Cody Douglas Bagwell v. Susan Brooke Bagwell

Judgment rendered April 10, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,492-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

CODY DOUGLAS BAGWELL Plaintiff-Appellee

versus

SUSAN BROOKE BAGWELL Defendant-Appellant

*****

Appealed from the
Third Judicial District Court for the
Parish of Lincoln, Louisiana
Trial Court No. 60,573

Honorable Thomas Rogers, Judge

*****

PROLIFIC LITIGATION GROUP, LLC Counsel for Appellant
By: Krystal J. Williams

HUDSON, POTTS & BERNSTEIN, LLP Counsel for Appellee
By: Jan P. Christiansen, III

*****

Before PITMAN, THOMPSON, and MARCOTTE, JJ.

MARCOTTE, J.

This appeal arises from the Third Judicial District Court, Parish of

Lincoln, the Honorable Thomas W. Rogers presiding. Appellant, Susan

Brooke Bagwell, appeals the trial court’s ruling dismissing with prejudice

her petition for protection from abuse from appellee, Cody Douglas

Bagwell. For the following reasons, we affirm the trial court’s ruling.

FACTS AND PROCEDURAL HISTORY

The following facts are taken from the trial court’s February 8, 2022,

ruling on a motion to modify custody, an amended motion to modify

custody, and rules for contempt filed by Cody Douglas Bagwell (“Cody”)

and illustrate the contentious history between the parties. Cody and Susan

Brooke Bagwell (“Brooke”) were married with two minor children, a son,

L.B. (DOB: 5/31/2015), and daughter, A.B. (DOB: 9/15/2017). On August

23, 2019, Cody filed for divorce under La. C.C. art. 103(2), alleging Brooke

had committed adultery.

On December 11, 2019, the trial court signed an order of protection in

favor of Brooke against Cody. On December 19, 2019, the court orally

granted the parties divorce on the basis of Brooke’s adultery.1 The

protective order was renewed on December 12, 2019, and January 14, 2020.

On February 21, 2019, the protective order was dismissed by joint motion of

the parties. The original petition for custody alleged eight instances of

abuse, which the trial court listed in its February 8, 2022, ruling as

(verbatim)2:

1
On June 11, 2020, the trial court signed a judgment of divorce.
2
These were, presumably, Brooke’s allegations against Cody.

(1) December 5, 2019 (hair pulling incident);

(2) November 11, 2019 (puppy drop off);

(3) August 17, 2019 (confession of affair);

(4) October 7, 2018 (missed flight-visible handprint on arm);

(5) No date given (argument regarding college for Kyla-hair
pull)3;

(6) August 18, 2017 (pillow over head);

(7) June 8, 2017 (drink cup spilled in truck-“skullfuck your
head”); and

(8) March 23, 2017 (camping trip-headbutt)

On January 27, 2020, the court ordered a custody evaluation by Dr.

Candi Hill (“Dr. Hill”). On June 11, 2020, a judgment of divorce was

signed. On November 6, 2020, a consent judgment was signed in which the

parties agreed to share custody of their children on a two-week alternating

schedule. The consent judgment stated that by entering into the judgment,

neither party was accepting or adopting the report prepared by Dr. Hill and

they reserved the right to dispute anything in the report.

On May 13, 2021, Cody filed a motion to modify custody and a rule

for contempt alleging Brooke failed to comply with the November 6, 2020,

consent judgment and custody plan in that she:

(1) failed to pay her half of daycare expenses;

(2) failed to allow L.B. to participate in T-ball while Cody was
away at work despite him arranging transportation for L.B.;

(3) intercepted calls between Cody and their children, during
which she cursed at Cody and called him names in their
presence; and

3
Kyla is Brooke’s child from a previous marriage.

2

(4) thwarted the relationship between Cody and their children.
Cody stated that the children were disrespectful and withdrawn
towards him while in Brooke’s presence, but acted differently
when Brooke was not around.

