Stefanie Nelson Bernard v. Matthew Scott Bernard

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2020 CU 0973
STEFANIE NELSON BERNARD
VERSUS
MATTHEW SCOTT BERNARD
CONSOLIDATED WITH
NO. 2020 CU 0974
LINDA ALLEN
VERSUS
STEFANIE NELSON BERNARD AND MATTHEW SCOTT BERNARD
Judgment Rendered: '
FEB 1 9 2021
Appealed from the
21st Judicial District Court
In and for the Parish of Livingston
State of Louisiana
Case No. 126773 c/ w 153163
The Honorable Jeffery T. Oglesbee, Judge Presiding
Matthew Scott Bernard Defendant/Appellant
Denham Springs, Louisiana In Proper Person
Britney R. Duke Counsel for Plaintiff/Appellee
Baton Rouge, Louisiana Linda Allen
BEFORE: THERIOT, WOLFE, AND HESTER, JJ.
THERIOT, J.
Matthew Scott Bernard appeals the Twenty -First Judicial District Court' s
August 8, 2019 judgment, which designated the custody schedule for his minor
child. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
The following facts are taken in part from a prior appeal, Bernard v.
Bernard, 2018- 1149 ( La. App. 1 Cir. 2/ 12/ 19); 272 So. 3d 561. Matthew Scott
Bernard' and Stefanie Nelson Bernard were married on October 16, 2008 in Texas.
The parties physically separated on August 29, 2009. One child, S. M.B., was born
on October 7, 2009, while the parties were physically separated but still married.
Stefanie filed a petition for divorce on December 30, 2009. A judgment of divorce
was rendered and signed on December 10, 2012.
Stefanie was awarded sole custody of S. M.B. in a considered decree
rendered on March 29, 2010. Although Matthew was awarded reasonable
visitation, it is undisputed that he did not have a significant role in S. M.B.' s life
until December 2015. This is due, at least in part, to Matthew' s incarceration.
Since his release in December 2015, Matthew has maintained regular contact and
visitation with S. M.B. This court previously noted that the record reveals that
Matthew has turned his life around and has become a productive, law-abiding
member of society. Bernard, 272 So. 3d at 562- 63.
S. M.B. has lived most of his life with his maternal grandmother, Linda
Allen. For the majority of that time, S. M.B. lived in Linda' s home with his
mother, Stefanie. However, Stefanie became addicted to drugs after S. M.B. was
born and, in March 2016, six-year- old S. M.B. found his mother unconscious on the
Matthew identified himself as " Scott" in the briefs filed in connection with this appeal.
2 Matthew served a three -and -a -half-year federal prison sentence for bank fraud and was released in December 2015.
Matthew also served two prior prison sentences of unknown durations. According to witnesses, Matthew was
convicted of first degree robbery at the age of 17, nearly 30 years ago. His second conviction was in 2000 for
possession of a firearm by a convicted felon. Bernard, 272 So. 3d at 563 n. 1.
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bathroom floor of Linda' s home, with needles in close proximity. Linda testified
that prior to this she was unaware that Stefanie was using drugs in her home. As a
result of her drug use, Stefanie has not lived in Linda' s home with S. M.B. since
March 2016. Instead, Stefanie has been in and out of drug rehabilitation and/ or
sober living facilities. Bernard, 272 So. 3d at 563.
Due to Stefanie' s addiction, Matthew filed a petition to modify custody in
September 2016, naming Stefanie as a defendant. In his first amending and
supplemental petition to modify custody and rule for contempt, Matthew clarified
that he was seeking sole custody of S. M.B. In response to Matthew' s petition,
Linda filed a petition for child custody against Stefanie and Matthew in which she
sought sole custody of S. M.B. with Stefanie and Matthew to enjoy supervised
visitation.
The matters were consolidated for purposes of determining custody.
Bernard, 272 So. 3d at 563.
The initial custody trial took place in February 2017. After hearing
testimony from Linda, Stefanie, Matthew, and witnesses on Matthew' s behalf, the
trial court entered an interim order granting sole custody to Linda Allen with
reasonable custodial periods in favor of Matthew. Specifically, the trial court
awarded visitation to Matthew on alternating weekends and on Wednesdays
following his weekend visitation. Linda was ordered to keep Matthew and
Stefanie informed of all medical and educational issues concerning S. M.B. and to
include them as authorized persons to receive information from third parties
concerning S. M.B.' s school and educational issues. The trial court acknowledged
Matthew' s significant transformation but expressed concern that removing S. M.B.
from Linda' s home, the only stable home he has ever known, was not in S. M.B.' s
best interest. The trial court awarded custody on an interim basis to enable
Matthew to accept more parental responsibility before custody was determined on
a permanent basis. At the close of the February 2017 proceeding, the court stated
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that it intended to reunite S. M.B. with his parents if they continued to make
improvements. Bernard, 272 So. 3d at 563.
