Reanda Pierre Versus Paris Phillip Pierre

REANDA PIERRE NO. 23-CA-470

VERSUS FIFTH CIRCUIT

PARIS PHILLIP PIERRE COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 87,657, DIVISION "D"
HONORABLE M. LAUREN LEMMON, JUDGE PRESIDING

February 21, 2024

SCOTT U. SCHLEGEL
JUDGE

Panel composed of Judges Susan M. Chehardy,
Stephen J. Windhorst, and Scott U. Schlegel

AFFIRMED
SUS
SMC
SJW

COUNSEL FOR PLAINTIFF/APPELLEE,
REANDA PIERRE
Reanda Pierre

COUNSEL FOR DEFENDANT/APPELLANT,
PARIS PIERRE
Eric E. Malveau

SCHLEGEL, J.

Appellant, Paris Phillip Pierre, appeals the trial court’s judgment of March

28, 2023, which granted to Reanda Pierre, appellee, sole custody of the couple’s

four minor children pursuant to the Post-Separation Family Violence Relief Act,

La. R.S. 9:361, et seq. (PSFVRA), with supervised visitation by Mr. Pierre

according to the conditions set forth in the judgment. For the following reasons,

we affirm the judgment of the trial court.

Background and Procedural History

Mr. and Ms. Pierre were married on April 20, 2011. Four children were

born of the marriage: PPP (born 2013); PP (born 2015); Ed.P (born 2016); and

El.P (born 2019). On March 2, 2020, Ms. Pierre filed a petition for divorce under

La. C.C. art. 103(1). The petition did not raise any issues of domestic violence.

On December 17, 2020, the trial court granted an Article 103(1) divorce, and reset

the issues of custody and domiciliary status to March 23, 2021.

On March 23, 2021, Mr. Pierre and Ms. Pierre both appeared by Zoom as

self-represented litigants and were sworn in. The trial court conducted the hearing

in a manner similar to a settlement conference. During the hearing, they discussed

Mr. Pierre and Ms. Pierre’s work schedules; arrangements regarding physical

custody of the children; the children’s schools and teachers; potential doctor visits;

and other issues as to conflicts and potential counseling. There was no testimony

or allegations about domestic violence. In fact, the trial court stated: “[s]top. I

don't want to talk about anything previous. We are moving forward and we have an

agreement. There is no reason for either of y’all to bring up the previous. I am not

doing that. We are moving forward.” The court minutes indicate that the “[p]arties

reach[ed] an agreement.”

The judgment from the March 23, 2021 hearing ordered that the parties were

to have joint physical custody of the minor children, and stated that “[b]ecause this

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is a high conflict matter, Ms. Pierre is designated as the domiciliary parent.” The

judgment further designated a specific custody schedule, including transportation

of the children for custody; implemented rules as to how the non-custodial parent

was to FaceTime with the children; ordered that communication was to occur only

through Our Family Wizard; ordered that Mr. and Ms. Pierre were to attend co-

parenting counseling; and ordered separate counseling for Mr. Pierre and Ms.

Pierre.

On April 30, 2021, only one month after entering into the consent judgment,

Ms. Pierre filed a petition for protection from stalking. The petition related the

most recent incident of stalking that occurred when she traveled to Ponchatoula,

Louisiana for her scheduled custody time with the children, which occurred on

April 26, 2021. The petition also referred to previous incidences of domestic

abuse, including an occurrence on January 3, 2021, in which Mr. Pierre choked

Ms. Pierre while the children were in the home; an occurrence on April 15, 2016

that included Mr. Pierre grabbing Ms. Pierre by the neck, picking her up and

throwing her to the ground; and an occurrence on February 3, 2014 in which Mr.

Pierre choked Ms. Pierre in the presence of his parents. A temporary restraining

order was granted, and the hearing on the protective order was set for May 19,

2021.

At the May 19, 2021 hearing on Ms. Pierre’s petition for protection,1 the

trial court granted the Protective Order, and ordered Mr. Pierre not to go within

100 yards of Ms. Pierre, her residence, or her place of employment, and not to

contact family members or acquaintances of Ms. Pierre. The protective order

again ordered the parties to exchange information regarding the children only on

Our Family Wizard; ordered that neither party post on social media about the other

1
The trial court’s Reasons for Judgment indicate that the hearing was on May 20, 2021, but the hearing
occurred on May 19, 2021, with the order signed the same day. The Clerk’s Office docketed the order on
May 20, 2021.

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party; ordered Mr. Pierre to enroll in domestic violence counseling and co-

parenting classes; and ordered Ms. Pierre to enroll in trauma counseling. The

Protective Order was effective until November 19, 2022.

Six months later, on December 17, 2021, Mr. Pierre filed a petition for ex

parte temporary sole custody alleging, inter alia, that Ms. Pierre had removed the

children and enrolled them in school in Florida, and that she told him only after she

had moved them to Florida. On that date, the trial court ordered that Mr. Pierre be

awarded temporary physical custody of the children; that Ms. Pierre return

physical custody of the children to Mr. Pierre; that a civil warrant be issued for the

children to be returned to Mr. Pierre, as temporary custodial parent; and that Ms.

Pierre be given restricted and supervised visitation rights with the children pending

a hearing on January 18, 2022.

