable.
Amanda Bordelon Breaux
Amanda, a charge nurse at University Hospital, is Todd's sister and the mother of seven-year-old twin boys, BB's cousins. She testified that, considering that Todd lost his job and his home, she worries about him all of the time. She denied, however, that BB looked scared or that it was unsafe for him to be with Todd. She also denied that Todd has ever expressed suicidal thoughts to her, but has told her that he is deeply depressed.
Brittany Labarriere
Brittany, a communications officer for the fire department, testified that she grew up with the Bordelons, and has known both Todd and Tosha for most of her life. She stated that Todd and Tosha were "amazing coparents together." She described a change in their relationship, however, in particular with Todd, when he and Jordan started dating. She noticed that Todd and Jordan frequently argued, that they both began to consume more alcohol, and that the drinking had gotten progressively worse. Brittany testified that she worries about both Todd and BB, and she fears that one day she is going to receive a call that BB is hurt. She stated that she has witnessed Todd progressively "worsening," and believes he is "spiraling out of control" and wants him to get help.
Sergeant Denise Licciardi
Sergeant Licciardi, currently a patrol sergeant in the Fourth District for the JPSO where Todd used to work, testified that she has worked for the JPSO for 18 years and has been a sergeant for 10 years. She stated that she was aware that there were several wellness checks to Todd's home, but did not know how many. She recalled one such wellness check that occurred on October 9, 2022. Headquarters had received a complaint from Latosha Thiele, who claimed that she had been unable to make contact with her son, and had been receiving numerous drunken text messages from the child's father. Sergeant Licciardi testified that she made contact with Todd, but he did not appear intoxicated and that the child, who was preparing to take a bath, appeared to be unafraid and not in any danger.
Sergeant Licciardi stated that she was instructed by her captain to document the wellness check because there had been numerous wellness checks on numerous occasions to the same address instigated by Latosha Thiele, and that now "rank" was instructed to go on scene. Sergeant Licciardi did not know which, if any, of the complaints were ever substantiated.
At the close of the hearing, Judge Brindisi issued an oral judgment, with detailed oral reasons, granting sole custody of BB to Tosha and supervised visitation to Todd. Regarding a supervised visitation schedule, the trial judge took that matter under advisement and stated that he would "issue that[.]" When asked by the judge whether the parties had any particular supervisor in mind, the parties agreed that Todd's sister, Amanda Bordelon Breaux, would supervise visitation, in order that BB could play with his twin cousins.
Additionally, the trial judge dismissed Tosha's petition for a restraining order and both parties' rules for contempt. The trial judge issued a written judgment to this effect on February 24, 2023.
While the February 24, 2023 judgment granted Todd supervised visitation, the judgment did not include a supervised visitation schedule.
Todd now appeals that judgment.
ASSIGNMENTS OF ERROR
Todd urges four assignments of error: (1) the trial court erred in finding that Tosha Thiele proved by clear and convincing evidence that sole custody was in the best interest of BB; (2) the trial court erred in finding that supervised visitation was in the best interest of BB; (3) the trial court erred by failing to designate a specified visitation schedule; and (4) the trial court erred because it failed to give any weight or to consider the parental weakness of Tosha and her home environment.
DISCUSSION
Child Custody
In his first assignment of error, Todd challenges the correctness of Judge Brindisi's judgment, granting sole custody to Tosha rather than maintaining the prior interim shared custody arrangement. Todd argues the record does not show clear and convincing proof under La. C.C. art. 132, which controls an award of custody to parents, that a grant of sole custody to Tosha was in the child's best interest, and, thus, the judgment must be reversed. We disagree.
It is a well-recognized tenet of Louisiana jurisprudence that an award of child custody is not a tool to regulate human behavior. Silbernagel v. Silbernagel, 06-879 (La.App. 5 Cir. 4/11/07), 958 So.2d 13, 17. Every child custody case must be viewed on its own peculiar set of facts and the relationships involved, with the paramount goal of reaching a decision that is the best interest of the child. Evans V. Lungrin, 97-541, 97-577 (La. 2/6/98), 708 So.2d 731, 738; La. C.C. art 131. Here, the heart of the matter rests in the best interest of a nine-year-old boy.
The trial judge is in the best position to ascertain the best interest of the child given each unique set of circumstances. The trial court is vested with broad discretion in deciding child custody cases. Appellate courts must be vigilant not to retry cases. Accordingly, a trial court's determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Thompson v. Thompson, 532 So.2d 101, 101 (La. 1988) (per curiam); see also Henry v. Sullivan, 16-564 (La.App. 1 Cir. 7/12/17), 223 So.3d 1263, 1271, In the instant case, and as in most child custody cases, the trial court's determination was based heavily on factual findings. It is well-settled that an appellate court may not set aside a trial court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. Griffith v. Latiolais, 10754 (La. 10/19/10), 48 So.3d 1058, 1070. 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. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). 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. Stobart v. State, DOTD, 617 So.2d 880, 882 (La. 1993).
