Melissa Ratcliff Nettles VS Jamie Davis Nettles
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NOT DESIGNATED FOR PUBLICATION STATE OF I, OtiISIANA COURT OF APPEAL FIRST CIRGUIT NUiVIBER 2013 CU 1164 MELISSA RATCLIFF NETTLES v'ERSLi S JAMIE DAVIS NETTLES JudgmenY Rendered; December 27, 2013 Appealed from the Family Court In and for the Parish of East Baton Rouge, Louisiana Docket Number 165,034 Honorable Pamela J. Baker, Judge Presiding aF X'%': F' 1: aS' h aF' J.' ie iF' X' x Kristy E. Zachary, Griffin Counsel for Plaintiff/Appellant, LA Melissa Ratcliff Nettles Heidi M. Vessel Zachary, LA Counsel for llefendantl ippellee, damie Uavis Nettles t: BEFORE: x** t* x WHIPPLE, C. J., w'ELCH AND CRAIN, JJ. WHIPPLE, C. J. Melissa Ratcliff appeals the family court' s November 13, 2012 judgment, modifying the previous stipulated custody judgnent to designate Jamie Nettles as the domiciliary parent of the parties' two children and to set a schedule for Melissa' s physicaY custody of the children. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY The parties, Melissa Ratcliff and Jamie Davis Nettles, were married on July 22, 2000, and were subsequently divorced by judgment dated June 17, 2009.' While the divorce proceedings were pending, the parties entered into a stipulated custody judgment on December 19, 2008, wherein they were awarded joint custody of their daughter K.N., born on February 13, 2003, and their son D.N., born September 22, 2006, with Melissa designated as the domiciliary parent and with Jamie having physical custody of the children every other weekend and ox holidays as set forth in the judgment. The stipulated judgment further provided that " this judgment is without prejudice and either party may bring any and all matters herein before the court without having to show a chazlge in circumstances." Thereafter, on November 29, 2011, 7amie filed a petition to modify custody, alleging that there had been a change in circumstances materially affecting the welfare of the children, reqairing a modification of the previous stipulated judgment of custody. Specifically, Jamie averred that: Melissa' s boyfriend had been arrested on November 8, 2011 for molestation of KN., which had allegedly occurred October on 10, 2011, at the alleged perpetrator' s home; that K.N. was in need of immediate therapy or The divorce judgment ordered that Melissa RatcliffNettles " shall hereinafter be known by her maiden name, RATCLIFF." 2 counseling, but that Melissa refused to cooperate in providing the needed counseling; that Jamie had attempted to obtain therapy or counseling for K.N., but that the counselors would not provide therapy because Melissa refused to give her permission as domiciliary parent; that Melissa continued her relationship with her boyfriend who was arrested for molesting KN.; and, thus, that the children were nc t safe in Melissa' s custody. Accordingly, in addition to requesting that he be named the immediate temporary domiciliary parent with authority to obtain counseling for KN., lamie sought a change in the previous stipul.ated custody judgiment, i. e., to designate him as the domiciliary parent and grant Melissa supervised visitarion with the children. Following a hearing on December 13, 2011, the family court rendered judgment designating Jamie as the temporary domiciliary parent of the children pending trial of the matter, with Melissa to have physical custody of the children every other weekend. ` I'he judgment further prohibited Melissa' s boyfriend from being in the presence of the children and from speaking to them and prohibited Melissa from commurzicating with her boyfriend wh n the children were in her physical custody. Trial of the matter was conducted on Oct ber 10, 11, 12 and 19, 2012. Thereafter, by judgment dated November 13, 2012, the family court ordered that the parties be granted joint custody with Jamie designated as the domiciliary parent of the two children and with Melissa having physical custody of the children on alternating weekends, and a holiday and summer schedule as set forth by the The judgment further provided that court. Melissa' s boyfriend could not be in the presence of KN. or DN., nor was Melissa to speak to him in the children' s presence. From this judgment, Melissa appeals. 3 DISCUSSION In her first assignment of error, Melissa argues that the family court erred in failing to apply the provisions of the Post- Separation Family Violence Relief Act (PSFVRA), LSA-R. S. 9: 361 et se., in making its determination to designate Jamie as the dorr iciliary- parent, where ttiere was a history of family violence by Jamie. 