On January 10, 2022, before the hearing, Ms. Pierre filed an exception of no

right of action and an ex parte petition for temporary custody, civil warrant, and

sanctions against Mr. Pierre, and an answer and reconventional demand to the ex

parte petition filed by Mr. Pierre.

On February 2, 2022, the trial court was set to hear the outstanding matters

that had been filed by both parties. But before the hearing began, the parties

entered into a consent judgment, which was read into the record and agreed to by

the parties after they were both placed under oath. The judgment was signed by

the trial court on May 5, 2022. Under the consent judgment, Mr. Pierre was

provided supervised visitation with the minor children until he completed a

domestic violence program, at which point custody would revert back to the

schedule contained in the judgment of March 23, 2021. The judgment again

provided that neither party was to post about the children on social media, and that

the parties were to use the Family Wizard Program.

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Only two months later, on April 13, 2022, Ms. Pierre filed a rule to modify

the February 2, 2022 consent judgment on the grounds that Mr. Pierre’s visitations

had not been supervised. She further alleged that he was alienating the children

from her. Ms. Pierre sought to be awarded sole custody, and an order that Mr.

Pierre’s visitations with the children were to be supervised by a third-party who

was not a family member of his until co-parenting counseling was successfully

completed. Ms. Pierre also filed a rule for contempt. The rules were set for May

26, 2022.

On May 26, 2022, the trial court heard limited testimony before suspending

the hearing. Ms. Pierre testified that she suffered significant domestic violence

during their relationship, including strangulation and sexual abuse. And Mr. Pierre

played a video of conflict by the oldest child towards Ms. Pierre that raised grave

concerns for the trial court. Due to the serious allegations made at the onset of the

hearing, the trial court terminated the proceedings, ordered the parties to revert

back to the February 2, 2022 consent judgment, but with supervised visitation for

Mr. Pierre, and ordered a custody evaluation. Dr. Ashley Weiss was appointed as

the custody evaluator on August 16, 2022. Two days later, on August 18, 2022,

the trial court continued the previously set trial dates until the custody evaluation

could be completed.

On July 21, 2022, Ms. Pierre filed a request for clarification of order from

May 26, 2022. On October 31, 2022, the trial court entered an Order Clarifying

Visitation Pending Custody Evaluation and Subsequent Hearing, which clarified

that the parties would be governed by the February 2, 2022 consent judgment, with

visitation by Mr. Pierre to be supervised. On December 15, 2022, the Court

entered a judgment from the May 26, 2022 hearing, which also clarified the

custody schedule set forth in the March 23, 2021 judgment. This “interim

judgment” recognized that no written judgment had been filed after the May 26,

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2022 hearing, and indicated that the court “now issues said judgment.” The

interim judgment provided that Mr. Pierre was permitted supervised visitation of

the children on specified days. Of particular significance, the interim judgment

voided the provision of the February 2, 2022 consent judgment that would have

permitted a return to the custody schedule set forth in the March 23, 2021

judgment upon proof of Mr. Pierre’s successful completion of a domestic violence

program.

On November 18, 2022, Ms. Pierre filed a motion to modify the protective

order that had been previously granted by the Court on May 19, 2021. The duty

judge granted a temporary restraining order, and set a hearing on the protective

order for November 29, 2022. After considering testimony and evidence, the trial

court granted Ms. Pierre’s motion to modify protective order and made it

permanent, with a “Does Not Expire” notation. The trial court further ordered that

the children’s cell phones and tablets were to stay at Mr. Pierre’s home.

The custody trial that began on May 26, 2022 was eventually completed and

held over another six days: February 10, 22, 23, 24, and March 6 and 7, 2023. On

March 28, 2023, the trial court issued a Judgment on Custody and Incidental

Matters and Incorporated Reasons for Judgment from the custody trial. The

judgment ordered that:

(1) Ms. Pierre was given sole custody of the minor children pursuant

to the PSFVRA;

(2) Mr. Pierre was to have supervised visitation of the minor children

by a competent professional approved by the court before the supervised

visits begin;

(3) Ms. Pierre was to continue trauma therapy;

(4) Mr. Pierre was to seek individual therapy for batterers;

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(5) the two oldest children were to attend reunification therapy, and

the two youngest children would also participate if the therapist determined

it was needed;

(6) neither party nor their families were allowed to post on social

media regarding the other party, custody, visitation, or any court proceeding;

and

(7) Ms. Pierre was to have exclusive use and occupancy of the former

marital home, with Mr. Pierre remaining responsible for the mortgage

pending partition, while reserving his rights to rental reimbursement.

On April 12, 2023, Mr. Pierre filed a notice of appeal from the March 28,

2023 judgment, and also filed a motion for suspensive appeal. The trial court

granted the motion for suspensive appeal on April 14, 2023.

Assignments of Error

Mr. Pierre asserts that the trial court erred in rendering the judgment of

March 28, 2023 as follows:

 the trial court erroneously found a material change in circumstances

to modify custody;

 the trial court erred in admitting evidence of abuse prior to the

February 2, 2022 consent judgment and the judgment of March 23, 2021;

 the trial court erred in applying the PSFVRA;

 after applying the PSFVRA, the trial court erred by finding that Mr.

Pierre did not meet the requirements for custody under La. R.S. 9:364 and

that granting him custody of the minor children was not in the children’s

best interest; and

 the trial court erred in granting Ms. Pierre exclusive use of the

family home.

