The majority concedes that “the trial court did not make an explicit finding that Richard proved a material change in circumstances sufficient to alter a change in the custody plan” but maintains the trial courts ruling “reflects an implied finding” that Richards relocation by the military to Hawaii establishes a material change in circumstances. But nowhere in the jurisprudence do I find support for an implied finding being a sufficient basis for the trial court to proceed to the second step in the process, the determination of the best interest of the child. The majority cites this courts decision in Joubert but does not adhere to its precepts. In Joubert we clearly held that:
Should the party urging a change of the physical custody allocation of a joint custody plan fail to show a material change in circumstances, the inquiry ends, and there is no basis for altering the consent judgment. Lunney v. Lunney, 11-1891 (La.App. 1 Cir. 2/10/12), 91 So.3d 350, writ denied, 12-610 (La. 4/4/12), 85 So.3d 130.
Joubert v. Joubert, 19-349, pgs. 5-6, (La. App. 3 Cir. 11/13/19), 285 So. 3d 7, 12–13 (emphasis added). See also Delhoste v. Delhoste, 16-983 (La.App. 3 Cir. 5/22/17), 222 So. 3d 136 and cases cited therein. The fathers move to Hawaii certainly presents visitation issues but it provides no basis for changing the agreed-upon domiciliary custody arrangement designating Kali as the domiciliary parent. Richard does not establish a basis for the trial court or this court to change the existing decree.
The record reflects the trial court did not find that Richard proved a material change in circumstances sufficient to alter a change in the custody plan. Nevertheless, without making such finding, the trial court proceeded to address the best interest of the child. It was error for the trial court to proceed with a determination of the best interest of the child. Thus, the inquiry should have stopped there. Even if it were proper to proceed with a best interest of the child analysis, I believe the record does not support a change of domiciliary custody. Because the trial court legally erred in proceeding to the determination of best interest of the child before establishing the first prong of the test we must review the matter de novo.
[W]hen a trial court applies incorrect legal principles and these errors materially affect the outcome of a case and deprive a party of substantial rights, legal error occurs. Evans v. Lungrin, 97-541, 97-577 (La. 2/6/98), 708 So.2d 731. “[W]here one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence.” Id. at 735.
Joubert, 285 So. 3d at 11.
This child is only two and a half years old, and for the first year of her life she bonded only with her mother because her father was unavailable for most of the first twelve months of her life. The primary basis alleged by Richard to establish a change of circumstances was one instance of alleged abuse by the mothers husband at the time, Mr. Cauble. The majority maintains that “the trial court [ ] found that Kalis husband, Mr. Cauble, abused Rowan, and yet Kali continued living with Mr. Cauble.” The record does not support this statement. Richard testified at the hearing he no longer believes Cauble abused the child.
Q. Sir, we—had a deposition earlier this month, is that correct?
A. Thats correct, we did.
Q. Okay. In that deposition I asked you if you had stated to Mr. Cauble that—that you do not believe that he did anything?
A. Yeah, I made that statement.
Q. Do you still stand by that statement?
A. I stand by that statement. I dont think he did do it.
Q. You dont think hes abused this child at all?
A. I think he knew about it.
Unable to establish any abuse by Cauble, Richard testified he now thinks it is Kali who abused their child despite his contradictory testimony that he personally has never seen Kali spank Rowan or act aggressively toward her. There is no medical evidence to support either of Richards accusations and in fact, the only medical evidence presented says there are no indications of any emotional or physical abuse of Rowan. The majority agrees that the trial court was correct in finding that Kali did not abuse her child.
Additionally, Kali filed for a divorce from her second husband and she testified the divorce was in progress at the time of the hearing awaiting expiration of the legal time delay before a judgment of divorce can be awarded. Kali testified that when she realized her then husband may well have physically abused the child on one occasion, she separated from him, subsequently filed for divorce, and no longer has any contact with him.
