Perry M. Westbrook v. Katherine Broussard Weibel

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-910

PERRY M. WESTBROOK

VERSUS

KATHERINE BROUSSARD WEIBEL

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 76916, DIVISION C
HONORABLE JAMES R. MITCHELL, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Oswald A. Decuir, James T. Genovese, and Phyllis M. Keaty,
Judges.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

Michelle D. Bradley
Attorney at Law, APLC
1505 Common Street
Lake Charles, Louisiana 70601
(337) 990-0046
Counsel for Plaintiff/Appellant:
Perry M. Westbrook

Howell D. Jones, IV
Law Firm of Howell D. Jones, IV
Post Office Box 14558
Alexandria, Louisiana 71315
(318) 442-1515
Counsel for Defendant/Appellee:
Katherine B. Weibel

GENOVESE, Judge.

In this child custody case, the father, Perry M. Westbrook (Perry), appeals

the trial court’s judgment awarding the mother, Katherine B. Weibel (Kathy), sole

custody of their minor child, Isabella Marie Westbrook (Isabella), subject to

scheduled visitation. For the following reasons, we affirm in part, reverse in part,

and render.

FACTUAL AND PROCEDURAL BACKGROUND

Perry and Kathy were married in December of 2005. One child, Isabella,

was born of their marriage on April 20, 2006. Perry filed for divorce in November

of 2006, and the divorce was final in July of 2007.

Initially, in 2007, when the parties first divorced, Perry and Kathy each filed

pleadings seeking custody of Isabella. Pursuant to a hearing held in November of

2007, the parties agreed to joint custody of Isabella. This agreement was

memorialized in a written Consent Judgment Custody Implementation Order and

filed into the court’s record on March 5, 2008.

In September of 2009, joint custody of Isabella was transferred to Perry’s

mother, Irma Westbrook, and Kathy’s sister, Maria Kamrowski, with Perry and

Kathy having only supervised visitation, pending an investigation into alleged

sexual abuse of Isabella.1 Pursuant to a hearing held in November of 2009, Perry

and Kathy entered into an agreement wherein they would share (50/50) custody of

Isabella. This agreement, however, was not memorialized into a written Stipulated

Judgment and filed into the court’s record until June 29, 2010.

Also on June 29, 2010, Perry filed an Ex Parte Petition for Temporary Sole

Custody and [a] Rule to Show Cause for Contempt. Therein, Perry asserted that

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All allegations were against Perry, not Katherine. No allegations against Perry were ever
validated.

the shared (50/50) custody arrangement was detrimental to Isabella due to Kathy’s

refusal to comply with numerous provisions contained in the Stipulated Judgment.

On September 22, 2010, Kathy filed a Petition for Modification of Custody

and Rule for Contempt. Therein, Kathy asserted that ―the parties have experienced

significant difficulty with co-domiciliary status and with confusion over visitation

times.‖ Kathy sought to change the shared (50/50) custody arrangement,

specifically requesting ―that custody and visitation be re-evaluated by the [c]ourt,

that [she] be awarded domiciliary status over the minor child, [and] that Perry be

granted reasonable visitation as this [c]ourt directs[.]‖

Following a two-day hearing held on October 4, 2010, and December 9,

2010, the trial court issued Written Reasons on December 16, 2010, awarding sole

custody of Isabella to Kathy and setting a visitation schedule on behalf of Perry.

Also, in its Written Reasons, the trial court ―decline[d] to hold either party in

contempt at this time.‖ A judgment consistent with the trial court’s written reasons

was signed March 9, 2011. From this judgment, Perry appeals.

ASSIGNMENTS OF ERROR

Perry asserts six assignments of error:

1. The trial court erred by granting appellee sole custody of the minor
child because she did not prove by clear and convincing evidence that
sole custody was in the best interest of the child.

2. The trial court erred by not granting appellant sole custody of the
minor child in light of the clear and convincing evidence of
irreparable harm and alienation from the appellant that the child was
subjected to by the appellee as well as the emotional abuse the child
suffered as a result of the actions of appellee.

3. The trial court erred when it failed to apply the La.Civ.Code art. 134
factors as required by La.Civ.Code art. 131 in granting the
modification of custody.

4. The trial court erred in failing to hold appellee in contempt of court
despite the overwhelming evidence to the contrary.

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5. The trial court erred in that its reasons do not articulate the theory or
the evidentiary facts upon which its conclusion is based and the trial
court’s findings of fact and reasons are not clearly implied by the
record.

6. The trial court erred in failing to apply the standards under La.R.S.
9:362 concerning child custody where there is a history of family
violence.