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Law and Discussion

A. Standard of Review

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

facts and circumstances. Olavarrieta v. Robeson, 22-158 (La. App. 5 Cir. 7/6/22),

345 So.3d 1103, 1107. The trial court is therefore in the best position to determine

the best interest of the child given each unique set of circumstances. Id.

A trial court's determination in a child custody case will not be disturbed

unless there is a clear abuse of discretion. Obi v. Onunkwo, 23-116 (La. App. 5

Cir. 12/6/23), 2023 WL 8446297 at *4. Additionally, it is well-settled that an

appellate court cannot set aside the family court’s findings of fact in the absence of

manifest error or unless those findings are clearly wrong. Id.; Bordelon v. Thiele,

23-336 (La. App. 5 Cir. 12/27/23), 2023 WL 9317788 at *8. If the findings are

reasonable in light of the record reviewed in its entirety, an appellate court may not

reverse those findings even though convinced that had it been sitting as the trier of

fact, it would have weighed the evidence differently. Obi v. Onunkwo, 2023 WL

8446297 at *4; Bordelon v. Thiele, 2023 WL 9317788 at *8. In order to reverse a

fact finder’s determination of fact, an appellate court must review the record in its

entirety and (1) find that a reasonable factual basis does not exist for the finding,

and (2) further determine that the record establishes that the fact finder is clearly

wrong and manifestly erroneous. Id. at *8. The trial court has vast discretion in

custody determinations. Guidry v. Guidry, 18-639 (La. App. 5 Cir. 5/22/19), 274

So.3d 709, 715.

B. Whether the judgment of March 23, 2021 was a considered decree or a
consent judgment

Mr. Pierre argues that the trial court’s judgment of March 28, 2023

erroneously found a change in circumstances from previous judgments. He further

argues that the previous judgment of March 23, 2021 was a considered decree

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because it was rendered after testimony. As such, a higher standard of proof would

be required before the trial court could change it.

Accordingly, we first consider whether the March 23, 2021 judgment was a

considered decree or a consent judgment.

The Louisiana Supreme Court recognizes a distinction between two types of

custody awards. E. R. v. T. S., 18-286 (La. App. 5 Cir. 10/11/18), 256 So.3d 551,

557, writ denied, 18-1843 (La. 2/18/19), 264 So.3d 451. One type of custody

award is a “considered decree”, which is an award of permanent custody in which

the trial court receives evidence of parental fitness to exercise care, custody, and

control of children. Id. The second type of custody award is a “stipulated

judgment” or “consent judgment”, which a court renders when the parties consent

to a custodial arrangement, and no evidence of parental fitness is taken. Id.;

Boesch v. Boesch, 16-526 (La. App. 5 Cir. 2/8/17), 210 So.3d 937, 944.

Different burdens of proof apply to each of the two types of custody awards.

E. R., 256 So.3d at 557. The jurisprudential requirements of Bergeron v.

Bergeron, 492 So.2d 1193 (La. 1986), are applied to actions to change custody

rendered in considered decrees. Id. That is, the proponent of change must show

that a change of circumstances materially affecting the welfare of the child has

occurred since the prior order respecting custody. Id. Additionally, for considered

decrees, the party seeking a change bears the heavy burden of proving that the

continuation of the present custody is so deleterious to the child as to justify a

modification of the custody decree, or of proving by clear and convincing evidence

that the harm likely to be caused by a change of environment is substantially

outweighed by its advantages to the child. Id. at 557-58.

In contrast to considered decrees, in cases where custody has been

established by a stipulated judgment or consent judgment, the party seeking

modification must prove: (1) that there has been a material change of

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circumstances since the original custody arrangement was entered, and (2) that the

proposed modification is in the best interest of the child. Id. at 558; Bourgeois v.

Bourgeois, 16-676 (La. App. 5 Cir. 4/12/17), 218 So.3d 684, 689.

In the case at bar, the March 23, 2021 judgment is entitled “Judgment”, not

“Interim Judgment”, and uses decretal language, “the court orders, adjudges, and

decrees”. This suggests it is a considered decree. But the Reasons for Judgment

state: “[o]n March 23, 2021, the Court heard some testimony from Mr. Pierre and

Ms. Pierre. Thereafter, the parties entered another interim agreement of joint

custody, with Ms. Pierre being designated the domiciliary parent.” (Emphasis in

original). Further, Mr. Pierre and Ms. Pierre appeared by Zoom, were sworn in

and questioned by the Judge as if it was a settlement conference rather than a

contradictory hearing. During the hearing, the trial court and parties discussed Mr.

Pierre and Ms. Pierre’s work schedules, living arrangements, and the children’s

schools. The trial court even stopped the parties at one point and stated: “[s]top. I

don't want to talk about anything previous. We are moving forward and we have an

agreement. There is no reason for either of y’all to bring up the previous. I am not

doing that. We are moving forward.”

Thus, we conclude that the March 23, 2021 judgment was a consent

judgment, not a considered decree.

C. Whether the trial court erred by considering evidence of abuse prior to
the consent judgments of March 23, 2021 and February 2, 2022

On February 2, 2022, the parties entered into a consent judgment, which was

signed by the trial court on May 5, 2022. This judgment provided for supervised

visitation of Mr. Pierre with the minor children until he completed the domestic

violence program, at which point custody would revert to the schedule in the

judgment of March 23, 2021. Thereafter, on April 13, 2022, Ms. Pierre filed a

motion to modify the February 2, 2022 consent judgment. This motion to modify

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custody filed by Ms. Pierre led to the judgment of March 28, 2023, which is the

subject of this appeal.

