Michael David Chicola v. Joann Marie Chicola

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 15-1151

MICHAEL DAVID CHICOLA

VERSUS

JOANN MARIE CHICOLA

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 246,807
HONORABLE MONIQUE FREEMAN RAULS, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of Billy Howard Ezell, Shannon J. Gremillion, and D. Kent
Savoie, Judges.

AFFIRMED.

Adam Huddleston
Huddleston Law, L.L.C.
500 Main Street
P. O. Box 4598
Pineville, LA 71360
(318) 787-0885
COUNSEL FOR PLAINTIFF/APPELLANT:
Michael David Chicola

Martha R. Crenshaw
Gold, Weems, Bruser, Sues & Rundell
2001 MacArthur Drive (71301)
P. O. Box 13973
Alexandria, LA 71307-6118
(318) 445-6471
COUNSEL FOR DEFENDANT/APPELLEE:
Joann Marie Chicola

SAVOIE, Judge.

Plaintiff Michael D. Chicola (Michael) appeals the ruling of the trial court in

favor of Defendant Joann M. Chicola (Joann) regarding domiciliary custody. For

the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 22, 2013, Michael filed a Petition for Divorce from his wife

Joann. In the petition, he requested that he be named the domiciliary parent of

their minor child, Destiny Chicola (Destiny). The parties reached a consent

judgment on June 10, 2013, whereby Joann was named the domiciliary parent

subject to reasonable visitation in favor of Michael Chicola. On April 1, 2014,

Michael filed a Rule for Contempt, For Modification of Child Custody, Petition to

Partition Community Property, Request for Incidental Relief. While this rule was

pending, numerous rules for contempt were filed by both parties.

On August 22, 2014, Michael filed a pro se Petition for Protection from

Abuse on behalf of Destiny. Michael alleged Joann whipped the minor child with

a fly swatter which left lacerations and bruises. An order of protection was signed

by the trial court, granting temporary custody of Destiny to Michael as part of the

order. On the same day and unaware of the court filing, Joann sent Destiny to

school; however, Destiny did not return on the bus as was customary. She later

learned of the order of protection through the Rapides Parish Sheriff’s Office. At

this point, Michael enrolled Destiny in another school.

Joann has never denied that she spanked the child with a fly swatter when

Destiny purposefully urinated on a pile of clothing and no other discipline

technique was working. She was subsequently charged by the State with one count

of Cruelty to a Juvenile and one count of Violation of a Protective Order. She

entered pleas of not guilty, completed an anger management class and a parenting

class, and the charges were dismissed.

After she sent her daughter on the bus that morning, Joann Chicola did not

see her daughter for more than a year. A no-contact order was in place until

December 5, 2014, when it was lifted by the trial court. At the same time, the trial

court ordered supervised visitation between Joann and Destiny for four hours on

Saturdays and Sundays until the parties agreed on a custody arrangement. Michael

refused to comply with the court order regarding Joann Chicola’s visitation. On

May 26, 2015, Michael filed a Rule to Make Interim Custody Order Permanent

which was heard September 1, 2015. The trial court ruled in favor of Joann

Chicola, naming her domiciliary parent and ordering joint, shared custody of

Destiny. Michael now appeals.

LAW

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

as follows: “[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.

In a child custody proceeding, the trial court must consider all factors

relevant to the child's best interest. La.Civ.Code art. 134. Further,

[t]he court is not bound to make a mechanical evaluation
of all of the statutory factors listed in La. C.C. art. 134,
but should decide each case on its own facts in light of
those factors. The court is not bound to give more weight
to one factor over another, and when determining the best
interest of the child, the factors must be weighed and

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balanced in view of the evidence presented. Moreover,
the factors are not exclusive, but are provided as a guide
to the court, and the relative weight given to each factor
is left to the discretion of the trial court.

Thibodeaux v. O’Quain, 09–1266, p. 5 (La.App. 3 Cir. 3/24/10), 33 So.3d 1008,

1013 (quoting Cooper v. Cooper, 43,244, p.6 (La.App. 2 Cir. 3/12/08), 978 So.2d

1156, 1160).

Michael argues that he proved clear and convincingly that it is in Destiny’s

best interest that he be named domiciliary parent. Louisiana Civil Code Article

134 sets forth the following factors in determining the child’s best interest:

(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 that
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.

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

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(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.

