Jaime Rigmaiden v. Sloane Dellafosse

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-816

JAIME RIGMAIDEN

VERSUS

SLOANE DELLAFOSSE

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2020-3505
HONORABLE CYNTHIA CLAY GUILLORY, DISTRICT JUDGE

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WILBUR L. STILES
JUDGE

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Court composed of Sharon Darville Wilson, Gary J. Ortego, and Wilbur L. Stiles,
Judges.

AFFIRMED IN PART;
REVERSED IN PART AND RENDERED. REMANDED.

James Darren Stewart
Southwest Louisiana Law Center
1011 Lakeshore Dr., Suite 402
Lake Charles, LA 70601
(337) 436-3308
COUNSEL FOR PLAINTIFF/APPELLANT:
Jaime Rigmaiden

Sloane Dellafosse
In Proper Person
1103 S. Division Street
Lake Charles, LA 70601
(281) 258-9564
COUNSEL FOR DEFENDANT/APPELLEE:
Sloane Dellafosse

STILES, Judge.

Plaintiff Jaime Rigmaiden appeals the trial court’s denial of his petition for ex

parte order for sole custody of his minor daughter and its award of joint custody to

Defendant Sloane Dellafosse. He alternatively questions the trial court’s order that

the parents alternate physical custody of the minor child in two week intervals. For

the following reasons, we affirm in part, reverse in part and render. We further

remand to the trial court for entry of a specific implementation plan.

FACTS AND PROCEDURAL HISTORY

Mr. Rigmaiden and Ms. Dellafosse are the parents of their minor daughter

Z.R.,1 born in April 2012. By a May 29, 2014 consent judgment entered in the

Family Court of East Baton Rouge Parish, the parties agreed that Z.R. would “live

primarily with her mother, Sloane Dellafosse,” and that Mr. Rigmaiden would enjoy

physical custody of the child on alternate weeks from Sunday at 5:00 p.m. until

Tuesday at 5:00 p.m. 2 The parties also agreed that Mr. Rigmaiden would have

physical custody at any other time as agreed to by the parties. Mr. Rigmaiden was

responsible for transporting the child to and from Ms. Dellafosse’s residence.

Although the parties lived in Baton Rouge during Z.R.’s early years, Mr.

Rigmaiden moved to Lake Charles when the child was five years old whereas Ms.

1
We use the minor child’s initials for confidentiality purposes. See Uniform Rules—
Courts of Appeal, Rule 2-2.
2
The judgment addressed only periods of the parties’ physical custody without reference
to legal custody. 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 provisions of R.S. 9:364 apply or the
best interest of the child requires a different award. Subject to the provisions of R.S.
9:364, 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 that parent.

Dellafosse and Z.R. relocated to Alaska. Z.R. visited Mr. Rigmaiden in Louisiana

during the summer.

While living in Alaska, Ms. Dellafosse experienced periods of homelessness

and instability. Given those circumstances, Z.R. lived with Ms. Dellafosse’s aunt,

Samantha, for a year. Mr. Rigmaiden explained that he lacked financial resources

to pursue a change in custody at that point and that he instead felt that Z.R. was “safe”

in Samantha’s care. He explained that, at other times when he learned that Ms.

Dellafosse “was not in a stable situation,” he would ask to care for Z.R. but that Ms.

Dellafosse refused.

In June 2020, however, Mr. Rigmaiden traveled to Alaska to pick up Z.R.

after Alaska child services informed him that Ms. Dellafosse had been arrested for

driving under the influence. Z.R. has been in Mr. Rigmaiden’s care since that time.

In October 2020, Mr. Rigmaiden filed a Petition for Ex Parte Order for Sole

Custody and Incidental Matters. He explained that he feared for Z.R.’s safety after

learning that Ms. Dellafosse suggested to Z.R. that she would “come and pick up the

child and return with her to Alaska.” The circumstance, Mr. Rigmaiden alleged,

gave rise to a substantial risk of irreparable harm or injury to the child due to Ms.

Dellafosse’s June arrest and her inability to offer a stable environment for the child.3

Mr. Rigmaiden pointed out that, in contrast, he is “married, employed full time, and

is able to provide a stable home for the child.” He therefore prayed for the immediate

issuance of an order of provisional sole custody with Defendant restricted to weekly,

supervised visitation within the boundaries of Calcasieu Parish.

3
Louisiana Code of Civil Procedure Article 3945(B)(1) requires that a party seeking an ex
parte order of temporary custody must demonstrate “from specific facts shown by a verified
petition or by supporting affidavit that immediate and irreparable injury will result to the child
before the adverse party or his attorney can be heard in opposition.”

2

The trial court immediately issued an initial ex parte sole custody order,

granting Mr. Rigmaiden provisional sole custody of the child and, thereafter,

rendered judgment maintaining the order of sole custody pending trial on the merits.

