DOMINIQUE DORSEY v. DIAMOND STEWART (2025)

In this suit to modify child custody, Mr. Dominique Dorsey appeals a January 27, 2025 judgment of the trial court denying his Motion for Modification of Custody. For the following reasons, we affirm the judgment of the trial court.

BACKGROUND

Mr. Dominique Dorsey and Ms. Diamond Stewart are the never-wed parents of a minor child, J.D., born in September 2018. Mr. Dorsey is medically retired from the U.S. Air Force and currently enrolled as a full-time student at LSU; he lives in River Ridge, LA with his wife whom he married in March 2023. Ms. Stewart is an active-duty member of the U.S. Air Force currently stationed in Langley, Virginia.

Initial custody was established between the parties via a January 20, 2021 stipulated final judgment of paternity with incorporated parenting plan declared in the 13th Judicial Circuit Court in Hillsborough County, Florida (hereinafter “the Florida judgment”). This judgment established “shared parental responsibility” with Ms. Stewart designated as the parent with whom the child primarily resides. The Florida judgment establishes a “time sharing” schedule, confers authority for each parent to obtain information and records from third parties concerning the child's healthcare and education, imposes the responsibility on each parent to keep the other informed of changes in addresses and telephone numbers, and permits each parent to select appropriate child care providers during their respective custodial periods.

The parties subsequently relocated to the state of Louisiana: Mr. Dorsey to Orleans Parish and Ms. Stewart to Bossier City. On Mr. Dorsey's filing, the Florida judgment was made executory in Orleans Parish in January 2022. When he later moved to River Ridge, the matter was transferred to the 24th Judicial District Court for the Parish of Jefferson in April 2024.

On June 13, 2024, Mr. Dorsey filed a motion for modification of custody, rule for contempt, and motion for sanctions and costs in the 24th JDC. In that motion, Mr. Dorsey argued that there had been a material change in circumstances that required modification of the legal and physical custody schedule. Specifically, Mr. Dorsey argued that he should have physical custody of the child and be designated the domiciliary parent, or, in the alternative, that he should be given temporary custody of the child while Ms. Stewart was deployed overseas. In the motion, Mr. Dorsey makes additional allegations that Ms. Stewart failed to enroll the child in elementary school, failed to communicate or discuss plans for the child's care, and relocated the child to the state of Georgia and placed in the care of his maternal grandparents without notice to Mr. Dorsey. Mr. Dorsey claimed that Ms. Stewart's actions violated the custody agreement and requested that she be held in contempt of court as well as subjected to sanctions and attorney's fees and costs.

The motion was scheduled for a conference before a Domestic Hearing Officer on July 17, 2024. Counsel for Mr. Dorsey served Ms. Stewart with notice of this motion and the conference via email on July 5, 2024. Ms. Stewart did not appear for the July 17th conference before the hearing officer, but was represented there by counsel. The hearing officer entered an Interim Judgment modifying the Florida judgment, awarding physical custody of the child to Mr. Dorsey and designating him domiciliary parent. Though not requested in the motion, the hearing officer issued an order authorizing Mr. Dorsey to take physical custody of the child from his maternal grandparents in the state of Georgia.¹

The hearing officer's Interim Judgment further eliminated the provisions of the Florida judgment that required Mr. Dorsey to pay child support and instead ordered Ms. Stewart to pay Mr. Dorsey child support. The hearing officer also found Ms. Stewart to be in contempt of court for failing to appear and required her to pay Mr. Dorsey's attorney's fees in the amount of $500.00 and court costs in the amount of $500.00. Finally, the hearing officer found Ms. Stewart to be “in contempt” of the parties’ custody judgment by relocating the child to Georgia without Mr. Dorsey's consent or Court order, and ordered Ms. Stewart to pay additional attorney's fees in the amount of $1000.00 and court costs in the amount of $500.00.