2 In her second assignmen of error, Melissa argues that the family court erred by n t a plying the factors set forth in LSA-C. C. art. 134 for determining the children' s best interests, where the evidence presented at trial established that she should have remained the domiciliary parent. The time that parents with joznt legal custody share with their children is a physical custody allocation of a joint custody plan. Lunney v. Lunney, ZAt the outset, we note that Melissa did not specifically plea or azgue the applicability of the PSFVRA in the proceedings below, nor did she file any pleadings seeking the protections offered therein with regard to custody and visitation. See nerally N uyen v. Le, 07- 81 ( La. App. 5` Cir. 5/ 15/07), 960 So. 2d 261, 263- 264. Undeniably, she did allege in her petition for divorce, in one or two other pleadings, and at the trial of this matter that Jamie had a history of violent behavior toward her during their marriage. However, she did not seek the specific protections with regard to custody and visitation set forth in the PSFVRA. Indeed, Melissa consented in the December 19, 2008 stipulated judgment to joint cusYody with Jamie exercising unsupervised physical custody on alternating weekends and holidays, an arrangement under wh;ch the parties operated until a temporary change of domiciliary status was ordered due to the allegations of sexual abuse of KN. by Melissa' s boyfriend. And, at ihe trial of this matter, she sought only that she " be given her children back," presumably as the domiciliary parent, and alternatively that she not be subjected to supervised visitatiori' with her children. Thus, Melissa has asserted the applicability of the PSFVRA for the first time on appeal. See Neuyen, 960 So. 2d at 263- 265. However, even in brief on appeal, while contending that Jamie did not establish that he had completed an anger managemen.t program, she nonetheless does not seek the protections of LSA-R. S. 9: 364( A), prohibiting an abusive spouse from shazing joint custody or having a custodial role, or 9364( C), allowing only supervised visitation unti: the offending parent has completed a treatment pxogram, instead seeking only a reversal of the ju, gment naming Jamie as d domiciliary parent. Nonetheless, Melissa did allege physical abuse in the proceedings below, testimony of that abuse was presented at trial without objection, and the abuse against Melissa was admitted to by Jamie. See generallv Dufresne v. Dufresne, 08- 215, 08- 216 La. App. St" Cir. 9/ 16/ 08), 992 So. 2d 579, 58?, writ denieci, 2008- 2843 ( La. l2/ 17/ 08), 996 So. 2d ll23. Thus, we will address her argument that the family court' s custody judgment is contrary to the provisions of the PSFVRA. 4 201 1- 1891 ( La. App. ls` 4I12); 20I2- 0610 ( La. 4i" Cir. 2r1% 1?), ' 91 So. 3d 35Q, 353, wrix denied, S So. 3d 1 0. A ? a ty seslcin mndifacation of a physical custody decree set f rth :n a atipulated . f consens xal judgment must meet the two- prong t st of rovin. ( 1 j t1- at there nas + ean a cl ange in circumstances materially aftfectir. the welfare of tlhe clxild since the car.iginal i decree,3 and ( 2) hat the pruposed mod ficatzon s i the hest interest of the child. Lunney, 91 So. 3d at 35. The PSFVRA was enacted in fl432 tc addre s the problem of family violence. It applies onlv if there ia a histoty f" family vio; ence," which is defined as " physical or sexual abuse and an offense against th defined in the xcept negligen.t injuring and riminal Cade of Lauisaana, person as defamation, comrr ittec by one parenz a; air st the a ther parent o against any of the exists, LSA-I. S. 93621 j. W'here a hisiory of family violence children." LSA-R. S. 9: 364( A} provides tt at "[ t] here is createci a presumption that no parent who has a history of perpet ating family vialence shall be awarded sole or joint custody of children.'' However; LSA,-R. S. 9: 364( A) further provide that this presumption c n be o ercome, as f llows; The presurnption shall. be uverGOane only by a pre onderance of the eviden e that the perpexratixig parer t has successfully completed a treatment pro rani as rle ined in R. S. 9: 35'',, is not abusing alcohol and the llegal use of drugs scheduled in R.S. 40: 964, and that the rest interest of the child csr chiidren requires that parent' s partACipation as a custodial parent because of the other parent' s ntental illness, or substance absenc, abuse, or such other circumstances which affect th bzst int rest of the child ox children. 4' 3While the December 19, 2008 stipulated custpdy judg ment provided that the parties could bxing ali ma2cers provided for therein before the court " without having to show a cl-ange in circumstances," a change in circumstances was clearly established i herein by the circumstances resulting in the anest of Melissa' s boyfriend for his sexual abuse of K.N. and Melissa' s continued relationship with him. 4A " treatment program" is defined in LSA- R.S. 9362( 7) as " a cuarse of evaluation and psychotherapy designed specifically for perpetrators of fam.ily violence, and conducted by licexised mental health professionals." 