S.L.B. v. C.E.B.

• Decision Date: 27 July 2018
• Docket Number: NO. 2017-CA-0979, NO. 2017-CA-0980,NO. 2017-CA-0978,2017-CA-0978
• Citation: 252 So.3d 950
• Parties: S.L.B. v. C.E.B. State of Louisiana through the Department of Children and Family Service, Child Support Enforcement in the Interest of D.B. and J.B. Minor Child(ren) of S.B. v. C.E.B. S.L.B. v. C.E.B.
• Court: Court of Appeal of Louisiana — District of US

252 So.3d 950

S.L.B.
v.
C.E.B.

State of Louisiana through the Department of Children and Family Service, Child Support Enforcement in the Interest of D.B. and J.B. Minor Child(ren) of S.B.
v.
C.E.B.

S.L.B.
v.
C.E.B.

NO. 2017-CA-0978
NO. 2017-CA-0979
NO. 2017-CA-0980

Court of Appeal of Louisiana, Fourth Circuit.

JULY 27, 2018

Bennett Wolff, WOLFF & WOLFF, 3017 21st Street, Suite 100, Metairie, LA 70002-4939, COUNSEL FOR PLAINTIFF/APPELLANT

Pierre G. Walker, III, REASONOVER & BERG, LLC, 400 Poydras Street, Suite 1980, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins,)

Judge Daniel L. Dysart

This is an appeal of a trial court judgment granting an Order of Protection ("Order"), effective through March 19, 2019, issued to protect two minor children, J.B. and D.B.,¹ from acts of abuse by their mother, appellant, S.L.B. For the reasons that follow, we find no abuse of the trial court's discretion in issuing the Order and we affirm that ruling.

FACTUAL AND PROCEDURAL BACKGROUND

This protracted and contentious family matter commenced with the filing, on October 31, 2013, of a Petition for Divorce Pursuant to Louisiana Civil Code Article 102 ("Divorce Petition") by S.L.B.² According to the Divorce Petition, appellant, S.L.B., and appellee, C.E.B., were married on September 3, 2000 and established their matrimonial domicile in Orleans Parish. D.E.B. subsequently moved to Mobile, Alabama, for a medical residency program. J.B. and D.B. were born during the marriage. At the time of the Divorce Petition's filing, the children were ages eight and ten, respectively.

Over the ensuing several years, various pleadings were filed and hearings held in the matter, resulting in trial court rulings not pertinent to this appeal.

In 2016 and by consent of the parties, the case was consolidated with two cases pending in other divisions and filed subsequent to the instant suit. The first of these suits, filed in 2015 and entitled "State of Louisiana, et al. v. [C.E.B.].," sought to establish C.E.B.'s child support obligations and to require C.E.B. to maintain health insurance for the children. The second suit, filed in 2016 and entitled "[S.L.B.] v. [C.E.B.]," was a divorce proceeding (with incidental matters) based on the parties'

252 So.3d 955

living separate and apart pursuant to La. C.C. art. 103.1.

Other than the consolidation of the cases in 2016, nothing of record took place in the cases between September 8, 2014, and March 2, 2017, when C.E.B. filed a Petition for Protection From Abuse ("Petition"). A temporary restraining order ("TRO") was issued in connection with the Petition, effective through March 16, 2017, the date on which a hearing was set. C.E.B. then filed, on March 7, 2017, a motion to terminate child support on the basis that custody of the children should remain with C.E.B. and therefore, there would be "no further need or requirement for child support."

In open court on March 16, 2017, the parties agreed to continue the hearing on the Petition and the TRO was extended. The hearing was continued on several other occasions by consent of the parties and ultimately took place on September 7 and 19, 2017. At the conclusion of the hearing, the trial court found that C.E.B. "has met his burden of proof by a preponderance of the evidence that [J.B.] was physically abused by his mother ... and that the abuse occurred in the presence of [D.B.]." The trial court placed both children in the temporary custody of C.E.B. subject to supervised visitation with S.L.B. The court also ordered S.L.B. to attend anger management and parenting classes. The trial court denied the request for attorney's fees and ordered the parties to bear their own respective costs.