Ms. Stewart filed an objection to this Interim Judgment in which she noted that the service via email was improper and without effect under La. C.C.P. art. 1313(C) because she had never designated an email address for service. She also objected on the basis that the proceedings should have been stayed pursuant to the Servicemembers Civil Relief Act, 50 U.S.C. § 3932, because Ms. Stewart was on deployment at the time of the hearing. Mr. Dorsey objected to Ms. Stewart's filing, arguing that it was untimely.

Following a September 3, 2024 hearing on the matter before the district judge, the trial court rendered judgment on September 16, 2024, which vacated the part of the hearing officer's interim judgment holding Ms. Stewart in contempt of court for failing to attend the hearing officer conference. As to all other matters presented, the trial court maintained the hearing officer's recommendations as its interim judgment pending a full trial on the merits of Mr. Dorsey's motion for modification of custody.²

The full trial on Mr. Dorsey's motion was held on December 10, 2024. At that time, the trial court heard testimony from Mr. Dorsey, Dr. Ashtona Wyatt, an education consultant, Ms. Pam Steib, a literacy tutor, Ms. Debra Eustler, principal of John Curtis Christian School, Mr. Roberto Taylor, principal at Crescent City Christian School, and Ms. Stewart.

At the conclusion of the hearing, the court took the matter under advisement. On January 27, 2025, the trial court issued a judgment with written reasons denying Mr. Dorsey's motion. The court specifically found it to be in the child's best interest to maintain the long-distance parenting plan and timesharing scheduling outlined in the Florida judgment, maintaining and adopting the provisions of that judgment with a modification allowing the non-custodial parent the right of first refusal to physical custody of the child in any instance where the custodial parent is unable to care for the child 14 days or longer. Mr. Dorsey appeals this judgment.

On appeal, Mr. Dorsey raises three assignments of error:

1. The trial court abused its discretion and was manifestly erroneous in its application of La. C.C. art. 134 when it did not change custody despite the overwhelming testimony and evidence that a change in circumstances had occurred and the custody change is in the best interests of the child.

2. The trial court was manifestly erroneous by not changing custody and ordering the parties to maintain a physical custody plan created when the parties lived 110 miles apart, though they now live over 1000 miles apart.

3. The trial court abused its discretion and was manifestly erroneous in not addressing or making any finding regarding the Rule for Contempt that was pending and tried against Diamond Stewart.

We consider these assignments of error in our discussion below.

DISCUSSION

It is well-established that each child custody case must be viewed in light of its own particular set of facts and circumstances, with the paramount goal of reaching a decision that is in the best interest of the child. La. C.C. art. 131; Main v. Main, 19-503, p. 7 (La. App. 5 Cir. 2/19/20), 292 So.3d 135, 142, writ denied, 20-00545 (La. 6/12/20), 307 So.3d 1036. To modify a custody arrangement where the original custody decree is a stipulated judgment, the party seeking to modify need only prove a change in circumstances since the original decree and prove that the new custody arrangement would be in the best interest of the child. Id. The determination of what is the best interest of the child is within the exclusive province of the trial court, and will not be disturbed absent an abuse of discretion. Mockbee v. Mockbee, 14-333, p. 3 (La. App. 5 Cir. 11/12/14), 165 So.3d 101, 103. Further, an appellate court may not set aside a trial court's findings of fact in the absence of manifest error. Id. Under the manifest error standard, if the findings are reasonable in light of the record viewed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as trier of fact, it would have weighed the evidence differently. Id.

In determining if modification of a consent decree is in the best interests of the child, the court must consider the relevant factors found in La. C.C. art. 134.³ Barrett v. Barrett, 20-266, p. 20 (La. App. 5 Cir. 2/24/21), 314 So.3d 1023, 1039. These factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Id.

First Assignment of Error

In his first assignment of error, Mr. Dorsey argues that the trial court abused its discretion and was manifestly erroneous in its application of La. C.C. art. 134 when it did not change custody despite the overwhelming testimony and evidence that a change in circumstances had occurred and the custody change is in the best interests of the child.