5 Thus, once the PSFVRA has lbeen triggered bv a finding of a history of family violence, an addntional b rden of p roof is iniposed upon the parent who has been foutid to have a iistory of perpetkatin famaly viol nce. That parent must avercome the presum tion tl:afi : e caf n+t be awarded sole or joint custedy of the chi?. dren by prc vzng that he b_ compieted a treatment as program as defiraed y the PSF't'RA, that he is not abusing alcohql or using illegal drugs, and khat xhe best anterests of th custodial parent substance abtise, of the children.' because r such DeO, H. oi tr: e ther v. Y ex chiidren re uz arent' s ab enc hia to be the xnent l illness, or ircu nsYanues wlaic h affec. s t? best anterests t ae 7['. I,. I., ? GO1- 1? 4 ( La. Ap. d i` Cjr. ] Oi31/ O1), 799 So. 2d 714, 719. The t a1 judge : s zn the bes posita n t the child given each nnique set of oircumstas!. c court' s determir atiion Uf ustody is entitle reversed on appeal unl ss an abuse Wren, 98 0869 ( La, App. 1 s` Cir. ascerta;n the L st interest of s. cordingly; a trial to r at waight and wvill not be f discretion is c1e rly shvwn. Ranev v. 1i'6/ 9$),, 22 S. 2d 54, 6, In t ie instant case, Ylel: ssa t sti& ed at tria.l that duxsr g tl ir Fnarriage, SSimilarly, pursuant to LSA- R. S. 9.364(G), if the court finds that a parent has a history of perpetrating family violence, the court shall al:ow oni super ised visztat: on with that parent conditior ed on the parent paz' i z ating in and completing a tr atment program. " Unsupervised visitation shall be allewed only if 8 is shown by a preponderance of the evidence that t3ie vivlent parent has completed a treatment rogram, is not abusing alcohol and psycuoactive drugs, and poses no danger to the child, and that such visitarion is in the child' s best interest." LSA-R.S. 9364( C) i Jamie physically abused her. 6 Regarciing specific incidents of abuse, she contended that Jamie had beaten her in the face with his fist, had choked her to the point where she passed out, had hit her while she was holding the children, and had hit her on the head with a ro11 of caution tape. Melissa also contended that on one occasion, Jamie grabbed her by the hazr when they were sitting on the couch, thr w her ta the floor and starting beating her and that on another occasion, he threatened her with a knife, resulting in his In reasons for judgment, the family court judge stated that she arrest. believed Melissa' s testimony regarding the abuse. Moreover, Jamie acknowledged that there was physical abuse in his relationship with Melissa, stating that there were " a lot of open hand slaps and hair pulling and objects thrown and things of that nature" and admitting that the abuse occurred over an extended period f time. He candidly acknowledged that he was arrested as a result of an altereation he had with Melissa invol ing a lmife, althe ugh he denied that he had `"used the knife on Melissa." Considering the foregoing and the record as a whole, a history of family violence by 7amie against Iblelissa was established herein. Compare Michelli v. tichelli, 93- 2128 ( La. App. 1g` Cir. 5/ 5195), 6S5 So. 2d 1342, 1346- 1349. Accordingly, the presumption that Jamie should not be awarded 6Clearly, events occurring during the marriage predate the December 19, 2008 stipulated judgment wherein Melissa agreed to a joint custody arrangement with Jamie exercising unsupervised. physicai custody of the children on alternating weekends and holidays. However, as mentioned above, the stipulated judgment provided that the judgment was " without prejudice and either party may bring any and all matters herein before the court without having to show a change in cixcumstances." Moreover, this court has held that where a stipulated judgment f custody has been rendered, application of the change in circumstances rule does not automatically preclude the introduction of all evidence of facts occurring prior to the stipulated custody judgment. To the contrary, t]he trial court should not exclude evidence in a custody modification proceeding if that evidence is relevant and material to an issue which the parties have not previously had ` a full and fair opportunity to lirigate."' Smith v. Smith, 615 So. 2d 926, 931 ( La. App. ls` Cir.), writ denied, 617 So. 2d 916 ( La. 1993) ( 1193, 1195 ( La. 1986)). 