Generally, the trial court shall award custody to the parents jointly; however, if custody to one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent. La. C.C. art. 132. To assist courts in making the factual determination as to the best interest of the child, La. C.C. art. 134 enumerates fourteen factors for the court to consider. Wilson v. Wilson, 15-74 (La.App. 5 Cir. 4/29/15), 170 So.3d 340, 34435. The court is not required to analyze mechanically all of the specific factors; rather the court should balance and weigh the factors in view of the evidence presented. Id. at 345.
"Clear and convincing" evidence is applied in civil cases only in exceptional circumstances, "where there is thought to be special danger or deception, or where the court considers that the particular type of claim should be disfavored on policy grounds." Talbot v. Talbot, 03-814 (La. 12/12/03), 864 So.2d 590, 598. "The clear and convincing standard requires a party to prove the existence of a contested fact is highly probable, or much more probable than its non-existence." Id.
The fourteen factors listed in La. C.C. art. 134 for the trial court to consider in determining the best interest of the child include:
1. The potential for the child to be abused, as defined by Children's Code Article 603, which shall be the primary consideration.
2. The love, affection, and other emotional ties between each party and the child.
3. The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
4. The capacity and disposition of each party to provide the child with good, clothing, medical care, and other material needs.
5. The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
6. The permanence, as a family unit, of the existing or proposed custodial home or homes.
7. The moral fitness of each party, insofar as it affects the welfare of the child.
8. The history of substance abuse, violence, or criminal activity of any party.
9. The mental and physical health of each party. Evidence that an abused parent suffers from the effects of past abuse by the other parent shall not be grounds for denying that parent custody.
10. The home, school, and community history of the child.
11. The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
12. The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abuse, reckless, or illegal conduct has caused one party to have reasonable concerns for the child's safety or well-being while in the care of the other party.
13. The distance between the respective residences of the parties.
14. The responsibility for the care and rearing of the child previously exercised by each party.
In the instant case, Judge Brindisi's extensive oral reasons for judgment show that he considered the factors for determining BB's best interest, set out in La. C.C. art. 134. Specifically, after listening to the eight witnesses and considering approximately fifty pieces of evidence, which included the Audrey Hepburn audio and three videos, the trial judge found that Tosha clearly and convincingly showed that the parties' prior shared custody agreement was no longer in BB's best interest. The evidence contained in the record shows that, although Todd genuinely loves his son, he has made numerous poor decisions, which have placed BB in danger. Most significant is the December 6, 2022 incident where Todd's fiance ran over Tosha with her automobile, severely injuring her, while BB was present in the area. The evidence established that Todd left BB unattended in a busy parking lot in order to assist Jordan, rather than making sure that BB and/or the mother of his eight-year-old son were okay. In fact, the evidence established that Tosha was severely injured, has had to undergo numerous surgeries, and is facing at least two more. In the same incident, BB also watched Jordan attack and injure his grandmother, while standing alone in the parking lot as his father rushed to Jordan. Similarly, there was testimony that in the days prior to the December 6, 2022 incident, Todd knew that Tosha was in danger, yet failed to call her or 911, when Jordan's mother drove to the home of Tosha's mother and threatened Tosha's life, while BB stood nearby. BB witnessed Jordan's mother tell Tosha that she was "coming after you" and that she intended to put her "under cement."
In addition, there was testimony that BB has reported seeing Todd engage in a physical confrontation with his fiance, break furniture, and drink alcohol to excess, while BB was in his care. On one such occasion, when Todd had been drinking, Jordan required emergency medical treatment for a cut she sustained requiring several stitches and for which Tosha was called by the JPSO to come to the scene and retrieve her son. There were also text messages between Tosha and Todd introduced into evidence that showed that Tosha had implored Todd and Jordan to stop drinking while BB was in Todd's custody. Further, there was testimony and evidence suggesting that Todd violated the hearing officer's September 14, 2022 order by drinking alcohol in the presence of BB, and that he left the minor child unattended while at Hooters with some of his friends. The trial court also heard testimony that Todd took BB out-of-state without timely communicating with Tosha, and purposefully did not provide her with specific information as to BB's whereabouts, in contravention of the stipulated interim agreement. When Todd finally returned BB to Tosha, BB had an unexplained contusion on his hip.
In contrast to the evidence showing that Todd clearly loves his son and wants to maintain the close bond that he has developed with BB, the record is replete with testimony and evidence of BB being subjected to incidents of violent behavior while in Todd's custody, causing BB to express on more than one occasion his fear of being with his father. Further, in making his decision that sole custody of BB with Tosha, and supervised visitation with Todd, are in the best interest of BB, the trial judge found that Todd's current living situation is not established, that he is currently unemployed and financially unstable, that he is an alcoholic and in need of treatment, and that he is, in short, "spiraling out of control."
