Jacob Roche' v. Stormy Green

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-137
JACOB ROCHE'
VERSUS
STORMY GREEN
ROR EGR AK
APPEAL FROM THE

FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 103141
HONORABLE DAVID BLANCHET, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar,
Judges.

AFFIRMED.

Sam R. Aucoin

Aucoin Law Office

P. O. Box 820

Carencro, LA 70520

(337) 280-3432

COUNSEL FOR PLAINTIFF/APPELLANT:
Jacob Roche'

Danielle N. Thompson

Paul J. deMahy

The Thompson Law Firm

2901 Johnston St., Suite 301

Lafayette, LA 70503

(337) 534-8761

COUNSEL FOR DEFENDANT/APPELLEE:
Stormy Green

KYZAR, Judge.

The appellant, Jacob Roche, appeals a judgment of the trial court designating
the natural mother, Stormy Green, as the primary custodial parent of their minor
child and awarding Mr. Roche visitation. For the following reasons, we affirm the
judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Jacob Roche and Stormy Green are the natural parents of a minor child,
E.W.G., born on March 15, 2013. The relationship between the parties has been
tumultuous in the past until finally eroding to the point that Mr. Roche engaged an
attorney to file the necessary paperwork to become the domiciliary parent of the
minor child. The trial court temporarily granted ex parte custody to Mr. Roche on
March 23, 2017, which was later rescinded after Ms. Green tested negative for illegal
substances on a court-ordered drug screen. Physical custody of the minor child was
to be shared on a seven-on-seven-off basis until a trial on the matter.

The parties were then ordered to attend an evaluation with a local, court-
appointed psychiatrist, Dr. Kenneth Bouillion. After interviewing each of the parties
and the minor child in question, Dr. Bouillion produced a report opining that Mr.
Roche was better suited to be the child’s domiciliary parent. Ms. Green then deposed
Dr. Bouillion, and the matter was set for a Permanent Custody Hearing.

The hearing was held over the course of two days on April 18, 2018 and June
13, 2018. The deposition of Dr. Boutllion was introduced and filed into evidence,
along with numerous exhibits from both the plaintiff and defendant. The trial court
also heard testimony from multiple witnesses, including Dr. Mona Reed, who

specializes in child psychology and testified for Ms. Green. The trial court took the

matter under advisement and issued extensive written reasons for ruling on July 16,
2018, ultimately ordering joint custody of the minor child with Ms. Green being
maintained as the domiciliary parent.

Mr. Roche timely appealed the judgment of the trial court, assigning two
errors:

1. The trial court erred in selecting an expert witness to assist it

in its final decision, but erred when it, essentially, disregarded that

expert’s opinion and then characterizing that expert’s opinion as

“wrong” or “mistaken” in determining an expert does not try a case: the

district judge does.

2. The trial court erred in choosing the natural mother as the

domicilary parent when it found the Louisiana Civil Code[ art. 134]’s

factors to be used in making that determination, favored the mother,

despite overwhelming evidence to the contrary.
DISCUSSION

Appellate courts will not disturb an award of custody absent a manifest abuse
of discretion in the trial court. In Bergeron v. Bergeron, 492 So.2d 1193, 1196
(La.1986), the Louisiana Supreme Court described the appellate review standard by
stating that “upon appellate review, the determination of the trial judge in child
custody matters is entitled to great weight, and his discretion will not be disturbed
on review in the absence of a clear showing of abuse.”

On appeal, Mr. Roche asserts the trial court erred in not awarding domiciliary
custody to him. Specifically, he alleges that Ms. Green uses illegal drugs and brags
about such usage online, that she has lived in at least six different locations with six
different men in the span of a year while having custody of their minor child and
despite being married, that the child is physically disciplined by Ms. Green’s
husband, that the child is not potty-trained or in school despite being four years of

age, that Ms. Green has denied Mr. Roche his visitation periods on multiple

occasions, and that Ms. Green has told the minor child to refer to a non-blood relative

as “daddy,” amongst other things. Mr. Roche also particularly notes and assigns as
error that the court-appointed custody evaluator, Dr. Bouillion, interviewed both of
the parties and the minor child and recommended that it would be in the minor
child’s best interest to have Mr. Roche designated as the primary domiciliary parent.

