Joshua Amos v. Shawana Semien

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1051 consolidated with 14-1052

JOSHUA AMOS

VERSUS

SHAWANA SEMIEN

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 11-C-2195-C C/W 11-C-2372-D
HONORABLE ALONZO HARRIS, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Phyllis M. Keaty, Judges.

AFFIRMED.

Donald Lynn Mayeux
Attorney at Law
P.O. Box 1460
Eunice, LA 70535
(337) 457-9610
COUNSEL FOR DEFENDANT/APPELLANT:
Shawana Semien

Paul E. Brown
Attorney at Law
P. O. Drawer 1370
Eunice, LA 70535
(337) 457-4116
COUNSEL FOR PLAINTIFF/APPELLEE:
Joshua Amos

Shawana Semien
In Proper Person
400 Louveteau Road, Lot #15
Carencro, LA 70520
(377) 466-1513
DEFENDANT/APPELLANT:
Shawana Semien

SAUNDERS, Judge.

This is an appeal regarding whether the trial court erred in naming the father

the domiciliary parent of he and the mother’s three children. After reviewing the

record, we find no error by the trial court and affirm.

FACTS AND PROCEDURAL HISTORY:

Joshua Amos and Shawana Semien were in a relationship wherein three

children were born. Thereafter, the couple discontinued their relationship with the

children primarily residing with Semien.

On May 6, 2011, Amos filed a petition for child custody and rule to show

cause in Saint Landry Parish. On May 17, 2011, after having discharged his

counsel and obtained another, Amos filed a second petition for custody in Saint

Landry Parish. Upon motion of Semien, the two matters were consolidated

pursuant to an order signed on September 23, 2011.

On January 18, 2013, pursuant to an incident of alleged physical abuse by

Semien that occurred in December 2012, Amos filed for and was granted a

protective order that awarded him and Semien joint custody of the children and

that designated Amos as the domiciliary parent. Semien was granted visitation

with two of the three children every other weekend. The order was effective

through July 18, 2013. In the interim, on June 6, 2013, a hearing officer

recommended that the children continue with the custody and visitation plan that

was drafted under the protective order.

On November 3, 2013, after the trial court heard evidence from both parties,

Amos and Semien stipulated to a judgment continuing with Amos being the

domiciliary parent. Next, Semien filed a petition for change of custody on

November 19, 2013. On January 16, 2014, a hearing officer again recommended

no change in custody or visitation. After conducting a hearing on the matter, on

September 4, 2014, the trial court signed a judgment granting Amos and Semien

joint custody of the children and designating Amos as the domiciliary parent.

Semien filed the present appeal of that judgment asserting two assignments

of error. Both assignments of error allege that the trial court erred in designating

Amos the domiciliary parent of the three children.

DISCUSSION OF THE MERITS:

Semien contends that the trial court erred in naming Amos domiciliary

parent of the minor children because it failed to consider Amos’ violent history

and, further, in that it failed to consider Amos’ work schedule. We find no merit to

Semien’s contentions.

The burden of proof required to modify an order of custody
depends on whether the trial court previously rendered a considered
decree. Martin v. Martin, 11-1496 (La.App. 3 Cir. 5/16/12), 89 So.3d
526. To modify a considered decree, the party seeking modification
“must first show that a change of circumstances materially affecting
the welfare of the child has occurred since the prior custody order.”
Barlow v. Barlow, 14-361[, p. 6] (La.App. 3 Cir. 10/1/14), 149 So.3d
856, 860 [] (citing Bergeron v. Bergeron, 492 So.2d 1193 (La.1986)).
Then, the party seeking modification must show:

that the continuation of the present custody is so
deleterious to the child as to justify a modification of the
custody, or of proving by clear and convincing evidence
that any harm likely to be caused by a change of
environment is substantially outweighed by the
advantages to the child. Bergeron v. Bergeron, 492 So.2d
1193 (La.1986); Wilson v. Wilson, 30,445 (La.App. 2 Cir.
4/9/98), 714 So.2d 35.

A considered decree is one for which evidence as to
parental fitness to exercise custody is received by the
court. Evans v. Terrell, 27,615 (La.App. [2d Cir.] 2/6/95
[12/6/95]), 665 So.2d 648, writ denied, 96-0387
(La.5/3/96), 672 So.2d 695. By contrast, a judgment with
a custody plan that was entered by default, was not
contested[,] or was merely entered by consent of the
parties is not a considered decree. Barnes v. Cason,
25,808 (La.App. 2 Cir. 5/4/94), 637 So.2d 607, writ
denied, 94-1325 (La.9/2/94), 643 So.2d 149.