Mr. Pierre argues that the trial court erred in admitting evidence of abuse

prior to the February 2, 2022 consent judgment and the consent judgment of March

23, 2021. More specifically, Mr. Pierre argues that Ms. Pierre should have been

limited to presenting only incidents that took place after the February 2, 2022

consent judgment. He submits that allegations of abuse prior to these judgments

are barred by the doctrine of res judicata. In response, Ms. Pierre argues that Mr.

Pierre did not preserve the issue of hearing testimony prior to February 2, 2022, so

it may not be reviewed on appeal, and further that Mr. Pierre’s notice of appeal

was from the March 28, 2023 considered decree, not the other consent judgments.

The doctrine of res judicata, set forth in La. R.S. 13:4231, provides:

Except as otherwise provided by law, a valid and final judgment is
conclusive between the same parties, except on appeal or other direct
review, to the following extent:

(1) If the judgment is in favor of the plaintiff, all causes of
action existing at the time of final judgment arising out of the
transaction or occurrence that is the subject matter of the litigation are
extinguished and merged in the judgment.

(2) If the judgment is in favor of the defendant, all causes of
action existing at the time of final judgment arising out of the
transaction or occurrence that is the subject matter of the litigation are
extinguished and the judgment bars a subsequent action on those
causes of action.

(3) A judgment in favor of either the plaintiff or the defendant
is conclusive, in any subsequent action between them, with respect to
any issue actually litigated and determined if its determination was
essential to that judgment.

Therefore, a second action is precluded when all of the following are

satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the

same; (4) the cause or causes of action asserted in the second suit existed at the

time of final judgment in the first litigation; and (5) the cause or causes of action

asserted in the second suit arose out of the transaction or occurrence that was the

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subject matter of the first litigation. La. R.S. 13:4231; Duncan v. Duncan, 18-85

(La. App. 5 Cir. 12/19/18), 262 So.3d 435, 439, writ denied, 19-0119 (La.

2/25/19), 266 So.3d 291, citing Burguieres v. Pollingue, 02-1385 (La. 2/25/03),

843 So.2d 1049, 1053.

La. R.S. 13:4232 sets forth exceptions to the general rules of res judicata. It

provides that in actions for matters incidental to divorce, “the judgment has the

effect of res judicata only as to causes of action actually adjudicated.” La. R.S.

13:4232(B). Child custody and visitation are matters incidental to divorce. La.

C.C. art. 105. Because child custody is a matter incidental to divorce, when a party

raises new allegations pertaining to changes in circumstances affecting a child’s

best interest, the limitation to the general res judicata rules set forth in La. R.S.

13:4232(B) applies. See Duncan, 262 So.3d at 439 (The limitation of La. R.S.

13:4232(B) applies to child support, as a matter incidental to divorce under La.

C.C. art. 105, when a party raises new allegations pertaining to changes in

circumstances affecting a child’s best interest.)

Judgments awarding custody and child support are always subject to

modification and are thus never final. Olavarrieta, 345 So.3d at 1108. When

considering the safety and best interest of the child, ordering supervised visitation

is within the trial court’s vast discretion. Guidry, 274 So.3d at 715. Every child

custody case must be viewed within its own peculiar set of facts. Theriot v.

Theriot, 15-311 (La. App. 5 Cir. 10/14/15), 177 So.3d 759, 765, citing Raney v.

Wren, 98–869 (La. App. 1 Cir. 11/6/98), 722 So.2d 54, 56. The trial judge is in the

best position to ascertain the best interest of the child given each unique set of

circumstances. Id.

Although evidence of abuse that occurred prior to consent judgments would

generally be inadmissible under the doctrine of res judicata, under the

circumstances of this case, the trial court appropriately considered the evidence of

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strangulation and abuse by Mr. Pierre that occurred prior to the consent judgments

of March 23, 2021 and February 2, 2022, as discussed more fully below.

In Manno v. Manno, 49,533 (La. App. 2 Cir. 11/19/14), 154 So.3d 655, 664,

because the original custody decree was a consent judgment, the Louisiana Second

Circuit Court of Appeal affirmed the trial court’s conclusion that in order to

modify the prior custody arrangement, either party must show a material change in

circumstances after the consent judgment. The Second Circuit affirmed the trial

court’s conclusion that the parties had previously had a full and fair opportunity to

litigate sexual abuse charges.

In the pending case though, there was ample evidence of a material change

in circumstances after the consent judgments that the trial court could have relied

upon without considering the abuse that occurred prior to the consent judgments.

In addition, at the hearings, Mr. Pierre objected to Ms. Pierre testifying about prior

incidences of strangulations based upon relevancy of the evidence, not res

judicata. Whether evidence is relevant or not is within the discretion of the trial

court, and its ruling will not be disturbed absent a clear abuse of discretion. Raney,

722 So.2d at 57. As further explained in Raney v. Wren,

However, application of the change in circumstances rule to this case does
not automatically preclude the introduction of all evidence of facts occurring
prior to the stipulated custody judgment. The trial court should not exclude
evidence in a custody modification proceeding if that evidence is relevant
and material to an issue which the parties have not previously had ‘a full and
fair opportunity to litigate’. (Citation omitted).