In the oral reasons for ruling, the trial court determined:

In this case, I am going to say most of the factors, the parents
weighed equally in this Court’s opinion. And, because both parents,
when the child was with Mrs. Cole, she was getting the child
healthcare, was getting treatment from a physician, as well as the
father when the child lived with the father. The child lived with the
mother up until August Twenty--second of Two Thousand and
Fourteen. So, I think the child has a love for both parents.

There has been counseling with Mrs. Cole over a year. And
over this year period, the thing that bothered me about this case was
Factor Number 10, which says that there has to be a willingness and
ability of each party to facilitate, encourage a close and continuing
relationship between the child and the other parent.

This court finds that there was not a willingness and ability of
the father to facilitate and encourage a close and continuing
relationship between the child and the other parent. It was just the
opposite. The court is of the opinion that while this child has been in
the father’s custody, there has been no attempt whatsoever to have a
relationship with the mother. Even the counseling continued for a
year, Mrs. Cole didn’t attempt to try to bring the mother in on the
counseling, didn’t encourage, didn’t say that the mother needs to
communicate with the child. She said that the mother, she – the child
love[s] the mother. There was some expression of a desire by the
child to see the mother when the child was counseling with Ms. Cole,
but yet nothing happened.

There [were] several court orders for the child to spend time
with the mother, yet nothing happened. There was some information
about going to visit the mother without a call, without a text, any
communication, and arriving at a home but yet not knocking on the
door. That’s not good faith. When you go to someone’s home for a
visit, you knock on the door and make sure someone’s there. You
check. You don’t drive all the way to someone’s home without given
them any notice of it . . . . That’s not good faith. That’s not
reasonable. So, because the Court finds that there was not a
willingness, and the, and the Court [doesn’t] believe there will be a
willingness and ability to facilitate and encourage a close relationship.

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The trial court went on to state that it believed Joann did encourage a

relationship between the child and the father. The trial court’s ruling is supported

by the record.

Michael argues that the trial court erred because Joann failed to prove “love

and affection” between herself and the child. However, the record is clear that,

during the year that she was kept from seeing her mother, Destiny repeatedly asked

about her mother and stated on numerous occasions that she missed her mother.

This argument is without merit.

Moreover, there was no finding of malnourishment as Michael argues.

There is evidence in the record that Destiny was a “failure to thrive” baby which

would account for her low weight. Additionally, Michael contends that Destiny

was abused by her mother. While Joann admitted to spanking Destiny with a fly

swatter, she completed an anger management course and a parenting class, and the

charges against her were dismissed. There is no other incident of alleged abuse in

evidence. Therefore, this argument is without merit as well.

It is clear that the deciding factor for the trial court in determining best

interest of the child was factor number ten, “The willingness and ability of each

party to facilitate and encourage a close and continuing relationship between the

child and the other party.” Michael went to great lengths in order to keep Destiny

away from her mother, including defying court orders. There was no good faith

effort made by Michael to allow a relationship between Destiny and her mother for

over a year.

Michael contends that the trial court arbitrarily gave undue weight to this

factor, arguing that the trial court completely disregarded the testimonies of Dr.

Grant and Ms. Hayes. Dr. Grant saw Destiny after the flyswatter incident. This

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was the first time Dr. Grant had examined Destiny as she was not Destiny’s regular

pediatrician. At trial, Dr. Grant testified as to Destiny’s injuries as a result of being

spanked with a flyswatter.

Ms. Hayes is a Speech Language Pathologist who testified as to Destiny’s

poor hygiene at school while she was living with her mother. She also stated that

Destiny exhibited “odd” behaviors, i.e. eating crayons, at that time as well.

However, she also testified that, at the time of trial while she was living with her

father, Destiny was still exhibiting “worrisome” behavior, such as picking her

fingernails until they bled. While there is evidence to support both parents’ bid for

domiciliary custody, the trial court is afforded great discretion in its weighing of

the evidence, and we do not believe the trial court erred in this case.

The testimony and evidence presented in the record that is before us

supports the trial court’s award of domiciliary custody to Joann, and the trial

court’s decision is not an abuse of discretion.

DECREE

For the reasons set forth above, the trial court’s judgment awarding

domiciliary custody to Joann Marie Chicola is affirmed. Costs of this appeal are

assessed to appellant, Michael David Chicola.

AFFIRMED.

This opinion is not designated for publication. Uniform Rules—Courts of
Appeal, Rule 2–16.3.

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