Codey Short Versus Ashley Burquera

CODEY SHORT NO. 24-C-555

VERSUS FIFTH CIRCUIT

ASHLEY BURQUERA COURT OF APPEAL

STATE OF LOUISIANA

December 27, 2024

Curtis B Pursell
Clerk Of Court

IN RE CODEY SHORT

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
STEPHEN C. GREFER, DIVISION "J", NUMBER 843-612

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Marc E. Johnson

WRIT DENIED; MOTION FOR LEAVE DENIED

Relator, Codey Short, seeks expedited review of the district court’s June 25,
2024 judgment that denied his Objection to Domestic Commissioner Order. On
April 3, 2024, Commissioner Bailey denied Relator’s Motion for Ex Parte
Temporary Custody and Petition for Permanent Injunction Against Abuse and Sole
Custody Pursuant to the Post-Separation Family Violence Relief Act (“PSFVRA”)
or in the Alternative, La. C.C. arts. 132 and 134. The Commissioner found that
both Relator and Respondent, Ashley Burquera1, had a history of perpetrating
family violence. He ordered that the parties continue to exercise joint custody of
their two small children pursuant to a February 2024 Consent Judgment. After a
hearing on the objection, the district court found that there was not “sufficient
proof [. . .] to trigger the [PSFVRA] such that it was bound by its provisions”.

Relator argues that the district court erred when it did not apply the custody
requirements of the PSFVRA after Mr. Short introduced uncontested testimonial
evidence and photographs of the results of three incidents of family violence
Respondent perpetrated against him, but instead ordered further steps for a normal
“best interest” custody evaluation under La. Civil Code articles 132 and 134.
Further, he maintains that Respondent offered insufficient evidence as a matter of
law to support a finding that he also perpetrated a history of family violence and
that the Domestic Commissioner erred as a matter of law when it found that he
perpetuated a history of family violence. Last, he contends the district court erred
as a matter of law when it upheld the Commissioner’s findings.

1
We note Respondent’s last name is spelled “Burguera” in the district court documents attached as exhibits.
1

In deciding whether a parent has a “history of perpetrating
family violence,” the trial court should look at the entire chronicle of
the family, remaining mindful that the paramount goal of the
legislation is the children’s best interest. Such factors as the number,
frequency, and severity of incidents will be relevant, as well as
whether the violence occurred in the presence of the children, and to
what extent there existed provocation for any violent act. Stated
differently, the determination must be based on a review of the total
circumstances of the family, and necessarily involves a weighing of
the evidence.

Durand v. Rose, 22-0300 (La. App. 4 Cir. 9/15/22), 366 So.3d 484, 490, writ
denied, 22-1727 (La. 1/18/23), 353 So.3d 127 (citations omitted).

Every child custody case must be viewed in light of its own
particular set of facts and circumstances. 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. 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. 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. 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. The trial court has vast discretion in custody
determinations.

Pierre v. Pierre, 23-470 (La. App. 5 Cir. 2/21/24), 383 So.3d 1028, 1034-35, writ
denied, 24-366 (La. 4/30/24), 383 So.3d 931 (citations removed).

Upon review, on the showing made, we find that the district court did not
abuse its discretion in finding the volatile relationship and incidents between the
Relator and Respondent did not reach the threshold to trigger the PSFVRA at the
time of its ruling. The court clearly weighed the children’s (potential) exposure to
family violence against the harm they would suffer if their contact with either
parent was significantly reduced. Accordingly, it maintained the Commissioner’s
orders, then entered further orders pursuant to La. C.C. art. 132 and 134 in efforts
to provide the parties with additional tools and support to enable them to co-parent
their children in a safe and healthy manner. The district court’s review of the
commissioner’s findings and orders is de novo. See Williamson v. Bell, 24-6 (La.
App. 5 Cir. 5/22/24), 389 So.3d 948, 956–57. The court did not agree with the
Commissioner’s finding that both parties had a history of perpetuating family
violence. The final judgment of the district court is the only one properly before us
at this time. See La. R.S. 13:717.

2

Since filing the writ application, Relator has filed a motion for leave to file a
supplemental memorandum related to recent action taken by the Department of
Children and Family Services (“DCFS”) with regards to the family. According to
Relator, the children were taken into the custody of the DCFS shortly after this writ
application was filed. However, matters that occurred subsequent to the June 2024
ruling at issue are not properly before this Court.

Considering the foregoing, we deny the writ and deny Relator’s motion for
leave to file a supplemental memo2.

Gretna, Louisiana, this 27th day of December, 2024.

MEJ
FHW
JGG

2
Exhibits not properly and officially offered and admitted into evidence cannot be considered, even if they are
physically filed into the trial court record. Denoux v. Vessel Mgmt. Services, Inc., 07-2143 (La. 5/21/08), 983 So.2d
84, 88; Wood Materials, LLC v. City of Harahan, 17-142 (La. App. 5 Cir. 10/2/17), 228 So.3d 293, 295-96. Except
as otherwise provided by law, documents attached to memoranda do not constitute evidence and cannot be
considered as such on appeal. Denoux, 983 So.2d at 88.1 Appellate courts are courts of record and may not review
evidence that is not in the appellate record, or receive new evidence. Id; La. C.C.P. art. 2164
3

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
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 12/27/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-C-555
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Stephen C. Grefer (DISTRICT JUDGE)
No Attorney(s) were ENOTIFIED Jeremy L. Schrady (Relator)

MAILED
Christen E. DeNicholas (Respondent)
Attorney at Law
848 Second Street
3rd Floor
Gretna, LA 70053