In her written reasons for judgment, the trial judge found, after review of the evidence and testimony presented and considering the factors outlined in La. C.C. art. 134, that Mr. Dorsey had not established that a change of custody would be in the best interests of the child. In particular, the court found that both parties are loving, capable parents who have the child's best interest at heart; that the child is thriving, engaged, and meeting his educational targets; that no questions were raised about either parent's moral, mental, or physical fitness to raise the child; and that, though Mr. Dorsey's primary objective in filing the motion seemed to be his desire to oversee the child's education, there was no evidence that the child's educational opportunities in Louisiana are measurably better than those in Virginia.

Mr. Dorsey disputes this last point on appeal, pointing to the testimony of witnesses he called at the hearing on the motion, which he describes as part of the “overwhelming” evidence in favor of his motion. We review that testimony here.

The parties’ testimony established several undisputed material facts. The child, J.D., was six years old at the time of the December 10, 2024 trial court hearing. Ms. Stewart and Mr. Dorsey were members of the U.S. Air Force and stationed in Tampa, Florida when the child was born. While both were on active duty at the time, Mr. Dorsey testified that he was in the process of receiving a medical discharge from the service. Ms. Stewart has remained on active duty since the child's birth.

Over the child's first five years, Ms. Stewart exercised primary physical custody in Tampa, Florida and Bossier City, Louisiana. However, beginning in September 2023, the child lived primarily with Mr. Dorsey for 11 months, compared to 4 months with Ms. Stewart. That time period coincided with Ms. Stewart's twelve-month U.S. Air Force deployment in Kuwait.

Before departing for her overseas deployment in August 2023, Ms. Stewart placed the child with Eva and Keith Reese in Tampa, Florida. Ms. Stewart described the Reeses as the child's godparents, and that she granted them power of attorney to care for J.D. in her absence. Mr. Dorsey denied knowing of Ms. Stewart's deployment orders or that the child was placed with the Reeses in Tampa, Florida. Ms. Stewart testified that she informed Mr. Dorsey of the orders given by the U.S. Air Force before her deployment, and that he was aware the child was with the Reeses. She further testified that the Florida judgment did not impose an obligation to place custody of the child with Mr. Dorsey during her deployment.

In September 2023, Mr. Dorsey filed for and obtained a civil warrant in Orleans Parish to take physical custody of the child. Mr. Dorsey caused that warrant to be executed in Tampa, Florida, where he obtained custody of the child from the Reeses and returned to Louisiana. At the time, Ms. Stewart was on deployment in Kuwait. The child was enrolled in a pre-K program by Mr. Dorsey at the Crescent City Christian School in Jefferson Parish. Roberto Taylor, principal of Crescent City Christian School, testified that Mr. Dorsey volunteered hundreds of hours at his school.

In March 2024, Ms. Stewart was granted a 30-day emergency leave by the U.S. Air Force to seek rescission of the Orleans Parish civil warrant. Ms. Stewart testified that once the warrant was vacated, she obtained physical custody of the child from Mr. Dorsey. She then brought the child to her parents’ home in Georgia, where she spent the remaining three weeks of leave with J.D. Before returning to Kuwait in April 2024, she granted her parents power of attorney to care for the child in her absence. Mr. Dorsey was in contact with the child while in Georgia.

Mr. Dorsey filed pleadings to modify child custody in the 24th Judicial District Court in June 2024. As we previously noted, Mr. Dorsey's motion was first heard by a domestic hearing officer on July 17, 2024. Ms. Stewart was serving in Kuwait and absent from the hearing/conference. With the hearing officer's orders, Mr. Dorsey obtained physical custody of the child from his maternal grandparents in Georgia, and returned to Louisiana. Mr. Dorsey enrolled the child in John Curtis Christian School to begin the 2024-2025 academic year in the first grade. The child remained primarily in Mr. Dorsey's custody through the December 10, 2024 district court hearing.

