Wayne Gonzales Versus Melissa Gonzales ( 2021 )

WAYNE GONZALES NO. 21-C-172
VERSUS FIFTH CIRCUIT
MELISSA GONZALES COURT OF APPEAL
STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 805-162, DIVISION "J"
HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING
July 02, 2021
STEPHEN J. WINDHORST
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Robert A. Chaisson, and Stephen J. Windhorst
AFFIRMED
SJW
FHW
RAC
COUNSEL FOR PLAINTIFF/RESPONDENT,
WAYNE GONZALES
Yazan Rantisi
Brett Bajon
COUNSEL FOR DEFENDANT/RELATOR,
MELISSA GONZALES
Richard L. Ducote
Victora McIntyre
WINDHORST, J.
Defendant, Melissa Gonzales, seeks review of the trial court’s March 25, 2021
ruling that La. C.E. art. 1101 B(2)’s relaxed evidentiary standard applies in a hearing
on both custody issues and on a petition for protection from abuse pursuant to La.
R.S. 46:2131, et seq. For the reasons which follow, we affirm the trial court.
FACTS and PROCEDURAL HISTORY
On October 27, 2020, Ms. Gonzales filed an objection to the domestic
commissioner’s granting of an order of protection pursuant to La. R.S. 46:2131 on
behalf of Wayne Gonzales and the couple’s minor child, K.G., against Ms. Gonzales,
and awarding Mr. Gonzales sole custody and Ms. Gonzales supervised visitation.
At the district court de novo hearing on Ms. Gonzales’ objection, the parties
disagreed as to whether La. C.E. art. 1101 B(2) applies, allowing for a relaxation of
certain exclusionary rules with regard to testimony.1 Mr. Gonzales argued that
because custody of the child is also at issue, this rule applies. Ms. Gonzales argued
that the rule should not apply because there are serious implications resulting from
the petition for protection from abuse order, including a possible prohibition of
possession of a firearm and the potential for criminal prosecution if she violates the
order, which requires stricter due process standards and safeguards.
The trial court ruled that a relaxed evidentiary standard pursuant to La. C.E.
art. 1101 B(2) applies because regardless of whether the child custody issue is
ancillary to the initial Petition for Protection from Abuse, the court must decide
whether sole custody and supervised visitation should be maintained, which requires
a best interest of the child analysis and custody determination implicating the La.
C.E. art. 1101 B(2) relaxed evidentiary rule.
1 At the hearing, the issue arose during the testimony of Ms. Rebecca Helmer, who is Ms.
Gonzales’ mother. Mr. Gonzales’ attorney was questioning Ms. Helmer regarding incidents the
minor child spoke about to her. Ms. Gonzales’ attorney objected to the questions because they
called for hearsay responses.
21-C-172 1
LAW and ANALYSIS
The question of whether the relaxed evidentiary standard of La. C.E. art.
1101B(2) applies when a child custody determination is tried in the same evidentiary
hearing with a Petition for Protection from Abuse based on La. R.S. 46:2131 appears
to be a res nova issue.
A trial court’s determinations regarding what evidence is admissible for the
trier of fact to consider will not be overturned absent clear error. Folse v. Folse, 98-
1976 (La. 6/29/99), 738 So.2d 1040. Considering the following, we cannot say the
trial court abused its discretion with regard to this evidentiary ruling.
First, La. C.E. art. 1101 B(2) provides that in child custody cases, the
principles underlying the Code of Evidence shall serve as guides to the admissibility
of evidence, and the specific exclusionary rules and other provisions shall be applied
only to the extent that they tend to promote the purposes of the proceeding. The
“relaxed evidentiary standard [is] ... used to advance the purposes of the custody
proceeding” because “the Louisiana legislature has concluded that the best interests
of children are not served by strict application of the rules of evidence.” S.L.B. v.
C.E.B., 17-0978 (La. App. 4 Cir. 7/27/18), 252 So. 3d 950, 966; writ denied, 18-
1442 (La. 11/20/18), 256 So.3d 992, citing Bowden v. Brown, 48,268, p. 17 (La.