LAW AND DISCUSSION

An appellate court cannot set aside a trial court’s findings of fact in the

absence of manifest error or unless those findings are clearly wrong. Rosell v.

ESCO, 549 So.2d 840 (La.1989). 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. Id.

The standard of review in child custody matters has been
clearly stated by this court:

The trial court is in a better position to evaluate the
best interest of the child from its observance 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.

Gremillion v. Gremillion, 07-492, p. 4 (La.App. 3 Cir. 10/3/07), 966 So.2d 1228,

1231-32.

In his first assignment of error, Perry submits that the trial court erred in

granting Kathy sole custody of Isabella. Based on the recent holding of our

supreme court in Griffith v. Latiolais, 10-754 (La. 10/19/10), 48 So.3d 1058, we

agree that Perry’s first assignment of error has merit.

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In Griffith, 48 So.3d at 1070, our supreme court elaborated on the

heightened evidentiary burden to be applied when a party seeks sole custody as

follows:

Pursuant to the 1993 Revisions to the child custody provisions, joint
custody is no longer presumed to be in the best interest of the child;
however, it is mandated unless (1) there is an agreement between the
parents to the contrary which is in the best interest of the child, or (2)
one parent shows by clear and convincing evidence that sole custody
to that parent would serve the best interest of the child. [La.Civ.Code]
art. 132. ―Clear and convincing‖ evidence is applied in civil cases
only in exceptional circumstances, ―where there is thought to be
special danger of deception, or where the court considers that the
particular type of claim should be disfavored on policy grounds.‖
Talbot v. Talbot, 03-814 (La.12/12/03), 864 So.2d 590, 598 (citing
Succession of Lyons, 452 So.2d 1161, 1165 (La.1984) and McCormick
on Evidence, § 340(b), p. 798 (2d ed.1972)). ―The clear and
convincing standard requires a party to prove the existence of a
contested fact is highly probable, or much more probable than its non-
existence.‖ Id.

In Griffith, the trial court awarded the parents shared (50/50) custody. The mother

appealed, asserting that the trial court erred in not awarding her sole custody. The

appellate court found no manifest error in the trial court’s factual findings, but did

find an abuse of discretion by the trial court in ordering shared (50/50) custody.

The appellate court reversed the shared custody award and awarded sole custody to

the mother. The supreme court reinstated the trial court’s award of shared (50/50)

custody on the basis that sole custody was neither prayed for nor supported by the

evidence contained in the record. We find Griffith analogous to the case sub

judice.

Kathy requested a modification of the visitation schedule and to be

designated as the domiciliary parent; she did not request that the arrangement be

changed to sole custody. Further, at trial, Kathy did not offer the testimony of an

expert that the best interest of Isabella would be served by awarding her sole

custody. In Griffith, 48 So.3d at 1070, the supreme court stated, ―no expert,

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including the experts charged with doing custody evaluations, testified that the best

interest of the child would be served by awarding [the mother] sole custody. In

fact, every expert testified that custody should be shared.‖ Though our review of

the record does not find manifest error in the trial court’s factual findings, we do

find that the trial court abused its discretion by awarding sole custody to Kathy

when she did not seek sole custody and when the evidence does not meet the

heighted burden that it is clearly and convincingly in Isabella’s best interest that

Kathy be awarded sole custody. Therefore, we reverse the portion of the trial

court’s judgment which awarded Kathy sole custody of Isabella.

Having found a lack of support for the sole custody award, we must

determine whether there is any merit to Perry’s second assignment of error. In his

second assignment of error, Perry asserts that the trial court’s failure to award him

sole custody of Isabella was erroneous. We do not find merit in this contention.

Though Perry did request that he be awarded sole custody of Isabella, the evidence

does not support such a determination and no expert testified that the best interest

of Isabella would be served by awarding him sole custody.

Louisiana Civil Code Article 131 mandates that ―[i]n a proceeding for

divorce or thereafter, the court shall award custody of a child in accordance with

the best interest of the child.‖ Louisiana Civil Code Article 132 provides:

If the parents agree who is to have custody, the
court shall award custody in accordance with their
agreement unless the best interest of the child requires a
different award.

In the absence of agreement, or if the agreement is
not in the best interest of the child, the court shall award
custody to the parents jointly; however, if custody in one
parent is shown by clear and convincing evidence to
serve the best interest of the child, the court shall award
custody to the parent.

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Thus, La.Civ.Code art. 132 establishes a presumption of joint custody of the

children. Having found that neither Kathy nor Perry have met the heightened

evidentiary burden to be awarded sole custody, we award joint custody of Isabella

to Kathy and Perry.

