Menard v. Menard
| Decision Date | 11 March 2020 |
| Docket Number | 19-581,19-580 |
| Citation | 297 So.3d 82 |
| Parties | Kimberly Jeanne Champagne MENARD v. Tony James MENARD |
| Court | Court of Appeal of Louisiana — District of US |
Richard Ducote, Victoria McIntyre, 318 East Boston Street, Second Floor, Covington, Louisiana 70433, (985) 898-2755, COUNSEL FOR PLAINTIFF/APPELLANT: Kimberly Jeanne Champagne Menard
Anthony J. Fontana, Jr., A Professional Law Corporation, 210 North Washington Street, Abbeville, Louisiana 70510, (337) 898-8332, COUNSEL FOR DEFENDANT/APPELLEE: Tony James Menard
Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and John E. Conery, Judges.
The mother of the minor child sought sole custody, advancing allegations of sexual abuse allegedly perpetrated by the child's father. The trial court initially ordered a period of supervised and then limited physical custody by the father while the parents were evaluated by a court-appointed psychologist. The mother continued pursuit of sole custody in the current proceedings, with the father seeking an increase in his periods of physical custody. Following protracted proceedings in the trial court, which included an unsuccessful motion to recuse, the trial court eventually found no merit in the mother's claims of sexual abuse by the father and entered an order granting the father increased physical custody, although the mother was named the domiciliary parent. The mother appeals. For the following reasons, we affirm.
Kimberly Menard filed a 2012 petition seeking a divorce from Tony Menard and seeking sole custody of the couple's minor daughter, A.L.M., born in June 2011. Although she withdrew that initial petition, Ms. Menard again filed for divorce in 2013,1 seeking sole custody of the child. With the judgment of divorce entered by the end of 2013, Ms. Menard continued her custody claim and alleged that, at most, Mr. Menard should be provided with only supervised or restricted physical custody of the child. She requested that Mr. Menard "be ordered to undergo a mental health evaluation as to his propensity to commit molestation against a juvenile."
Following an April 2013 initial hearing officer conference, the hearing officer found insufficient evidence of Ms. Menard's allegations to warrant her requests for sole custody or supervised visitation. Due to the nature of those allegations, however, the hearing officer recommended a psychological evaluation of both parties. The hearing officer further recommended that Ms. Menard temporarily be named domiciliary parent pending the evaluation and that Mr. Menard "have custodial periods ... every Saturday from 10:00 a.m. until 4:00 p.m." She recommended that Mr. Menard's grandmother be present during his visitation.
The trial judge thereafter appointed Dr. Kenneth Bouillion, a clinical child psychologist, "to conduct a full scale mental health evaluation (Evaluation with psychological testing) of the parties and the minor child" and to render a report to assist the court with issues of custody and visitation. See La.R.S. 9:331.
Dr. Bouillion forwarded his report to the trial court in November 2013.2 He described this initial evaluation as consisting of "several hours of clinical interviews and the completion of personality testing with the parents." Given the child's young age (two years and four months at the time), Dr. Bouillion did not interview the child. However, he reviewed records from the child's therapist, Dr. Latifey LaFleur. Dr. Bouillion advised the court that both parents were competent, knowledgeable of the child's needs, and capable of meeting those needs. He explained that, "obviously," the parents had "major communication problems and a long history of conflict" and advised the trial court not to appoint a domiciliary parent so as to improve the parties' cooperation. Dr. Bouillion recommended that Mr. Menard be provided with unsupervised visitation "following the principle of giving him fairly frequent contact but not necessarily for that long of a period of time that is appropriate to the child's young age." He described it as "a good idea" for Mr. Menard not to bathe or attend to the child's bathroom needs. Although the report was directed to the trial court, the matter was not set for further consideration by the hearing officer or the trial court at that time.
Mr. Menard also filed a petition for custody in November 2014, noting that Ms. Menard had twice "raised extremely serious allegations" against him, "none of which has been substantiated." Mr. Menard explained that Dr. Bouillion's November 2013 report was submitted to the trial court and "speaks for itself." He sought joint custody of the child and status as co-domiciliary parent.