Trial was initially scheduled for a June 14, 2021 hearing, but the parties

entered into a consent judgment maintaining Mr. Rigmaiden’s sole custody of Z.R.

and permitting Ms. Dellafosse some daytime weekend visitation before overnight

visitation was permitted.

When the parties returned for a scheduled status conference in August, they

again entered into a consent judgment. The trial court’s resulting September 15,

2021 judgment maintained Mr. Rigmaiden’s sole custody of the child and ordered

that Ms. Dellafosse would have visitation every other weekend from after school on

Friday until Monday morning when school resumed. The judgment indicated that,

when school was not in session, visitation would be from 2:30 p.m. on Friday until

5 p.m. on Sunday.

The September 15, 2021 consent judgment further set the matter for trial.

Before the matter was tried, however, Mr. Rigmaiden filed a Rule for Contempt of

Court, Attorney Fees, and Cost of Court. He alleged, in part, that Ms. Dellafosse

refused to cooperate in his effort to pick up Z.R. after the close of her scheduled

weekend visitation and, therefore, failed to comply with the order of the court. Law

enforcement was called to the scene, and Ms. Dellafosse was arrested. Mr.

Rigmaiden sought a finding of contempt and punishment by jail time and the

payment of costs and attorney fees.

The trial court ultimately heard the merits of Mr. Rigmaiden’s petition in May

2022. Both parties testified, with Mr. Rigmaiden explaining the course of the parties’

relationship, Z.R.’s move to Alaska with her mother, and the circumstances under

3

which Z.R. came into his care following Ms. Dellafosse’s arrest. Mr. Rigmaiden

testified that, in addition to his request for permanent sole custody, he sought

supervised visitation after having learned of the extent of Ms. Dellafosse’s arrest

history, as revealed in the course of litigation. Ms. Dellafosse represented herself

during the proceedings and also testified on her own behalf. While not addressing

her criminal history at length, she explained to the court that she has experienced

mental health difficulties due to diagnoses of “Bipolar II and borderline personality

disorder as well as PTSD and severe depression.” She stated that she had been “off-

and-on homeless for a very long time” given a lack of family support. Ms.

Dellafosse acknowledged inconsistent employment as well but represented to the

court that both her employment and housing situation in the time period before trial

had been more stable.

The trial court rendered oral reasons at the close of proceedings, first denying

Mr. Rigmaiden’s request for an ex parte order of sole custody upon a finding that he

failed to demonstrate irreparable harm of such a nature that “[t]he child is placed in

such danger that it would be considered irreparable harm because the child is very

likely to be harmed either intentionally or unintentionally while in the care of an

impaired parent.” The trial court noted that at the time Mr. Rigmaiden filed the

petition two years earlier, the specter of harm differed as Ms. Dellafosse had

suggested that she would travel to Louisiana and return with Z.R. to Alaska. Two

years had passed by the time of the May 2022 trial, however, and Z.R. had been in

Mr. Rigmaiden’s sole custody since that time.

The trial court instead concluded that the matter was better addressed as an

evaluation of the award to Mr. Rigmaiden of “temporary sole custody until such time

as [the matter] could be heard.” The trial court noted that, at the time of trial, Ms.

4

Dellafosse was essentially exercising “every other weekend visitation.” Given the

circumstances existing at that time, the trial court concluded that, although Mr.

Rigmaiden had “done a good job” under the period of sole custody, an amendment

of the consent custodial arrangement to reflect joint custody was more appropriate.

The trial court fashioned a resulting July 18, 2022 judgment, alternating physical

custody of the child in two week intervals. The trial court failed to designate a

domiciliary parent.

The judgment further included the trial court’s ruling on Mr. Rigmaiden’s rule

for contempt, finding Ms. Dellafosse in contempt “for not returning the minor child,

[Z.R.], born 4/13/12 in accordance with the court order[.]” The trial court ordered

Ms. Dellafosse to pay $750 in attorney fees.

Mr. Rigmaiden thereafter filed a Motion and Order for Appeal/Writ of the

trial court’s “Interim Judgment regarding the issues of ‘Custody’ and ‘Contempt of

Court[.]” The trial court signed a resulting order for appeal or, “in the alternative,

writ[.]”4

By his appellant’s brief, Mr. Rigmaiden assigns error in the trial court’s 1)

granting the parties joint custody of Z.R., with the parents alternating physical

custody in two week intervals; 2) making Mr. Rigmaiden responsible for providing

4
Both Mr. Rigmaiden and the trial court were equivocal in their respective motion and
order as to whether the judgment under review is appropriately considered as an appeal or as an
application for supervisory writ. Notably, the trial court entered an award of interim custody as
the parties were ordered to “return for a review on December 8, 2022[.]” A final judgment,
however, must be precise, definite, and certain. See Adams v. Adams, 18-1153 (La.App. 1 Cir.
2/22/19), 272 So.3d 577. We point out that this court retains discretion to consider non-appealable
matters under its supervisory jurisdiction. See Stelluto v. Stelluto, 05-0074, p. 7 (La. 6/29/05), 914
So.2d 34, 39 (“The Louisiana Constitution confers appellate jurisdiction upon the courts of appeal
over ‘all civil matter’ and ‘all matters appealed from family and juvenile courts’ and supervisory
jurisdiction over ‘cases which arise within its circuit.’ La.Const. art. V, § 10(A).”). To the extent
the judgment under review, in part, lacks definitiveness given its interim status, we consider this
matter under our supervisory jurisdiction. See, e.g., Hoffpauir v. Hoffpauir, 21-473 (La.App. 3
Cir. 2/9/22), 333 So.3d 1262.