The hearing to review custody and to establish a permanent custody plan
took place on September 28, 2017. The trial court again heard testimony from
Linda, Matthew, and witnesses on Matthew' s behalf concerning S. M.B.' s welfare
and his relationship with Matthew since the February 2017 interim order. At the
conclusion of the hearing, the trial court awarded sole custody to Linda, with
Matthew to enjoy liberal visitation on alternating weekends, Wednesdays,
holidays, and during the first and third weeks of June and July. A detailed
visitation schedule was set forth in the judgment. Stefanie was awarded visitation
as mutually agreed upon by Stefanie and Linda. Linda was again ordered to keep
Matthew and Stefanie informed of all medical and educational issues concerning
S. M.B. and to include them as authorized persons to receive information from third
parties concerning S. M.B.' s school and educational issues. A judgment to this
effect was signed on November 6, 2017. Bernard, 272 So. 2d at 564.
Matthew appealed the November 6, 2017 judgment, arguing that the trial
court erred in awarding custody of S. M.B. to Linda because Linda had failed to
prove that an award of custody to Matthew would result in substantial harm to the
child. Bernard, 272 So. 2d at 564. Following a review of the record, this court
agreed with Matthew and found that the trial court had abused its discretion in
entirely divesting Matthew of custodial rights to his child in favor of a non -parent.
Id. at 566. This court found that the record supported the conclusion that awarding
sole custody to Matthew and removing S. M.B. from Linda' s home would cause
substantial harm to the child, and found that an award of joint custody to Linda and
Matthew would be in the best interest of the child. Id. at 566- 67. Accordingly,
this court awarded joint custody to Linda and Matthew, and appointed Linda as
domiciliary custodian. This court further noted that Linda must confer with
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Matthew when making all major decisions regarding S. M.B. This court then
vacated the remainder of the November 6, 2017 judgment setting forth the
visitation schedule and remanded the matter to the trial court to establish a joint
custody visitation schedule. Id. at 567.
Following remand, the trial court issued a new judgment, which was signed
on August 8, 2019. In the August 8, 2019 judgment, the trial court stated:
While adhering to the remand of the Louisiana First Circuit and
the applicable law regarding the best interest of the child, the court
finds it is in the best interest of the minor child that the prior custodial
schedule be adjusted such that Matthew Scott Bernard is awarded
additional periods of custodial time with the minor child, while also
maintaining a consistent and stable schedule which will service the
best interest of the child in accordance with Louisiana Civil Code
Article 134.
Accordingly, the trial court ordered that Linda and Matthew would have joint legal
custody of S. M.B., with Linda being designated as the domiciliary custodian. The
trial court further ordered that S. M.B. would primarily reside with Linda, and that
Matthew would exercise periods of physical custody on the first, third, and fourth
weekends of each month, commencing on the first, third, and fourth Friday after
school, or 5: 00 p.m. if not in school, and continuing until Sunday at 5: 00 p.m. The
trial court also implemented a right of first refusal regarding the care of the child if
one of the parties was unavailable, established rules for telephone access and
extracurricular activities, and set up a holiday schedule. This appeal by Matthew
followed.
ASSIGNMENT OF ERROR
Matthew asserts one assignment of error:
1) The trial court erred by not awarding him 50/ 50 shared visitation
of the minor child.
STANDARD OF REVIEW
The best interest of the child is the guiding principle in all custody litigation.
La. Civ. Code arts. 131 and 134. Keeping in mind that every child custody case
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must be viewed in light of its own particular set of facts, the trial court is in the
best position to ascertain the best interest of the child given each unique set of
circumstances.
In performing its function of deciding custody cases, the trial court
is vested with vast discretion in matters of child custody and visitation because of
its superior opportunity to observe the parties and the witnesses who testified at
trial. Accordingly, on appellate review, the determination of the trial court
regarding custody is entitled to great weight and should be overturned only when
there is a clear abuse of discretion. Smith v. Tierney, 2004- 2482 ( La. App. 1 Cir.
2/ 16/ 05); 906 So. 2d 586, 590- 91.
