Karen Holmes v. James Biagas, Sr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1566

KAREN HOLMES

VERSUS

JAMES BIAGAS, SR.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT,
PARISH OF RAPIDES, NO. 223,439,
HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Michael G. Sullivan,
Judges.

AFFIRMED.

Henry H. Lemoine, Jr.
Attorney at Law
607 Main Street
Pineville, Louisiana 71360
(318) 473-4220
Counsel for Plaintiff/Appellant:
Karen Holmes

Thomas J. DeJean
DeJean & Leger
806 South Main Street
Opelousas, Louisiana 70570
(337) 948-9066
Counsel for Defendant/Appellee:
James Biagas, Sr.

SULLIVAN, Judge.

The mother in this child custody case appeals the trial court’s award of

domiciliary custody to the father. We affirm.

Facts

The trial court succinctly stated the basic facts:

James Biagas, Sr. is a married man who met Karen Holmes, a
young mother of two. As a result of their relationship, a child was born,
James Biagas, Jr., born 19 March 2003. The parties refer to the minor
child as “Junior.” Mr. Biagas lives in Opelousas, in St. Landry Parish,
and Ms. Holmes lives in Ball, in Rapides Parish. Mr. Biagas is disabled
and does not work. Ms. Holmes works for the Rapides Parish school
system. The parties appeared to work well together with the child for a
significant period of time. During this period, Mr. Biagas took care of
Junior since he was not working. Ms. Holmes visited frequently. It is
clear to the Court that both parents love their child deeply.

The parties worked well together for almost three years, but problems

apparently began developing when Junior was about two and one-half year’s old.

Ms. Homes testified that she was concerned about Junior’s speech development and

discussed it with Mr. Biagas, but he did not want to acknowledge there was a

problem.

A short time later, Ms. Holmes did not return Junior to Mr. Biagas after a

weekend visitation. She called Mr. Biagas a few days later and informed him that she

had enrolled Junior in daycare and was taking him for a speech evaluation. She then

filed a Petition for Child Custody and Support.

A hearing was held on March 27, 2006. At the conclusion of the hearing, the

trial court told the parties his decision was going to “boil down to credibility.” The

trial court issued written reasons in which it discussed each factor set forth in

La.Civ.Code art. 134 and ultimately concluded that it was in Junior’s best interest for

Mr. Biagas to be the domiciliary parent. Judgment was rendered naming Mr. Biagas

as domiciliary parent and establishing a visitation schedule for Ms. Holmes. The trial

court later issued Supplemental Written Reasons, which awarded Mr. Biagas child

support, and a Judgment was rendered in accordance therewith.

Ms. Holmes appeals. Her only assignment of error is Mr. Biagas’ designation

as domiciliary parent.

Standard of Review

The trial court is in a better position to evaluate the best interest
of the child from its observances of the parties and witnesses; thus, a
trial court’s determination in a child custody case is entitled to great
weight on appeal and will not be disturbed unless there is a clear abuse
of discretion.

Hawthorne v. Hawthorne, 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625,

writ denied, 96-1650 (La. 10/25/96), 681 So.2d 365.

Discussion

The major concern in this case is Junior’s delayed speech and language skills.

Brian Warner, an expert in speech pathology, examined Junior shortly before his third

birthday. He testified that Junior’s vocabulary consisted of ten to twenty words when

it should have been approximately 1,000 words and that Junior was very hard to

understand. Mr. Warner explained that Junior’s clarity was 20% when it should have

been 75%.

As previously noted, Ms. Holmes testified that Mr. Biagas resisted

acknowledging Junior had a speech problem and seeking treatment for it. Mr. Biagas

testified that he scheduled an appointment with Junior’s pediatrician for January 10,

2006, for this purpose; however, Junior was not brought in for the appointment.

Ms. Holmes and Mr. Biagas dispute why Junior was not brought to the appointment.

Mr. Biagas testified that he would obtain any treatment recommended by the

pediatrician.

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During the trial, Ms. Holmes testified regarding her attendance at Junior’s

visits with his pediatrician. Mr. Biagas disputed that Ms. Holmes had accompanied

Junior on as many visits as she testified she did. The trial court evidently saw the

pediatrician’s records as an unbiased source of information which could assist it in

determining the credibility of the parties and ordered the pediatrician’s records be

produced.

Junior’s pediatrician produced his records to the trial court and included a letter

in which she identified the dates of Junior’s visits and who accompanied him on his

visits. According to the pediatrician, Mr. Biagas and Ms. Holmes appeared together

for one visit, Ms. Holmes appeared alone for one visit, and Mr. Biagas appeared alone

for all other visits, approximately sixteen. Based on these records, the trial court

concluded that Mr. Biagas was more credible than Ms. Holmes.

The trial court explained in his Written Reasons:

Mr. Biagas exercised most of the responsibility for the care and
rearing of the child previously. Despite Ms. Holmes’s testimony to the
contrary, the evidence submitted to the Court and testimony at trial
convinces this Judge that Mr. Biagas was the parent who took Junior to
the doctor most of the time. In addition, despite Ms. Holmes’s concern
over Junior’s speech problem, Mr. Biagas was taking steps to address
the problem before Ms. Holmes removed Junior from Mr. Biagas’
residence. . . .

Considering all the factors and the tone and demeanor of the
parties at trial, the Court finds that it is in the best interest of the minor
child that there be joint custody with Mr. Biagas as the principle [sic]
domiciliary parent.

The trial court believed Mr. Biagas and was satisfied that he would follow his

order to obtain treatment for Junior’s delayed speech development as recommended.

The trial court’s credibility determinations are reasonable, and the record does not

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demonstrate that the designation of Mr. Biagas as domiciliary parent is an abuse of

discretion. We find no merit in Ms. Holmes’s assignment of error.

Disposition

The judgment of the trial court is affirmed. All costs are assessed to

Ms. Holmes.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal. Rule 2-16.3.

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