Jennifer L. Stewart v. Darren DeSoto

NOT FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2024 CU 0289

JENNIFER L. STEWART

VERSUS

DARREN DESOTO

Judgment Rendered.
SEP 2 6 2024

The Family Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. F214112

The Honorable Charlene Charlet Day, Judge Presiding

Laurie N. Marien Counsel for Appellant
Natalie C. Neale Jennifer L. Stewart
Baton Rouge, Louisiana

Darren Desoto Defendant/Appellee
Slaughter, Louisiana In Proper Person

BEFORE: McCLENDON, WELCH, AND LANIER, JJ.

LANIER, J.

In this custody dispute, Jennifer L. Stewart sought modification of a prior

custody agreement. For the reasons that follow, we affirm the trial court's October

26, 2023 judgment and issue this memorandum opinion in compliance with

Uniform Rules—Courts of Appeal, Rule 2- 16. 1( B).

According to the record, this custody dispute has been before the trial court
several times since 2016 for numerous motions, rules, and a trial on the merits.

Pursuant to a prior stipulated judgment executed by the parties in 2017, the trial

court declared Darren Desoto the legal father of JSD ( DOB 10/ 9/ 14), the minor

child born of a relationship between Mr. Desoto and Ms. Stewart. The parties were

awarded joint custody of JSD " subject to a 2- 2- 3 visitation schedule and [ Mr.

Ms.
Desoto' s] enrolling in and participating in anger management counseling."

Stewart was designated the domiciliary parent.

In 2018, Ms. Stewart filed a " Petition To Make Judgment Executory And

Rule For Modification Of Custody & Support & For Contempt, Attorney Fees, &

Court Costs." Ms. Stewart alleged a " material change in circumstances" since the

rendition of the previous custody judgment such that it was now in the best interest

of JSD that she reside primarily with Ms. Stewart, that Ms. Stewart remain the

Ms.
domiciliary parent, and that Mr. Desoto be awarded reasonable visitation.

Stewart alleged, among other things, that Mr. Desoto did not co -parent effectively

because of his Obsessive -Compulsive Personality Disorder (" OCD"), and he did

not adequately communicate with her about the medical well-being and care of

JSD while in his custody, refused to allow JSD to participate in extracurricular

activities during his period of physical custody, and made negative and derogatory

comments about Ms. Stewart in JSD's presence.

On October 7, 2020, a stipulated judgment was read, rendered, and signed

by the trial court. The parties maintained joint/shared custody of JSD with Ms.

Stewart designated as domiciliary parent. The parties further agreed that JSD

would attend University Laboratory School, with the parties equally sharing the

costs of JSD' s education until she attained the age of eighteen. A parenting

coordinator was appointed, and the parties agreed to other things, such as

communicating via email, a holiday schedule, and the obtaining of a passport for
JSD. The parties agreed that the custody determination would be " a considered

decree and subject to the [ Bergeron'] standard with regard to any request for a

modification of same."

Thereafter, in 2023, Ms. Stewart filed a second rule for modification of

custody and contempt, once again seeking to modify custody such that JSD reside

primarily with her, that Ms. Stewart remain the domiciliary parent of JSD, and that
Mr. Desoto be allowed reasonable visitation. Ms. Stewart alleged that the custody

arrangement set forth in the October 7, 2020 judgment was " so deleterious to the

child as to warrant its modification, and/ or that there exists clear and convincing

evidence that the benefits of the change of custody requested outweighs the

damages that will be done to the child such that it is in the best interest of the

minor child."

Following a two-day trial, the trial court rendered its ruling from the bench.

In a judgment signed on October 26, 2023, the trial court ordered, among other

things, that the parties maintain joint custody of JSD with neither parent designated

as domiciliary parent; that physical custody be modified to a week -to -week

schedule; that JSD attend University Laboratory School; that the parties

communicate exclusively through Our Family Wizard for a period one year; that

both parties and JSD continue in counseling treatment; that the parties exercise

physical custody of JSD during the holidays as set forth in the judgment; that Ms.