5

transportation to and from school during the periods of Ms. Dellafosse’s physical

custody; and in 3) failing to designate a domiciliary parent.

DISCUSSION

Legal and Physical Custody

Mr. Rigmaiden does not question the trial court’s denial of his initial request

for an award of ex parte sole custody. He instead questions the trial court’s award

of joint custody, arguing that sole custody would have been more appropriate upon

balancing of the factors of La.Civ.Code art. 134. He alternatively suggests that this

court maintain the award of joint custody but that the schedule of physical custody

be amended to award Ms. Dellafosse physical custody every other weekend. We

find merit in this latter position and, accordingly, amend the judgment below.

On review, we are mindful that a trial court’s factual findings as to custody of

a child will not be disturbed absent manifest error. Joubert v. Joubert, 19-349

(La.App. 3 Cir. 11/13/19), 285 So.3d 7. As the trial court is in a superior position to

assess the credibility of witnesses and the best interests of the child upon

consideration of the testimony and evidence, an appellate court will not disturb a

custody award unless an abuse of discretion is clearly shown. Id.

When, as here, the underlying custody decree is a consent judgment, rather

than a considered decree, the party seeking modification of the decree must prove

that 1) there has been a material change of circumstances since the custody decree

was entered, and 2) the proposed modification is in the best interest of the child.

Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731; Joubert, 285 So.3d 7.

The first element of the burden of proof is clear. Circumstances have

materially changed since the parties entered into the initial consent judgment. Mr.

Rigmaiden was granted interim sole custody of Z.R. in the face of exigent

6

circumstances requiring her relocation to Louisiana. At the time of trial, Z.R. had

been in his sole care with Ms. Dellafosse granted increasing responsibility and

visitation as seen in the schedules set forth in the consent judgments of June 30, 2021

and September 18, 2021. Testimony indicated that Z.R. had done well while in Mr.

Rigmaiden’s care.

Mr. Rigmaiden, however, was further required to prove that his request for

permanent sole custody was in the child’s best interest upon consideration of the

factors of La.Civ.Code art. 134. Following review, we find no abuse in discretion

in the trial court’s determination that a return to joint custody is warranted. However,

as seen below in consideration of the factors, we find that the trial court abused its

discretion in the manner in which it fashioned the physical custody schedule.

Louisiana Civil Code Article 134(A) provides a nonexclusive list of pertinent

best interest factors as follows:

(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.

7

(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.

We consider each of these in turn in reference to the trial court’s finding and in light

of the evidence presented at trial.

Potential for Abuse

As remarked upon by the trial court, “there’s never been an allegation of abuse

by either party[.]” Mr. Rigmaiden concedes as much in his brief to this court, stating

that this first factor is inapplicable to either party.

Love, Affection, and Other Emotional Ties Between Each Party and the Child

Next, the trial court assessed each party equally in this regard and the record

does not demonstrate otherwise.

Capacity and Disposition to Give the Child Love, Affection, and Spiritual Guidance
and to Continue the Education and Rearing of the Child

The trial court again found the parties to be “equal” as to this factor, and the

record does not dictate a contrary finding. The record is, however, largely silent on

8

this factor as Z.R. did not testify, and the parties were otherwise focused on the issues

of stability and safety. Both parties generally expressed their desire to provide Z.R.

with a secure environment and to facilitate her education.

We note that, in his brief, Mr. Rigmaiden suggests that the parties were “equal”

on this factor “until Jamie Rigmaiden was compelled to file the ‘Motion to Maintain

Education at Moss Bluff Education’ on September 2, 2022 after Sloane Dellafosse

removed the child from Moss Bluff Elementary and placed her into home schooling.”

While Mr. Rigmaiden may have a valid concern, the referenced pleading was filed,

and its underlying facts occurred, after the judgment was rendered in this case and

are outside of the appellate record. Accordingly, we do not consider that occurrence

as an appellate court has jurisdiction to “render any judgment which is just, legal,

and proper upon the record on appeal.” La.Code Civ.P. art. 2164 (emphasis added).