The written Order, memorializing the trial court's oral judgment, was then issued on September 19, 2017, finding that S.L.B. "represents a credible threat to the physical safety of a family member" and issuing an injunction (an Order of Protection in the form of a "P.O./Preliminary or Permanent Injunction"), effective until March 19, 2019. The trial court also issued a judgment assessing costs against S.L.B. in the amount of $258.00.³

S.L.B. has devolutively appealed the September 19, 2017 Order.⁴

DISCUSSION

This case arises under the Domestic Abuse Assistance Act, La. R.S. 46:2131, et seq. (sometimes hereafter referred to as "the Act"), a law enacted for the purpose of "provid[ing] relief to victims of domestic violence by establishing a civil remedy for domestic violence that affords the victim(s) immediate and easily accessible protection." Dvilansky v. Correu , 16-0279, p. 6 (La. App. 4 Cir. 10/26/16), 204 So.3d 686, 689, writ denied , 16-2081 (La. 1/9/17), 214 So.3d 871, citing Alfonso v. Cooper , 14-0145, p. 13 (La. App. 4 Cir. 7/16/14), 146 So.3d 796, 805.

Under the Act, a parent "may seek relief on behalf of any minor child ... by filing a petition with the court alleging abuse by the defendant." La. R.S. 46:2133 D. The court may then "grant any protective order ... to bring about a cessation of domestic abuse as defined in R.S. 46:2132, or the threat or danger thereof, to ... any minor children." La. R.S. 46:2136 A. Domestic abuse, as incorporated within this statute, " includes but is not limited to physical or sexual abuse and any offense

252 So.3d 956

against the person, physical or non-physical, as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family member, household member, or dating partner against another ...." La. R.S. 46:2132 (4).

We note that, as pertains to a TRO, the statute indicates that "[u]pon good cause shown in an ex parte proceeding, the court may enter a temporary restraining order, without bond, as it deems necessary to protect from abuse ... any minor children ...." La R.S. 46: 2135 A. Our jurisprudence has interpreted the "good cause shown" requirement to apply to both TROs and to other protective orders. See Dvilansky , 16-0279, p. 6, 204 So.3d at 689 (" La. R.S. 46:2135 and 46:2136 require that there be ‘good cause shown’ for the issuance of a protective order."); See also D.M.S. , 14-0364, p. 15, 225 So.3d at 1137.

The Act specifically indicates that "[a]ny person who shows immediate and present danger of abuse shall constitute good cause." La. R.S. 46:2135 A; See also Dvilansky , 16-0279, p. 6, 204 So.3d at 689 ; D.M.S. , 14-0364, p. 15, 225 So.3d at 1137. La. R.S. 46:2135 A also indicates that "[t]he court shall consider any and all past history of abuse, or threats thereof, in determining the existence of an immediate and present danger of abuse. There is no requirement that the abuse itself be recent, immediate, or present."

In the instant matter, the trial court found that C.E.B. "met his burden of proof by a preponderance of the evidence that [J.B.] was physically abused by his mother, S.L.B., and that the abuse occurred in the presence of the minor child, [D.B.]" On that basis, the trial court "placed both children in the temporary care and custody of C.E.B. subject to supervised visitation with the mother at the Harmony House program and Kingsley House every other Saturday for a period for two to four hours depending on the availability of the Center."

Standard of Review

The abuse of discretion standard of review by an appellate court of a trial court domestic protective order is clear. As this Court indicated in Rodriguez v. Claassen , 16-0610, pp. 3-4 (La. App. 4 Cir. 12/21/16), 207 So.3d 490, 493, quoting D.M.S. , 14-0364, p. 16, 225 So.3d at 1138 :

An appellate court reviews domestic protective orders for abuse of discretion. Alfonso v. Cooper , 14-0145, p. 13 (La. App. 4 Cir. 7/16/14), 146 So.3d 796, 805.

Moreover, the standard of review applicable to fact findings of the trial court has been clearly enunciated by our Supreme Court in Rabalais v. Nash , 06-0999, p. 4 (La. 3/9/07), 952 So.2d 653, 657 :

It is well-settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of manifest error or unless it is clearly wrong .... To reverse a fact-finder's determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and that the record establishes that the finding is clearly wrong. Mart v. Hill , 505 So.2d 1120, 1127 (La. 1987). Where the [fact-finder's] findings are reasonable, in light of the record reviewed in its entirety, the court of appeal may not reverse. Even where the court of appeal is convinced that it would have weighed the evidence differently to reach a different result, reversal of the trial court is improper unless the trial court's ruling is manifestly erroneous, or clearly wrong.

With this standard of review in mind, we now address S.L.B.'s assignments of error.

252 So.3d 957

Reasonable discipline

In her first assignment of error, S.L.B. maintains that the trial court erred in granting the Petition and issuing the Order.⁵ While S.L.B....