Lance Boudreaux v. Carley Webster

STATE OF LOUISIANA

FIRST CIRCUIT

NO. 2024 CU 0692

I

VERSUS

CARLEY WEBSTER

Judgment Rendered: ZZM,

On Appeal from the
18th Judicial District Court
Parish of lberville, State of Louisiana
Trial Court No. 79230

The Honorable Elizabeth A. Engolio, Judge Presiding

Vincent A. Safflotti Attorney for Plaintiff A
- ppellee,
Natalie C. Neale Lance Boudreaux
Baton Rouge, Louisiana

Nicole Dufrene Streva Attorney for Defendant -Appellant,
Morgan City, Louisiana Carley Webster

BEFORE: WOLFE, MILLER, AND GREENE, JJ.

1` 4

WOLFE, J.

In this matter, the mother appeals from two trial court judgments. The first

established the father as the domiciliary parent. The second granted an award of

attorneys' fees to the father for the mother' s frivolously filed Petition for Protection
from Abuse. For the following reasons, we affirm both judgments.

FACTS

This child custody litigation was previously before this court in May 2023 and

portions of this section are taken from this court' s prior opinion in Boudreaux v.

Webster, 2022- 1282 ( La. App. 1st Cir. 5/ 19/ 23), 2023 WL 3573901 ( unpublished),

writ denied, 2023- 00848 (La. 9/ 6/ 23), 369 So. 3d 1269.' Lance Boudreaux (" Lance")

and Carley Webster (" Carley") had a romantic relationship and are the parents of

one child, Wyatt Paul Webster (" Wyatt"), born on: August 18, 2019. Id. at * 1. The

parties previously entered into a stipulated judgment on February 27, 2020, which

awarded them joint custody, with Carley designated as the domiciliary parent,

established child support, and decided other matters. Later, on May 13, 2020, the

parties entered into another stipulated judgment, providing for alternate weekend
visitation for Lance, as well as various other incidental matters. Eventually, the

parties entered into a third stipulated judgment, which was signed by the trial court
on October 21, 2021.
The third judgment provided for joint custody, with equal

shared physical custody on a rotating schedule, and continued Carley as the

domiciliary parent. Id. at * 2.

On February 16, 2022, Lance filed a rule to modify custody, asserting a

material change in circumstances.
He sought to be designated the domiciliary
parent,
in addition to a modification of physical custody so that Wyatt would
primarily reside with him. Carley filed a responsive pleading and averred that the

I As discussed later, the record as designated by Carley, the appellant, is silent as to any proceeding
prior to April 27, 2023.

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parties agreed to an extrajudicial, week -to -week rotating custody schedule as Wyatt

would soon be attending school. Carley requested that physical custody be modified

and that Wyatt be allowed to reside primarily with her during the school year and

spend alternate weekends with Lance. The matter proceeding to trial on August 1,

2022.
At the conclusion, the trial court ordered that joint custody continue, with

continuing equal physical custody on an alternating weekly basis, and designated

Lance and Carley as co -domiciliary parents., The trial court signed the judgment on

September 1, 2022. Lance appealed the judgment to this court. Id. at * 2. On review,

this court reversed, in part, the trial court' s designation of Lance and Carley as co -

domiciliary parents, and remanded the matter "to the trial court for a prompt hearing
and determination of a domiciliary parent unless there is an implementation order to

the contrary or for other good cause shown." Id. at * 5.