Cody’s motion to modify custody also referred to Dr. Hill’s report

alleging that Brooke was diagnosed with antisocial personality disorder and

other disorders and that she failed to comply with an investigation conducted

by the Department of Children and Family Services (“DCFS”) regarding

possible sexual abuse of A.B. Cody also alleged that after testing positive

for COVID, Brooke took L.B. to school and A.B. to daycare. He further

asserted that Brooke falsely claimed that he had sexually abused A.B. He

also contended that Brooke said things that made him question her mental

health, such as:

(1) the trial court made money believing it had “the authority to
sever what God joined together and other disrespectful things”;

(2) the court threw money at Dr. Hill to get the result it desired;

(3) the show Dexter predicted the Evergreen ship would block
the Suez Canal;

(4) the show The Simpsons also predicted the future; and

(5) the earth is flat.

On June 14, 2021, Cody filed an amended motion to modify custody

and a rule for contempt alleging additional statements that Brooke made

which showed her deteriorating mental health. The trial court said that the

only additional statement consisted of Brooke believing the legal system and

healthcare system were corrupt. The trial court stated that the eight

examples of mental health issues were already discussed, and the trial court

noted that many parents involved in custody disputes voiced frustrations

with the legal process. The court stated that at that point Brooke had not

3

made any claims of sexual abuse to DCFS and that the investigation was

triggered by a mandatory report made by the owner of A.B.’s daycare

facility, Lily Wade (“Wade”), who informed Brooke of the investigation.

The trial court also stated that Brooke “failed to follow through” on

therapy for L.B. and “the presence of Randall Adkins in Brooke’s home.”

The trial court noted that L.B. had eight unexcused absences from school;

her explanation for the absences was that she kept him home from school so

that Cody could not see him while law enforcement investigated the abuse

allegations against Cody. On September 13, 2021, Cody filed a third rule

for contempt.

The trial court then discussed Dr. Hill’s report and addendum. Dr.

Hill originally recommended a shared custody plan similar to that found in

the consent decree. Dr. Hill provided an addendum to her original report,

dated two weeks later, which included information provided by Cody with

no involvement from Brooke. Dr. Hill testified that she was unable to

contact Brooke, but there was no information about whether Dr. Hill was

able to contact Brooke’s attorney. The trial court noted that Brooke changed

lawyers between the dates of Dr. Hill’s original report and the addendum.

The trial court said that the addendum and Dr. Hill’s testimony raised

concerns about Brooke continuing to share custody.

However, the trial court said that most of Dr. Hill’s conclusions in her

testimony and addendum were based on a “very one-sided set of facts”

provided by Cody without input from Brooke. The court noted that it had

not ordered Dr. Hill to provide an addendum, and the doctor’s failure to

include any input from Brooke was “suspect.” The trial court said that Dr.

4

Hill should have advised it that she could not provide the court with an

“objective update,” and the court would not consider the addendum or Dr.

Hill’s testimony in its ruling.

The trial court then discussed the alleged sexual abuse. First, the

court stated that it found the timing of Cody’s May 13, 2021, motion to

modify custody suspicious. The court said that it came shortly after he and

Brooke “broke off their adulterous relationship”4 and after Wade reported

A.B.’s troubling behavior at daycare. The trial court said that there was no

evidence that Brooke made the accusation between the consent judgment

and when Cody filed his motion to modify custody; her accusations came

several months later. Wade testified to specific instances of “alarming

behavior” by A.B. that could be indicative of sexual abuse. The DCFS

investigation found nothing confirming that A.B. was sexually abused and

the agency successfully objected to providing any evidence regarding its

investigations. The trial court then said, “Cody’s timing raises the question

if the May 13th motion was an attempt to preempt the investigation.”

