Joshua Christopher Smith v. Laura Babin Smith

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 20-597

JOSHUA CHRISTOPHER SMITH

VERSUS

LAURA BABIN SMITH

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2016-703
HONORABLE LILYNN ANNETTE CUTRER, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Sylvia R. Cooks, Chief Judge, Billy Howard Ezell, and D. Kent
Savoie, Judges.

AFFIRMED.

John Green, Jr.
Law Offices of John Green, Jr.
1135 Hodges St.
Lake Charles, LA 70601
(337) 990-0060
COUNSEL FOR PLAINTIFF/APPELLANT:
Joshua Christopher Smith

Shane K. Hinch
Heath J. Dorsey
Hinch and Associates
201 W. College St., Ste. A
Lake Charles, LA 70605
(337) 940-9224
COUNSEL FOR DEFENDANT/APPELLEE:
Laura Babin Smith

Lawrence Sean Corcoran
Corcoran Law Firm
940 Ryan Street
Lake Charles, LA 70601
(337) 602-6214
COUNSEL FOR DEFENDANT/APPELLEE:
Laura Babin Smith

EZELL, Judge.

In this matter, Josh Smith appeals the decision of the trial court below

granting sole custody in favor of Laura Babin and granting him limited, supervised

visitation. For the following reasons, we hereby affirm the decision of the trial

court.

Josh and Laura were married in October 2010 and had one child, Ava, born

in 2015. The couple filed for divorce in 2016. At that time, a stipulated judgment

was entered concerning visitation of Ava which, required Josh to “participate in an

anger management assessment with Eddie Windham.” 1 Mr. Windham

recommended Josh participate in a twenty-six-week domestic violence program,

but Josh refused to do so. In December 2017, Laura filed a rule for modification of

custody, seeking to require Josh enroll in the program. Another consent judgment

was issued April 24, 2018, altering some ancillary custody issues, but Josh’s

enrollment in the program was not addressed.

In October 2018, Josh began dating Strawberry Leger, and the couple

married in January 2019. The couple’s marriage was short and tumultuous. In

June 2019, the day before Father’s Day, months of fighting culminated in police

being called to the couple’s home when Josh slammed Strawberry’s foot in a door

while throwing her out of the house during a long argument. Ava was present for

and witnessed that event. When Laura learned of the situation, she filed an ex

parte motion seeking sole custody of Ava, based on the alleged domestic violence

against Strawberry and claiming that Josh had acted similarly during their marriage.

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Mr. Windham is a licensed clinical social worker admitted as an expert at trial in anger
management and domestic abuse.

After trial on the motion, the trial court found Josh’s behavior towards Laura

and Strawberry was abusive and that Ava’s best interest lay in Laura having sole

custody. The trial court granted limited, supervised visitation to Josh, contingent

upon him entering and completing a domestic violence program. From that

decision, Josh appeals.

On appeal, Josh asserts three assignments of error. He claims the trial court

erred in finding the events that preceded the consent judgments with Laura

constituted a material change in circumstances sufficient to alter custody and/or

that Laura failed in proving a change in circumstances; that the trial court erred in

not applying the clear and convincing evidence standard in awarding sole custody;

and that the trial court erred in failing to award reasonable visitation.

In his first assignment of error, Josh claims that the trial court erred in

finding the actions that predated the consent judgments of August 22, 2016, and

April 24, 2018, served as material changes in circumstances after those agreements

were reached. We disagree.

A party seeking to modify custody established by a consent judgment must

prove that there has been a material change in circumstances since the original

decree and that the proposed modification is in the best interest of the child.

D’Aquilla v. D’Aquilla, 03-2212 (La.App. 1 Cir. 4/2/04), 879 So.2d 145, writ

denied, 04-1083 (La. 6/25/04), 876 So.2d 838; Evans v. Lungrin, 97-541, 97-577

(La. 2/6/98), 708 So.2d 731. Josh claims that the trial court relied upon the fact

that he had not completed the domestic violence program recommended by Mr.

Windham during the divorce proceedings with Laura, though this failure to follow

the recommendation was known, and even brought to court, prior to the April 2018

consent judgment. He also claims that he had obsessive-compulsive disorder

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(OCD), which was known by Laura during the marriage and prior to the consent

judgment. These are gross misrepresentations of the trial court’s reasoning.

The record before this court shows that, while the trial court did mention his

failure to complete the domestic violence program recommended by Mr. Windham

as an additional factor in its decision, the primary event cited by the trial court as a

material change in circumstances was the Father’s Day domestic violence incident

against Strawberry, which Ava was present for, and which happened well after the

latest consent judgment was issued. The domestic violence incident alone more

than qualifies as a material change in circumstances for custody purposes,

especially in light of the fact that the child witnessed the event, and the trial court

committed no error in finding that a material change in circumstances occurred.

We also disagree with Josh’s claims that Laura failed to prove a material change in

circumstances, as the record unmistakably shows the toxic and abusive nature of

his relationship with Strawberry, as discussed more fully below.