Following this court' s May 19, 2023 ruling, a number of motions and

pleadings were filed with the trial court, convoluting the procedural history. On May
23, 2023, Carley filed a Petition for Protection from Abuse, claiming Lance

physically abused her by pushing her, and that she " fear[ ed] [ for her] life around

Lance]."
Later, on September 20, 2023, Carley filed a Motion to Recuse Judge
Alvin Batiste, Jr.,
who presided over the earlier August 1, 2022 custody trial, due to

a conflict with her counsel of record. The trial court granted the recusal on

September 21, 2023, and the matter was then allotted to Judge Elizabeth A. Engolio.
Also on September 21, 2023, Carley filed a second Petition for Protection from

Abuse, this time on behalf of Wyatt, asserting allegations of sexual assault against
Wyatt by Lance. A hearing on Carley' s May 23, 2023 Petition for Protection from

Abuse was held on October 4, 2023 at which time the trial court denied Carley' s
petition, found it was frivolously filed, and awarded $ 8, 565. 75 in attorneys' fees to
Lance.
As to Carley' s second filed Petition for Protection from Abuse, the parties

began discussing the matter during court on October 4, 2023, but the hearing was

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continued to October 18, 2023 on Carley' s motion. When the matter was taken up

again, Carley voluntarily dismissed her second Petition for Protection from Abuse,

at which time Lance requested additional attorneys' fees. A signed judgment

resulting from the October 4 and 18, 2023 hearings memorialized the trial court' s

granting of attorneys' fees regarding Carley' s first Petition for Protection from

Abuse, noted the dismissal of Carley' s second Petition for Protection from Abuse,

and stated the hearing on the domiciliary parent designation was set for December
20, 2023.

Following the dismissal of both of Carley' s Petitions for Protection from

Abuse, on October 24, 2023, Lance filed a Rule for " Make Up" Custodial Periods,
wherein he requested additional custodial time with Wyatt for the time missed due

to the temporary restraining orders put in place, as well as a specific request for

attorneys' fees for having to defend against Carley' s second Petition for Protection
from Abuse. This Rule was set for hearing on December 20, 2023, the same date

the trial court was set to determine domiciliary parent status.

Further, on October 30, 2023, Carley filed a Motion to Recuse Judge Elizabeth

A. Engolio based on a statement she made during a pretrial conference that she could

not rule on the pending domiciliary issue " in a vacuum" or " in a bubble[,]" to which

Carley assumed this implied Judge Engolio would " take into consideration the

pleadings, evidence, and trial testimony from the two ( 2) petitions for protection

from abuse that were filed by [ Carley] after the original custody trial was had and
after the First Circuit remanded, which is outside the records to decide the issue at
hand." Carley stated that, " after having the pretrial conference and being told that

she will not be able to rule on the domiciliary issue without taking other evidence
into consideration, [ Carley] believes that Judge Engolio is unable to render an

impartial decision in this matter." A hearing was held on December 1, 2023, at

which time, Judge Guy Holdridge, ad hoc, denied Carley' s motion, ruling, "[ t]he

F

fact that Judge Engolio has heard other matters involving the parties does not show
that she is bias[ ed] for or against either party."

Finally, on January 10, 2024, a hearing was held regarding domiciliary parent
status, pursuant to this court' s remand, and on Lance' s Rule for "
Make Up"

Custodial Periods. Following the hearing, the trial court designated Lance as

Wyatt' s domiciliary parent, and a judgment to this effect was signed on February 6,
2024.
Additionally, the trial court signed a second, separate judgment on February
6, 2024, wherein it granted Lance' s Rule for "Make Up" Custodial Periods, and also

granted Lance' s request for attorneys' fees in the amount of $3, 854.26 in response

to Carley' s September 21, 2023 Petition for Protection from Abuse. It is from these

two judgments that Carley appeals.

DISCUSSION

As noted above, this court, in its previous ruling, remanded the matter to the
trial court "
for a prompt hearing for the determination of a domiciliary parent or an
implementation order in accordance with La. R.S. 9: 335." Id. Carley claims this

court ordered the trial court to " conduct a hearing[;] [ n] ot render a decision based on
a reading of the record." She continues, arguing the trial court " should have

conducted a hearing on everything that transpired from the original trial date on
August 1, 2022 to January 10, 2024 —not just take into consideration the record and

the two subsequent protective order hearings." Carley concludes, stating, "[ b] y

failing to conduct an actual hearing, [ her] fundamental right to due process was
violated."