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Martin, 89 So.3d at 528 (quoting Schuchmann v. Schuchmann, 00-
094, p. 3 (La.App. 3 Cir. 6/1/00), 768 So.2d 614, 616) (quoting
Roberie v. Roberie, 33,168, p. 3 (La.App. 2 Cir. 12/8/99), 749 So.2d
849, 852) (alterations in original).

The trial court’s determination concerning whether the
heightened burden of proof to modify a considered custody decree has
been met is a question of fact, which will not be disturbed on appeal
absent manifest error. Oliver v. Oliver, 95-1026 (La.App. 3 Cir.
3/27/96), 671 So.2d 1081. To make a finding that the trial court
committed manifest error, an appellate court must find that the entire
record reveals that there was no reasonable factual basis for the trial
court’s finding and that the finding is clearly wrong. Id.

Finally, “‘[a] trial court’s determination regarding child custody
is to be afforded great deference on appeal and will not be disturbed
absent a clear abuse of discretion.’” Martin, 89 So.3d at 528 (quoting
Franklin v. Franklin, 99-1738, p. 4 (La.App. 3 Cir. 5/24/00), 763
So.2d 759, 762). Custody cases are decided upon their own particular
facts and circumstances, but the “paramount” consideration is the best
interest of the child. McManus v. McManus, 13-699, p. 3 (La.App. 3
Cir. 12/11/13), 127 So.3d 1093, 1095 (quoting Hebert v. Blanchard,
97-550, p. 4 (La.App. 3 Cir. 10/29/97), 702 So.2d 1102, 1105). On a
request to modify a considered decree, if the heightened burden of
proof is met, then the trial court must then determine the best interest
of the child. Harvey v. Harvey, 13-81 (La.App. 3 Cir. 6/5/13), 133
So.3d 1, writ denied, 13-1600 (La.7/22/13), 119 So.3d 596.

Steele v. Ashworth, 14-527, pp. 4-5 (La.App. 3 Cir. 11/12/14), 151 So.3d 177, 181-

82.

In the case before us, Semien requests this court to either designate her as

the domiciliary parent or that she be granted a “right of first refusal” should Amos

be working during a period when the children are in his custody. She makes these

requests on the basis that Amos has a history of violence and works away from

home for long periods of time.

After reviewing the record, we find that it contains conflicting testimony

regarding the two issues raised by Semien. While she did testify that Amos has a

history of violence, Amos denied that this history was accurate. Additionally,

while Semien testified that Amos’ work sometimes required him to live out of state

and away from his children for long periods of time, Amos testified that he no
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longer did that kind of work due to his Type 1 diabetes. Further, Amos testified

that his former job allowed for him to be with his children four nights a week,

including weekends, as he would drive to work the morning the work week began

and drive home the day the work week ended.

Regarding violence, we note Amos obtained his status as domiciliary parent

due to an allegation that Semien abused one of the children. As a result of that

incident, Semien was required and attended parenting and anger management

classes. Amos also testified that Semien has a history of abusing the children

while disciplining them and in neglecting them by leaving them alone at home

when they were at ages too young to take care of themselves.

There is also evidence in the record that Semien’s current husband has been

arrested on numerous occasions, mostly narcotics related, since 1997. Further,

there is an allegation in the record that Semien’s current husband is abusive

towards the children.

Finally, the trial court conducted two hearings in which it heard testimony

from Amos, Semien, and the children. In reading the record, it is clear to this court

that the children’s version of Semien’s treatment of them varied greatly from the

version put forth by Semien.

Given the above, we find no abuse of the vast discretion of the trial court in

designating Amos as the domiciliary parent or in denying Semien’s request to

replace Amos as the domiciliary parent. It is clear from the record that the trial

court was presented with conflicting evidence, a plethora of which support its

judgment. Thus, we defer to its superior position in weighing the conflicting

evidence.

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DECREE:

Shawana Semien appeals whether the trial court erred in designating Joshua

Amos the domiciliary parent in the custody of their three children. We find no

abuse of discretion by the trial court and affirm the judgment. All costs of these

proceedings are assessed to Shawana Semien.

AFFIRMED.

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

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