Richard also alleges Kali continued to see Cauble after filing for divorce from him but in his ex parte petition for custody he states as a basis for his petition that Kalis home environment is unstable because she was divorcing Cauble and is no longer in a stable environment. Richard cannot have it both ways. In short, there was simply no evidentiary basis for the trial court to find that Cauble abused the child and the majoritys effort to breathe life into this assertion is clear error.
Further, the trial courts findings and rulings are internally inconsistent. Although the trial court indicates it found the testimony of Cyla Hall (Hall) and Makayla Clayton (Clayton) credible, it found Rowan was not physically abused or neglected by Kali and permitted her to have unsupervised visitation with Rowan henceforth. Moreover, it further provided Kali shall enjoy full physical custody of Rowan in the event Richard is reassigned to a post where he cannot bring his children. The inclusion of that provision in the trial courts order speaks volumes about Kalis continued fitness to be the domiciliary parent and belies any notion of abuse or change of circumstances. The majority ignores this inconsistency.
Arial Leggett (Leggett) testified at the hearing. She babysat Rowan on occasion for Kali and does not have any relationship with Hall, Clayton, Richard, or Cauble. Her only relationship to Kali is that she has babysat for her on a few occasions. She testified that Kali brought Rowan to her on August 24, 2019, and she babysat her from about 12:15 P.M. to about 5:00/6:00 P.M. Hall picked up Rowan from her around 6:00 P.M. She tells a very different story concerning Rowans condition on that date than does Hall.
Q. Now, from 12:15 to 5:30/6:00, you had Rowan. Did she appear in good health?
A. Yes, definitely.
Q. Okay, and did she—she appear bruised?
A. Not at all.
Q. Okay, did she appear sick?
A. Not at all. She fed my baby.
Q. She fed your child?
A. Yes.
Q. Was she throwing up?
A. No.
Q. Did she have a fever?
A. No, sir.
Q. Did you have to give her Tylenol or anything to that effect?
A. Oh no. Huh-uh (negative).
Q. Would you have put her around—now, you mentioned that you had a baby?
A. Uh-huh (affirmative).
Q. That child, how old is that child?
A. My baby was born July 27th. She [Rowan] came on August 24th, so my babys two months old.
․
Q. Would you have had a sick child around your baby?
A. Not at all.
Q. Now, were speaking about August 24th?
A. Uh-huh (affirmative)
Q. And how did—how did Rowan appear aside from her health?
A. She—she got there and she was like, totally happy. Like, she was playing, she was watching TV, she was—we went to McDonalds, she ate. She ate apple pie, she ate nuggets, she ate fries, she fed my baby. She played like a normal baby, like a normal kid. Nothing was wrong with her at all.
Q. Okay, and at 5:30/6:00 that day, did you have any further actions with this child?
A. No.
Q. Okay.
A. She was completely healthy.
Q. In regard to Cyla Hall, have you ever met her before?
A. No, I have—I dont know—I dont know who she is.
Q. Did you allow her to pick up the child because you were told to?
A. Yes, because Kali gave me permission to give her to—give Rowan to her.
Q. Okay, and aside from that chance encounter, you dont know her, couldnt call her, talk to her, or anything?
A. No, not at all.
This testimony is consistent with Kalis testimony regarding the same series of events. Kali testified that when Hall picked up Rowan on August 24, 2019, she had her for only about an hour then Richard picked her up. The next day, August 25, 2019, Richard brought Rowan back to Hall to babysit her until Kali returned from her birthday weekend in Mississippi. Consistent with Leggetts testimony, Kali testified regarding this time frame as follows.
Q. All right, during that weekend while you were gone, did Mrs. Hall attempt to contact you and tell you that the child was sick?
A. She texted me one time and told me that she had to give Rowan some Tylenol and then she said that she gave her a bath and went to bed and she was fine. She never expressed any sickness. But the next day she told me that Rowan was acting sick and my husband was there whenever she said that she was gonna make up that Rowan was sick so that I would hurry up and come home and get her. So—whenever I viewed Rowan that day, she was not sick. She had no runny nose, no cough, there was absolutely nothing wrong with the child.