During the October 18, 2023 hearing on Carley' s second Petition for

Protection from Abuse,
the trial court and counsel discussed the upcoming
domiciliary parent hearing:
Counsel for Lance:
So we' re not preparing — or we' re just
appearing for [ a] discussion and ruling from
the [ c] ourt?

5

Trial court: Yeah, I mean, when I get a better handle on
the record I may have some instructions,
maybe we' ll get on a telephone status and we
can talk about them —

Counsel for Lance: Okay.

Trial court: -- if I' m expecting something from y' all on
this particular day. I was just trying to pick a
day while I had you here.

Counsel for Carley: Okay. That' s a great question ` cause I didn' t
know what I was suppose to be preparing
either other than appearing.

Trial court: Right. Right now, you know, nothing
because I don' t have anything else. And I
want to give you a date to also consider the
things that we talked about in [ c] hambers and
possibly get a resolution.

Later, on December 12, 2023, Judge Engolio' s law clerk emailed counsel for both

parties, noting, "[ w]hen the trial date was scheduled, back in October, Judge Engolio

indicated that she would read the transcript of the previous domiciliary trial held
before Judge Batiste and let you know if she needed more evidence or information."

Further, on December 18, 2023, Judge Engolio' s law clerk emailed counsel for both

parties again, stating, " Judge Engolio is not requesting the production of any further

evidence or information for the hearing Wednesday." However, on January 10,

2024, the day of the domiciliary parent designation hearing, counsel for Carley, for
the first time, noted she was " prepared to have a hearing on [ the] matter, [ and]

t]here' s no instruction for the [ c] ourt to review the record and render a ruling." The

trial court responded, "[ w]hy —
why are you telling me this different now that that' s

your appreciation after we had an extensive, detailed conversation on whether or not

there needed to be a hearing? And you argued to the [ c] ourt in [ c] hambers that there

was to be nothing new."

Despite Carley' s argument to the contrary, without the filing of any new
pleading which might allow for the introduction of alleged new evidence, the trial

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court' s January 10, 2024 hearing to determine domiciliary parent status was limited
to the record as presented to the trial court. This court remanded the matter back to

the trial court for the straightforward determination of which party is to be Wyatt' s
domiciliary parent. Moreover, the definition of a " hearing" does not automatically

require the introduction of new evidence. Rather, it is a " formal, scheduled setting
in which an affected person presents arguments to a decision maker." Black' s Law

Dictionary 1760 ( 12th ed. 2024). There is no requirement that argument and

evidence be presented at a hearing. Based on our review of the record, this was the

appreciation of the trial court and counsel for the parties leading up to the January
101 2024 hearing.

Second, and in a one paragraph argument, Carley claims the trial court erred

in designating Lance as Wyatt' s domiciliary parent, arguing, "[ she] is entitled by

law to present her evidence showing that Lance is not the right parent to be

designated as the domiciliary parent. Until [ she] is afforded her day in court, she

cannot show Lance' s actions over the past two ( 2) years included but not limited to

excessive working hours while he supposedly has Wyatt, passing Wyatt off to his
parents to raise[,] and having multiple live-in partners. Once she is able to present

her evidence of these events, Carley is confident that the [ c] ourt will see she is the

proper parent to be designated as the domiciliary."
During the January 10, 2024 hearing, the trial court designated Lance as

Wyatt' s domiciliary parent, stating:
Thank you.
All right, so here' s my ruling on the domiciliary status.
Carley] had been acting as the domiciliary parent without prejudice,
and that was pursuant to the Dearing Officer' s recommendation or huh,
yeah, it was her recommendation. As such, we' ve seen deficiencies in
her duties and judgment as domiciliary parent.

The domiciliary parent is expected to make all decisions affecting the
child.
And failure to confer with the other parent, the non -domiciliary
parent regarding health, education, and welfare would be considered a
deficiency in her duties.