Louisiana Revised Statutes 9:335(B)(1) provides that ―[i]n a decree of joint

custody the court shall designate a domiciliary parent except when there is an

implementation order to the contrary or for good cause shown.‖ In designating the

domiciliary parent for purposes of a joint custody determination, consideration

must be given to the statutory factors set forth in La.Civ.Code art. 134 in order to

determine what is in the best interest of the children. The factors of La.Civ.Code

art. 134 to be considered are as follows:

(1) The love, affection, and other emotional ties
between each party and the child.

(2) The capacity and disposition of each party to
give the child love, affection, and spiritual guidance and
to continue the education and rearing of the child.

(3) The capacity and disposition of each party to
provide the child with food, clothing, medical care, and
other material needs.

(4) The length of time the child has lived in a
stable, adequate environment, and the desirability of
maintaining continuity of the environment.

(5) The permanence, as a family unit, of the
existing or proposed custodial home or homes.

(6) The moral fitness of each party, insofar as it
affects the welfare of the child.

(7) The mental and physical health of each party.

(8) The home, school, and community history of
the child.

(9) The reasonable preference of the child, if the
court deems the child to be of sufficient age to express a
preference.

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(10) The willingness and ability of each party to
facilitate and encourage a close and continuing
relationship between the child and the other party.

(11) The distance between the respective
residences of the parties.

(12) The responsibility for the care and rearing of
the child previously exercised by each party.

Contrary to Perry’s contentions in his third assignment of error that the trial

court failed to apply these statutory factors to determine what is in the best interest

of Isabella, we find the trial court did consider the factors enumerated in

La.Civ.Code art. 134. In considering these factors, the trial court stated in its

Written Reasons that ―the parties are either very close on each factor or both not in

compliance with the item of consideration.‖ Based on our thorough review of the

record, we find no manifest error in the trial court’s factual determinations.

Applying the trial court’s findings to the factors set out in La.Civ.Code art. 134, we

find that the factors weigh in favor of Kathy to support her designation as the

domiciliary parent of Isabella, subject to the specific visitation privileges as set

forth by the trial court.

As to Perry’s contention in his forth assignment of error that the trial court

erred in failing to hold Kathy in contempt of court, we again find no merit. ―A trial

court is vested with great discretion to determine whether a party should be held in

contempt for wilfully disobeying a trial court judgment.‖ Barnes v. Barnes, 07-27,

p. 9 (La.App. 3 Cir. 5/2/07), 957 So.2d 251, 257 (citing Fink v. Bryant, 01-987 (La.

11/28/01), 801 So.2d 346). There was testimony that both Kathy and Perry

disobeyed the trial court’s judgment with respect to the visitation schedule due to

their inability to communicate with one another. We find it was not an abuse of

discretion for the trial court not to hold Kathy in contempt.

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Contrary to Perry’s contentions in his fifth assignment of error that the trial

court’s ―reasons failed to articulate the theory or the evidentiary facts upon which

its conclusion is based[,]‖ we find the trial court’s Written Reasons to be clear and

concise and adequately support its conclusion. Further, this court’s thorough

review of the record finds no merit to Perry’s assertion that ―the trial court’s

findings of fact and reasons are not clearly implied in the record.‖ The trial court’s

findings of fact and reasons for judgment are sufficiently specific to support its

judgment.

In his final assignment of error, Perry argues that the trial court should have

applied the Post-Separation Family Violence Relief Act, La.R.S. 9:361–369, to the

facts of this case because he alleges there is a history of family violence. Kathy

counters, in brief, that Perry failed to raise this argument at the trial court level, and

it cannot be considered for the first time on appeal. We agree.

In reviewing the record, we note that Perry had sufficient opportunity to

prepare and submit this issue for consideration by the trial court, but, for whatever

reason, elected not to do so. Therefore, we find this issue is not preserved for

consideration, and we will not entertain an issue when it is being raised for the first

time at the appellate level. See Stream Family Ltd. Partnership v. Marathon Oil

Co., 09-561 (La.App. 3 Cir. 12/23/09), 27 So.3d 354, writ denied, 10-196 (La.

4/16/10), 31 So.3d 1064; see also Uniform Rules—Courts of Appeal, Rule 1–3.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed relative

to its failure to hold Katherine B. Weibel in contempt of court, and the judgment of

the trial court is reversed to the extent that it granted sole custody of Isabella Marie

Westbrook to Katherine B. Weibel. We render judgment awarding Perry M.

Westbrook and Katherine B. Weibel joint custody of Isabella Marie Westbrook,

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subject to the specific visitation privileges in favor of Perry M. Westbrook as set

forth by the trial court. We further render judgment designating Katherine B.

Weibel as the domiciliary parent. The costs of this appeal are to be split equally by

Perry M. Westbrook and Katherine B. Wiebel.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

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