In the trial judge's own words, he stated "this is probably one of the most heartbreaking cases that I've seen since I've been a Judge as far as domestic cases go." He stated that Todd "allowed" the chaos to occur and "let things get out of hand." Further, Judge Brindisi concluded, based on what he had seen and heard at trial, that Todd has a drinking problem, and despite his own son telling him that he is scared to be with his father while he is drinking, Todd continues to do so. In granting sole custody to Tosha, Judge Brindisi stated the following:
Okay. Look I'm doing this in the best interest of the child. I think this is in the best interest of the child right now. I think this family, this relationship has been broken. And I think we've got to hit the reset button, and we got to try to put the pieces back together. So that's what we all need to do.
Based on our review of the testimony and evidence contained in the record, we are unable to say the trial judge was clearly wrong or abused his discretion in finding that Tosha proved by "clear and convincing" evidence that sole custody is in BB's best interest. This assignment of error is without merit.
Supervised Visitation
In his second assignment of error, Todd argues the trial court erred by ordering his visitation with BB to be supervised. Todd avers the trial court's two main reasons for ordering supervised visitation was Jordan's "horrendous behavior" and his belief that Todd has an alcohol problem. According to Todd, since Jordan is incarcerated and, thus, no longer a problem, Judge Brindisi should have ordered an alternative option to what he perceived to be Todd's drinking problem. For example, Todd argues Judge Brindisi could have ordered that he use a breathalyzer-a Soberlink-which is capable of monitoring Todd's behavior prior to and during the time that he has physical custody of BB, and therefore, would alleviate any concerns regarding his alcohol usage at these critical times. Additionally, Todd argued that for the past eight years, he has had almost 50/50 shared custody of BB, and has been actively involved in BB's child rearing. Given the close bond that he and BB share, Todd contends this will adversely affect BB and is not in his best interest. Further, Todd argues that he has never physically or sexually abused BB, or utilized illegal drugs (although he admitted to using marijuana for which he claimed he had a prescription). Todd contends Judge Brindisi erred in failing to consider these compelling reasons which weigh in favor of his visitation being unsupervised and frequent.
La. R.S. 9:341(A) places restrictions on visitation, "whenever the court finds by a preponderance of the evidence that a parent has subjected his or her child to physical abuse, or sexual abuse or exploitation, or has permitted such abuse or exploitation of the child . . ." The statute, however, does not limit the trial court from ordering supervised visitation in other situations if it decides that it is warranted for the safety of the child, or if supervised visitation is in the child's best interest. Harper v. Harper, 33,452 (La.App. 2 Cir. 6/21/00), 764 So.2d 1186, 1191. Additionally, La. R.S. 9:362(6) defines supervised visitation to mean "face-to-face contact between a parent and a child which occurs in the immediate presence of a supervising person approved by the court under conditions which prevent any physical abuse, threats, intimidation, abduction, or humiliation of either the abused parent or the child."
As with child custody disputes, the paramount consideration in setting visitation is the best interest of the child. Harper, 764 So.2d at 1191. In visitation matters, the weight given to each factor under La. C.C. art. 134 is left to the discretion of the trial court. Id.
Based on our review of the record, we find there is ample evidence to support the trial court's decision. In addition to the evidence referenced above when addressing the issue of sole custody, there was testimony at trial that Todd has verbally assaulted Tosha in front of BB, has driven BB in the car when he has been drinking, and that BB is fearful to be around his father right now. There was also testimony from Todd's sister that Todd has told her that he is currently "severely depressed." Another witness, Brittany, testified that she believes that Todd is "spiraling out of control," and that she is fearful for BB.
We find that the evidence and testimony presented a trial strongly indicates that Todd is currently unstable, as he has lost his home, his job, and is living with a friend. The trial judge stated that under the particular circumstances of this case, he believed that supervised visitation was in the best interest of BB. Considering the unique and chilling facts of this case, we cannot say the trial judge's conclusion was manifestly erroneous or an abuse of his discretion. This assignment of error lacks merit.
Supervised Visitation Schedule
In his third assignment of error, Todd argues the trial court erred in failing to set a supervised visitation schedule, leaving the times he is able to visit with his son totally to the whim of Tosha. Specifically, Todd avers that while the February 24, 2022 judgment provides for supervised visitation, it fails to designate a supervisor and fails to set forth a specific supervised visitation schedule.