The trial court stated that there were other instances of disturbing

behavior by A.B. that occurred after May 13, 2021. Lynn Albritton

(“Albritton”) was Brooke’s supervisor and a registered nurse who had

personal experience with sexual abuse. She was concerned about A.B.’s

behavior which she expressed to Brooke. Albritton testified about the

following behavior from A.B., which raised concerns about possible sexual

abuse, consisting of:

4
Cody remarried after his divorce from Brooke, but the two continued to have a
sexual relationship thereafter.

5

(1) September 24, 2021: A.B. scratched her bottom, smelled her
finger, and said that Cody “had done this to her”;

(2) September 7, 2021: L.B. told A.B. to sit on his head; and

(3) October 7, 2021: A.B. told her dolls to “smell each other’s
crotch.”

Kyla also testified to witnessing A.B. try to stick a brush handle “up

her butt” in July or August 2021. Brooke initiated a report based on

suspicions that Cody or his parents had sexually abused A.B. The trial court

said that law enforcement investigated the matter and no one had been

charged at the time of the trial court’s ruling. The court stated that Brooke

had a legitimate reason to be concerned that inappropriate behavior was

occurring and that Cody or other family members were the perpetrators.

However, the court said that it had “no explanation for [A.B.’s] troubling

behavior and [couldn’t] find evidence of sexual abuse.”

The trial court then stated:

Almost all of the allegations made in each of the three motions
filed by Cody as to a “material change in circumstances” were
either completely unproven or there was insufficient evidence
presented to carry the burden of proof. This was discussed
separately under each motion. The one area where there is any
real argument to be made otherwise is Brooke’s use of the
allegations of sexual abuse against Cody. Was this done to
justify withholding the children from Cody and to alienate the
children from Cody? Was this done by Brooke when she knew
no abuse had taken place? Has this also damaged the lines of
communication between the parties so as to constitute a
“material change in circumstances?” For the sake of argument,
the court will consider this a “material change in
circumstances” and move on to the best interests of the
children.

The trial court then considered the factors found in La. C.C. art. 134.

With regard to La. C.C. art. 134(1), the potential for the children to be

abused, the court said:

6

This issue is very troubling for this court. There are number of
credible instances where the suspicious behavior of [A.B.]
would cause a reasonable person to inquire as to the possibility
of sexual abuse. This was investigated by various authorities
and no action was taken. There were also numerous allegations
of physical abuse by Cody against Brooke, which all occurred
prior to the consent judgment. Three of these had corroborating
evidence in the form of third-party testimony. This factor
favors Brooke.

The following are other factors from La. C.C. art. 134 that the trial

court considered which are pertinent to this appeal. The court stated:

(7) The moral fitness of each party as it affects the children

The morals of both parties are equally deplorable. Both of their
explanations for maintaining sexual relations after Cody’s
remarriage lacked credibility. They have what has been
described as a toxic relationship by several witnesses. This
undoubtedly affects the welfare of the children, as well as
Cody’s second marriage to Tiffany Bagwell. This factor favors
neither parent.

(8) History of substance abuse, violence, or criminal activity of
either party

The court’s concerns regarding the physical abuse of Brooke by
Cody, which occurred prior to the consent judgment, would
weigh in favor of Brooke. As for the past criminal activity of
either party, the only charges were Cody’s two charges of
driving while intoxicated, which occurred too long ago to be
considered. There was some discussion of possible alcohol
problems for Cody, but nothing rose to the level of concern for
the court and it was not proven to be an issue.

(9) The mental and physical health of each party

The court is not aware of any issues with regard to the physical
health of either party. The mental health of each party was
described in Dr. Hill’s original report and it slightly favored
Cody. However, it is obvious that both have mental health
issues which need to be addressed.

Regarding La. C.C. art. 134(12), the willingness and ability of each

party to facilitate and encourage a close relationship between the children

and the other parent, the court said that it was possible that Brooke took

7

advantage of the sexual abuse allegations as a pretext for denying Cody his

rights. The court said that the reports of A.B.’s troubling behavior were

credible enough to justify an investigation and Wade’s report of potential

abuse came about without Brooke’s influence. The court said the later

reports of abuse had some third-party corroboration, “but it is possible that

Brooke overreacted in making them, especially in light of her previous

history of dealing with sexual abuse.” The court noted that Brooke had an

excellent relationship with Kyla’s father and stepmother, and the three

worked well together to raise Kyla.