Id. See also Gonzales v. Gonzales, 21-172 (La. App. 5 Cir. 7/2/21), 2021 WL

2766900 at *2, writ denied, 21-01211 (La. 11/10/21), 326 So.3d 1251 (“Given that

the best interests of the child is of paramount consideration, and the relief sought in

the petition for protection from abuse necessarily involves a custody determination,

the trial court was within its discretionary authority in ruling that a relaxed

evidentiary standard applies here.”)

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Similarly, the Second Circuit Court of Appeal in Crowson v. Crowson,

32,314 (La. App. 2 Cir. 9/22/99), 742 So.2d 107, 110, recognized that whether

evidence is relevant or not is within the discretion of the trial court. Crowson

found that evidence of incidents prior to entry of the stipulated judgment may not

be relevant to prove a change in circumstances, but may remain relevant to the

issue of the best interest of the child. Id. Crowson concluded that the trial court

should not exclude evidence in a custody modification proceeding if that evidence

is relevant and material to an issue which the parties have not previously had a full

and fair opportunity to litigate. Id.

While we agree that the evidence of strangulation, prior to the consent

judgments, would generally be inadmissible under the doctrine of res judicata, we

find that it is certainly relevant in this specific case. The abusive behavior did not

cease after the consent judgments and thus, it was necessary for the trial court to

hear the evidence of abuse perpetrated by Mr. Pierre against Ms. Pierre prior to the

consent judgments, because it related to the history and high parental conflict

between them. An understanding of the history was necessary for the trial court to

determine the best interests of the children.

Notably, Mr. Pierre was under a protective order when the parties entered

into the February 2, 2022 consent judgment, and before its expiration, Ms. Pierre

filed a motion to modify protective order, which was granted and made permanent

on November 29, 2022. The testimony about the strangulations was so interwoven

with the parties’ history that it would have been virtually impossible for the trial

court to separate out the events that occurred only after the consent judgments

without considering the events that occurred before the consent judgments.

Thus, considering the unique set of circumstances of this case, we find that

the trial court did not abuse its discretion in considering Mr. Pierre’s history of

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physical abuse that occurred before the consent judgments of March 23, 2021 and

February 2, 2022.

D. Whether the trial court erred in finding a material change in
circumstances from the February 2, 2022 consent judgment

Mr. Pierre argues that the trial court erred in finding a material change in

circumstances to modify custody.

In order to modify the February 2, 2022 consent judgment, Ms. Pierre had

the burden to prove: (1) that there was a material change of circumstances since the

original custody arrangement was entered, and (2) that the proposed modification

was in the best interest of the children.

Hearings after February 2, 2022

Based upon the evidence presented, we cannot say that the trial court erred

when it found that Ms. Pierre had proved a change in circumstances following the

February 2, 2022 consent judgment. After the February 2, 2022 consent judgment,

Ms. Pierre continued filing motions to bring new facts to the court’s attention and

to have the court’s judgments enforced:

 Apr. 13, 2022 – Rule to modify custody from February 2, 2022 consent
judgment;
 Apr. 13, 2022 – Rule for contempt;
 Nov. 18, 2022 – Motion to modify the protective order of May 19, 2021.

On May 26, 2022, the Court heard Ms. Pierre’s rule to modify custody and

rule for contempt. Ms. Pierre alleged that Mr. Pierre’s visitations had not been

supervised; he had told the children that it was Ms. Pierre’s fault that he couldn’t

see the children more; he was alienating the children; and he sent his mother to

harass Ms. Pierre. Ms. Pierre sought sole custody and supervised visitation with a

neutral third-party, who was not a family member, until co-parenting therapy was

successfully completed.

The trial court heard brief testimony, which included allegations that Ms.

Pierre had suffered serious domestic violence, strangulation, and sexual abuse from

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Mr. Pierre. Specifically, the trial court heard testimony that Mr. Pierre had choked

Ms. Pierre with the children present in the house on numerous occasions. The

court also heard testimony about a time when the oldest child threw his phone after

Ms. Pierre told him to brush his teeth, screamed that Ms. Pierre was a witch, and

said she was going to poison him. Ms. Pierre testified that this was not normal

behavior for her children. The trial court also viewed a video introduced by Mr.

Pierre of high conflict by the oldest child towards his mother. The trial court

found: “I saw a sick child”, and “[t]his is a mentally ill situation. Y’all are in

crisis. Y’all are in chaos. This dance has been going on for a very long time.”

Based on the seriousness of the testimony, the trial court reset the trial on Ms.

Pierre’s rule to modify custody, reinstituted supervised visitation for Mr. Pierre and

appointed a custody evaluator. A trial date was then set for September 6 and 7,

2022, to give the custody evaluator time to complete the evaluation.

As noted above, Ms. Pierre filed a motion to modify protective order on

November 18, 2022 because she still feared for her safety and for her life. She

testified as to threats of violence upon her that came up during the custody

evaluation with Dr. Weiss on November 18, 2022. She referred to a “death

parable” that Mr. Pierre told the children about King Solomon. She stated that

during a meeting with Dr. Weiss, Mr. Pierre said that if Ms. Pierre wanted their

children to be safe or for there not to be threats, she would not ask for sole custody.