An appellate court has no authority to consider facts or evidence referred to in briefs

that are outside of the record. Kott v. Kott, 20-0873 (La.App. 1 Cir. 4/16/21), 324

So.3d 165; Dixon v. City of Alexandria, 16-880 (La.App. 3 Cir. 5/31/17), 222 So.3d

739. For this reason, we do not disturb the trial court’s assessment of the parties’

relatively equal position with regard to this factor.

Capacity and Disposition of Each Party to Provide the Child with Food, Clothing,
Medical Care, and Other Material Needs

As for the parties’ respective ability to provide material needs, the trial court

observed that Ms. Dellafosse “has gone up and down[,]” whereas Mr. Rigmaiden

has remained steady.” The trial court continued, however, suggesting that Ms.

Dellafosse “has gotten herself together … at this point[.]” Our review indicates that

the trial court correctly recognized Ms. Dellafosse’s improvement in her financial

circumstances but failed to appreciate and otherwise evaluate the tenuousness of her

9

situation. An appropriate recognition of her late developing financial position

patently favors Mr. Rigmaiden on this point.

Namely, Ms. Dellafosse explained that she had held a position as a server at

a restaurant for a month prior to trial. While Ms. Dellafosse explained to the trial

court that she liked the position and that it offered her a degree of flexibility, she

further admitted that she “had at least five or six jobs since October of 2021[.]”

Moreover, by a child support order of August 26, 2021, Ms. Dellafosse was

ordered to pay $187 in monthly child support. Yet, at the time of the May 2022 trial,

she had only attempted to make one monthly payment in the amount of $150, doing

so only on the month of trial and only through a State “portal.” She explained that

she attempted to make the payment in that fashion as she thought it “was the

procedure.” When asked why she had waited to make the payment, she explained

that: “[I]t’s not until this month that I’ve become stable enough or had enough

stream of income to be able to start paying any child support. But as soon as I did,

I made some kind of payment.”

Mr. Rigmaiden, in contrast, testified regarding his steady employment as a

restaurant manager at a casino. He confirmed that he had not received any child

support from Ms. Dellafosse and that she had not assisted with Z.R.’s medical

expenses.

Plainly, although the trial court correctly observed that Ms. Dellafosse has

improved her financial position, she has failed to demonstrate any pattern suggesting

an ability, other than an aspirational one, to provide Z.R. with material needs.

Simply, the one month of greater financial stability does not equate to Mr.

Rigmaiden’s past two years of providing for the totality of Z.R.’s care. This factor

clearly favors Mr. Rigmaiden.

10

Length of Time the Child has lived in a Stable, Adequate Environment and the
Desirability of Maintaining Continuity of that Environment

The trial court explained that this factor “tilted” in Mr. Rigmaiden’s favor,

noting that the child had been with Mr. Rigmaiden “for the last two years.” The trial

court suggested that the period of stability was “all [she had] to go on” and otherwise

reasoned that, before the two-year period, “when she was with mom and mom was

doing well, she was - - you never worried about her was basically the testimony that

was given here.” The trial court’s assessment of the evidence only “tilting” in favor

of Mr. Rigmaiden is at odds with the evidence.

First, the trial court noted that, while Z.R. was with mom “and mom was doing

well,” Mr. Rigmaiden had no concerns about Z.R. (Emphasis added.) The trial court

failed to account for the fact that when Ms. Dellafosse was not “doing well,” the

mother and child experienced homelessness and, when Ms. Dellafosse was placed

into a mental health facility, Z.R. was placed in the care of relatives. For a year, Z.R.

lived with Ms. Dellafosse’s aunt. It was during that period—when Z.R. was in Aunt

Samantha’s care—and when Ms. Dellafosse was doing well that he felt that Z.R.

was safe.5 Mr. Rigmaiden explained that each time he learned that Ms. Dellafosse

and Z.R. were not in a stable position, he would ask for Z.R. but Ms. Dellafosse

would not consent for Z.R. to live with him. He pointed out that Ms. Dellafosse was

the domiciliary parent at that time. And it is important to recall that Z.R. finally

came into Mr. Rigmaiden’s sole care when Ms. Dellafosse was arrested.6 Z.R. was

5
Ms. Dellafosse represented herself at trial and cross-examined Mr. Rigmaiden. She
questioned him on his concern for Z.R.’s safety, and he explained: “She was safe with Sam, and
there were periods of time when she was safe with you, but it was just so unpredictable, you know.”
6
The parties seemingly disagree about the circumstances under which Z.R. came into the
care of child services in Alaska. Mr. Rigmaiden explains that he was informed that Ms. Dellafosse
was arrested for DUI, whereas Ms. Dellafosse suggested in her cross-examination of Mr.

11

briefly taken into the care of Alaska child services before Mr. Rigmaiden could

travel to Alaska to pick her up.