․
A. The next day I came home whenever she told me, but we were in Natchez, Mississippi, so it took us about four hours to get home. I came home as soon as she told me that.
Hall testified she has known Kali since March of 2018. She would see Kali and Rowan about once a week until August of 2019. She recounted that Kali and Rowan spent the night at her home on August 23, 2019, Kalis birthday weekend. Hall described Rowans condition at that time quite differently than Leggett and Kali.
A. She got to my house at 5:30 and walked in my house and asked where my fingernail polish was and my fingernail polish remover. I directed her to under my cabinet in my bathroom where my polish was. She went and sat on my couch and Rowan, it was—she was obviously sick from whenever she got out of the car. She had a snotty nose, she was coughing. I changed her diaper later that night, she had diarrhea. I did not check her temperature, but she felt feverish from her forehead. She sat on the couch and Rowan expressed to Kali that she wanted her diaper to be changed and Rowan was like holding her diaper, was starting to cry, and at this point she had—Rowan was acting like she wanted to be held, so she climbed on Kali and Kali freaked the hell out because she was messing up her nails. She was painting her nails.
Q. She—you said she climbed over into—
A. Kalis lap.
Q. –Kalis lap and what, if anything, did Kali do?
A. She picked up Rowan and all the while screaming that she, excuse my French, I fucking hate you, I hate you, and she picked up Rowan by her arm and was swinging her hand, not hitting her with her fingers, but her palm and hit her on the back of the head, swung and hit her on the mouth and then struck her on her lower back and Rowan was kicking and screaming to get away from her.
Q. All right. What was the outcome of that altercation? What—what eventually happened? Did she just stop or what?
A. She—I was hollering at her. I told her, Kali, I was like youre not in your right mind set. Go for an “Fing” walk or go to take a bath and she did. She went to take a bath or a shower.
Q. All right, and where was Rowan when Kali left to take a bath?
A. She was with me, I held her.
Q. Did you change her diaper?
A. Yes, sir.
Q. Okay, After Kali had finished taking her bath, did—what did she do?
A. Before she went to take her bath because I hollered at her to go do either one, my son was—I was fixing his bottle. I went in my kitchen to finish fixing his bottle, putting him down for bed. He was asleep at this point and Rowan was still screaming form what happened. Kali walked over to Rowan, covered her nose and her mouth and Rowans eyes like—shot open like she could not breathe and then Kali slammed her face into the middle of my sectional three times, still while screaming that she hates her and then she went to take a shower or a bath.
․
A. I brought Rowan to bed and I put her down for the night.
Hall testified that Rowan slept through the night. According to her testimony, the next morning after everyone awoke, Kali again physically mistreated Rowan.
A. The next day when we got up and Kali had fallen asleep with her nails wet and they messed up, so she got up to refix them, was sitting on the couch, all of our children are downstairs, William and Rowan, and Rowan, at this point her sickness like progressed, so she went to Kali to be held again and Kali like stepped back from my couch and took her and threw her into my couch. Still while—
Q. She did what now? I didnt understand that.
A. She picked up Rowan and threw her into my couch and Rowans like shoulders and head like bounced off like a picture of a car wreck. Thats what it looked like. She was—she fell hard into the couch.
Despite the seriousness of the alleged mistreatment Hall did not notify any authority of this alleged incident nor did she call Cauble or Richard. When asked if Hall had ever seen Kali treat Rowan like this before she responded “No.” Thus, for the more than one year that Hall saw Kali and Rowan on a weekly basis she could not recall any other example of Kali mistreating Rowan. Hall also testified that Kali took Rowan to the babysitter, Leggett, the next day as both Kali and Leggett maintained. Halls description of Rowan as being very ill is in direct contrast to Leggett and Kalis testimony. Nothing casts any doubt on the veracity of Leggetts testimony which is entirely consistent with Kalis version. But Halls account of these events does not ring true and is contradicted by the medical evidence. Apparently, the trial court was not persuaded that Kali engaged in such mistreatment of Rowan, otherwise it would not have allowed Kali unsupervised visitation with Rowan and it would not have made her domiciliary parent in the event Richard is unable to be with Rowan due to any new deployment. The majority ignores this and simply says:
While the trial court further found that Kali never abused her daughter, he found that her continued relationship with Cauble constituted poor judgment and reflected badly on her parenting skills.