DISCUSSION
In his sole assignment of error, Matthew argues that the trial court should
have awarded him with 50/ 50 shared visitation of S. M.B. Matthew asserts that he
has presented overwhelming evidence that he is a loving, able- bodied parent who
can provide a safe, loving, and wholesome living environment for his son, and
there would be no disruption to his son' s daily routine by an award of 50/ 50 shared
visitation. Matthew further alleges that the trial court has continued to weigh in
Linda' s favor in large part due to its close personal relationship with Linda' s
attorney throughout this matter.3
Linda argues that Matthew has failed to allege how the trial court abused its
discretion in reaching its decision regarding custody. She further argues that
Louisiana law does not mandate that the trial court award equal physical custody
when an award of joint custody has been made. Finally, she argues that the record
3 Matthew has attached additional evidence in support of his argument regarding the trial court' s relationship with
Linda' s former attorney, Sherman Mack, to his brief, but much of this purported evidence is not contained within the
record. We cannot consider the documents attached to Matthew' s appellate brief that are not contained within the
record. See La. Code Civ. P. art. 2164; see also Vanguard Vacuum Trucks, L. L. C. v. Mid-America Resources
Corporation, 2017- 0434 ( La. App. 1 Cir. 11/ 1/ 17); 233 So. 3d 87, 89 (" Appellate review is limited to the record").
The record before us does contain Matthew' s motion and order for recusal, as well as Linda' s exceptions to that
motion. A hearing on the motion to recuse and Linda' s exceptions was held on November 12, 2019, before Judge
William J. Burris. Judge Burris granted Linda' s exception of no cause of action and dismissed the motion to recuse.
However, that ruling is not before this court on appeal. See Capital City Press, L.L. C. v. Louisiana State University
System Bd ofSup' rs, 2013- 2001 ( La. App. 1 Cir. 12/ 30/ 14); 168 So. 3d 727, 734 ( appellate review is limited strictly
to the record as it existed at the time the underlying judgment was rendered).
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supports the trial court' s decision and that there is no manifest error in the trial
court' s determination that maintaining a consistent and stable schedule is in the
child' s best interest, nor did the trial court abuse its discretion in determining the
proper allocation of physical custody as set forth in the joint custody plan.
Regarding the joint custody schedule, the trial court' s determination
regarding child custody will not be disturbed absent a clear abuse of discretion.
Givens v. Givens, 2010- 0680 ( La. App. 1 Cir. 12/ 22/ 10); 53 So. 3d 720, 726. To
the extent it is feasible and in the best interest of the child, physical custody of the
children shall be shared equally. Id. at 728; La. R. S. 9: 335. However, the law
does not mandate equal sharing, and the trial court is imbued with much discretion
in the determination of what constitutes physical custody or feasible, reasonable
visitation. The paramount consideration is always the best interest of the child.
Chiasson v. Chiasson, 2009- 1554 ( La. App. 1 Cir. 2/ 12/ 10); 2010 WL 528492, at
2 ( unpublished opinion). Because of the trial court' s mandate and great discretion
for considering the best interest of the child, joint custody does not mean a fifty-
fifty sharing of time on the strength of feasibility alone. Stephens v. Stephens,
2002- 0402 ( La. App. 1 Cir. 6/ 21/ 02); 822 So. 2d 770, 777 ( citing Shaw v. Shaw,
30, 613 ( La. App. 2 Cir. 6/ 24/ 98); 714 So. 2d 906, 910).
Following a careful review of the record, we find that the trial court did not
abuse its great discretion in instituting the current custody schedule. The record
shows that S. M.B. has spent most of his life residing primarily with Linda. S. M.B.
does well in school and makes straight A' s. He appears to be well -adjusted and is
accustomed to spending his weekdays primarily with Linda.
The trial court ordered that S. M.B. would primarily reside with Linda, with
Matthew exercising physical custody three weekends per month. In this case, and
as in most child custody cases, the trial court' s determination as to what was in the
best interest of S. M.B. was based heavily on factual findings. It is well settled that
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an appellate court cannot set aside a trial court' s findings of fact in the absence of
manifest error or unless those findings are clearly wrong. See Givens, 53 So. 3d at
728. This assignment of error lacks merit.
DECREE
For the above and foregoing reasons, the Twenty -First Judicial District
Court' s August 8, 2019 judgment is affirmed. Costs of the appeal are assessed to
Appellant, Matthew Scott Bernard.
AFFIRMED.