Courtland James Normand v. Brittany Marie Rizzo

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-62

COURTLAND JAMES NORMAND

VERSUS

BRITTANY MARIE RIZZO

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 273,438
HONORABLE MONIQUE FREEMAN RAULS, DISTRICT JUDGE

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GARY J. ORTEGO
JUDGE

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Court composed of Van H. Kyzar, Sharon Darville Wilson, and Gary J. Ortego,
Judges.

REVERSED AND RENDERED.

Carla T. Haney
Haney Law Firm, LLC
9800 Airline Hwy., Suite 251
Baton Rouge, LA 70816
(225) 753-2226
COUNSEL FOR DEFENDANT/APPELLANT:
Brittany Marie Rizzo

Courtland James Normand
6735 U.S. 90 East, Lot #105
Lake Charles, LA 70615
IN PROPER PERSON, PLAINTIFF/APPELLEE:
Courtland James Normand

ORTEGO, Judge.

In this child custody matter, the mother, Brittany Marie Rizzo, appeals the

trial court granting visitations as to her minor daughter, TR, to non-parent, Courtland

James Normand. For the following reasons, we reverse and vacate the portions of

the trial court’s judgment related to the non-parent’s visitation schedule and

conditions.

FACTS AND PROCEDURAL HISTORY

This case involves a custody dispute between Brittany Marie Rizzo (Rizzo),

the mother of the minor child TR, and Courtland James Normand (Normand), a non-

parent and previous dating partner of Rizzo, who claims to be the biological father

of TR. Rizzo and Normand were never married, and of critical importance to this

litigation, during the entirety of Rizzo’s relationship with Normand, she was legally

married to another man, Joshua Lawson (Lawson).

The record reflects that Lawson and Rizzo married on March 18, 2006, and

were still legally married at the time of the trial of these proceedings. Although they

were technically married, Rizzo and Lawson ceased living together in 2013. Shortly

thereafter, Rizzo moved in with Normand, and their cohabitation continued until

February of 2022. Rizzo gave birth to TR on April 1, 2019, while living with

Normand, however, because Rizzo was still legally married to Lawson, pursuant to

La.Civ.Code art. 185, Lawson is the presumed father of TR, as he has never

instituted a disavowal.

The evidence shows that the dissolution of Rizzo and Normand’s relationship

was preceded by incidents of domestic violence, and Normand’s escalating abuse

caused Rizzo, with the assistance of family, to flee to Indiana on February 17, 2022.

After relocating to be near her family in Indiana, Rizzo filed for, and on February

28, 2022 was granted, a protective order against Normand.

Meanwhile in Louisiana, Normand filed a petition for paternity and custody

on April 20, 2022. The initial hearing on Normand’s petition was held on July 25,

2022, where the trial court ordered the parties to submit to a paternity test. Rizzo

sought writs in this court, and this court granted her writ and reversed the ruling of

the trial court. Specifically, this court, in an unpublished writ opinion, found that

the trial court erred in ordering the paternity tests, as Normand was precluded from

seeking a blood paternity test pursuant to La.R.S. 9:398.2(A)(2), stating:

We find that the trial court erred in ordering the parties to submit to
paternity testing. In L.J.D. v. M V.S., 16-8 (La.App. 1 Cir. 1/25/17),
212 So.3d 581, the court held that the putative father who failed to file
an action to establish paternity within one year of the child’s birthday
was perempted and that the action no longer existed. “Once a party is
perempted from filing an action to establish filiation under Civil Code
article 198, he is also precluded from seeking blood testing under
La.R.S. 9:398.2(A)(2).” Id. at 588. Accordingly, we reverse and set
aside the trial court’s ruling which ordered paternity testing. In all other
respects, we find no error in the trial court’s ruling.

Normand v. Rizzo, 22-596 (La.App 3 Cir. 10/6/22) (writ unpublished).

Thereafter, a two-day trial was held on January 9, 2023, and March 16, 2023,

as to the issues of custody and visitations of TR. Following the hearing, the trial

court issued its “Considered Judgment” on October 12, 2023, awarding sole custody

to the mother, Rizzo. Although Rizzo was granted sole custody, and finding

Normand to be a non-parent, the trial court further granted Normand certain periods

of graduated visitation, starting with supervised visits with the child in Indiana that

would later be unsupervised, with unsupervised visits to follow in Louisiana.1

In particular, the court awarded Normand supervised periods of weekend

visitation with TR in Indiana in 2023. Normand’s visitation would take place the

first weekend of each month and be supervised by Normand’s mother. During June,

1
This court notes that the trial court in this matter also made a specific finding that Rizzo
was a victim of domestic abuse by Normand.