Stewart have final decision-making authority concerning all of JSD' s medical,

I See Bergeron v. Bergeron, 492 So.2d 1193 ( La. 1986).

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psychiatric, vision, and dental care; and that Mr. Desoto have final decision-

making authority concerning all of JSD's extracurricular activities. The trial court

also found Mr. Desoto in contempt for several violations of court orders, including

his refusal to cooperate in obtaining a passport for JSD and failure to reimburse

Ms. Stewart his pro rata share of JSD' s expenses.'

From this judgment, Ms. Stewart has appealed. On appeal, Ms. Stewart

asserts the trial court erred in: ( 1) unilaterally expanding the pleadings to remove

Ms. Stewart as domiciliary parent and to modify the holiday custodial schedule

when neither were pled or orally requested; ( 2) denying Ms. Stewart's request for

primary physical custody; ( 3) ignoring JSD' s best interest by removing the

parenting coordinator and limiting the parties' mandated use of Our Family Wizard

to a one- year period. Ms. Stewart contends that the judgment is " rife with

prejudicial legal errors" necessitating independent de novo review by this court.

Each child custody case must be viewed in light of its own particular set of

facts and circumstances, with the paramount consideration being the best interest

of the child. See La. Civ. Code art. 131; Leger v. Leger, 2022- 1113 ( La. App. 1

Cir. 3/ 13/ 23), 363 So. 3d 519, 528, writ denied, 2023- 00512 ( La. 6/ 26/ 23), 363

So. 3d 1231. The best interest of the child standard governs all child custody

determinations, including the determination of whether to modify the domiciliary

parent designation. Id. The trial court is in the best position to ascertain the best

interest of the child given the unique circumstances of the particular case; thus, the

trial court's custody determination is entitled to great weight and will not be

disturbed on appeal unless an abuse of discretion is clearly shown. Moore v.

Prater, 2021- 1430 ( La. App. 1 Cir. 6/ 3/ 22), 342 So. 3d 994, 998.

2 Mr. Desoto has neither appealed nor answered the appeal in this matter. Therefore, that portion
of the judgment is final as to Mr. Desoto.

il

Louisiana Civil Code article 134( A) provides the following non-exclusive

list of factors that the trial court shall consider, along with any other relevant

factors, in determining the best interest of the child:

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 food, 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 abusive, 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.

R

The weight to be given each factor is left to the discretion of the trial court.

Moore, 342 So. 3d at 1000. In making its determination, the trial court is not

bound to make a mechanical evaluation of all statutory factors listed in Article 134,

nor is the trial court required to specifically explain its weighing and balancing of

the Article 134 factors. Rather, the trial court should decide each case on its own

facts and circumstances in light of Article 134 and all other relevant factors.

Leger, 363 So. 3d at 529.

Additionally, in most child custody cases, the trial court's determination is

based heavily on factual findings. Yepez v. Yepez, 2021- 0477 ( La. App. 1 Cir.

12/ 22/ 21), 340 So. 3d 36, 41. It is well- settled that an appellate court cannot set

aside the trial court's findings of fact in the absence of manifest error or unless

those findings are clearly wrong. See Rosell v. ESCO, 549 So. 2d 840, 844 ( La.

1989). When presented with two permissible views of the evidence, the trial

court's choice between them cannot be manifestly erroneous or clearly wrong.

Stobart v. State through Department of Transportation and Development, 617

So. 2d 880, 883 ( La. 1993). Furthermore, it is well- settled that where there is a

conflict in testimony, the trial court's reasonable evaluations of credibility and

reasonable inferences of fact are not to be disturbed by a reviewing court. Moore,

342 So. 3d at 1001. If documents or objective evidence so contradict a witness' s

story, or the story itself is so internally inconsistent or implausible that a

reasonable fact finder would not credit it, the reviewing court may find manifest

error or clear wrongness, even in a finding purportedly based upon a credibility

determination. But in the absence of such factors, where the finding is based on

the trial court's decision to credit the testimony of one party over the other, the

finding can virtually never be manifestly erroneous or clearly wrong. Rosell, 549

