Fairbanks v. Beninate

• Decision Date: 23 December 2020
• Docket Number: NO. 20-CA-206,20-CA-206
• Citation: 308 So.3d 1222
• Parties: Andrew FAIRBANKS v. Brooke BENINATE
• Court: Court of Appeal of Louisiana — District of US

308 So.3d 1222

Andrew FAIRBANKS

v.Brooke BENINATE

NO. 20-CA-206

Court of Appeal of Louisiana, Fifth Circuit.

December 23, 2020

COUNSEL FOR PLAINTIFF/APPELLEE, ANDREW FAIRBANKS Terri M. Miles, Metairie, Rebecca Huskey

COUNSEL FOR DEFENDANT/APPELLANT, BROOKE BENINATE Richard L. Ducote, Metairie, Victora McIntyre

COUNSEL FOR DEFENDANT/APPELLEE, STATE OF LOUISIANA, DEPARTMENT OF JUSTICE Jeffrey M. Landry, Alicia Edmond Wheeler, David J. Smith, Jr.

Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Hans J. Liljeberg

WINDHORST, J.

In this custody dispute, defendant/appellant, Brooke Beninate, appeals the trial court's judgment denying her motion to declare La. R.S. 46:236.5 C unconstitutional, awarding plaintiff/appellee, Andrew Fairbanks, sole custody of their child, and restricting Ms. Beninate to supervised visitation. Ms. Beninate also appeals the awards of child support, attorney's fees and costs to Mr. Fairbanks. For the following reasons, we affirm the trial court's judgment, except as to the child support award. We vacate the child support award and remand for further proceedings.

FACTS and PROCEDURAL HISTORY

This case has a protracted history of conflict between the parents of C.B., who is four years old, related primarily to Mr. Fairbanks’ efforts to obtain visitation and eventually custody. The parents, Ms. Beninate and Mr. Fairbanks, have never been married or lived together. Mr. Fairbanks has been identified as the child's biological father by scientific testing and has acknowledged the child since birth.

Mr. Fairbanks’ efforts to obtain visitation of the child began on July 21, 2016, when he filed a petition to establish custody seeking visitation every other weekend and every other holiday. In that petition, Mr. Fairbanks asserted that Ms. Beninate had prevented him from seeing the child, even though he had been paying her child support.

During the course of these proceedings, Ms. Beninate has filed multiple petitions for protection from abuse, although none have been proven to have merit. She filed the first petition for protection from abuse on August 16, 2018, not long after Mr. Fairbanks filed his first petition seeking visitation. Ms. Beninate alleged that she suspected that her child had been physically and sexually abused by Mr. Fairbanks because he came home covered in bruises, had a busted lip, a purple toenail, was traumatized and was not the same after that. She asserted that Mr. Fairbanks had exhibited physical violence in the past and alleged that he slapped their child in the face, backhanded and shoved him, and told him to "shut up." On August 16, 2018, the court issued an order of protection effective through September 5, 2018, in which Mr. Fairbanks was ordered to not go within 300 feet of their child. On August 30, 2018, approximately two weeks after filing the petition for protection from abuse, it was dismissed on Ms. Beninate's motion.

On August 28, 2018, Mr. Fairbanks filed a petition to set child custody, seeking formal recognition as C.B.'s biological father and joint custody with a specific custody and visitation plan. In response, Ms. Beninate asserted that it would be in the child's best interest to award her sole custody and Mr. Fairbanks supervised visitation. She again alleged that Mr. Fairbanks physically and sexually abused their child. After a hearing officer conference on November 20, 2018 relative to the issues raised in these pleadings, the hearing officer recommended that Mr. Fairbanks have visitation with his child twice a week for two hours; that the parties’ counsel arrange a visitation schedule; and that Mr. Fairbanks pay child support and explore obtaining health insurance. These recommendations were adopted as an interim judgment of the court, and Ms. Beninate timely objected to them.

Soon after the interim judgment granting Mr. Fairbanks visitation was signed, on December 4, 2018, Ms. Beninate filed a second petition for protection from abuse based on the same previously-asserted allegations that Mr. Fairbanks emotionally, physically, and sexually abused their child. After a hearing, at which testimony was presented, the Commissioner found the petition unwarranted and dismissed it due to Ms. Beninate's failure to prove the allegations.

Pursuant to a stipulation by the parties, Dr. Karen Van Beyer conducted a custody evaluation on April 9, 2019. Mr. Fairbanks subsequently moved to implement Dr. Van Beyer's recommendations regarding custody, domicile, activities, vacations, holidays, and therapy.