7 oting Bereeron v. Bereeron, 492 So. 2d joint custody of the children applied, and he had the burden of overcoming that presumption by establishing by a preponderance of the evidence that: 1) he had successfully completed a treatment prograrn; ( 2) he was not abusing alcohol or using illegal drugs, and ( 3) the best interest of the children required that Jarraie participate as a custodial parent due to some circumstances affecting their best interests. LSA-R. S. 9: 364(_ A). Regarding a treatment program, the record estabiishes that Jamie attended anger management classes as a result of his arrest for the incident with the knife, and the charges were eventually dismissed and expunged. The anger management classes were one- an- one sessions with the therapist. Jamie estimated that he attended between five to ten sessions over a period of three to four months to complete the program, and he testified that program really benefited him and that he is not the sa-ne person today. Additionally, with regard to the second requirement, ihere was no evidence or suggestion at trial that Jamie abuses aicohol or uses illegal drugs. Moreover, regarding the best interests of the children, in reasons for judgment, the family court judge noted that she Faad considered all the factors listed in LSA-C. C. art. 134x in detennining the best interests of the When asked on cross- examination if he had any proof that he had completed the program, Jamie testified that he had received a certificate, but that he had misplaced it. He further explained that when he attempted to return to the facility to obtain paperwork to establish his completion of the class, the business was no longer in service. SLouisiana Civil Code article 134 provides that the court shall consider all relevant factors in determining the best interest of the child and that: Such factors may include: 1) The love, affection, and other emotional ties between each party and the child. 2) The capacity and disposition of each party to give the child Iove, affection, and spiritual guidance and to continue the education and reazing of the child. 3) The capacity and disposiYion of each party to provide the child with food, clothing, medical care, and other material needs. 8 children, and the record amply supports khe conclusion that there are other circumstances herein affecting the best interests of the children that require Jamie' s participation as a custodial parent. See LSA- R. S. 9: 364( A). In particular, the overriding concern herein was the alleged sexual abuse of KN. by Melissa' s boyfriend, with whom Melissa w s still in a reiationship at the time of trial of this matter, and Melissa' s refusal to believe, or even consider, that her daughter had been sexually abused by him despite K.N. having reported such abuse and despite the opinions of K.N.' s therapist and the court- appointed custody evaluator that the abuse did in fact occur. As noted by the family court, the incident that led to Jamie' s request for modification of custody vas KN. reporting to her paternal grandmother and her stepmother that she had been molested by Melissa' s boyfriend, a revelation that led to the arrest of the alleged perpetrator. When 7amie leamed of K.N.' s report of the abuse, he attempted to set up counseling sessions for her at the Baton Rouge Chilciren' s Advocacy Center, but, as further noted by the family court, Melissa, as domiciliary parent, thwarted Jamie' s attempts by refusing to allow the counselar to speak to K.N. Only after the family court' s December 2011 judgment temporarily designating 4) The length of time the cluld has lived in a stable, adequate environment, and the desixability of maintaining continuity of that environment. 5) The permanence, as a family unit, of Che existing or proposed custodial home or homes. 6) The moral fitness of each party, insofar as it affects the welfare of the child: 7) The mental and physical health of each party. 8) The home, school, and community history of the child. 9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference. 10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party. 11) The distance beriveen the respective residences of the parties. 12) The responsibility for the care and rearing of the chiid previously exercised by each party. Emphasis added). 9 Jamie as domiciliary pa ent vas he able te ai-zargge eounseling sessions foir KN. with Chris Huff at the 14 cConn Children' s Ad rocacy Center. Huff; alicensed clinicai svciai_worker, testifled at trial regarding his counseling sessions with K.N. Huff begar treating K.? in Jan.uary 2012 V. and last saw her in S 0 i 2, pternber one month. b for trial. ur ng the course of his treatment of K.N., she revealed tha[ on numerous occasions, her mother' s boyfriend had sexually molesY d her.9 Huff des ribed K.iv. as a very shy ehild who, in the: r early counseling sessions, w s m re comfortable responding to questions by writing her answers n a tablei rather than speaking aioud. However, as th ir therapy sessions continued and K.N, b came xriore comfortable u ith h.:rz-, she was able to communicate rr ore c p nly, and her level ef disclosure increased. When asked whether, in his opinion, K.N, ad created this story, Huff stated that he did not beiieve she had. Hz e plaimed that K.N. had been very consistent in her attitude and avoidar ce , if her mother' s boyfrzend, u hich was an indicati.on of trauma. Also; Huff desari.bed K.ItiT. as e ibiting hypersensitivity" about her tno her' s boy°friend, as evid nced by her not wanting him o be r esent a her iaallgaanes or on visit ra.d not being able to say a single positive tn: g about him, which ia ane t ier indication of trauma and is consistent with a child ivho h s b en abused. Huff testified at trial that there was no doubt in hi5 rrzind that 1 lelissa' s boyfriend r.olested KN. i With regard to Melissa' s refiasal ta believ K.N.' s claims of abuse, Huff testified that he met with Melissa at on counseling session and t at on that occasion, Melissa indicated to hitrx that she believed that Jamie had `°put K.N:] up to" making these allegations in order to hurt Melissa. Huff also SAlthough not set fo h herein, we note that during cqunseling sessio cs, she described the specific behavior and acts that had occurred. 