VA

Carley] failed to communicate her move to Acadia Parish prior to
moving. [ Carley] failed to timely communicate health information
regarding the child' s ear tube surgery, and even in the hearing transcript
from August 1 st of 2022, [ she] was evasive with questions regarding
the child' s pediatrician at the time of the hearing. She answered with
one pediatrician, and then later when she was being asked questions by
a different lawyer[,] she gave information on a different pediatrician.

She also failed to confer with [Lance] regarding daycares that she was
exploring. Also, it was seen that she failed to exercise good judgment
in filing a frivolous Petition for Protection first alleging domestic abuse,
which was denied by the [ c] ourt and also deemed frivolous. During the
taking of evidence by huh —from [ Carley], the [ c] ourt found and noted
in its ruling that [ her] testimony was impeached by her own witnesses.

Then her allegations of sexual abuse, which she did not —she dismissed
on her own motion, presumably due to lack of evidence, following that,
or in the midst of that[,] the [ c] ourt shared with counsel in [ c] hambers
that the minor child seemed to be coached in each of the recordings of
the child, namely [ Carley' s] cell phone video, the Audrey Hepburn
Center' s audio interview, and the Child Advocacy Center' s video.
Further, [ Carley' s] filing of sex abuse allegations resulted in [ Lance]
losing time with the minor child, and as of a December 18th email
between my law clerk and Mr. Saffiotti, and I believe Ms. Streva was
on it, the [ c] ourt was informed by counsel that [ Carley] had not yet
allowed any make- up time.

The [ c] ourt' s decision to name [ Lance] domiciliary parent at this time
is in an effort to achieve the child' s best interest since [ Carley] has
demonstrated an interim —on an interim basis her inability and intention
as domiciliary parent, which has been found to be unacceptable to this
c] ourt for the reasons I' ve stated.

Despite Carley' s claim that the trial court erred in designating Lance as the

domiciliary parent, on appeal, this court has nothing to review. The record as

designated on appeal is silent as to any proceeding in this matter prior to April 27,
2023. As such, all of the evidence, transcripts, etc. which formed the basis of the

August 1, 2022 trial are not in the record. An appellate court cannot review evidence

that is not in the record on appeal and cannot receive new evidence. City of

Hammond v. Parish of Tangipahoa, 2007- 0574 ( La. App. 1 st Cir. 3/ 26/ 08), 985
So. 2d 171, 176. Further,
the appellant is charged with the responsibility of

completeness of the record for appellate review, and the inadequacy of the record is
imputable to her. See Niemann v. Crosby Dev. Co., L.L.C., 2011- 1337 ( La. App.

1st Cir. 5/ 3/ 12), 92 So. 3d 1039, 1044. While Carley objects to the trial court' s

designation of Lance as Wyatt' s domiciliary parent, this court does not have any

ability to review the record on which the trial court made such a determination.

Additionally, although Carley claims she has evidence which might support a

finding that she is the suitable domiciliary parent, she did not file any appropriate

motion which might allow the introduction of such evidence, therefore it was not

considered by the trial court and cannot be considered by this court. Carley' s own

appellant brief admits such evidence was not before the trial court: "[ u] ntil Carley

is afforded her day in court, she cannot show Lance' s actions [... ]" effectively

disqualified him from being Wyatt' s domiciliary parent. Moreover, while the trial

court did consider Carley' s two Petitions for Protection from Abuse in its ruling, we

find no error by the trial court. These petitions were filed by Carley and the trial

court could not " unhear" the arguments and proceedings presented before it on these

petitions at the later held domiciliary parent hearing.

The trial court' s determination on child custody matters is entitled to great

weight, and its discretion will not be disturbed on review in the absence of a clear

showing of abuse. Mulkey v. Mulkey, 2012- 2709 (La. 5/ 7/ 13), 118 So. 3d 357, 368.