She stated:

If I was the real parent then I would not be willing to take the kids away
from him because the parable is where each mother is claiming that the child
should be with them individually and that is what we were having a
conversation with Dr. Weiss over. The real mother would give up the child
because she loved the children. If not, the king would kill them or kill the
child. For me, it was either not ask for sole custody or lose my kids. And I
called him out on that in front of Dr. Weiss. The conversation was recorded.
I asked for permission. And I told him that you are doing it again. You are
using scripture to manipulate and to threaten me to give you what you want.

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She also testified that Mr. Pierre was keeping track of her whereabouts by

using the trackers on the children’s cell phones and tablets. If she tried to take

away their cell phones and tablets, the children got angry. Mr. Pierre had told the

children that Ms. Pierre was controlling whether or not they could talk to him.

Mr. Pierre denied that he was following Ms. Pierre. As to the parable, Mr.

Pierre testified:

I did bring up the parable for -- with the kids to show how during that
parable, the mother did not want their child to be subjected to pain and that’s
how the king found out who the mother was. That was a comparison to what
she is doing with our kids. She’s currently and constantly subjecting them to
emotional, mental, and physical abuse. And it’s been going on since June
2022 of this year -- since our last court date on May 26th.

He also accused Ms. Pierre of emotional, mental, and physical abuse, by denying

custody exchanges. The allegations of physical abuse involved the recordings of

the oldest child allegedly abusing himself while in the care of Ms. Pierre.

At the conclusion of the hearing on November 29, 2022, the trial court

granted Ms. Pierre’s motion to modify protective order, with the notation that the

order “Does Not Expire”. Mr. Pierre did not object to the entry of a protective

order against him. The protective order required Mr. Pierre not to abuse or stalk

Ms. Pierre, not to contact Ms. Pierre personally or through a third party, not to go

within 100 yards of her home or work, not to contact family members or

acquaintances of Ms. Pierre, and to exchange information via Our Family Wizard

only. The order further required that the children’s cell phones and tablets were to

stay at Mr. Pierre’s home.

The Trial

During the seven-day custody trial, the trial court heard extensive

testimony, appropriately considered the history of the interactions between the

parties, and received numerous exhibits. At the conclusion, the court found that

“Mr. Pierre has strangled her on five occasions, two of which Mr. Pierre admitted

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to during the trial.” The Reasons further indicated that Mr. Pierre’s parents

witnessed at least one strangulation, and all grandparents had witnessed a

significant amount of the parties’ high conflict.

During the trial, Ms. Pierre testified that following the 2016 strangulation,

her eyes were starting to get blurry, she screamed “Jesus”, and looked down and

saw her three-year old, PPP (born 2013), in the kitchen, where they were. She said

that Mr. Pierre minimized the strangulation, telling her “[i]t wasn't that bad, that I

wasn’t in the hospital, I didn’t have black eyes, although I had to go to the ER and

get an X-ray because I could not put my head down to look at my child.” She said

the strangulations got progressively worse. Mr. Pierre admitted that he initiated

the April 2016 choking incident. She stated that the worst (and last) strangulation

occurred on January 3, 2021, following their divorce on December 17, 2020. She

could not breathe afterwards, and if Mr. Pierre’s brother had not pulled him off of

her, “I did not know if I would still be alive.”

Ms. Pierre testified that after an incident in February 2014 when he choked

her, she told him she wanted a divorce. They argued about who would get custody

of their child, and Mr. Pierre said “[i]f you ever take our child from me, he won’t

have any parents because I’ll kill you . . . yeah. If you ever take the children –

well, the child, I’ll kill you and I guess he won’t have any parents because I’m not

going to jail and I’ll kill myself, too.” The trial court considered this testimony,

finding “Ms. Pierre alleged that in 2014, she discussed divorce with Mr. Pierre, and

that Mr. Pierre told her that if his children were ever taken from him, he would kill

her.” This testimony was particularly relevant to understand the death parable

story and why Ms. Pierre continued to fear for her life and safety after entering into

the February 2, 2022 consent judgment.

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Testimony on Custody Evaluation

The trial court considered the testimony and custody evaluation of Dr.

Ashley Weiss, who recommended that the parties share custody. The trial court

found that Dr. Weiss did not address the PSFVRA or focus on issues surrounding

domestic violence. Further, the trial court considered that this was Dr. Weiss’s

first unsupervised custody evaluation, and that she had a minimum level of training

and experience in custody matters and evaluations and in family dynamics. The

trial court pointed out that Dr. Weiss did not contact the co-parenting therapist who

had discontinued co-parenting therapy due to the parties’ high conflict, nor did she

deem it necessary to contact Mr. Pierre’s therapist. The trial court also found:

Interestingly, the custody evaluator testified that when she interviewed the
children, she asked what brought them to see her. The oldest child responded
they were there for a custody evaluation because of the kidnaping [sic].
Considering all of the above, the Court cannot accept the evaluator’s
recommendation of joint custody and ‘co-domiciliary’ status for the parties.

The trial court also heard testimony from Mary Jo Devlin, LCSW, who

provided trauma therapy for Ms. Pierre, and found her to be more credible. Ms.

Devlin specializes in trauma resolution therapy, family systems therapy, and

parental roles in relationships involving trauma, including how family violence

impacts children. Ms. Devlin, who has 51 years of experience in her field, testified

that batterers have an attitude of ownership and possession towards their partners.

She also opined that strangulation, even without marks, is the deadliest form of

domestic violence and a strong predictor of homicide.

Ms. Devlin opined that the strangulations are always a message by the

batterer that the batterer is in control of the victim’s life and death, and that Mr.