While Ms. Dellafosse testified that she now has a two bedroom home for Z.R.,

she acknowledged that she had been in the residence for slightly less than two

months. She admitted that, before her present living situation, she had six or seven

residences since returning to Louisiana in 2020 as it had been “very difficult to find

housing and no homeless outreach services.” She thus explained that she had found

it “very difficult to maintain housing while trying to establish new employment and

establish new residency, and since I have little to no family support here, it was a bit

difficult to find stability, but I have that now.” Again, however, that stability is

newfound as evidenced by Mr. Rigmaiden’s testimony that Z.R. informed him in

March 2022, only two months before trial, that she had been with her mother at a

shelter for the homeless.

In contrast to the trial court’s suggestion that this factor “tilts” in favor of Mr.

Rigmaiden, the record indicates that this factor is clearly and obviously in his favor.

He has been steadily employed, owns a home, has a wife who cares for Z.R. when

he is at work, and has a family network in the area for assistance when needed. Mr.

Rigmaiden has a vehicle, whereas Ms. Dellafosse has no transportation and relies,

at times, on ride sharing services. Z.R. has been in Mr. Rigmaiden’s care for two

Rigmaiden that she suffered a “psychotic break” and was hospitalized. Ms. Dellafosse’s criminal
record, however, includes a DUI arrest and conviction, as discussed below.

Mr. Rigmaiden, however, introduced into evidence a criminal event listing for Ms.
Dellafosse. A “6/27/2020” entry lists an “offense” for “DUI – BAC .08+ Percent (Class A
Misdemeanor)” and a corresponding July 20, 2021 disposition to the charge as “Guilty Conviction
after Guilty Plea.” The record also lists a “6/27/2020” charge for the offense of “Violate
Conditions of Release for Mid (Class B Misdemeanor)” which was also disposed of by “Guilty
Conviction after Guilty Plea.” Finally, the prosecution dismissed a “6/27/2020” charge of “Drive
w/Lick Can/Rev/Sus for Crim Offense (Class A Misdemeanor).”

12

years with Ms. Dellafosse exercising only limited periods of visitation. Plainly,

continuity of the stable environment offered by Mr. Rigmaiden is desirable, a point

underlying our discussion below about the amendment to the physical custody

schedule detailed below.

Permanence, as a Family Unit, of the Existing and Proposed Custodial Home or
Homes

The trial court again suggested that the parties were similarly situated under

this factor, stating that “you all are separated, so you each have your family unit in

your own right.” Ms. Dellafosse has moved from place to place, only establishing

what she represents is more stable housing in the two-month period before trial. Two

months of stable housing does not translate into stability when taken in the context

of Ms. Dellafosse’s history of residency. The fact that she also has an outstanding

warrant in another state should have been considered in the trial court’s evaluation

of this factor. On the other hand, Mr. Rigmaiden owns his home, which he shares

with his wife, his other child, and Z.R. He also has the support of an extended family

in the area. In contrast to the trial court’s finding, the record dictates a finding that

this factor favors Mr. Rigmaiden.

Moral Fitness of Each Party, Insofar as it Affects the Welfare of the Child

On this point, the trial court stated only that, “never a doubt, as I’ve said

previously, morality was never an issue.” Mr. Rigmaiden’s counsel concedes this

point, writing in the appellant’s brief that “there was a tie between the parties.”

History of Substance Abuse, Violence, or Criminal Activity of Any Party

Mr. Rigmaiden introduced a record of Ms. Dellafosse’s “criminal history” in

Alaska, including charges and a conviction by guilty plea related to the June 2020

DUI arrest leading to Mr. Rigmaiden’s sole custody of Z.R. The criminal history

13

documents a number of charges, including a prior, August 10, 2019 offense of

“Operating Under the Influence (Misdemeanor – Not Classified)” which was

disposed of by a “Guilty Conviction After No Contest Plea.” On that same date, a

charge of “Violate Conditions of Release” was also disposed of by “Guilty

Conviction After No Contest Plea[.]” The prosecution dismissed a corresponding

charge of refusal to submit to a chemical test. The criminal history further lists a

remaining charge of a “probation/parole violation” and includes no disposition.

With regard to pending charges, Ms. Dellafosse spoke at trial about an outstanding

warrant that she is attempting to have resolved.

Mr. Rigmaiden also submitted documentation from a news site listing April

2021 arrests in California which indicated that “30-year old Sloane Dellafosse was

arrested in Los Angeles County (Los Angeles Police) on April 9th on Suspicion of

Unlicensed Sale/Loan Trade of Firearm.”

While the trial court acknowledged the Alaska criminal history, the trial court

explained that “Everything that I read with regard to [the] Alaska issue and – even

the last page discusses that there was a plea of guilty.” The Alaska “issue” however

related to multiple charges as well as multiple convictions and must be accounted

for in the factor addressing the parties’ criminal activity. The trial court also

seemingly discounted the outstanding warrant, remarking that it “appears that that

issue either has been resolved or will be resolved shortly.” It was nonetheless

pending at the time of the trial with no certain resolution provided other than Ms.

Dellafosse’s suggestion that a new public defender was working on the situation.