The court reiterated its suspicions about the timing of Cody’s first

motion to modify custody, the lack of evidence he presented with regard to

most of the allegations in his motions, and the trivial nature of some of the

allegations. The court said that Cody continued his sexual relationship with

Brooke after he remarried, which contributed to the fact that Brooke

considered his new marriage to be illegitimate based on her religious beliefs.

The court stated that Cody’s rush to file the motion to modify custody

demonstrated a hostility that was not conducive to facilitating a relationship

between Brooke and the children. The court then concluded that “due to the

toxic and contentious relationship between the parties, the factor favors

neither of the parties.”

The court stated that both parties were “deeply flawed” and in need of

counseling. The court determined that it could find no reason to modify the

November 6, 2020, shared custody plan. The court did find it necessary to

add additional conditions of custody, requiring that: (1) the parents complete

parenting classes; (2) Cody complete a domestic abuse program; and (3)

8

Brooke complete a dialectical behavior therapy program. On March 21,

2022, the trial court signed a judgment denying Cody’s motion to modify

custody, amended motion to modify custody, and his three rules for

contempt.

On January 17, 2023, Brooke filed a petition for protection from

abuse in the Fourth Judicial District Court in Ouachita Parish. She alleged

that in December 2022, Cody punched L.B. in the abdomen, which resulted

in a diagnosis of traumatic ecchymosis (bruising) of the abdominal wall.

Brooke also stated that A.B. reported to her that Cody stuck his finger in her

anus, which was evidenced by “redness excoriation to the anus and [a]

diagnosis of [a] bladder infection with limited ability to close legs.”5 Brooke

said that both incidents were discovered when the children returned to her

custody. Brooke stated that there were two past reports to DCFS of sexual

abuse of A.B. which were investigated by DCFS and law enforcement. On

the same day, the Fourth Judicial District Court granted a temporary

restraining order (“TRO”) against Cody which was effective through

February 3, 2023.

Incomplete medical records were attached to the petition for

protection from abuse for L.B. and A.B. The medical records indicated that

both were seen at St. Francis Medical Center (“St. Francis”) on January 2,

2023. The medical records stated that L.B. had a small area of ecchymosis

(bruising) on the left side of his abdomen, with no tenderness, and noted that

he was eating, drinking, and behaving normally. A.B.’s medical records,

also dated January 2, 2023, showed that she had a “mild erythema around

5
Brooke was employed as a nurse and was familiar with medical terminology.

9

perianal that tracks toward the vagina,” meaning A.B. had redness around

her anus. The medical records that were attached to Brooke’s petition were

missing pages. Page four of A.B.’s records was missing, but the top of page

five stated, “[F]actually correct, but she continues to accuse staff of lying.

Given Rx for UTI and follow up info for assault work up. Discharge at this

time as the patient has a safe place to stay.” A.B.’s diagnosis was alleged

sexual abuse and acute cystitis without hematuria, meaning she had a

bladder infection without blood in her urine.

On February 1, 2023, Cody filed an ex parte motion to transfer based

upon forum non conveniens and exception of improper venue. The Fourth

Judicial District Court extended the TRO through February 17, 2023; the

court extended the TRO a second time until February 24, 2023. On

February 16, 2023, the court granted the motion to transfer the case to the

Third Judicial District Court in Lincoln Parish.

On February 24, 2023, a hearing was held at the Third Judicial

District Court. The trial court first stated that it would not consider anything

prior to its March 21, 2022, ruling, because it was not relevant and had

already been litigated. The children were present in the courtroom, and the

trial court had them escorted out. Brooke asked that the case be continued

until the Lincoln Parish Sheriff’s Office (“LPSO”) concluded its

investigation. Cody countered that he was informed by the police that no

charges would be brought and the case was closed. Brooke argued that the

investigating officer was waiting for the final report from DCFS before

closing the case, so it was technically still open. She stated that the police

investigation was flawed, because the police told St. Francis not to perform a

10

SANE exam6 on A.B. The trial court denied the continuance saying, “I’ve

already heard these kind[s] of unsubstantiated claims before and I didn’t find

any validity to any of these claims. It seems like it’s based totally on what

[Brooke] has to say. She can testify and I’ll make the decision.” Brooke

objected.