Pierre wanted to move forward and not keep talking about the strangulations. He

also apparently did not like the word “strangulation” when testifying, and preferred

the word “choking”. She testified that there is a difference between choking and

strangulation: “Choking is when you have something caught in your windpipe that

23-CA-470 18

doesn’t allow you to breathe correctly. Strangulation means you put your hands

around somebody’s throat and try to cut off the air that way.”

Ms. Devlin also testified that once batterers cannot get to their victims, they

use the children to inflict pain on their victims. She further opined that batterers

have an attitude of ownership and possession of their children as well as their ex-

partners, and often “weaponize” their children against their ex-partners.

The trial court heard from Ms. Pierre that the children told her that Mr.

Pierre called Ms. Pierre a “thief” because she steals Mr. Pierre’s visitation time

with the children. Mr. Pierre also played a recording of a physical conflict

between Ms. Pierre and the oldest child, demonstrating that the oldest child is

angry and aggressive. The oldest child is heard saying that his mother makes

potions and makes people bad. Mr. Pierre argued that the oldest child physically

abused himself because of trauma caused by the actions of parental alienation

caused by Ms. Pierre.

During Ms. Devlin’s testimony, she described an additional audio of the

oldest child yelling at Ms. Pierre, saying he would mess her up, calling her stupid

and a witch, and undermining her authority. Ms. Pierre had previously testified

that throughout their relationship, Mr. Pierre often told her he would “mess her up”

and that she needed to “get her head straight.” Ms. Devlin opined that children of

batterers curry the batterers’ favor by mimicking the behaviors of the batterers that

children think this behavior is acceptable, and that this type of behavior will

typically only happen at the mother’s house, not in the home of the batterer.

Mr. Pierre attempted to downplay his part in the conflict and abuse. He

testified several times that he did not want to focus on the past and just wanted to

move forward. He did not want the abuse to be part of the trial, saying, “the past

does not determine the future.” Mr. Pierre testified that he had initiated the

23-CA-470 19

physical fights with Ms. Pierre only one time, and that otherwise, Ms. Pierre

started the physical conflicts that led him to strangle her.

Ms. Devlin further opined that batterers try to create allies in their families

and in ex-partners’ families to interfere with their ex-partner’s relationships with

family members and to make the ex-partners look bad. Ms. Pierre testified and

introduced text messages to show that Mr. Pierre often sent group texts and called

her parents, siblings, and aunt, driving a wedge in her family of origin

relationships.

The trial court found that significant evidence demonstrated that Mr. Pierre

weaponizes the children, especially the oldest child, and that the second child’s

anger toward Ms. Pierre is increasing. The parties were ordered not to discuss

custody matters with the children, not to discuss the other parent with the children,

and not to discuss visitation issues with the children. The trial court found,

however, that Mr. Pierre’s actions have caused and continue to cause substantial

harm to the children. As to Ms. Pierre, the trial court found that she was not

violent or an abuser and that Mr. Pierre was not a victim. Both parties testified that

the physical violence usually started with some disagreement or behavior, such as

taking a cell phone or a video game.

Considering the evidence elicited over the seven-day custody trial and after a

careful review of the record, we cannot find that the trial court erred when it

concluded that there has been a material change in circumstances since the

February 2, 2022 consent judgment was entered.

E. Best interest of the children / Post-Separation Family Violence Relief Act

We consider the second prong for modifying a consent judgment – whether

the proposed modification is in the best interest of the child – in conjunction with

our analysis of the PSFVRA, La. R.S. 9:361, et seq.

23-CA-470 20

Mr. Pierre argues that the allegations of abuse that the trial court relied on in

its ruling all took place prior to March 23, 2021 or February 2, 2022. As discussed

previously, we conclude that the trial court did not abuse its discretion by

considering evidence of abuse prior to the consent judgments of March 23, 2021

and February 2, 2022.

Alternatively, Mr. Pierre argues that even if the allegations of abuse were

found to be admissible, he would meet the requirements of La. R.S. 9:364 and thus,

be allowed to have custody and unsupervised visitation with the minor children.

La. R.S. 9:364, the provision of the PSFVRA that concerns child custody

and visitation, provides in pertinent part:

A. There is created a presumption that no parent who has a history of
perpetrating family violence, as defined in R.S. 9:362, or domestic abuse, as
defined in R.S. 46:2132, or has subjected any of his or her children,
stepchildren, or any household member, as defined in R.S. 46:2132, to
sexual abuse, as defined in R.S. 14:403, or has willingly permitted another to
abuse any of his children or stepchildren, despite having the ability to
prevent the abuse, shall be awarded sole or joint custody of children. The
court may find a history of perpetrating family violence if the court finds
that one incident of family violence has resulted in serious bodily injury or
the court finds more than one incident of family violence.

B. The presumption shall be overcome only if the court finds all of the
following by a preponderance of the evidence:

(1) The perpetrating parent has successfully completed a court-
monitored domestic abuse intervention program as defined in R.S. 9:362, or
a treatment program designed for sexual abusers, after the last instance of
abuse.

(2) The perpetrating parent is not abusing alcohol or using illegal
substances scheduled in R.S. 40:964.

(3) The best interest of the child or children, considering the factors
listed in Civil Code Article 134, requires the perpetrating parent’s
participation as a custodial parent because of the other parent’s absence,
mental illness, substance abuse, or other circumstance negatively affecting
the child or children.