Given the presence of this activity, and the lack of evidence regarding any

criminal history on the part of Mr. Rigmaiden, it is clear that the trial court failed to

properly assess this factor, one that overwhelmingly weighs in favor of Mr.

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Rigmaiden. Although the parties did not testify regarding Ms. Dellafosse’s

substance abuse, it merits consideration that Ms. Dellafosse’s criminal history

reflects that she was twice convicted of DUI, one of which involved the dismissal of

a separate charge of “Assault-Recklessly Cause Injury.” Again, Mr. Rigmaiden

briefly remarked on his further discovery that Ms. Dellafosse was arrested in

California for a firearm-related offense.

In light of that history, it is apparent that this factor favors Mr. Rigmaiden.

Mental and Physical Health of Each Party

The trial court did not separately discuss this factor in ruling. It is clear,

however, that Ms. Dellafosse’s mental health is central to this case and central to the

unstable circumstances by which Z.R. came into Mr. Rigmaiden’s sole custody.

Ms. Dellafosse acknowledged her mental health difficulties and her diagnoses

of Bipolar II, PTSD, borderline personality disorder, and severe depression. At one

point, she entered into inpatient treatment after experiencing suicidal ideation. Ms.

Dellafosse explained that this history, along with the perception of lack of family

support, lead to periods of homelessness and the necessity for Z.R. to live with others

at times. Ms. Dellafosse testified that she continues to pursue therapy and explained

that she will again pursue medication after she starts receiving Medicaid. It is crystal

clear, considering the medical and criminal record of Ms. Dellafosse, that at the time

of the trial she had not demonstrated a history of mental or emotional stability. It is

in the best interest of a child to be parented by a mentally stable adult. While Ms.

Dellafosse may be on her way, and we hope that she gets there, at the time of this

trial the record does not support such a finding. Therefore, this factor weighs heavily

in favor of Mr. Rigmaiden.

15

Home, School, and Community History of the Child

In assessing this factor, the trial court merely chronicled the child’s history of

having lived in Baton Rouge before moving to Alaska, and then a return to Louisiana

for the “last two years[.]” The trial court did not comment upon the fact that the

period in Alaska was tumultuous with Ms. Dellafosse and Z.R., by extension, having

an itinerate, unstable lifestyle. Since coming into Mr. Rigmaiden’s sole care in

Louisiana, Z.R. lives in the home owned by her father and stepmother and is on the

honor roll at school. Ms. Dellafosse, in contrast, has aspirational goals for Z.R.’s

schooling and extracurricular activities, but again, had only been in her current home

for a few weeks at the time of trial. In short, the record reflects that the past two

years have offered the only period of stability in Z.R.’s life. This factor obviously

favors Mr. Rigmaiden.

Reasonable Preference of the Child

As noted by the trial court, Z.R. did not testify and neither party introduced

evidence in this regard.

Willingness and Ability of Each Party to Facilitate and Encourage a Close and
Continuing Relationship Between the Child and the Other Party, Except When
Substantial Evidence of Specific Abusive, Reckless, or Illegal Conduct

The trial court remarked that this factor presents “a problem” as Mr.

Rigmaiden “hasn’t testified that he was concerned about [Z.R.] being safe when in

Sloane’s care, other than the time that they were in Alaska.” The trial court did not

address the foundational inquiry of the factor, i.e., whether the parties encourage the

child’s relationship with the other party.

In this regard, the record is replete with Mr. Rigmaiden’s facilitation of Ms.

Dellafosse’s ongoing relationship with Z.R. despite Ms. Dellafosse’s challenging

circumstances. Although he had sole custody of Z.R., Mr. Rigmaiden consented to

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Ms. Dellafosse’s increased periods of responsibility and visitation. Ms. Dellafosse

was initially granted daytime visitation, but Mr. Rigmaiden later joined in a consent

judgment granting overnight, weekend visitation. Mr. Rigmaiden allowed Ms.

Dellafosse to maintain that schedule, despite her reluctance to provide her address

and despite Z.R. telling him that at times she and her mother stayed at a hotel or a

homeless shelter. The latter such instance purportedly occurred in March 2022, only

two months before trial. Mr. Rigmaiden further allowed Ms. Dellafosse’s family to

see Z.R. when they visited from Alaska and has asked Z.R.’s school to provide Ms.

Dellafosse with access to Z.R.’s school records.

Contrary to the trial court’s suggestion that Mr. Rigmaiden failed to express

concerns for Z.R.’s safety, Mr. Rigmaiden explained that he filed the petition for

sole custody upon hearing that Ms. Dellafosse informed Z.R. that she would travel

to Louisiana and return to Alaska with the child. Mr. Rigmaiden explained that he

could not let that happen because Z.R. was not safe in that situation. While Mr.

Rigmaiden acquiesced in Ms. Dellafosse’s visitation with Z.R., he explained that it

was only upon learning the extent of Ms. Dellafosse’s criminal history that he began

to feel that Ms. Dellafosse’s visitation with Z.R. should be supervised.