Additionally, Josh’s claim that his OCD was the mental health concern cited

by the trial court is another misrepresentation of the record. While Laura had been

told by Josh that he thought he had OCD during the marriage, he never sought

treatment or medication for that issue. However, in citing mental health concerns

in its reasons, the trial court explicitly referred to the new, post-consent judgment

issues he sought treatment for after his marriage to and separation from Strawberry.

The record indicates that after the domestic violence incident with Strawberry on

Father’s Day, Josh sought counselling at the Institute for Neuropsychiatry in Lake

Charles, Louisiana. His July 19, 2019 initial assessment there noted Josh as having

episodic mood disorder, depression disorder, general anxiety disorder, post-

traumatic stress disorder, in addition to OCD. He began receiving medications for

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anxiety at that time. Those mental health issues are undeniably the ones addressed

by the trial court in its reasons, not merely the OCD, and they arose or became

known well after the last consent judgment with Laura. Josh’s escalating mental

health issues are unequivocally a material change in circumstances occurring since

the most recent consent judgment. Thus, the trial court did not err in finding a

material change in circumstances existed, especially when the trial court took these

mental health issues in conjunction with the Father’s Day domestic violence

incident. This assignment of error is devoid of merit.

Josh next claims that the trial court erred in failing to apply the clear and

convincing evidence standard before awarding sole custody to Laura. We disagree.

In Griffith v. Latiolais, 10-754, pp. 17-18 (La. 10/19/10), 48 So.3d 1058,

1070, our supreme court set forth the burden of proof in a proceeding for sole

custody:

A trial court’s factual findings may only be overturned if
manifestly erroneous. 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. C.C. art. 132. . . . “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.” [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)) ].

“To prove a matter by clear and convincing evidence means to demonstrate

the existence of a disputed fact is highly probable, that is, much more probable

than its nonexistence.” Harper v. Harper, 33,452, p. 6 (La.App. 2 Cir. 6/21/00),

764 So.2d 1186, 1190.

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

this court in 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:

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.

In resolving custody issues, the primary consideration is whether the custody

arrangement is in the best interest of the child. La.Civ. Code arts. 131, 134.

Louisiana Civil Code Article 134 sets out fourteen non-exclusive factors for the

court to consider in awarding custody. The trial court is not bound to make a

perfunctory evaluation of all the factors in La.Civ.Code art. 134, but should decide

each case on its own facts in light of those factors. Robertson v. Robertson, 10-926

(La.App. 5 Cir. 4/26/11), 64 So.3d 354. These factors are not exclusive but are

provided as a guide to the trial court, and the relative weight given to each factor is

left to the discretion of the trial court. Id. Each child custody case must be viewed

considering its own particular set of facts and circumstances with the paramount

goal of reaching a decision that is in the best interest of the children. Id.; 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. On appellate review, the trial court’s custody

determination is entitled to great weight and will not be disturbed absent a clear

showing of an abuse of discretion. Johnson v. Clofer, 18-119 (La.App. 5 Cir.

6/27/18), 251 So.3d 597; Bridges v. Bridges, 9-742 (La.App. 5 Cir. 2/9/10), 33

So.3d 914.

There is absolutely nothing in the record before this court that indicates that

the trial court used a lesser burden of proof in making its determination. Simply

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because the trial court did not use “clear and convincing evidence” as magic words

in its reasons does not indicate that the standard was not applied. To the contrary,

the trial court issued explicit, detailed, thorough, and lengthy reasons for judgment,

which indicate that the trial court clearly found it highly probable that sole custody

was in the best interest of the child.

The trial court explicitly stated that Josh was not credible in its eyes. Most

notably, Josh denied telling multiple counselors several disturbing things, though

his testimony was directly contradicted by their notes and his medical records.

Josh also claimed that he seldom fought with either Laura or Strawberry, a claim

directly contradicted by them, texts, video evidence, and his own medical records.

The trial court was concerned with Josh’s defensive attitude and denial concerning

his behavior and how that would affect his ability to improve his behavior. To the

contrary, the trial court found Laura to be very credible and that her testimony was

“eerily similar” to that of Strawberry. In matters of credibility, a reviewing court

must give great deference to the trial court’s findings, as the trial court is in the

best position to evaluate the demeanor and mannerisms of the witnesses. Dvilansky

v. Correu, 16-279 (La.App. 4 Cir. 10/26/16), 204 So.3d 686, writ denied, 16-2081

(La. 1/9/17), 214 So.3d 871. “When conflicting testimony exists, reasonable

evaluations of credibility and reasonable inferences of fact made by the trial court

are not to be disturbed.” Id. at 690 (citing Stobart v. State through Dept. of Transp.

and Dev., 617 So.2d 880 (La.1993)).

The testimonies of Laura and Strawberry indicate that Josh was controlling

and verbally abusive, at best. They both reported isolation from friends and family

and both testified that he used his position as a police officer to prevent them from

reporting his behavior to the police, claiming that they would not be believed.