Louisiana Civil Code Article 131 states, in pertinent part, that “the court shall
award custody of a child in accordance with the best interest of the child.” The best
interest of the child is always the paramount consideration in determining child
custody. Boudreaux v. Boudreaux, 95-310 (La.App. 3 Cir. 5/31/95), 657 So.2d 459.
If the parents cannot agree as to custody or if they reach an agreement that 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 interests of the child, the court shall award custody to that parent.”
La.Civ.Code art. 132. The factors used to determine the best interest of the child in
custody matters are outlined in La.Civ.Code art. 134(A) as follows:

{T]he court shall consider all relevant factors in determining the
best interest of the child, including:

(1) The potential for the child to be abused, as defined by
Children’s Code Article 603, which shall be the primary consideration.

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

(3) 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.

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

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

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

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

(8) The history of substance abuse, violence, or criminal activity
of any party.

(9) The mental and physical health of each party. Evidence that
an abused parent suffers from the effects of past abuse by the other
parent shall not be grounds for denying that parent custody.

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

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

(12) The willingness and ability of each party to facilitate and
encourage a close and continuing relationship between the child and the
other party, except when objectively substantial evidence of specific
abusive, reckless, or illegal conduct has caused one party to have
reasonable concerns for the child's safety or well-being while in the care
of the other party.

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

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

Expert Opinion

Mr. Roche relies heavily upon Dr. Bouillion’s conclusion that the child’s best
interests would be served by naming him the domiciliary parent. He specifically
assigns as error that the trial court “disregarded” the testimony of its own appointed
expert in its explicit finding that the La.Civ.Code art. 134 factors support
maintaining Ms. Green as domiciliary parent. Mr. Roche notes multiple findings by
Dr. Bouillion to bolster his position, namely that: Dr. Boullion found him to be
permanent and Ms. Green impermanent, that Ms. Green didn’t have a driver’s
license or employment, and that it is unhealthy for a minor child to call a non-blood
relative, like Ms. Green’s current husband, “daddy.” Dr. Bouillion did not state in

his report or deposition that the minor child referred to Ms. Green’s new husband as

“daddy” during his interview with the child, but Ms. Green admitted that it does
occur occasionally.

The paramount consideration in a change of custody case is always the best
interest of the child. Barnes v. Cason, 25,808 (La.App.2d Cir. 5/4/94), 637 So.2d
607, writ denied, 94-1325 (La. 9/2/94), 643 So.2d 149. In determining the best
interests of the child in custody cases, there must be a weighing and balancing of
factors favoring or opposing custody in the respective competing parents on the basis
of the evidence presented in each particular case. Boyd v. Boyd, 26,292 (La.App.2d
Cir. 12/7/94), 647 So.2d 414. The trial court weighed the actual evidence presented
against the facts, and it specifically found that the facts of the case do not support
Dr. Boullion’s recommendation that Mr. Roche be named domiciliary parent.
Declining to adopt a court-appointed expert’s custody recommendation is not error.
Monteleone v. Monteleone, 591 So.2d 1228 (La.App. 4th Cir. 1991). “After
weighing and evaluating expert and lay testimony, the trial court may accept or reject
the opinion expressed by any expert.” Orrill v. Orrill, 08-400, p. 6 (La.App. 4 Cir.
2/4/09), 5 So.3d 279, 283 (citing Warlick v. Warlick, 27,389, p. 4 (La.App. 2 Cir.
9/29/95), 661 So.2d 706, 710).

In its extensive reasons for ruling, the trial court went through each of
La.Civ.Code art. 134’s factors to determine what custody arrangement would be in
the best interest of the child based upon the evidence presented at trial. The trial
court’s determination is to be given great weight and will be overturned only when
there is a clear abuse of discretion. Bergeron, 492 So.2d 1193. “The rule that
questions of credibility are for the trier of fact applies to the evaluation of expert
testimony, unless the stated reasons of the expert are patently unsound.” Lasyone v.
Kansas City Southern Railroad, 00-2628, p. 13 (La.4/3/01), 786 So.2d 682, 693

(citation omitted). Credibility determinations, including the evaluation of and

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resolution of conflicts in expert testimony, are factual issues to be resolved by the
trier of fact and should not be disturbed on appeal in the absence of manifest error.
Id.

The trial court found many factors to favor maintaining Ms. Green as the
domiciliary parent. Specifically, the trial court found Ms. Green to be favored in
regard to the length of time the child has lived in a stable environment, the
permanence of a potential custodial home as a family unit, and the previously
exercised responsibility for the care and rearing of the child. See La.Civ.Code art.
134(A)(5), (6), and (14). Ms. Green has been the child’s primary caregiver since
birth with little physical or financial assistance from Mr. Roche at the beginning of
the child’s life. The trial court further found that, as Ms. Green had actually enrolled
the child in pre-school, that the tenth factor also favored Ms. Green. La.Civ.Code
art. 134(A)(10). The trial court rejected Mr. Roche’s argument that he was waiting
for the court to rule on the matter before enrolling the child in school and specifically
found Dr. Bouillion’s factual determinations in regard to this factor to be incorrect.
For the remaining factors to be considered, the trial court either did not find them to
explicitly favor either respective party or found the factor to be inapplicable to the
case at hand.