Given Mr. Rigmaiden’s documented efforts, we find that the trial court

manifestly erred in failing to recognize that Mr. Rigmaiden has accommodated

Z.R.’s continuing relationship with her mother as anticipated by this factor.

Distance Between the Respective Residences of the Parties

As noted by the trial court, this factor is “not an issue[,] as both parties live in

Lake Charles.

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Responsibility for the Care and Rearing of the Child Previously Exercised by Each
Party

The trial court again explained that this factor is “tilted” in Mr. Rigmaiden’s

favor. The record supports that determination but again merits discussion of Mr.

Rigmaiden’s exponentially superior position in this regard. Ms. Dellafosse’s history

with Z.R. has been interrupted by periods of instability and, at times, has required

assistance from her family for Z.R.’s care. Additionally, the social services of

Alaska had to get involved in the care of the child due to the mental fitness of Ms.

Dellafosse, and/or her criminal history. During her period of custody, Ms.

Dellafosse failed to demonstrate that she could care for Z.R. responsibly. In contrast,

Mr. Rigmaiden cared for Z.R. each summer while the child was living in Alaska and

has been her sole custodian for the two years prior to the trial, doing so without

financial assistance from Ms. Dellafosse.

On review of each of these factors, it is clear that the majority of these factors

favor Mr. Rigmaiden, particularly given the steady and consistent environment he

has offered.

Notwithstanding our recognition that each of the above factors either weigh

heavily in favor of Mr. Rigmaiden or are evenly balanced between the parties, we

find no abuse of discretion in the trial court’s determination that joint custody is

appropriate in this case. Although newfound, Ms. Dellafosse has made strides in

improving the stability she is able to offer Z.R. Mr. Rigmaiden acknowledged as

much in the increased visitation offered by the consent judgment of September 15,

2021 which, despite Mr. Rigmaiden’s sole custody of the child, allowed Ms.

Dellafosse to exercise visitation every other weekend from after Z.R.’s school on

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Friday until Monday morning when school resumed. We accordingly maintain the

trial court’s award of joint custody to the parties.

Given the newness of Ms. Dellafosse’s housing and employment stability, we

find that the trial court abused its discretion in its order that the parties “alternate

physical custody of the minor child in two (2) week intervals[.]” Such constant

upheaval undermines the benefits associated with the two years of stability Mr.

Rigmaiden has offered Z.R. while she has been in his care. Furthermore, until Ms.

Dellafosse demonstrates the appropriate treatment of her mental conditions, this type

of arrangement is not in the best interest of Z.R. Rather, the balance of the best

interest factors of La.Civ.Code art. 134 in Mr. Rigmaiden’s favor indicates that he

be assigned the larger share of the physical custody schedule.

Moreover, given Ms. Dellafosse’s acknowledgement that her mental health

and living situation have been fluid up until the short period immediately before trial,

we find that the best interest of the child further requires that Ms. Dellafosse’s

physical custody must be supervised, at least until Ms. Dellafosse’s has experienced

a longer period of stability.7

Accordingly, we amend the physical custody schedule and order that Ms.

Dellafosse shall enjoy supervised physical custody of Z.R. on alternating weekends,

beginning on Friday after school until Monday when school resumes. In the event

school is not in session, Ms. Dellafosse shall enjoy supervised physical custody

beginning on Friday at 2:30 p.m. and ending on Sunday at 5 p.m. This arrangement

largely tracks the physical custody schedule the parties agreed to in the consent

7
We leave the specifics of the supervision for the trial court’s determination on remand.
The appellate record is silent as to the parties’ potential resources for supervision other than the
June 30, 2021 consent judgment requiring that Ms. Dellafosse’s visitation “shall be at the residence
of Brenda Dellafosse …, Lake Charles, LA.”

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judgment signed September 15, 2021. Except for the single incidence of Ms.

Dellafosse’s failure to return the child in accordance with the schedule which

resulted in a finding of contempt of court, the parties appear to have cooperatively

exercised physical custody of the child in accordance with the above schedule. We

therefore amend the judgment in this regard and, below, remand the matter to the

trial court for the recasting of judgment and imposition of a specific implementation

order in keeping with La.R.S. 9:335, as discussed below, and in keeping with the

ruling here. The trial court’s judgment is to reflect the alternating weekend schedule

for the exercise of Ms. Dellafosse’s physical custody and to include the physical

custody schedule for holidays and the summer months upon consideration of the

parties’ needs.

Domiciliary Parent

Moreover, as noted by Mr. Rigmaiden, the trial court failed to designate a

domiciliary parent in the judgment of July 18, 2022. Reference to the record further

reflects a general absence of designation of legal authority and responsibility.

Louisiana Revised Statutes 9:335 provides however, that:

A. (1) In a proceeding in which joint custody is decreed, the court
shall render a joint custody implementation order except for good
cause shown.