App. 2 Cir. 5/15/13), 114 So.3d 1194, 1205.
Ms. Gonzales’ application, transcript, and attachments indicate that custody
of the child is clearly the primary issue in this matter. Ms. Gonzales’ objection
pertained to both the granting of the Uniform Abuse Prevention Order, as well as the
orders of sole custody to Mr. Gonzales and supervised visitation for Ms. Gonzales.
At the trial court hearing, the parties indicated that the trial judge would consider
both the abuse allegations and the consequential custody placement of the child.
Notwithstanding Ms. Gonzales’ argument that custody is ancillary to the relief
sought in the petition for protection, the trial court will ultimately decide whether it
21-C-172 2
is in the child’s best interest to remain in Mr. Gonzales’ sole custody and only have
supervised visitation with Ms. Gonzales.
Second, Louisiana courts have long held that the paramount consideration in
any determination of child custody is the best interest of the child. C.M.J. v. L.M.C.,
14-1119 (La. 10/15/14), 156 So.3d 16, 28. Every child custody case must be
considered based on its own particular facts and relationships involved, with the
paramount goal of reaching a decision that is in the best interest of the child. Lepine
v. Lepine, 17-45 (La. App. 5 Cir. 6/15/17), 223 So.3d 666, 676. The Louisiana
Supreme Court has pointed out that the trial judge sits as a sort of fiduciary on behalf
of the child, and must pursue actively that course of conduct which will be of the
greatest benefit to the child. C.M.J. v. L.M.C., 156 So.3d at 28-29. Given that the
best interests of the child is of paramount consideration, and the relief sought in the
petition for protection from abuse necessarily involves a custody determination, the
trial court was within its discretionary authority in ruling that a relaxed evidentiary
standard applies here.
Third, Louisiana has various statutory provisions which protect children in
abusive situations, including certain provisions of the Louisiana Children's
Code; La. R.S. 9:361 et seq., the Post Separation Family Violence Relief Act
(“PSFVRA”); and La. R.S. 46:2131, et seq, the Protection From Family Violence
Act/Domestic Abuse Assistance Act. Teutsch v. Cordell, 44,565 (La. App. 2 Cir.
7/1/09), 15 So.3d 1272. The Louisiana Supreme Court, considering a case involving
alleged sexual abuse of a child, held that La. C.E. art. 1101 B’s relaxed evidentiary
standard applies to custody determinations related to PSFVRA litigation. Folse, 738
So.2d at 1047-48. In Folse, the Supreme Court applied La. C.E. art. 1101 B’s relaxed
evidentiary standard, reasoning that the relaxed standard in PSFVRA cases was
consistent with the legislative intent to promote the purposes of custody
determinations and public policy regarding the welfare of children. Id.21-C-172 3
Although the foregoing statutory provisions do not solely address the issue of
child custody, the legislative purpose of provisions to protect children from abuse is
necessarily relevant to the trial court’s physical custody determination and
placement of those children who are to be protected.
DECREE
Considering the Louisiana Supreme Court’s guidance in Folse, supra, and the
legislative purpose of the statutory provisions intended to protect minor children
from abuse, we find that the trial court’s ruling applying the relaxed evidentiary
standard of La. C.E. art. 1101 B in a hearing on both custody motions and a petition
for protection from abuse pursuant to La. R.S. 46:2131 was within the trial court’s
discretion. We reach this result not because this is a hearing on a petition for
protection for abuse, but because the hearing involves significant custody issues.
Nevertheless, the trial court should exercise its sound discretion in the
appropriate weighing of evidence for the separate issues, i.e., in considering the
abuse petition, less weight should be given to evidence which might be otherwise
inadmissible if tried separately.
AFFIRMED
21-C-172 4
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JULY 2, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
21-C-172
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE)
YAZAN RANTISI (RESPONDENT) RICHARD L. DUCOTE (RELATOR)
MAILED
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