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July, and August of 2023, Normand would be allowed five days of supervised

visitation in Indiana. Additionally, Normand would be allowed five days of

visitation around Christmas in 2024.

The court further outlined that from April 1, 2024 until April 1, 2029 (the

child’s 10th birthday), the weekend visitation in Indiana would continue

unsupervised, and Normand would also be allowed three week-long visits (one in

June, July, and August) over the summer. These visits would be allowed to take

place in Louisiana, and an unsupervised pre-Christmas visitation period in Louisiana

would be allowed.

After the child’s 10th birthday, Normand’s monthly, unsupervised weekend

visits in Indiana would continue. Additionally, his visitation privileges would be

extended to a two-month-long, unsupervised visit during the summer in Louisiana,

with Rizzo permitted custodial periods with the child every other weekend, to take

place in Louisiana. The judgment also provides for 10-minute virtual visits between

Normand and TR from 7:00-7:10 pm every other evening.

From this judgment granting Normand visitations, Rizzo appeals.

ASSIGNMENTS OF ERROR

Rizzo assigns three errors on appeal:

(1) The trial court erred in treating Normand as a parent.

(2) The trial court erred by failing to properly analyze this case under the

La.Civ.Code art. 133 substantial harm standard.

(3) The trial court erred by failing to apply La.Civ.Code art. 134(B) to this case

involving domestic abuse perpetrated by Normand.

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STANDARD OF REVIEW

While the standard of review of cases involving custody determinations is

normally manifest error, if legal error is committed, a reviewing court may perform

a de novo review:

Ordinarily, child custody cases are reviewed under the abuse of
discretion standard. Leard v. Schenker, 06-1116, p. 3 (La. 6/16/06), 931
So.2d 355, 357. However, where one or more trial court legal errors
interdict the fact-finding process, the manifest error/abuse of discretion
standard is no longer applicable, and, if the record is otherwise
complete, the appellate court should make its own independent de novo
review of the record and determine the sufficiency of the evidence.
Evans, 97-0541, 97-577 at pp. 6-7, 708 So.2d at 735. A legal error
occurs when a trial court applies incorrect principles of law and such
errors are prejudicial. Tracie F., 15-1812 at 23, 188 So.3d at 247
(citations omitted). Legal errors are prejudicial when they materially
affect the outcome and deprive a party of substantial rights. Id. When a
prejudicial error of law skews the trial court’s finding of a material issue
of fact and causes it to pretermit other issues, the appellate court is
required, if it can, to render judgment on the record by applying the
correct law and determining the essential material facts de novo. Id.

Cook v. Sullivan, 20-1471, pp. 6–7 (La. 9/30/21), 330 So.3d 152, 157.

LAW AND DISCUSSION

We first look at the trial court’s grant of sole custody to Rizzo, and thereafter

examine the visitation schedule imposed by the trial court. For the reasons outlined

below, we find that the trial court correctly awarded sole custody of TR to the mother,

Rizzo, but committed legal error in purportedly analyzing the case pursuant to

La.Civ.Code art. 133, yet imposing a visitation schedule that functions as a de facto

custody award to Normand.

AWARD OF SOLE CUSTODY TO MOTHER, RIZZO:

This court notes that neither Rizzo nor Normand appealed the trial court’s

grant of sole custody of TR to appellant/mother, Rizzo. Thus, the issue of sole

custody of TR awarded to Rizzo is not before this court.

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TRIAL COURT’S AWARD OF VISITATIONS TO NORMAND:

We now turn to the trial court’s award of visitations to Normand, a non-parent.

Appellant’s Argument:

Rizzo contends that the trial court erred in its failure to apply the proper legal

standard and burden of proof as to whether Normand should be awarded any

visitation at all. Rizzo notes that by previous judgment of this court, Normand is

precluded from seeking blood testing to establish paternity under La.R.S.