On May 10, 2019, Mr. Fairbanks filed a first rule for contempt, stating that despite the interim judgment granting him visitation, Ms. Beninate had refused to allow him to see his child since August 2018 without her present. He asserted that he had only been permitted to see his child ten times in her presence, and that after these short visits with her and their child, she repeatedly texted and harassed him. In addition, he alleged that after he filed a motion to implement the custody evaluation, Ms. Beninate threatened to kill herself and their child if Mr. Fairbanks did not forego his pursuit of custody and visitation. Although Mr. Fairbanks stated that he did not believe Ms. Beninate would actually harm herself or their child, he requested that the court address her behavior and threats. The hearing officer considered this first rule for contempt at a May 28, 2019 hearing officer conference.

After the May 28, 2019 conference, the hearing officer recommended that Dr. Van Beyer's recommendations be made the judgment of the court and implemented. These recommendations were made an interim judgment of the court. The interim judgment provided that beginning on May 29, 2019, Mr. Fairbanks was entitled to visitation with his child twice a week for four hours, and after four weeks, an overnight visit. Ms. Beninate objected to Dr. Van Beyer's recommendations and the hearing officer's recommendations.

After the May 28, 2019 interim judgment, on June 6, 2019, Mr. Fairbanks filed a second rule for contempt, stating that Ms. Beninate continued to refuse to allow him visitation. He stated that she met him at the designated meeting place for visitation on May 29, 2019, but refused to allow him to take their child. He also alleged that while he was holding their child, Ms. Beninate physically pried him out of his arms causing their child distress. To document this incident, Mr. Fairbanks called the police and a complaint report was issued. In this rule for contempt, Mr. Fairbanks further asserted that Ms. Beninate did not allow him visitation on June 3, 2019, and that she continued to falsely accuse him of sexual abuse in the presence of their child. At a July 11, 2019 hearing officer conference on the second rule for contempt, the hearing officer recommended that Mr. Fairbanks receive compensatory visitation with his child and that Ms. Beninate be found in contempt for violating the previous visitation order of the court and be ordered to pay Mr. Fairbanks $500.00 for attorney's fees and $270.00 in court costs. These recommendations were made an interim judgment of the court, and Ms. Beninate objected to them.

Ms. Beninate continued to refuse to comply with the interim court orders. As a result, on August 15, 2019, Mr. Fairbanks filed an emergency rule for sole custody, asserting the following: (1) since November 20, 2018, the hearing officer and custody evaluator have repeatedly recommended that Mr. Fairbanks be permitted to exercise visitation with the child but Ms. Beninate has prevented visitation from occurring; (2) Mr. Fairbanks believes the child is in danger with Ms. Beninate because she has threatened to kill the child and herself before following any court-ordered visitation; (3) Ms. Beninate has made disturbing allegations against Mr. Fairbanks, including that he is in a cult, a devil-worshipper, satanic demon, craves the blood of the child as human sacrifice, and performs black magic spells and curses; (4) Ms. Beninate abuses prescription narcotics; and (5) Ms. Beninate refuses to answer the door when he arrives at her house and that law enforcement can no longer assist him in attempting to facilitate the court-ordered visitation because there is a problem for every visit. Based on Ms. Beninate's refusal to abide by the court-ordered visitation and his belief that their child is in imminent danger of bodily harm, Mr. Fairbanks sought sole custody of their child.

After a hearing before the trial court on August 15, 2019, the trial court "denied" all of Ms. Beninate's objections to hearing officer recommendations and interim orders including those dated November 20, 2018, December 27, 2018, May 28, 2019 and July 11, 2019. The trial court referred the matter to the duty commissioner and ordered Ms. Beninate to undergo a psychological evaluation with a court-appointed mental health professional to address why custody should not be updated.

On August 22, 2019, Mr. Fairbanks filed his third rule for contempt because Ms. Beninate had continued to deny him any visitation. Mr. Fairbanks outlined several dates for scheduled visitation with which Ms. Beninate refused to comply and asserted that she sends him a barrage of text messages bordering on harassment and making false allegations. Mr. Fairbanks further alleged that Ms. Beninate is in contempt of court for failing to pay him the attorney's fees and court costs awarded to him in the August 15, 2019 judgment. Mr. Fairbanks sought a judgment holding Ms. Beninate in contempt of court for refusing to comply with the July 11, 2019 judgment, refusing to allow court-ordered visitation, refusing to co-parent, and failing to pay him the previously court-awarded attorney's fees and court costs. He also sought additional attorney's fees and court costs for this rule for contempt.

After a hearing officer conference on September 11, 2019, the hearing officer recommended that (a) Mr. Fairbanks have sole custody of the parties’...