Mr. Roche argues to this court that he makes a good wage as an independent
contractor and that Ms. Green is not employed. However, Ms. Green is married, and
her husband is employed full time. Ms. Green and her husband have a young child
together, and Ms. Green stays home with both of the children, supporting the minor
child in question with little assistance from Mr. Roche, whose child support
payments have been sporadic in the past. Accordingly, the trial court did not find
this factor to specifically favor either parent. See La.Civ.Code art. 134(A)(4). The

trial court also noted that Ms. Green is a stay-at-home mother who is with the

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children at home during the day while Mr. Roche works 6:00 AM to 5:00 PM
weekdays, leading the trial court to determine that the only appreciable time Mr.
Roche can spend with the child is on alternating weekends regardless. While Mr.
Roche contends that Ms. Green has lived at multiple address and dated multiple men
while married to her current husband, he introduced no evidence into the record to
establish this fact to this court or to the trial court. Further, finding no evidence that
Ms. Green uses illegal drugs given her clean court-ordered drug screen or that she
has engaged in multiple extra-marital affairs, the trial court found that the moral
fitness of either party was not a concern. See La.Civ.Code art. 134(A)(7).

The trial court noted Dr. Bouillion’s report, which stated that he found both
parents to be competent but recommended Mr. Roche as the domiciliary parent
because of Ms. Green’s frequent moves, multiple male relationships, and separation
from her husband on more than one occasion. He opined that such a custody
arrangement would be in the child’s best interests per La.Civ.Code art. 134. The
trial court disagreed after conducting its own best interest analysis and further
finding that Mr. Roche failed to prove any of the above-mentioned allegations to the
court. “Declining to adopt a court-appointed expert’s custody recommendation is
not error.” Orrill, 5 So.3d at 283 (citing Monteleone v. Monteleone, 591 So.2d 1228,
1236 (La.App. 4th Cir.1991). “It is well settled that the trial judge is not bound by
expert testimony. Such testimony is to be weighed by the court the same as any
other evidence.” Fortenberry v. Fortenberry, 432 So.2d 1125, 1128 (La.App. 3 Cir.
1983).

“The rule that questions of credibility are for the trier of fact applies to the
evaluation of expert testimony, unless the stated reasons of the expert are patently
unsound.” Lasyone, 786 So.2d at 693 (citation omitted). Credibility determinations,

including the evaluation of and resolution of conflicts in expert testimony, are factual

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issues to be resolved by the trier of fact and should not be disturbed on appeal in the
absence of manifest error. /d. The trial court in the instant case gave thorough and
comprehensive conclusions in its reasons for judgment. It went through each of the
La.Civ.Code art. 134 factors and gave explicit findings. Further, it plainly stated
that many of the factors upon which Dr. Bouillion based his conclusions were
unsubstantiated allegations that had no evidentiary support at trial or in the record.

Expert witnesses are intended to “assist the trier of fact” in understanding the
evidence or in the determination of a fact in issue. La.Code Evid. art. 702. The
expert does not usurp the authority of the trial court, who is still tasked with
determining the key issue of “best interest of the child.” CMJ. v. LMC, 14-1119
(La. 10/15/14), 156 So.3d 16. “A trial court may accept or reject in whole or in part
the opinion expressed by an expert. Further, a trial judge may substitute his/her own
common sense and judgment for that of an expert witness when such a substitution
appears warranted on the record as a whole.” /d. at 31 (citations omitted).

The best interest of the child standard is a fact-intensive inquiry that requires
the weighing and balancing of factors favoring or opposing custody in the competing
parties on the basis of the evidence presented. La.Civ.Code art. 134. The trial court
is in the best position to ascertain the best interest of the child and any findings made
in furtherance of that best interest should not be disturbed on appeal absent a clear
showing of abuse of discretion. Thompson v. Thompson, 532 So.2d 101 (La.1988).
In view of the deference accorded to the trier of fact and having found no manifest
error, we defer to the trial court’s well-reasoned ruling.

DISPOSITION
Accordingly, we affirm the judgment of the trial court awarding joint custody

of the minor child to both parties, naming Ms. Stormy Green as the domiciliary

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parent and awarding visitation to Mr. Jacob Roche. The costs of this appeal are

assessed against plaintiff/appellant, Jacob Roche.

AFFIRMED.

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