As I read the record, I do not discern that the trial court found there was a continued relationship with Kali and Cauble. The testimony demonstrates otherwise. Moreover, as I read the record, the trial court based its notion of “poor parenting skills” on the testimony of Hall and Clayton. But my analysis of their testimony calls their credibility into question. Additionally, if one believes Hall and Claytons testimony then the trial court and the majority cannot properly support their ruling allowing Kali unsupervised visitation with her daughter and domiciliary custody when Richard is unavailable. Hall and Clayton allege serious physical abuse of this child by Kali which, if taken as true, pretermits such findings.
But I do not believe the testimony of Hall and Clayton is worthy of belief. For example, I am troubled by the thought that if Kali acted as described by Hall why did Hall not report this to the authorities or at least to Cauble when he picked up Rowan on Sunday August 25, 2019? Hall testified she did not have any reason to believe Cauble mistreated Rowan, and, in her opinion, Rowan showed no fear of Cauble. She also testified when Cauble picked up Rowan on Sunday “she was laughing.” “There is video footage from my security camera and she is laughing and happy.” This is inconsistent with her testimony about Rowans severe condition the day before and with her description of Kalis alleged mistreatment of Rowan. Second, it is hard to imagine that, if the scene was as Hall described, her infant son could have peacefully slept through it all or that Rowan slept undisturbed through the night. Third, and most troubling, is the expletive laden text Hall sent Kali which displays her intense anger toward Kali in this immediate time frame. By Halls own admission this intense animosity toward Kali was the result of her being blocked on Kalis cell phone. And fourth, the medical evidence does not indicate any physical or emotional abuse of Rowan but instead indicates the opposite and lends no corroboration to Halls account. Further, there is no medical evidence that Rowan was physically ill at this time or at any time near these dates.
Next, consider the testimony of Halls friend, Clayton. Clayton says she has known Hall since she was fourteen years old, about six years earlier, and it is Hall who introduced her to Richard House. It was also Hall who invited Clayton to a cookout at Kalis home and introduced her to Kali. According to Clayton, while she was attending the cookout at Kalis home, she observed an encounter between Kali and Rowan.
A. She [Rowan] was just running around trying to be a kid playing.
Q. Okay, did anything occur between Mrs. House and Rowan, the baby?
․
A. The kid, like I was saying, was running around playing like a normal kid does and Kali got upset and shes like, Rowan stop and she grabbed her by the arm and hit her; not like whipping.
Q. And how was—was she holding her, was the kid running from her, or just what was going on?
A. Rowan was trying to get away, yes sir.
Q. Was Mrs. House holding Rowan?
A. Yes, sir, by the arm.
․
A. She was just running around on the couch trying to play and Kali got mad at her.
․
Q. Okay, was Kali House—well, let me ask you this, how was the child reacting when she started to be hit?
A. She was starting to cry like she was upset, and she was trying to run, like get away.
Q. All right, and what was Mrs. House—was she saying anything to the child?
A. She was like, Rowan, stop youre annoying—like stop.
Q. Okay, and did she finally stop hitting the child?
A. Yes, sir, she did.
Q. Did you say anything to her?
A. I didnt want to say anything because I had just met her and I didnt want to tell her how to parent because it wasnt my place.
․
Q. What happened after that incident? What—what did Mrs. House and Rowan do?
A. Everything went back to normal. Rowan like, went by herself and I went eat and that was it.
The trial court did not find this testimony demonstrates abusive behavior and neither do I. The trial court thought this behavior, at most, indicated bad parenting skills. That, however, does not equate to abusive behavior of a substantial and continuing nature. Moreover, it does not appear from Claytons actions at the time of the incident that she considered Kalis behavior cause for concern. She did not report the behavior to anyone at the party, much less to any authority after-the-fact, and she says everything just continued as normal after the interaction between Kali and Rowan.