As the record before this court is silent as to the August 1, 2022 proceedings, which

the trial court used and reviewed in making its domiciliary parent determination, and

as Carley did not file any appropriate pleading which might allow for the

introduction of new evidence before the trial court made its domiciliary parent

ruling, it is impossible for us to find any abuse of discretion by the trial court in

designating Lance as Wyatt' s domiciliary parent.

Lastly, Carley claims the trial court erred in awarding Lance attorneys' fees
in response to her September 21, 2023 Petition for Protection from Abuse. She

argues she " voluntarily dismissed her [petition] [... ] after she was able to review all

of the child' s medical records and the CAC interview[, ultimately] realizing that she

I

would likely not be able to meet her burden of proof. [... ] However, this does not

mean that her filing was frivolous." Moreover, Carley asserts "[ t]he record shows

there was never a finding by the [ trial court] that [ her petition] was frivolous."

Accordingly, Carley states the award of attorneys' fees to Lance was made in error.

Louisiana Revised Statutes 46: 2136. 1, which governs the costs to be paid in

proceedings made under the Domestic Abuse Assistance Act, authorizes sanctions

for frivolously filing a Petition for Protection from Abuse:

A. Except as provided in Subsection B of this Section, all court costs,
attorney fees, costs of enforcement and modification proceedings, costs
of appeal, evaluation fees, and expert witness fees incurred in
maintaining or defending any proceeding concerning domestic abuse
assistance in accordance with the provisions of this Part shall be paid
by the perpetrator of the domestic violence, including all costs of
medical and psychological care for the abused adult, or for any of the
children, necessitated by the domestic violence.

B. If the court determines the petition was frivolous, the court may
order the nonprevailing party to pay all court costs and reasonable
attorney fees of the other party. Failure to appear at a hearing on the
petition shall not on its own constitute grounds for assessing court costs
and fees against the petitioner.

Absent a determination that a Petition for Protection from Abuse is frivolous, a trial

court is not authorized to assess costs of the proceedings against the petitioner. See

Rogers v. Rogers, 2019- 0143 ( La. App. 1st Cir. 9/ 27/ 19), 287 So. 3d 749, 752.

During the October 18, 2023 hearing on Carley' s September 21, 2023 Petition

for Protection from Abuse, Carley voluntarily dismissed this pleading, at which time

Lance' s counsel requested attorneys' fees " for having to prepare for this[.]" The

trial court asked Lance' s counsel to " reconsider [his] position" since " we didn' t have

to go forward with testimony today[.]" However, a formal ruling on the issue of

attorneys' fees was not made by the trial court at that time. Lance repeated his

request for attorneys' fees in his October 24, 2023 Rule for " Make Up" Custodial

Periods. Later, during the January 10, 2024 hearing, Lance' s counsel again

reiterated his request for attorneys' fees, arguing:

10

Your Honor, I know from that hearing that I asked for attorneys' fees,
and the [ c] ourt asked me to think about the matter and we would take it
up later. There' s no way that I don' t recall that having occurred, and
she dismissed her pleadings with prejudice after we spent a day and a
half trying them. She, herself, obviously, believe[ s] that her pleadings
were frivolous and unfounded. So I believe I have the right to ask for
attorneys' fees for that and to take up that matter with the [ c] ourt today,
which I' m asking to do.

Following additional oral argument between the parties, the trial court ruled,

expressly finding that Carley' s September 21, 2023 Petition for Protection from

Abuse was frivolously filed, as follows: " And at this time, I understand that it was

dismissed on [ Carley' s] own motion due to lack of evidence; I think that' s

tantamount to frivolousness. And I will find —this [ c] ourt will make a finding that

it was frivolous." The trial court went on to state that the video of Wyatt submitted

with Carley' s September 21, 2023 Petition for Protection from Abuse was taken by

her and " it appears [... ] that the child [ was] coached. So she had access to that prior

to fling the petition." Ultimately, the trial court awarded $ 3, 854. 26 in attorneys'

fees to Lance for Carley' s frivolously fled September 21, 2023 Petition for

Protection from Abuse.