Brooke testified, and at the outset of her testimony, the trial court

limited her testimony to events that occurred after March 21, 2022, and to

what was in her petition for a protective order. Brooke stated that Cody

returned L.B. and A.B. to her custody a day early on January 31, 2023.7 It

was a weekend, which is when Brooke works, so her mother was watching

the children. Brooke’s mother called her at work saying that L.B. was

crying and complaining about a stomachache and headache. Brooke advised

her mother to give L.B. Tylenol and to call her back if he did not calm down.

Her mother called again about one hour later saying L.B. was still upset and

in pain. She told her mother to give L.B. Motrin; she did and L.B. then went

to sleep.

Brooke stated that she returned home from work around 11:45 p.m.

that evening. A.B. was on the couch; Brooke went to pick her up, and A.B.

would not put her legs around her mother’s waist. Brooke said she was

“guarded and clenching,” like her legs were stiff. Brooke asked what was

wrong and A.B. said she did not want to talk about it. The next day, Brooke

had A.B. in the bath, and when the child went to sit down, she started

screaming and saying her butt hurt. Brooke asked A.B. what happened to

6
A SANE exam refers to an exam performed by a Sexual Abuse Nurse Examiner.
7
This date is likely in error, given that Brooke took the children to St. Francis on
January 2, 2023, and filed a protective order on January 17, 2023.

11

her bottom, and she replied, “Daddy stuck [his] finger in my butt again.”

The trial court asked if that was the first time A.B. reported something

similar to Brooke, and she said it was not.

Brooke examined A.B.’s bottom and stated that it looked “excoriated

and red.” Brooke testified that A.B. then disclosed to her that Cody punched

L.B. in his stomach while the children were with him. Brooke then

examined L.B.’s abdomen and saw a bruise on his left side. Brooke testified

that L.B. told her that Cody had punched him. Brooke said that she spoke

with two therapists about the matter and they advised her to take the children

to the hospital. The children were assessed at St. Francis, and the hospital

staff called the LPSO. Brooke agreed to a SANE exam, but the nurse

returned and said that the LPSO did not want a SANE exam performed,

because they wanted to speak with A.B. first and questioned whether the

exam was in A.B.’s best interest given her UTI diagnosis. Brooke stated

that A.B. was diagnosed with a bladder infection and redness around her

anus. She testified that A.B. had never had a bladder infection or UTI

before.

The complete medical records for both children were admitted. They

confirmed A.B.’s diagnosis of a UTI and L.B.’s diagnosis of having a bruise

on his abdomen. Dr. Lee Shelton examined A.B. and provided the following

pertinent notes:

20:28 Physical exam on patient genital area not done at this
time. SANE contacted and awaiting further plans before
examining patient.

21:40 Adult male in room accuses hospital staff of protecting
sexual predators because we will not override police plan
for SANE exam.

12

22:40 Patient’s mother [continues] to berate staff when
informed patient’s urine was consistent with a UTI and
the rash she has could be worsened because of it, mother
accuses this doctor of lying to her because “little girls do
not get UTI’s.” Informed mother that this is not factually
correct, but she continues to accuse staff of lying. Given
Rx for UTI and follow up info for assault work up.
Discharged at this time as patient has safe place to stay.

Brooke testified that she had a conversation with the doctor about not

performing the SANE exam at St. Francis when A.B. was first seen which

“got heated.” Brooke said that she knew that A.B. not having a SANE

exam and taking antibiotics for her bladder infection could have skewed the

evidence. She said that the doctor told her bladder infections were common

in children; she disagreed. Brooke said that the doctor did not call the police

or threaten to do so during their discussion. She testified that a SANE exam

was performed on A.B. about two weeks later.