The matter returned to the hearing officer in January 2015. The hearing officer's report related the prior allegations of "inappropriate behavior between the father and the minor child" and noted Dr. Bouillion's evaluation. The hearing officer reported that, at the hearing, Ms. Menard The hearing officer explained that when Mr. Menard, now remarried, exercised periods of physical custody, his wife, grandmother, and other members of the extended family "are usually present." Mr. Menard reported to the hearing officer that two criminal and two social services investigations had been conducted due to Ms. Menard's allegations and that "[n]either agency found sufficient evidence to support the allegations" against him. Given "the nature of the allegations made against him," however, Mr. Menard's wife "tend[ed] to all of [A.L.M.]'s bathroom needs."
The hearing officer recommended joint custody, with Ms. Menard named domiciliary parent and Mr. Menard awarded unsupervised physical custody each Sunday3 from 9:00 a.m. until 4:00 p.m. Due to "the serious allegations made against the father," the hearing officer recommended "that the father not handle or tend to any of the bathroom needs of the minor child." Judge Charles Fitzgerald, now assigned to the case, made the recommendations a temporary order of the court in February 2015.
Thereafter, Mr. Menard filed a first supplemental and amending petition for custody, now seeking sole custody of the child and alleging that Ms. Menard had "set into motion a pattern of doing everything possible to alienate the minor child from petitioner, to falsely and without any factual basis to accuse him of performing criminal acts upon the minor child[.]" Mr. Menard again explained that Ms. Menard reported him to police and social services "on at least two occasions[.]" Neither found "any facts to validate her complaints." He further accused Ms. Menard of refusing to nurture his relationship with the child.
Following both Mr. Menard's objection to the hearing officer's recommendations and the filing of his petitions, the matter returned to the trial court with a resulting order re-fixing all pending custody issues for a March 2016 hearing. The trial court ordered Dr. Bouillion "to conduct a mini-mental health evaluation" of the parties and child. Dr. Bouillion completed that evaluation, forwarding his March 10, 2016 report to the trial court.
Dr. Bouillion's report informed Judge Fitzgerald that his evaluation included clinical interviews with the parents and three separate interviews with the child, who was four years and eight months old at that time. He also interviewed the maternal grandparents, with whom Ms. Menard and the child lived, and met with Dr. LaFleur, the child's therapist. Dr. Bouillion reviewed the child's medical records, and spoke with "Trent Borne, Child Welfare Speci[a]list with the Louisiana Department of Children and Family Services [ (DCFS),]" as that agency had also investigated Ms. Menard's complaints.
Dr. Bouillion reported that Ms. Menard expressed concern regarding the child's alleged assertions of inappropriate touching by her father. Ms. Menard claimed that the child "engaged in sexual motions on a sporadic basis" and that she would "grab" her own "private parts" and those of others. While Ms. Menard took the child to the hospital emergency room earlier in the year after the child alleged "for the third time that her father touched her tu-tu[,]" "[n]o physical evidence was found[.]" Instead, the diagnosis was "chronic vaginitis
, most likely due to overweight." Dr. Bouillion explained that this diagnosis had been made several times and that a steroid cream had been prescribed.
Dr. Bouillion also detailed his meeting with Dr. LaFleur, explaining that the therapist worked with the child numerous times in 2013-2016. Dr. LaFleur informed Dr. Bouillion that although the child was unable to provide specific details or a timeline, the child told the therapist that she did not like going to her father's home "because he touches me." Dr. Bouillion reported that "Dr. LaFleur did not develop a diagnosis of child sex abuse, nor did she refer a complaint to [the] Child Protection Agency [ (DCFS) ]." Dr. Bouillion's telephone conversation with Mr. Borne of the DCFS confirmed that he found "no objective basis in fact that these latest allegations are valid examples of child sexual abuse." Dr. Bouillion described the family's situation as one of "high conflict" and that there could have been "increased tension with the mother and her family after the father was given unsupervised visitation early last year." He explained that, "None of the medical doctors, nor Dr. LaFleur or myself have been able to confirm an impartial diagnosis of child sexual abuse as there is no confirming or collaborating data based on time place and circumstance." Dr. Bouillion continued, stating that Mr. Menard "is able to call multiple witnesses who can attest to the fact that during the past two or three years he has not attended to any of [the child's] bathroom duties and is rarely alone with her."
Dr. Bouillion recommended a...
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