(2)(a) The implementation order shall allocate the time periods
during which each parent shall have physical custody of the child so
that the child is assured of frequent and continuing contact with both
parents.

(b) To the extent it is feasible and in the best interest of the child,
physical custody of the children should be shared equally.

(c) The implementation order shall include a provision that when
either party is required to evacuate this state with a minor child because
of an emergency or disaster declared under the provisions of R.S.
29:721 et seq., or declared by federal authority and it becomes
impossible for the parties to exercise custody as provided in the

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judgment, the parties shall engage in continuous communication
regarding the safe evacuation of the child, the location of the child
during and after the emergency or disaster, and an interim custody plan
for the child until the custody provisions of the judgment can be
resumed.

(3) The implementation order shall allocate the legal authority
and responsibility of the parents.

B. (1) In a decree of joint custody the court shall designate a
domiciliary parent except when there is an implementation order to the
contrary or for other good cause shown.

(2) The domiciliary parent is the parent with whom the child shall
primarily reside, but the other parent shall have physical custody during
time periods that assure that the child has frequent and continuing
contact with both parents.

(3) The domiciliary parent shall have authority to make all
decisions affecting the child unless an implementation order provides
otherwise. All major decisions made by the domiciliary parent
concerning the child shall be subject to review by the court upon motion
of the other parent. It shall be presumed that all major decisions made
by the domiciliary parent are in the best interest of the child.

C. If a domiciliary parent is not designated in the joint custody
decree and an implementation order does not provide otherwise, joint
custody confers upon the parents the same rights and responsibilities as
are conferred on them by the provisions of Title VII of Book I of the
Civil Code.

(Emphasis added.) Construing La.R.S. 9:335, the supreme court has explained that

the provision “manifests the legislature’s clear intent to establish a custodial system

in which a child has a domiciliary parent and no more than one such parent. The

text is clear. Although each parent can share physical custody, the court can

designate only a single domiciliary parent.” Hodges v. Hodges, 15-0585, p. 9 (La.

11/23/15), 181 So.3d 700, 706 (citations omitted).

Given the judgment’s silence as to designation of a domiciliary parent, it is

difficult to discern whether the trial court sought to place the parents in a position of

equal responsibility or whether this was an error by omission. In any event, however,

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the record establishes that the designation of a domiciliary parent and issuance of an

implementation order are critical in order to eliminate discord and uncertainty in

Z.R.’s rearing.8 As seen above, the best interest of the child analysis firmly dictates

that Mr. Rigmaiden be designated the domiciliary parent given his demonstrated

stability and consistency of environment. Ms. Dellafosse has not yet offered a

similar environment as suggested by our order that the exercise of her physical

custody be supervised. We, therefore, below designate Mr. Rigmaiden as

domiciliary parent and order that the trial court’s judgment on remand include that

designation.

We remand this matter and direct the trial court to enter an implementation

order reflective of Mr. Rigmaiden’s status as the domiciliary parent as well as the

schedule of shared physical custody discussed above, the parties’ emergency

evacuation contingency plan, and the allocation of the parties’ legal authority and

responsibilities. See La.R.S. 9:335(A)(2) and (3).

DECREE

The trial court’s judgment of July 18, 2022 is affirmed to the extent it grants

the parties, Jaime Rigmaiden and Sloane Dellafosse, joint custody of their minor

child, Z.R., born April 23, 2012. The judgment is amended to include designation

of Jaime Rigmaiden as the domiciliary parent of Z.R.

The judgment of July 18, 2022 is reversed with regard to the physical custody

schedule. The judgment is amended to reflect that Sloane Dellafosse is to enjoy

8
In his brief to this court, Mr. Rigmaiden suggests that the failure to include a domiciliary
parent has proven unworkable in the time period since the rendition of the judgment under review.
Namely, he contends that the parties have encountered problems in decision making regarding
Z.R.’s schooling and in transportation between alternating physical custody. These occurrences,
however, are not reflected in the appellate record under review and are therefore not properly
considered here. See Dixon, 222 So.3d 739.

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supervised physical custody of Z.R. every other weekend beginning Friday after

school until Monday when school resumes. In the event school is not in session, Ms.

Dellafosse shall enjoy supervised physical custody beginning on Friday at 2:30 p.m.

and ending on Sunday at 5 p.m. This matter is remanded for further designation of

the terms of the supervision required for Ms. Dellafosse’s exercise of her physical

custody, further delineation of the physical custody schedule with regard to holidays,

and for a specific implementation order in keeping with La.R.S. 9:335. The

implementation order shall include the parties’ emergency evacuation contingency

plan, and the allocation of the parties’ legal authority and responsibilities. See

La.R.S. 9:335(A)(2) and (3).

Costs of this proceeding are assessed to Appellee Sloane Dellafosse.

AFFIRMED IN PART;
REVERSED IN PART AND RENDERED. REMANDED.

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