Brooke next discussed L.B.’s visit to St. Francis. She said that L.B.

was examined, x-rayed, and diagnosed with traumatic ecchymosis, which

she described as “internal bleeding.” Both children were discharged. DCFS

later questioned the children. DCFS asked Brooke to provide information

about prior incidents of abuse, which she did. DCFS stated that further

investigation would be required and she set up the SANE exam for A.B.

Brooke said she was informed that Cody was brought in for questioning.

Brooke testified that the investigating detective told Brooke that there was

no finding of abuse of A.B. or L.B. Brooke stated that A.B. continues to

stick objects up her rectum and still has accidents where she urinates on

herself. Brooke said that A.B. “talks like a baby” and “regresses.”

The trial court orally denied the petition for protection from abuse and

assessed court costs to Brooke. The court said that an investigation by law

13

enforcement did not uncover any instances of abuse of either child and their

medical records did not show any abuse. The court said that Brooke

testified that A.B. inserts objects into her rectum, which could have caused

her urinary tract infection. Brooke objected to the dismissal. The parties

then discussed when Cody could get custody of the children, as he had not

seen them for approximately six weeks at that point and custody was due to

revert to Brooke a few days after the hearing. Brooke’s counsel objected to

Cody having custody for more than a few days, saying that Brooke should

not have been penalized for the length of the investigation into the alleged

abuse. The court responded:

[T]he filing of the petition in Ouachita Parish is a real problem
for me. I view that as a way to circumvent the order of this
court to try to get a different result. I find that to be in bad
faith. I’m not [going] to reward bad faith with her getting her
way for two months now.

Brooke objected. Cody informed the court that Brooke had removed

the children from school for about two weeks prior to the hearing and that he

was planning to reenroll them in school. The court told Brooke that Cody

was the domiciliary parent over the children’s education and that she needed

to abide by his school choice.

On the same day as the hearing, the trial court signed a judgment

dismissing with prejudice the petition for protection of abuse. Brooke now

appeals.

DISCUSSION

Prior Allegations of Abuse

In her first assignment of error, appellant argues that the trial court

should have considered past abuse in making its ruling. Brooke states that

14

La. R.S. 46:2135(A) mandates that courts consider any and all past history

of abuse in determining the existence of an immediate and present danger of

abuse. Brooke argues that such legal error makes the manifest error standard

of review no longer applicable, and this court should review this case under

a de novo standard. She contends that, because the law requires any history

of abuse to be considered, she was not required to include every prior

allegation of abuse against the children in her petition, and doing so deprived

her of her substantial rights.

Cody contends that because the prior allegations of abuse in this case

had been litigated and rejected, the trial court was correct in refusing to

allow Brooke to raise those issues again at the hearing. Appellee contends

that the trial court considered the prior allegations of abuse, because Judge

Rogers presided over the trial on the motion to modify custody and the

amended motion to modify custody in 2021. Therefore, the court did not

have to relitigate those allegations.

An appellate court reviews domestic orders for an abuse of discretion.

Shipp v. Callahan, 47,928 (La. App. 2 Cir. 4/10/13), 113 So. 3d 454. The

trial court sitting as a trier of fact is in the best position to evaluate the

demeanor of the witnesses, and its credibility determinations will not be

disturbed on appeal absent manifest error. Modicue v. Prince of Peace Auto

Sale, LLC, 54,095 (La. App. 2 Cir. 9/22/21), 328 So. 3d 1239, writ denied,

21-01864 (La. 2/15/22). In addition, as to evidentiary issues, a trial court is

granted broad discretion in its rulings on evidentiary issues which will not be

disturbed on appeal absent a clear abuse of that discretion. Succession of

15

Moore, 54,338 (La. App. 2 Cir. 3/30/22), 339 So. 3d 12, writ denied, 22-

00973 (La. 10/4/22), 347 So. 3d 859.