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Laura reported that Josh would punch holes in the wall, made unfounded

accusations of infidelity out of jealousy, and would get in her face to yell. Laura

testified that he once handcuffed her and threw her against a wall. She likewise

testified that Ava told her Josh hit Strawberry. Video of this conversation was

shown at trial. Laura stated that she was concerned about Ava witnessing domestic

abuse by Josh against Strawberry and noted that Ava was starting to act out in a

similarly aggressive manner at school and at home.

Strawberry testified that Josh would likewise make unfounded accusations

of infidelity against her, would get in her face to yell, and that he destroyed a

painting her child made for a charity auction out of anger. She stated that he would

demean her and call her horrible names. The trial court found video shown at trial

to support that claim. Text evidence showed verbally abusive language directed

toward Strawberry and her oldest child. She claimed that Josh’s yelling was so

dramatic that her ten-year-old once threw up because he became so upset after

seeing it. Strawberry stated that Josh would often yell in such a manner in front of

her children. Mr. Windham testified that witnessing such behavior affected

children’s development and growth, especially children under five, such as Ava.

During the incident on Father’s Day, Josh slammed a door on Strawberry, injuring

her foot, raising Josh’s behavior from mental and verbal abuse against Strawberry

to the realm of physical abuse as well.

Mr. Windham testified that he found Josh to be abusive and controlling. He

and the trial court heard audio of a phone call from Josh to Laura supporting this

notion, wherein Josh berates Laura for drug abuse after he mistook plastic items

eaten by a dog for crystal meth. He stated that Josh was defensive and self-serving,

that Josh would deny his behaviors and their affects, and would therefore continue

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to behave in that manner until he underwent treatment. Mr. Windham testified that

abusers do not stop abusing without intervention and recommended Josh enter a

domestic violence program. Mr. Windham testified that the yelling, name-calling,

and destroying things Josh did could affect Ava negatively, and that children often

develop mental disorders after witnessing abusive interactions between their

parents.

The trial court noted Josh scored high on four of the six domestic violence

inventory tests, only passing the sections concerning drugs and alcohol. The trial

court found Josh’s unwillingness to follow the recommendation to get treatment

concerning and indicative that these behaviors would not cease.2 In all, the trial

court’s written reasons for judgment were eighteen pages, fourteen of which

directly involved analysis of the La.Civ.Code art. 134 factors. The trial court

clearly, carefully, and thoroughly considered those factors, noted its determination

of the credibility of the parties in no uncertain terms, and plainly found that the

best interest of the child involved sole custody belonging to Laura. After a review

of the record, we can find no abuse of the trial court’s discretion in that

determination.

Finally, Josh claims the trial court erred in failing to allow reasonable

visitation, limiting him to supervised visitation. Again, we disagree.

Louisiana Civil Code Article 136(A) states: “[s]ubject to R.S. 9:341 and 364,

a parent not granted custody or joint custody of a child is entitled to reasonable

visitation rights unless the court finds, after a hearing, that visitation would not be

2
We note for thoroughness that, despite Josh’s claim that his failure to follow the
recommendations of Mr. Windham occurred prior to the latest consent judgment, “[e]vidence of
incidents prior to entry of the stipulated judgment . . . remain relevant on the issue of best interest
of the child.” Crowson v. Crowson, 32,314, p. 4 (La.App. 2 Cir. 9/22/99), 742 So.2d 107, 110.

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in the best interest of the child.” The trial court is vested with vast discretion in

matters of visitation and the trial court’s determination will not be disturbed absent

a clear showing of abuse. Verret v. Verret, 34,982 (La.App. 2 Cir. 5/9/01), 786

So.2d 944; Hill v. Hill, 34,104 (La.App. 2 Cir. 1/24/01), 777 So.2d 1263. That

discretion extends to the determination of what constitutes reasonable visitation.

Bernard v. Bernard, 20-973, 20-974 (La.App. 1 Cir. 2/19/21), ___So.3d___.

Again, underlying the trial court’s broad discretion is the trial court’s superior

opportunity to observe and evaluate the credibility of the witnesses. Hill, 777 So.2d

1263; Windham v. Windham, 616 So.2d 276 (La.App. 2 Cir.), writ denied, 620

So.2d 875 (La.1993).

For the reasons discussed above, the trial court clearly found that the best

interest of the child lay in Josh having only supervised visitation, contingent upon

his entering and completion of a domestic violence treatment program. While the

amount of time Josh has with Ava is short, the record indicates that he purposely

choses to cut that time in half, choosing one-hour sessions with Ava rather than the

two hours he is allowed. Based on the record before us, we cannot find that the

visitation granted to Josh is unreasonable, let alone an abuse of the trial court’s

great discretion. This assignment of error lacks merit.

For the above reasons, the decision of the trial court is hereby affirmed.

Costs of this appeal are hereby assessed against Josh Smith.

AFFIRMED.

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

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