So. 2d at 844- 845. One court has observed:

rol

In child custody cases where two parents are fervently
for and domiciliary status of the children,
competing custody
frequently the trial court must determine the best interest of the
children solely from the testimony of the parents and their respective
relatives or friends. This naturally passionate and self-interested
testimony is rarely objective, leaving it to the trial court, who is in the
best position to view firsthand the demeanor and tone of the
witnesses, to assess the credibility of the witnesses, and decide how
much weight to give the testimony in light of the factors in La. C. C.
art. 134.

Fuller v. Fuller, 54, 098 ( La. App. 2 Cir. 7/ 21/ 21), 324 So. 3d 1103, 1114, writ

denied, 2021- 01223 ( La. 9/ 27/ 21), 324 So. 3d 621.

Concerning the trial court's modification of custody, Ms. Stewart argues on

appeal that the record overwhelmingly supports her request for primary physical

custody. She further asserts that the trial court committed legal error by

unilaterally expanding the pleadings and modifying the domiciliary parent

designation and the holiday custody schedule because the issues were neither pled

nor raised by either party prior to or during trial. She notes the grant of decision-

making authority over extracurricular activities to Mr. Desoto and the grant of

decision-making authority over all medical to her, but alleges error by the trial

court in not allocating authority over major school decisions. She contends that

these legal errors interdicted the fact-finding process, necessitating that this court

conduct its own independent review of the record. Ms. Stewart requests that this

court award her primary physical custody, reinstate her as domiciliary parent, and

reinstate the original holiday schedule. In response, Mr. Desoto argues that Ms.

Stewart filed a " comprehensive" rule to modify custody and " now finds herself

offended by the results which she brought on herself." Recognizing the trial court's

great discretion in custody matters, Mr. Desoto maintains that the trial court was in

the best position to fashion a custody arrangement to align with JSD's best interests

and minimize any risk of harm. We agree with Mr. Desoto.

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During the trial of this matter, the trial court heard testimony from both Ms.

Stewart and Mr. Desoto detailing their acrimonious relationship and the effects on

JSD. Also testifying were Renee McCarthy, the parenting coordinator who had

previously been appointed by the trial court, and Michelle Treadway, Mr. Desoto's
sister. The testimony showed a clear pattern of animosity between Ms. Stewart

and Mr. Desoto and the inability of both parties to co -parent and communicate

effectively with regard to JSD's needs concerning school, health, extracurricular
activities, and religion. Both Ms. Stewart and Mr. Desoto accused each other of

being the reason the current custodial schedule was not working and the cause of

JSD' s emotional and educational challenges.

During the trial, the trial court made several references to the parties' need to

work together on scheduling and the fact that it should not be " tit for tat." The trial

court added that " what reasonable people do" is " look at their life ... look at their

schedule, and if they need to make adjustments to what the court has ordered, they

agree to do so if that is what's best for the child." The trial court further noted the

importance of communication, advising Mr. Desoto as follows:

Well, [ JSD is] telling you one thing, and then she' s telling her mother

something else. That's not a good practice to start with an [ eight-year-
old] child, because by the time she reaches 16, she' ll have it perfected
and she will play both of you. So, this is why you have to
communicate with each other.

Moreover, during the parties' closing arguments, the trial court indicated the

custody arrangement was " definitely" going to be modified. The trial court further

noted the need for " rules between the [ parties]," adding that both of the parties

would be held accountable for the rules. Subsequently, when going through the

various rules that would be put into place, the trial court added, " You two don't get

along well enough to talk on the phone, and ... I don't want [ JSD] seeing you

conversing with each other, if you're not going to be civil and polite."

Nonetheless, the evidence revealed two parents who, despite their substantial

disdain for each other, appear to be equally fit and capable of parenting JSD and

providing a good home for her.

