Nguyen v. Le
2007 WL 1427050, 960 So. 2d 261 (2007)
Rule of Law:
The Post-Separation Family Violence Relief Act (LSA-R.S. 9:361 et seq.) cannot be raised for the first time on appeal, as its application requires a specific factual determination of a 'history of perpetrating family violence' by the trial court, which must be supported by sufficient and consistent evidence.
Facts:
- Tuyet Bach Nguyen and Hoang Huy Le married in 1988 and had two sons, JML (born 1992) and AML (born 1994).
- Around February 1998, Dr. Le allegedly held a gun to Ms. Nguyen's head after overhearing her telephone conversation, an incident corroborated by her housekeeper.
- During their marriage, Ms. Nguyen claimed Dr. Le would frequently choke her and, on two occasions, cut his own hand breaking glass objects while being violent.
- Ms. Nguyen admitted she never called the police, sought a restraining order, or received medical treatment for any injuries resulting from these alleged incidents.
- In 2001, after their divorce and the alleged violence, Ms. Nguyen allowed the children to live with Dr. Le in Vietnam for approximately 11 months.
- After the children returned from Vietnam, they allegedly told Ms. Nguyen that Dr. Le had beaten them there, stopping only when his friend intervened.
- In the summer of 2003, Ms. Nguyen packed the children and prepared them to accompany Dr. Le on a month-long trip to California, but the trip did not materialize.
- At the time of the hearing in July 2004, Dr. Le stated he was living in Hammond, Louisiana, having purchased a dental practice there in January 2004, and claimed Ms. Nguyen obstructed his contact with the children since July 2002.
Procedural Posture:
- On June 29, 1999, Tuyet Bach Nguyen filed a Petition for Divorce in a state trial court, seeking joint custody of her two children.
- On July 27, 2000, the trial court granted a judgment of divorce.
- Four months after the divorce, Ms. Nguyen filed a Rule for Contempt against Dr. Le for violating a standard reciprocal injunction, alleging he took personal items and feigned parental kidnapping.
- After a hearing, the trial court found Dr. Le in contempt for violating the injunction.
- On April 14, 2004, Ms. Nguyen filed a motion in the trial court seeking sole custody of the children, citing LSA-C.C. art. 132 and alleging Dr. Le's unpredictable presence, secret life, and limited contact with the children.
- On July 14, 2004, Hoang Huy Le filed a Motion for Joint Custody and Visitation Schedule in the trial court.
- On July 22, 2004, the trial court held a hearing on the motions for custody.
- On August 18, 2004, the trial court rendered a judgment denying Ms. Nguyen's motion for sole custody and awarding joint custody to both parents.
- Ms. Nguyen appealed the trial court's judgment to the Court of Appeal of Louisiana, Fifth Circuit, arguing the trial court should have applied LSA-R.S. 9:361 et seq.
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Issue:
Does a trial court abuse its discretion by awarding joint custody under the 'best interest of the child' standard (LSA-C.C. art. 132) when a parent alleges a history of family violence for the first time on appeal, without having properly pleaded or proven it at trial under the Post-Separation Family Violence Relief Act (LSA-R.S. 9:361 et seq.)?
Opinions:
Majority - Thomas F. Daley
No, a trial court does not abuse its discretion by awarding joint custody under LSA-C.C. art. 132 when a party attempts to raise the Post-Separation Family Violence Relief Act (LSA-R.S. 9:361 et seq.) for the first time on appeal, especially when the evidence presented at trial does not establish a 'history of perpetrating family violence' by clear and convincing evidence. The court found that Ms. Nguyen failed to plead or argue the applicability of the Post-Separation Family Violence Relief Act in the lower court proceedings, and an appellate court cannot consider the Act for the first time on appeal because it requires the trial court to make a specific determination of 'a history of perpetration of family violence.' Even if it could be considered, Ms. Nguyen failed to prove such a history; the statute requires either one incident resulting in serious bodily injury or more than one incident of family violence. Ms. Nguyen's recounted incident with the gun did not result in injury, and her other claims were uncorroborated, vague, or contradicted. Her admission that she never called the police, sought a restraining order, or pursued medical treatment for injuries also undermined her claims. Furthermore, her actions of allowing the children to live with Dr. Le in Vietnam for 11 months after alleged violence and preparing them for another month-long trip after alleged abuse in Vietnam, contradicted her claims of Dr. Le being a danger. Therefore, the trial court did not err in finding that Ms. Nguyen had not rebutted the presumption in favor of joint custody by clear and convincing evidence under LSA-C.C. art. 132, and its custody determination is entitled to great weight unless an abuse of discretion is clearly shown.
Analysis:
This case reinforces the procedural requirement that specific statutory claims, particularly those involving factual determinations like a 'history of family violence,' must be properly pleaded and argued at the trial court level rather than being raised for the first time on appeal. It also clarifies the high evidentiary bar for proving 'a history of perpetrating family violence' under LSA-R.S. 9:361 et seq., emphasizing the need for corroboration, evidence of injury, and consistent parental behavior that aligns with claims of danger. Future cases will likely cite this decision to prevent litigants from bypassing the trial court's fact-finding role on such critical issues and to uphold the presumption of joint custody absent clear and convincing evidence to the contrary.