If the testimony of Hall and Clayton is to be accepted as they intend, such testimony would contraindicate the trial court and the majoritys ruling. I hasten to add that I find the testimony of Hall and Clayton unconvincing for the reasons I have stated and I repeat, the vitriolic text from Hall to Kali laced with expletive curse words aimed at Kali is especially telling. Additionally, Halls testimony regarding her opinion of Kalis choice to celebrate her birthday out of town instead of taking care of her child does not constitute evidence of any abuse or neglect of Rowan by Kali. Indeed, the trial court, though professing some satisfaction with Halls credibility, did not conclude her testimony proved any abuse or neglect by Kali. The majority recognizes this fact. Moreover, the trial court did not find Clayton provided any evidence of abuse or neglect either. I, too, agree that the testimony of Hall and Clayton does not establish any abuse or neglect of Rowan by Kali. The unbiased medical evidence presented showed there were no signs of any physical and/or emotional abuse of this child. The medical report describes the child as a happy, healthy, well-adjusted child who exhibited no signs of any form of abuse or neglect. Both Hall and Clayton, as well as Leggett, describe Rowan as a happy child just as stated in the medical evidence.
Based on my de novo review of the record I believe Richard failed to present evidence of any change in circumstances of a substantial and continuing nature that would warrant a change in the existing custody decree. I would reverse the trial courts judgment making the father domiciliary parent and order that the child be immediately returned to the physical custody and care of her mother. I would reinstate the provisions of the original Implementation Plan of Joint Custody. No evidence was presented to support any change in that existing ruling except that physical custody can no longer be enjoyed with the same frequency as when the parties lived near each other. The parties have not raised any issue addressing the courts award of joint legal custody and its finding that neither parent was in contempt of the courts orders.
I am certainly mindful that the fathers transfer to Hawaii by the military is beyond his control and it presents a practical problem concerning visitation. When these parents lived in proximity to one another they amicably enjoyed 50/50 visitation when Richards military schedule permitted. With the mother now living in Dallas, Texas and the father stationed in Hawaii it is more challenging and costly to achieve parity between the parents. Further, voluntary accommodation between the parties to facilitate the 50/50 sharing of the child is no longer workable and the cost of forcing the parties to do so is prohibitive. Nevertheless, our law favors as close to equal time with both parents as can be reasonably achieved under each cases unique circumstances. Until this child reaches school age, or Richard is re-assigned closer to Dallas, Texas, the visitation schedule should have as its ultimate aim compliance with the statutory provisions
1
applicable hence. No basis has been established to remove Kali as domiciliary parent.
FOOTNOTES
1
. Louisiana Revised Statutes 9:335(A)(2)(b) provides that, to the extent feasible and in the best interest of the child, physical custody should be shared equally. When the trial court is faced with a decree of joint custody, such as the one in the present case, the statute does not necessarily require an equal sharing of physical custody. Yerger v. Yerger, 49,790 (La.App. 2 Cir. 2/27/15), 162 So.3d 603; Langford v. Langford, 49,080 (La.App. 2 Cir. 4/9/14), 138 So.3d 101. Substantial time rather than strict equality of time is mandated by the legislative scheme. Yerger, 162 So.3d 603; Semmes v. Semmes, 45,006 (La.App. 2 Cir. 12/16/09), 27 So.3d 1024. The allocation of the time periods during which each parent shall have physical custody of the child is required to assure of frequent and continuing contact of the children with both parents. La.R.S. 9:335(A)(2)(a); Yerger, 162 So.3d 603. Notwithstanding, the jurisprudence has further recognized that the implication of La.R.S. 9:335 is that most joint custody decrees will invariably result in children primarily residing with one parent more than the other. Langford, 138 So.3d 101; Stephenson v. Stephenson, 37,323 (La.App. 2 Cir. 5/14/03), 847 So.2d 175.Joubert, 285 So. 3d. at 7-8.
COOKS, Chief Judge, dissents.