When Ms. Stewart filed her rule to modify custody, everyone was put on

notice that the issue of custody was going to be before the trial court. Ms. Stewart

argued that the current custody arrangement was so deleterious to JSD as to

warrant a modification, while acknowledging the best interest of JSD was the

overriding concern. The parties appeared for a two-day trial and presented

evidence and testimony. Although the trial court did not articulate reasons for

judgment in this case, after hearing the evidence, including the testimony of Ms.

Stewart and Mr. Desoto, the trial court implicitly found that JSD's best interests

would be served by a modification of custody. Based on the evidence presented,

the trial court maintained joint custody but modified the visitation from a 2- 2- 3

schedule to week -to -week. Included in the judgment is language obligating the

parties to exchange information regarding the health, education, and welfare of

JSD and authorizing both parties to discuss any information or issues with the

administration and/or staff at University Laboratory School. Moreover, while the

trial court did not designate a domiciliary parent, the judgment allocated final

decision-making authority concerning all of JSD' s medical, psychiatric, vision, and

dental care to Ms. Stewart and final decision-making authority concerning all of

JSD' s extracurricular activities to Mr. Desoto.

Physical custody is a separate matter from legal authority and responsibility

over a child. Hodges v. Hodges, 2015- 0585 ( La. 11/ 23/ 15), 181 So. 3d 700, 705.

The term " custody" is usually broken down into two components: physical or

actual custody and legal custody. Id. Once a trial court awards legal joint custody,

La. R.S. 9: 335 governs the details of that custodial arrangement, including physical

custody, as well as the legal authority and responsibility of the parents. See

Hodges, 181 So. 3d at 703.

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Louisiana Revised Statutes 9: 335 provides, in pertinent part:

A. ( 1) In a proceeding in which joint custody is decreed, the court
shall render a joint custody implementation order except for good
cause shown.

2)( a) The implementation order shall allocate the time periods during
which each parent shall have physical custody of the child so that the
child is assured of frequent and continuing contact with both parents.

b) To the extent it is feasible and in the best interest of the child,
physical custody of the children should be shared equally.

c) The implementation order shall include a provision that when
either party is required to evacuate this state with a minor child
because of an emergency or disaster declared under the provisions of
R.S. 29: 721 et seq., or declared by federal authority and it becomes
impossible for the parties to exercise custody as provided in the
judgment, the parties shall engage in continuous communication
regarding the safe evacuation of the child, the location of the child
during and after the emergency or disaster, and an interim custody
plan for the child until the custody provisions of the judgment can be
resumed.

3) The implementation order shall allocate the legal authority and
responsibility of the parents.

B. ( 1) In a decree of joint custody the court shall designate a
domiciliary parent except when there is an implementation order to
the contrary or for other good cause shown.

2) The domiciliary parent is the parent with whom the child shall
primarily reside, but the other parent shall have physical custody
during time periods that assure that the child has frequent and
continuing contact with both parents.

3) The domiciliary parent shall have authority to make all decisions
affecting the child unless an implementation order provides otherwise.
All major decisions made by the domiciliary parent concerning the
child shall be subject to review by the court upon motion of the other
parent. It shall be presumed that all major decisions made by the
domiciliary parent are in the best interest of the child.

In addition, La. R.S. 9: 336 provides that "[ j]oint custody obligates the parents to

exchange information concerning the health, education, and welfare of the child

and to confer with one another in exercising decision-making authority."

While La. R.S. 9: 335( B)( 1) provides a preference for the designation of a

domiciliary parent, such designation is not required as a court can instead allocate

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decision-making authority by means of an implementation order. Hodges, 181

So. 3d at 708- 709. As set forth in La. R.S. 9: 335( A)(2)( a) and ( 3), the

implementation order " shall allocate the time periods during which each parent

shall have physical custody of the child so that the child is assured of frequent and

continuing contact with both parents ... and shall allocate the legal authority and

responsibility of the parents." In Hodges, the Louisiana Supreme Court

acknowledged that the statute does not require a particular form for the rendition of

a joint custody implementation order, rather just that the mandatory requirements

of La. R.S. 9: 335( A)(2)( a) and ( 3) are satisfied. Hodges, 181 So. 3d at 711.