A trial court' s factual determination as to whether a Petition for Protection

from Abuse was frivolously fled is subject to a manifest error standard of review.

See Mason v. Thompson, 2023- 0730 ( La. App. 1st Cir. 2/ 1/ 24), 2024 WL 446043,

4 ( unpublished), writ denied, 2024- 00273 ( La. 4/ 23/ 24), 383 So. 3d 607; cf Landry

v. Landry, 2021- 0337 ( La. App. 1st Cir. 10/ 8/ 21), 331 So. 3d 351, 356, writ denied,

2022- 00044 ( La. 3/ 2/ 22), 333 So.3d 835 ( a trial court' s determination regarding the

imposition of sanctions pursuant to La. Code Civ. P. art. 863 is subject to the

manifest error standard of review). The manifest error standard of review obligates

an appellate court to give great deference to the trial court' s findings of fact. We

will not reverse factual determinations, absent a finding of manifest error. Almon

v. Almon, 2005- 1848 ( La. App. 1st Cir. 9/ 15/ 06), 943 So. 2d 1113, 1115.

11

Accordingly, and contrary to Carley' s argument, during the January 10, 2024

hearing, the trial court clearly made a factual finding that the September 21, 2023

Petition for Protection from Abuse was frivolously filed, particularly in light of the

coaching of Wyatt by Carley regarding the allegations of sexual abuse. On review,

we find no manifest error in the trial court' s decision.

CONCLUSION

The trial court' s February 6, 2024 judgments, first designating Lance

Boudreaux as domiciliary parent and, second, granting an award of attorneys' fees
in the amount of $
3, 854.26 to Lance Boudreaux for Carley Webster' s frivolously

filed September 21, 2023 Petition for Protection from Abuse, are affirmed. All costs

of this appeal are assessed to the appellant, Carley Webster.

JUDGMENTS AFFIRMED.

12

STATE OF LOUISIANA

COURT OF APPEAL VERSUS

FIRST CIRCUIT

DOCKET NUMBER 2024 CU 0692

MILLER, J., dissenting.

I respectfully dissent from the majority' s opinion herein.

The trial court, at this court' s direction, determined which parent should be

designated the domiciliary parent. The trial. court' s determination was based upon

the record that was before the court of appeal, but also was in consideration of other

evidence that had accumulated in the interim. The additional evidence considered

by the trial court included evidence presented in a protective order hearing, which

was ultimately denied and determined to be frivolous, and the filing of a second

protective order that was dismissed before it was heard. When choosing the

domiciliary parent, the trial court could not ignore what had occurred in court

between the appeal of the September 1, 2022 judgment and the January 10, 2024

hearing to designate a domiciliary parent. Trial courts should not feign ignorance

when deciding matters before them — in particular when deciding custody matters.

However, I believe the parties should have been given the opportunity to confront

this evidence at the hearing ordered by this court. In denying this opportunity, I

believe the trial court erred.

As to the award of attorney' s fees associated with the filing of the second

protective order, I am unable to discern how the court determined the filing was

frivolous as the matter was dismissed before it could be heard. While I am aware

that such filings are often made in bad faith and as a litigation tactic, I do not

necessarily believe that the voluntary dismissal of a petition due to a lack of evidence

is tantamount to a finding that its filing was frivolous. Often times, litigants are

1

unable to present the evidence they intended, have reevaluated said evidence, or their

fortitude fails in the end. See Lassair on Behalf of T.P. J. v. Paul, 2022- 0320 ( La.

App. 4th Cir. 12/ 14/ 20), 353 So. 3d 1048, 1055 (" the fact that Plaintiff did not meet

her burden of proof on a protective order ... does not necessarily establish that the

action was frivolous"). Thus, I conclude the trial court' s award of attorney' s fees

for the second protective order application was error.

I