C. The fact that the abused parent suffers from the effects of the abuse
shall not be grounds for denying that parent custody.

...

23-CA-470 21

E. If the court finds that a parent has a history of perpetrating family
violence, the court shall allow only supervised child visitation with that
parent pursuant to R.S. 9:341.

Consequently, La. R.S. 9:364(A) creates a presumption that the parent with a

history of perpetrating domestic abuse shall not be awarded sole or joint custody of

the children. La. R.S. 9:364(E) further provides that the parent with a history of

perpetrating domestic abuse shall be allowed only supervised child visitation with

that parent.

The trial court found that Mr. Pierre has a history of perpetrating family

violence, and that the provisions of the PSFVRA apply. As set forth above, this

finding of the trial court was not an abuse of discretion.

La. R.S. 9:364(B) provides that the presumption shall be overcome “only if

the court finds all of the following by a preponderance of the evidence.” La. R.S.

9:364(B) (emphasis added). We thus consider each of the three factors of Section

La. R.S. 9:364(B).

The trial court acknowledged that Mr. Pierre completed the domestic abuse

intervention program as set forth in La. R.S. 9:364(B)(1) and further found that the

provisions of La. R.S. 9:364(B)(2) did not apply because the evidence did not

support that Mr. Pierre abuses alcohol or illegal drugs. But the third prong of La.

R.S. 9:364(B)(3) requires an analysis of the best interest of the children

considering the factors listed in La. C.C. art. 134.

The trial court conducted an extensive analysis of the twelve factors of the

best interest of the children under La. C.C. art. 134, and found that limited,

supervised visitation by Mr. Pierre was in the best interest of the children.

As an appellate court, we will not second-guess the district court’s

credibility determinations. E. R., 256 So.3d at 562. Where conflict exists in the

testimony, a factfinder’s reasonable evaluations of credibility and reasonable

inferences of fact should not be disturbed upon review, even though an appellate

23-CA-470 22

court may feel its own evaluations and inferences are more reasonable than the

factfinder’s. Id.

The trial court analyzed the evidence from the seven-day custody trial at

great length and analyzed the factors of the best interest of the children. We

conclude that the trial court did not abuse its discretion.

Finally, we consider La. R.S. 9:364(C), which provides that: “[t]he fact that

the abused parent suffers from the effects of the abuse shall not be grounds for

denying that parent custody.” On this point the trial court found:

No evidence was presented demonstrating any behavior by Ms. Pierre that
negatively affects the children. Ms. Pierre suffers from the effects of abuse
by Mr. Pierre. Mary Jo Devlin testified at length that Ms. Pierre has worked
to overcome and heal from the effects of abuse. Further, Ms. Pierre’s
testimony and demeanor support the Court’s conclusion that she is invested
in the healing process.

The trial court made extensive findings of fact and conclusions of law. The trial

court found that “Ms. Pierre suffers from a history of mental, verbal, and physical

abuse by Mr. Pierre. Further, the Court finds that Mr. Pierre perpetrated that

violence, physical and mental abuse, and manipulation toward Ms. Pierre

throughout their relationship.”

Again, the trial court held a custody trial over seven days. The court heard

from numerous witnesses, including Ms. Pierre, Mr. Pierre, several family

members, Dr. Weiss, and Ms. Devlin. The trial court’s well-reasoned decision was

amply supported by the evidence. Thus, we cannot say that the trial court’s

conclusions as to the best interest of the children was an abuse of discretion.

Further, the trial court did not abuse its discretion when it awarded Ms. Pierre sole

custody of the children with supervised visitation by Mr. Pierre in accordance with

the provisions of La. R.S. 9:364(B) of the PSFVRA.

23-CA-470 23

F. Exclusive use and occupancy of the family home

Finally, Mr. Pierre argues that Ms. Pierre was erroneously granted the

exclusive use of the family home because of the custody determination.

LSA–R.S. 9:374(B) provides:

When the family residence is community property or is owned by the
spouses in indivision, or the spouses own community immovables . . . , after
or in conjunction with the filing of a petition for divorce, either spouse may
petition for, and a court may award to one of the spouses, after a
contradictory hearing, the use and occupancy of the family residence and use
of community immovables or the community manufactured home pending
partition of the property or further order of the court, whichever occurs first.
In these cases, the court shall inquire into the relative economic status of the
spouses, including both community and separate property, and the needs of
the children, if any, and shall award the use and occupancy of the family
residence and the use of any community immovables or the community
manufactured home to the spouse in accordance with the best interest of the
family. If applicable, the court shall consider the granting of the occupancy
of the family residence and the use of community immovables or the
community manufactured home in awarding spousal support.

(Emphasis added).

Considering the testimony and evidence, particularly the evidence that Mr.

Pierre has a regular job and income, while Ms. Pierre has less regular income and

is the primary caregiver of four children, we cannot say that the trial court erred in

concluding that awarding use and occupancy of the family home to Ms. Pierre was

in the best interest of the family.

Conclusion

For the foregoing reasons, we affirm the trial court’s judgment of March 28,

2023.

AFFIRMED

23-CA-470 24

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
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JUDGES 101 DERBIGNY STREET (70053)
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
FEBRUARY 21, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-470
E-NOTIFIED
29TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE M. LAUREN LEMMON (DISTRICT JUDGE)
ERIC E. MALVEAU (APPELLANT)

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