The October 26, 2023 judgment maintains joint custody, sets forth a week -

to -week visitation schedule and a holiday schedule, addresses the allocation of

legal authority and responsibility of the parties regarding medical treatment and

extracurricular activities, and contains provisions for the parties' rights and

responsibilities relative to claiming JSD for income tax purposes, the payment of

child support, and the sharing of expenses such as tuition and summer care.

Concerning Ms. Stewart's argument that the judgment violates La. R.S. 9: 335

because it fails to allocate legal authority and responsibility over school decisions,

we note the following. In the October 7, 2020 stipulated judgment, the parties

agreed that JSD would attend University Laboratory School and that they would

share the costs of her education until JSD attained the age of eighteen. This

agreement is carried over in the October 26, 2023 judgment. The current judgment

further mandates that if the parties " cannot reach an agreement for any issues that

arise, either party must file the necessary pleading to have the matter determined

by the Court."

Based on our review of the record, we find that the October 26, 2023

judgment qualifies as an implementation plan for the purposes of La. R.S. 9: 335.

Once the trial court decided to maintain the parties' joint custodial arrangement,

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modified with a week -to -week visitation schedule, the trial court acted within its

discretion in allocating decision-making authority to the parties' by means of this

implementation plan. As noted, each custody case must be viewed based on the

particular facts and circumstances of the case, with the overriding consideration

being the best interest of the child. See La. Civ. Code art. 131; Leger, 363 So -3d

at 528. The trial court was required to make credibility determinations in this case

and confect a custody arrangement in the best interest of JSD. Moreover, it is

evident from the record that in crafting this judgment, the trial court sought to

encourage more effective communication between the parties and implicitly

concluded that JSD's best interests would be served by the modified custodial

arrangement, including but not limited to allowing JSD time to foster a more stable

relationship with both of her parents. Ms. Stewart has not demonstrated that these

findings are manifestly erroneous. Thus, we find no abuse of discretion by the trial

court in the modified joint custody arrangement.

Lastly, on appeal, Ms. Stewart argues the trial court abused its discretion by

removing the parenting coordinator and limiting the parties' use of Our Family

Wizard to one year. We find no merit to Ms. Stewart' s arguments regarding these

issues, both of which are discretionary matters.

When discussing the parenting coordinator issue with the parties, the trial

court noted that Mr. Desoto had " kind of alienated Ms. McCarthy." Rather than

having the parties " start all over again," the trial court stated, " It's going to be me.

I'm going to be the parenting coordinator." We find no abuse of the trial court' s

sound discretion in its decision to resolve any conflicts that should arise between

the parties rather than appointing a new parenting coordinator in this case.

Concerning the use of Our Family Wizard, the trial court noted that the

parties had not been following the rules previously set forth in the October 7, 2020

stipulated judgment regarding email communications. The trial court then

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continued, noting certain rules that would be enforced, such as including " FYI" for

informative communications; " RR" for communications requiring a response, with

a response required within twenty-four hours; and " URGENT" behind the " RR" for

communication requiring an urgent response, with a response required within three

hours. The trial court indicated that these annotations should be done in boldface

type for ease of reference, adding that it would be monitoring the communications

for at least a month and would " rule [ the parties] into court" if they were not

following these orders. This seems to be a clear effort by the trial court to get the

parties to learn how to co -parent with less animosity. By limiting the use of Our

Family Wizard to one year, the trial court was encouraging the parties to work on

their communication skills, with some oversight by the trial court, all of which

undoubtedly is in JSD's best interest. Accordingly, we find no abuse of the trial

court's discretion in its decision to limit the parties' use of Our Wizard to one year.

CONCLUSION

For the above and foregoing reasons, we affirm the October 26, 2023

judgment of the trial court. We assess all costs of this appeal to the appellant,

Jennifer L. Stewart.

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