At the close of trial, after the trial judge issued his oral ruling restricting Todd's visitation with BB to supervised visitation, the parties expressed their consent to having Todd's sister, Amanda Bordelon Breaux, designated as the supervisor. As to the issue of a set supervised visitation schedule, the trial judge stated that he was taking that matter "under advisement" and would issue a written judgment the following week. When the trial judge issued judgment on February 24, 2022, the judgment expressly granted supervised visitation to Todd, but was silent as to a set supervised visitation schedule.
As stated supra, considering the particular facts and disturbing circumstances of this case, we cannot conclude the trial court abused its discretion in failing to include the specific details sought by Todd. When he ordered supervised visitation, the trial judge clearly advised Todd that supervised visitation "was not etched in stone.... Start working, get a place, get on your own two feet, stop the drinking, and you come back and visit me when you think the time is right." The trial judge further advised that "[w]hen the time comes and you feel it's necessary to file something, you go ahead and file something." Moreover, the law is clear that Todd can file a motion to set a supervised visitation schedule, if necessary.
Consideration of Tosha's Suitability as a Parent
In his final assignment of error, Todd argues the trial court erred by focusing almost exclusively on the behaviors of himself and his fiance in determining the best interest of BB, and failed to consider Tosha's actions or those of her fiance. We find no merit to this assignment of error.
As stated previously, in custody cases, the trial court's determinations as to the best interest of the child are based heavily on factual findings. Silbernagel, supra, 958 So.2d at 17; Wilson, supra, 170 So.3d at 344. An appellate court cannot set aside a trial court's factual findings in the absence of manifest error or unless those findings are clearly wrong. Rosell, supra, 549 So.2d at 844. When the factual findings are based on the credibility of the witnesses' testimony, the fact finder's decision to credit a witness's testimony must be given great deference by the appellate court, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Id.; see also In re Fleming, 01-1405 (La.App. 5 Cir. 4/30/02), 817 So.2d 371, 374.
In the instant case, as evidenced by Judge Brindisi's impassioned oral reasons for judgment, it is clear that Judge Brindisi did, in fact, listen and take to heart all of the testimony presented by each witness, including the testimony of both Tosha and Todd, viewed the audio and video recordings, and considered all of the other evidence submitted, in making his determination that, for now-until, and if, Todd makes personal changes (i.e., stops drinking and disassociates completely with his fiance) and pursues the help necessary to make those changes-the best interest of BB is to be solely in the custody of Tosha. On crossexamination, Tosha was questioned about an incident involving her fiance, with whom she and BB both live, where Kenneth, who had been drinking, became angry and kicked a door, causing Tosha to become fearful enough to leave the home with BB. Tosha explained, however, that this was an isolated incident that occurred after she and Kenneth had lost a baby, and she denied that she left the home and stated that it was Kenneth who left. Judge Brindisi apparently chose to credit Tosha's testimony over Todd's, which he has the discretion to do.
Additionally, while Tosha admitted that Kenneth drinks alcohol, other than this isolated incident, there was no further evidence suggesting that Kenneth drinks alcohol to excess, or that violence exists in Tosha's home.
Todd also claims that Judge Brindisi did not properly consider or take into account Tosha's positive drug screen for amphetamines when awarding her sole custody of BB. Tosha, however, explained to the court that she has a prescription for Adderall, an amphetamine, for Attention Deficit Disorder ("ADD"), and that the findings on the drug screen analysis were consistent with her prescription. Todd contends Judge Brindisi did not consider how Tosha's ADD might affect her suitability as a parent. A review of the record shows that absolutely no evidence or testimony regarding ADD, its effects, or its alleged "comorbities," on persons diagnosed with the condition. Thus, contrary to Todd's assertion, there was nothing else other than the fact that Tosha has a prescription for and does take Adderall for the trial judge to consider.
Even considering the evidence and testimony above, Judge Brindisi concluded that Tosha has "very good instincts," and that she cares about nothing else other than her son. At trial, Todd admitted that Tosha is a good and loving mother to BB, and that he feels BB is safe with her. Judge Brindisi also found that Todd is a good man, that he loves BB, and that BB loves him. However, based on the totality of the testimony and evidence presented at trial-in particular, the horrific incidents that occurred in December 2022, resulting in serious injury to Tosha, injury to her mother, and threats on Tosha's life, and his conclusion that he is not convinced that Jordan is no longer a part of Todd's life-Judge Brindisi implicitly determined that BB is not safe right now with Todd.
We find Judge Brindisi did not abuse his discretion or manifestly err in crediting certain witness's testimony over others in determining that sole custody granted to Tosha and supervised visitation granted to Todd is in the best interest of BB. He rendered judgment consistent with the evidence and testimony presented at trial. There is no merit to this assignment of error.
CONCLUSION
For the foregoing reasons, the judgment of the trial court granting the mother sole custody of the minor child and supervised visitation to the father is affirmed.
AFFIRMED.