10 testified that at a later K.'. sessio, Melissa, Melissa had told . rela ed that at a recent visit with N, thai her boy friend " would never do that," which made K.N. feel sad that er mother did not believe her. Dr. Beverly Howze, a psy; hol gi.sx tppointed by the c.ourt to perform a custody evaluation, als taetified at teial and rer d red an, opinion as fo the custody arrangement that would be in tht chi dren' s best inte. ests. r With regard to K.N.' s all,egatians of s xuafl a use 1 y er taa^ ther' s ' t? yfriend, Dr. Howze, who has worked in th.e area of traurrz a f ¬ eti: r tw enty years amd has r examined thousamds of trauma victirrAS ozer the years, t s ified that she believed that KN. was teiling the truth. Dr. Howze noted ihaC the ernotional reactions are the most telling and coa vincing pat-t in a seasion, and when K.N. first began talking about the abuse, she was " emoticanally riveting," and her face was " quivering" as she tried not to , ry. K.N. had a look on her face that Dr. Howze interpreted as a " look of stiame;" a- d she buried her face in her hands. overwhelmed She noted that K.N, werat back and forth rr m being and hidi g her face o talkzn in a robot fa hion. In Dr. Howze' s opinion, K.N.' s reactic ns were that of a eraiuna ictim and n t the reactions of someone who ' as rehearseds is playi g am s; ar d- as a false memory Dr. Howze stat d, " Thas is a r emoxy that i real. It as rea1." Regarding Melissa, Dr. Howze noted that Melissa was very defensive of her boyfriend and had formulated was " unalterable," " point of view wxth regard to him that hardened and impervious to other inforrnation that might be counter" to that view. Melissa is convinued that Jamie zs malcing up the charges against her boyfriend and indicated that her boyfriend is a kind and generous man who would never do anything immaral. With regard to why Melissa was so c ismissive of extefl-nal information that m.ay present a contrary view of hea- boyfriend, Dr. Howze noted that lI Melissa' s relationship with her boyfriend appeared to be the most emotional and intensive relationship she had ever had and that the relationship provided her with many of hex material needs. As noted by both Dr. Howze and the family court in reasons for judgment, Melissa' s boyfriend, who is married to someone else, has been financially generous to Melissa, offering her a standard of living well be on what she could affard. Melissa acknowledged at trial that her boyfriend had purchased her car for her as well as the home in which she now lives; had Laken her on yearly trips to British Virgin Islands, had taken her to the Bal: amas; and had given her approximately twenty thousand dollars for attorney' s fees for this matter. Moreover, in Dr. Howze' s opinion, Melissa is " emotionally wedded" to her boyfriend and is reluctant to tarnish her view of hian in any way, and in such a situation, a parent' s capacity to make £he best possible decisions relative to her children can become impaired. Ir. deed, the family court found that Melissa' s refusal to believe her daughter was clouding her judgment when it came to protecting K.N. from potentially harmful situations. At trial, Melissa acknowledged that she does not believe that her boyfriend abused KN. When asked how she could justify that belief in light of the fact that KN. had reported the abuse and the fact that two mental health professionals opined that the abuse did occ-ar, Melissa repeatedly stated that she did not believe it because KN. had not told Melissa " the story." However, as noted by the family court in reasons for judgment, when both KN. and DN. had previously reported to Melissa that her boyfriend had grabbed D.N. and that he hit his shoulder on the doorframe, Melissa' s response had been to ask her boyfriend if he had done this, When he denied that he had, Melissa believed her boyfriend rather than her children, telling KN. that her boyfriend had not done that. Thus, when the 12 children had reported something much less significant to Melissa, her response had been not to belie° e them. Considering this, the family court judge could not " even conceive of how [ Melissa] would think that her children