State of Louisiana in the Interest of H.L.M. and I.R.M. (Affirmed)

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Judgment rendered November 20, 2013. Application for rehearing may be filed within the delay allowed by art. 2166, La. C.C.P. No. 48,765-CA No. 48,766-CA No. 48,767-JAC (Consolidated Cases) COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA ***** No. 48,765-CA REBECCA LEEANN RAMSEY Plaintiff-Appellee versus EDGAR MORALES Defendant-Appellant No. 48,766-CA EDGAR MORALES AND REBECCA MORALES Plaintiff-Appellant versus REBECCA LEEANN RAMSEY Defendant-Appellee No. 48,767-JAC STATE OF LOUISIANA IN THE INTEREST OF H.L.M. AND I.R.M. ***** Appealed from the Third Judicial District Court for the Parish of Union, Louisiana Trial Court Nos. 44,649; 44,656; and J.D. 7163 Honorable Jay Bowen McCallum, Judge ***** CHARLES R. JOINER Counsel for Appellant Edgar Morales A. SHAWN ALFORD Counsel for Appellee Rebecca Leeann Ramsey PENYA MARZULA MOSES-FIELDS Counsel for Appellee State of Louisiana, Dept. of Children and Family Services ANGELA MICHELLE SMITH Counsel for Appellees H.L.M. and I.R.M. ***** Before DREW, MOORE and GARRETT, JJ. DREW, J.: Edgar Morales appeals a judgment awarding primary domiciliary custody of his twin daughters to their mother, Rebecca Leeann Ramsey. Having thoroughly reviewed these consolidated records, we find no abuse of discretion below, and we affirm. BACKGROUND In 2008, at the age of 18, Leeann Ramsey and her significant other, Kayla Bennett, moved into the home of Edgar and Rebecca Morales. At some point, Edgar and his wife asked Leeann and Kayla if they would have a baby for them. Edgar, who is 10 years older than Leeann, began a sexual relationship with her that resulted in Leeann becoming pregnant with twins. In April of 2009, Leeann entered into a written agreement1 which provided that she was having the baby for the Moraleses, with whom the baby would live, and that the Moraleses would make all decisions about the child, though Leeann could see the baby at any time by giving notice. The twins were born in October of 2009. On August 18, 2011, when the twins were 22 months old, Leeann filed a petition for custody. Later that month, the Moraleses filed a separate suit, with a rule for custody and a proffered ex parte order for temporary custody. Days later, the trial court issued an instanter order placing custody of the twins with the Department of Family Services ( DFS ), which accounts for the third record.2 1 The agreement was clearly not drafted by an attorney and lacks any apparent legal efficacy. 2 In all, three separate suits were initiated in August of 2011. As often happens when instanter orders grant custody to DFS, the parties quickly reached agreement as to an interim order designating a one-week rotation of physical custody of the twins. The trial court recalled the instanter order and approved the weekly rotation of physical custody between Leeann and Edgar, pending a decision on custody and visitation. TRIAL A hotly contested trial was held on five dates between March and September of 2012. Rebecca Morales was ultimately dismissed as a party. In a ruling rendered November 2, 2012, the trial court noted that each parent had at times displayed behavior which put his or her own interest ahead of the twins best interests. The court also noted that it could not find clear and convincing evidence justifying an award of sole custody. While each party had made accusations against the other, the court found most of the accusations to be inconsequential or moot. The court recognized that the parties were willing to address their problems. After considering the factors listed in La. C.C. art. 134,3 the court 3 Art. 134. Factors in determining child s best interest The court shall consider all relevant factors in determining the best interest of the child. 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 love, affection, and spiritual guidance and to continue the education and rearing of the child. (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs. (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment. (5) The permanence, as a family unit, of the 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 2 acknowledged that the determination of custody was a close call. The trial court was particularly impressed by the stability and geographical nearness of Leeann s family, which would afford her a network of assistance with the children. In addition, Leeann s work hours were more flexible than Edgar s. The trial court designated Leeann as the domiciliary parent,4 which is the sole issue in this appeal. We annex hereto and adopt in toto the trial court s ruling relative to its domiciliary assignment.5 The document is thorough, well-organized, and an incisive model of clarity. This court expresses its appreciation for a job well done. EDGAR S ARGUMENT ON APPEAL Edgar argues that the trial court was manifestly erroneous by not fully considering the evidence or properly applying it to certain factors (1, 4, 12) under Art. 134. Factor 1: Love, affection, and other emotional ties between the parties and the children The trial court found that both parents loved the twins and were involved in their upbringing. Edgar argues that the evidence shows: continuing relationship between the child and the other party. (11) The distance between the respective residences of the parties. (12) The responsibility for the care and rearing of the child previously exercised by each party. 4 The joint custody agreement prepared by the court affords Edgar approximately 45% of the time with the children. 5 We have made a change on page 5 of the 7-page document, by blacking out the names of the children involved in this litigation. 3 ¢ a strong emotional tie between Edgar and his children and a lack of emotional connection between Leeann and the twins; ¢ Leeann contracted away her parental rights while the twins were still in her womb, and she held herself out as their aunt and not their mother; ¢ Leeann saw the twins only once a month after they were born and even those visits were not maternal visits; ¢ he cared for the twins from the time they were born until the issuance of the instanter order in August of 2011; and ¢ the twins were not meaningfully in Leeann s care until October of 2011. Leeann responds that Jessica Byrd, a social worker assigned to the twins, testified that the twins had a hard time separating from both Edgar and Leeann. Carol Jung, a friend of both parents, testified that the twins love both parents. Factor 4: Length of time in a stable, adequate environment, and the desirability of maintaining continuity of same The trial court concluded that the existing temporary custody arrangement had not been damaging to the twins and had worked well. Edgar argues that: ¢ the continuity to be considered should not be limited to the start of litigation but should go back to the birth of the children; ¢ he cared for the twins from birth until the issuance of the instanter order; and ¢ the court did not find that he had provided an inadequate or unstable environment for the twins. Leeann responds that: ¢ it is insignificant that the twins lived with Edgar for their first two years because she was also living there; ¢ Edgar has not provided the twins with a stable environment, in that he 4 moved from Monroe to Calhoun to Columbia and then to Grayson during the first two years of the lives of the twins; ¢ he now lives in a small mobile home in Columbia within 2.5 miles of 17 registered sex offenders; ¢ Rebecca has an arrest record relating to traffic matters and bad checks; and ¢ Edgar is an illegal alien. Factor 12: Care for and rearing of the children previously exercised by each party Social worker Byrd testified that Edgar told her that Leeann helped care for the twins. The record also preponderates that Leeann may have been afraid to take the twins with her when she returned to her parents in 2011 because of the bogus written agreement and because of threats from Rebecca Morales. She sued to obtain custody within a few days of returning to be with her parents. The Other Nine Factors The remaining factors of Art. 134 either favor Leeann are inconclusive. These appear to have played no part in the trial court s decision. OUR ANALYSIS These parents are flawed, as are we all. Doubtless each litigant regrets certain actions taken in the past. Our duty in this appeal is to decide whether it was manifestly erroneous or clearly wrong to designate Leeann as the domiciliary parent. We cannot make that finding on these consolidated records. The trial court found this case to be close. We agree, and it is 5 probable that had the trial court ruled the other way, we would be constrained to affirm that judgment. As it is, we affirm the judgment below. DECREE At the cost of Edgar Morales, the judgment is AFFIRMED. 6 APPENDIX

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