Here, Brooke argues that the trial court committed a legal error in not

considering the prior abuse allegations. A legal error occurs when a trial

court applies incorrect principles of law and such errors are prejudicial.

State in Interest of D.E., 52,305 (La. App. 2 Cir. 8/15/18), 253 So. 3d 877.

Legal errors are prejudicial when they materially affect the outcome and

deprive a party of substantial rights. Id. When a prejudicial error of law

skews the trial court’s finding of a material issue of fact and causes it to

pretermit other issues, the appellate court is required, if it can, to render

judgment on the record by applying the correct law and determining the

essential material facts de novo. Id. However, as long as the trier of fact’s

findings are reasonable in light of the record as a whole, the appellate court

will affirm. Id.

In order to reverse a ruling on a protection order, the appellate court

must review the record in its entirety and conclude that a reasonable factual

basis does not exist for the finding and the factfinder is clearly wrong or

manifestly erroneous. Carrie v. Jones, 21-0659 (La. App. 4 Cir. 1/21/22),

334 So. 3d 834.

La. R.S. 46:2135 provides that upon good cause shown in an ex parte

proceeding, the court may enter a temporary restraining order as it deems

necessary to protect from abuse the petitioner, any minor children, or any

person alleged to be an incompetent. Any person who shows immediate and

present danger of abuse shall constitute good cause. The court shall consider

any and all past history of abuse, or threats thereof, in determining the

16

existence of an immediate and present danger of abuse. There is no

requirement that the abuse itself be recent, immediate, or present. The

standard found in La. R.S. 46:2135 also applies to protective orders. La.

R.S. 46:2136.

The trial court is required to consider any and all past history of abuse

in making its ruling on a protective order. However, the trial judge in the

instant case presided over the proceedings about modifying the parties’

custody arrangement. The court was familiar with the past allegations of

abuse as it detailed in its February 8, 2022, ruling on Cody’s motion to

modify custody, amended motion to modify custody, and rules for contempt.

The trial court noted in the reasons for its ruling that the past allegations of

sexual abuse had been investigated by DCFS and the police and no charges

were filed. The trial court went to great lengths in its ruling on modifying

custody to detail the sexual abuse allegations and the antagonistic history

between Brooke and Cody. We also note, there was no past history of

physical abuse of L.B.

We do not find the trial court committed legal error by limiting the

hearing on the protective order to the most recent allegations of sexual

abuse, since the court was so well acquainted with the prior accusations.

The court’s February 8, 2022, ruling and minutes from the related hearings

show that it thoroughly considered the evidence presented by the parties,

including third-party testimony, and determined that there was no substance

to the allegations.

We cannot say that the trial court’s refusal to hear Brooke’s testimony

about prior allegations of abuse materially affected the outcome and

17

deprived her of substantial rights in such a way that amounted to prejudice.

As discussed in the next section, we find that there was a reasonable basis

for the trial court’s dismissing Brooke’s petition for protection of abuse.

This assignment of error lacks merit.

Dismissal of the Petition for Protection from Abuse

In her second assignment of error, appellant argues that the evidence

presented during the hearing on the protective order was sufficient to find

under the preponderance of the evidence standard that a protective order was

warranted. Brooke points out that no contradictory evidence was presented

by Cody. Appellant asks this court to reverse the trial court’s ruling

dismissing her petition for protection from abuse and grant her petition.

Appellee argues that Brooke failed to provide any evidence that he

abused the children, and she was unable to prove by a preponderance of the

evidence that any abuse occurred. He states that her claims were

investigated by the LPSO, which said that there was no abuse. He points out

that Brooke admitted that she was told by the LPSO that there was no

evidence of abuse. Appellee states that when hospital staff tried to explain

to Brooke that there was another explanation for A.B.’s symptoms besides

sexual abuse, she “became irate with the staff and berated them.” Cody also

points out that Brooke failed to have someone from DCFS or the LPSO

testify. Appellee asks that this court affirm the trial court’s ruling.