9:398.2(A)(2), and he is preempted from establishing filiation under La.Civ.Code

art. 198. Article 198 requires that an action to establish paternity must be instituted

within a year of the child’s birthday, which in this case occurred on April 1, 2019.

Further, TR is filiated with another man; therefore, pursuant to La.Civ.Code art. 196,

Normand may not acknowledge the child. As biological paternity has never been

established, and Normand is not the legal or presumed father of the child, Normand

must be treated as a non-parent in this matter.

Rizzo argues that Normand, as a non-parent seeking custody, must meet the

burden of proof under La.Civ.Code art. 133, which states as follows (emphasis

added):

If an award of joint custody or of sole custody to either parent would
result in substantial harm to the child, the court shall award custody
to another person with whom the child has been living in a wholesome
and stable environment, or otherwise to any other person able to
provide an adequate and stable environment.

Rizzo further argues that in custody disputes involving non-parents, if the

non-parent meets his burden of proof under La.Civ.Code art. 133, the trial court must

then look to La.Civ.Code art. 134 to determine the best interest of the child.

Additionally, because this case involves evidence of domestic abuse perpetrated by

Normand upon Rizzo, she contends that La.Civ.Code art. 134(B) would be

applicable. This article provides that in cases involving a history of committing
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family violence, the court shall award visitation in accordance with La.R.S. 9:341,

which requires only supervised visitation between the abusive parent and the child

until the abusive parent proves at a contradictory hearing that he has successfully

completed a court-monitored domestic abuse intervention program.

Alternatively, Rizzo contends if this court determines that Normand has met

his burden under La.Civ.Code art. 133 that sole custody to Rizzo would result in

“substantial harm” to TR, the trial court erred in not properly applying and giving

weight to the Indiana court’s protective order and other evidence presented in this

case involving domestic abuse perpetrated by Normand upon Rizzo. However,

because we find that Normand failed to meet the initial burden under La.Civ.Code

art. 133, specifically, that awarding custody to Rizzo would result in “substantial

harm” to TR, it is not necessary to examine Rizzo’s arguments related to

La.Civ.Code art. 134(B).

Appellee’s Argument:

As Normand has failed to file any answer, memorandum, statement, or brief

in response to Rizzo’s appeal, this court can only assume that Normand’s non-

response and contention is merely that the judgment rendered by the trial court

granting his requested visitations was correct and appropriate.

Analysis- Visitations by Appellee, Normand:

Legal error occurs when a trial court applies incorrect principles of law, and

such errors are prejudicial. Legal errors are prejudicial when they materially affect

the outcome and deprive a party of substantial rights. In this case, we agree with the

Appellant, Rizzo, that the trial court’s rulings, specifically, the visitation schedule

imposed, impinges on Rizzo’s paramount right of custody, care, and control of her

child. We find the trial court legally erred in purporting to analyze this matter

pursuant to La.Civ.Code art. 133, but then fashioning a visitation schedule contrary
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to the dictates of the appropriate article(s) and the relevant jurisprudence, and that

this error was prejudicial. In other words, the court legally erred in devising a

visitation schedule between Normand and TR that does not accurately reflect

Normand’s legal status, as a non-parent, relative to TR.

The paramount consideration in setting visitation rights, whether for non-

custodial parents or non-parents, is in the best interest of the child. Hebert v.

Schexnayder, 12-1414 (La.App. 1 Cir. 2/15/13), 113 So.3d 1097; Troxel v. Granville,

530 U.S. 57, 120 S.Ct. 2054 (2000). A trial court examines the love, affection, and

emotional ties between the parties and the child; the capacity and disposition of

parties to give the child love, affection, guidance, and continuation of educating and

raising the child; and the material needs of the child. Maxwell v. LeBlanc, 434 So.2d

375 (La. 1983). Furthermore, the United States Supreme Court observed in Troxel

that a parent’s preferences should be taken into account when evaluating visitation

with a non-parent:

In an ideal world, parents might always seek to cultivate the bonds
between grandparents and their grandchildren. Needless to say,
however, our world is far from perfect, and in it the decision whether
such an intergenerational relationship would be beneficial in any
specific case is for the parent to make in the first instance. And, if a fit
parent’s decision of the kind at issue here becomes subject to judicial
review, the court must accord at least some special weight to the
parent’s own determination.