would feel comfortable re orting sornething as serious as being molested and expect her to believe them" and doubted that Melissa would have believed KN. even if K.N. had told Melissa about ihe abuse. Indeed, Dr. Howze testi ed that when a child is not believed, this creates believe a great deal of emotional her daughter' s harm. allegations The fact that Melissa does not and is carrying on an extended relationship with the man K.N. has accused of molesting her is very harmful to KN.'s relationship with her mother. Dr. Howze explained that such a situarion teaches the child that the world is not to be trusted and that she cannot trust her family. Also, it irrterferes with future relationships due to a lack of trust. According to Dr. Howze, K.N. needs to feel believed and protected and that her parents will act as a barrier between her and the warld that might do harm. In this regard, the farnily court found that KN. was not only abused by [ Melissa' s boyfriend,] but now continues to be abused by her mother for not believing her and iYs going to cause her a lot of problems unless and until [ Melissa] can talk to her and let her know that she believes her and she will protect her." With regard to Jamie, Dr. Howze noted that Jamie was forthright in admitting that he had been a batterer, but that he had gatter help through the anger management program. When asked if it is possible for a person with that rype of history as a batterer to change significantly to become a non- batterer, Dr. Howze stated that it was possible, noting that " the facts end up being the best evidence." In that regard, she noted that Jamie' s present relationship with his new wife was not characterized in the way that his 13 relationship with Melissa had been. 10 Additionall}; Dr. Howze stated that there was no indication that this kind of abusive behavior is part of Jamie' s personality makeup. Thus, based on her evaluation of the family, Dr. Howze recommended that Jamie be designated as the domiciliary parent of the parties' minor children. In reasons for judgment, the family court likewise noted Jamie' s history of abuse toward Melissa and poor iudgment in the past, but found that Jamie had " stepped up to the plate" and had " done the things that a good and concerned father would do to falc2 care of his children." Indeed, as noted by the family court, upon being designated as the temporary domiciliary parent following the ailegations of abuse, Jamie immedia ely set up counseling for K.N. and immediately began looking for another job so he would not be traveling. Jamie took another job at an extremely large cut in pay so that he could be home every evening and also arranged with his new employer to take off early on the days that K.N. has counseling sessions. In addition to Jamie demonstrating his willingness to protect the children from harm, the record also establishes that the children have djusteci well to their new living arrangement with Jamie; his wife and the children' s younger half sibling. The children are involved in sports, with Jamie coaching their teams, and K.N. is involved in cheering. The family also attends church regularly. With regard to school, when Malissa was domiciliary parent, the children had numerous absences from school, and D.N. had discipline problems at sehool. However, at the new school where Jamie has enrolled 10When questioned about an incident ith his present wife where Jamie threw hot chocolate on her in reacrion to his belief that she was throwing hot chocolate at him when she tripped and spilled hers on him, Dr. Howze characterized this as an impulsive act. However, this one incident did not change her opinion that thexe was no indication that Jamie was abusive toward his cuxrent wife ox her opinion of what was in the best interests of the children. 14 the children, they have not had any abserzc s, are doing well academically, and are benefitting from the smalfler class siz s. Moreover, K,N. was thriving in her new enviror,rrzent, reporting ih t she had made many friends. Accordingly, considering the foregoing arid the rec rd as a whole, we conclude that the presumptior th t Jambe should not be awa ded joint custody of the childrer was clearly ovexcome ica th.e instant ca e, and the family court' s finding that designating Jamie as the damic. l ary paremt f KN. and DN. was in the best interest of the children was we?1 within its discretion. Thus, we find no rierit to 1' Ieiissa' s asszgntnents of error on appeal. CONCLI.SIO' For the abo e and foxeg ing reasons, the family court' s November 13, 2012 judgment, designating Jamie Nettles as the domiciliarr° parent of KN. and DN. and setting forth exercise physical custody r appeal are ass a schedule durin.g which 1 1eliss atcliff will the children, s hereby afftrrried. Costs f this sed against ap ell s t, Melissa Rat lif£. AI'FIRMED, 15
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