Under the Domestic Abuse Assistance Act, a court may issue a

protection order pursuant to La. R.S. 46:2131 et seq. The intent of the Act is

to provide a civil remedy of immediate and easily accessible protection to

endangered persons from domestic abuse. Shipp v. Callahan, supra. La.

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R.S. 46:2135 and 46:2136 require that there be “good cause shown” for the

issuance of a protective order. “Good cause shown” is defined in La. R.S.

46:2135 as a showing of “immediate and present danger of abuse.”

Additionally, domestic abuse includes, but is not limited to, physical or

sexual abuse or any offense against the person as defined in the Louisiana

Criminal Code, except negligent injury and defamation, committed by one

family member or household member against another. La. R.S. 46:2132(3).

The court may grant a protective order to bring about a cessation of abuse of

a party. La. R.S. 46:2136(A).

A party seeking a protective order under the Act must establish the

necessary facts by a preponderance of the evidence. Rozelle v. Rozelle,

54,685 (La. App. 2 Cir. 8/10/22), 345 So. 3d 501. Proof is sufficient to

constitute a preponderance of the evidence when the entirety of the

evidence, both direct and circumstantial, establishes that the fact or

causation sought to be proved is more probable than not. Talbot v. Talbot,

03-0814 (La. 12/12/03), 864 So. 2d 590; State in Interest of A.H., 51,053

(La. App. 2 Cir. 9/28/16), 206 So. 3d 1081, writ denied, 16-2017 (La.

1/9/17), 214 So. 3d 867.

The trial court was correct in determining that Brooke did not meet

her burden of proving that a protective order was warranted in this case. The

trial court found it in bad faith, and we agree, that Brooke filed her petition

for protection from abuse in Ouachita Parish instead of Lincoln Parish,

where the trial court was familiar with her case.

We also find it concerning that the medical records that were attached

to the petition for the TRO filed in Ouachita Parish were incomplete and

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were missing certain pages which provided more information about A.B.’s

diagnosis and Brooke’s dispute with the hospital staff regarding that

diagnosis and refusal to perform a SANE exam. The complete medical

records show that A.B. was examined by the medical professionals at St.

Francis, and she was diagnosed with a UTI, which was the cause of her pain.

Brooke also testified that A.B. continued to try to insert objects into her

rectum, which, as the trial court noted, made her more susceptible to suffer a

UTI and explained the redness to her anus. Brooke refused to accept A.B.’s

diagnosis. It does not appear from the record that the trial court in Ouachita

Parish, who granted the TRO and its extensions, was informed of the

interaction between Brooke, her unnamed male friend, and the hospital’s

staff, because Brooke provided them with piecemeal medical records.

L.B.’s medical records stated that he had a bruise on his abdomen, and

the only evidence Brooke provided of alleged abuse was her testimony that

L.B. said that his father hit him. Brooke testified that both of her children

were examined by medical staff at St. Francis and interviewed by DCFS and

the LPSO. The medical records from St. Francis did not show staff concern

that the children had been abused, but only documented what Brooke told

them. Brooke testified that the LPSO was not going to bring charges against

Cody. Brooke did not have anyone from DCFS or the LPSO testify. She

also did not have her mother testify about L.B.’s symptoms prior to his

allegedly disclosing to Brooke that his father hit him.

The parties have what was described by multiple witnesses and the

trial court as a “toxic relationship.” That toxic relationship has led both

parties to make allegations against the other, and the trial court and this court

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do not believe what Brooke most recently alleged amounted to abuse

warranting a protective order. Brooke did not meet her burden and the trial

court’s findings were reasonable in light of the record as a whole. This

assignment of error lacks merit, and the trial court’s ruling should be

affirmed.

CONCLUSION

The trial court’s ruling dismissing with prejudice Susan Brooke

Bagwell’s petition for protection from abuse is affirmed. Costs of the appeal

are assessed to the appellant.

AFFIRMED.

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