Troxel, 530 U.S. at 70, 120 S.Ct. at 2062.

Furthermore, Cook, 330 So.3d 152, which hinged on a custody determination

instead of a visitation schedule, is nonetheless instructive here. That case centered

on a custody dispute between a legal, biological mother and her ex-romantic partner.

The ex-partner had been present for the child’s birth and participated in parenting

for the first few years of the child’s life before the dissolution of the romantic

relationship. Thereafter, the ex-partner sought custody and a visitation schedule. The

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trial court awarded the parent and non-parent joint custody. The Second Circuit

reversed, and the non-parent filed a writ in the Louisiana Supreme Court. The

Louisiana Supreme Court affirmed the appellate court, determining that the trial

court applied the wrong standard, specifically, La.Civ.Code art. 134, which applies

to legal parents, when it should have applied La.Civ.Code art. 133, which applies to

a custody dispute between a parent and non-parent. It remanded the matter to the

trial court with instructions to apply the correct standard to make a custody

determination.

The undisputed evidence shows that Rizzo and TR have resided/lived in

Indiana for over two years, which is a fourteen (14) hour drive from Normand’s

home in Louisiana. Additionally, the trial court found that the evidence shows and

confirms that Normand physically abused Rizzo, the legal parent. Yet, the trial court,

while purporting to analyze this matter pursuant to La.Civ.Code art. 133, the code

article governing custody awards to non-parents, then awarded and fashions a

parental-like liberal visitation schedule contrary to the dictates of the proper codal

article and the relevant jurisprudence.

After a thorough review of the record, we find the trial court’s ruling,

specifically, the visitation schedule imposed, does directly impinges on Rizzo’s

paramount parental right of custody, care, and control of her child. Here, the trial

court devised a visitation schedule between Normand and TR that does not

accurately reflect Normand’s legal status, as a non-parent, relative to TR. We further

find that Normand failed to meet the initial burden under La.Civ.Code art. 133, along

with La.Civ.Code art. 136, thus, the trial court legally erred in functionally treating

Normand as a parent in fashioning this current visitation schedule between Normand

and TR.

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Having found the trial court committed legal error when it applied the

incorrect principles of law to the facts of this case, this court is tasked with

conducting a de novo review of the record and issuing judgment, if the record is

otherwise complete. After careful review, we find that the record does contain

sufficient evidence for this court to complete a de novo determination as to granting

any visitations by Normand, as a non-parent, with TR.

Regarding visitation for a nonparent, La.Civ.Code art. 136 provides in

pertinent part:

B. In addition to the parents referred to in Paragraph A of this Article,
the following persons may be granted visitation if the parents of the
child are not married or cohabitating with a person in the manner of
married persons or if the parents of the child have filed a petition for
divorce:
(1) A grandparent if the court finds that it is in the best interest of the
child.
(2) Under extraordinary circumstances, any other relative, by blood or
affinity, or a former stepparent or step grandparent if the court finds
that it is in the best interest of the child. Extraordinary
circumstances shall include a determination by a court that a parent
is abusing a controlled dangerous substance.

In that Normand is not a grandparent, any other relative by blood or affinity,

or a former stepparent or step grandparent, we thus find that the trial court legally

erred in devising a visitation schedule between Normand and TR that does not

accurately reflect Normand’s legal status, as a non-parent.

Additionally, we find that Normand failed to meet the initial burden under

La.Civ.Code art. 133, and the visitation schedule imposed, does directly impinge on

Rizzo’s paramount parental right of custody, care, and control of her child.

La.Civ.Code art. 136. Thus, we find that the setting of visitation rights for Normand,

a non-parent, is not in the best interest of the child, TR; and the trial court legally

erred in functionally treating Normand as a parent in fashioning this current

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visitation schedule between Normand and TR. Therefore, the trial court’s judgment

granting Courtland James Normand visitations with TR is reversed and vacated.

DECREE

For the reasons stated above, the trial court’s judgment granting Courtland

James Normand visitations with TR is reversed and vacated; and all visitations,

contact and/or communication by Courtland James Normand with TR is

immediately terminated. All costs, including the costs of this appeal, are assessed

against Plaintiff/Appellee, Courtland James Normand.

REVERSED AND RENDERED.

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