Cited as grounds supporting his request to change custody, Mr. Dorsey asserted that Ms. Stewart had been an uncooperative co-parent and repeatedly violated the Florida judgment. He testified to not having access to the child during his evacuation from Jefferson Parish for Hurricane Ida in 2021. He also testified to having no contact with the child for several months before obtaining the civil warrant in Orleans Parish. Ms. Stewart's testimony disputed those claims.

Additionally, Mr. Dorsey cited the childhood development education he was receiving from LSU to support his request to modify the custodial arrangement for J.D. Specifically, Mr. Dorsey argued that his education and experience working with children positioned him to be the better parent for overseeing J.D.’s education. In support of that argument, Mr. Dorsey called four witnesses: Dr. Ashtona Wyatt, Ms. Pam Steib, Ms. Debra Eustler, and Mr. Roberto Taylor.

Mr. Dorsey first called Dr. Ashtona Wyatt, an educational consultant who was admitted as a fact witness, but not an expert. Dr. Wyatt testified that the child was “struggling” academically. This assessment appears to have been based on conversations with Mr. Dorsey who provided Dr. Wyatt with the child's schoolwork. Dr. Wyatt never performed an assessment of the child, and from her testimony, it does not appear she ever actually met or interacted with the child. She never reviewed the curriculum from schools the minor child attended while in Mr. Dorsey's custody.

Ms. Pam Steib, a literacy tutor for Steven Carter Literacy Tutoring Program in St. John the Baptist Parish, was hired by Mr. Dorsey to tutor the child. Ms. Steib testified to the child's consistent attendance and dedicated efforts. She also stated that the child was already performing at grade level when he met her for tutoring, and that the additional tutoring was provided because Mr. Dorsey wanted the child to get extra practice and more advanced skills.

Ms. Debra Eustler, the principal of John Curtis Christian School where the minor child attended first grade, testified that the child has been doing well academically and has many friends.

Mr. Roberto Taylor, the principal of Crescent City Christian School in Metairie, testified that Mr. Dorsey volunteered at his school while his child was enrolled there.

All of these witnesses testified as to Mr. Dorsey's active involvement in and commitment to the education of the child. Nevertheless, the trial court's finding that there was no evidence presented that the child's educational opportunities in Louisiana are measurably better than those in Virginia is supported by the record.

Our review of the record does not suggest, as appellant offers, that the trial court failed to find a change in circumstances. Rather, the trial court conducted a best interest of the child analysis pursuant to La. C.C. art. 134. Having reviewed the record, we find no manifest error or abuse of discretion in the trial court's finding that awarded Ms. Stewart primary domiciliary status, maintaining the custody plan established in the Florida judgment, and conferred each parent with specific rights of first refusal are in the best interest of the child.

Second Assignment of Error

In his second assignment of error, appellant argues that the trial court was manifestly erroneous by not changing custody and ordering the parties to maintain a physical custody plan created when the parties lived 110 miles apart, though they now live over 1000 miles apart. In support of this argument, appellant has attached to his brief copies of message exchanges between himself and Ms. Stewart, all of which are dated after the January 27, 2025 judgment.

An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. La. C.C.P. art. 2164; Clark v. Wal-Mart Stores, Inc., 18-52, p. 3 (La. App. 5 Cir. 10/31/18), 259 So.3d 516, 519. Our review is limited to the record before us. To the extent Mr. Dorsey seeks to argue that the terms of the January 27, 2025 judgment have proven to be unworkable between the parties, such an argument is beyond the scope of this appeal. This assignment of error is without merit.

Third Assignment of Error

Finally, addressing appellant's third assignment of error that the trial court erred in failing to address his rule for contempt, this court has held when a judgment is silent as to a claim or demand that was litigated, it is presumed to be deemed denied by the trial court. Wilson v. Wilson, 17-299, p. 5 (La. App. 5 Cir. 12/29/17), 237 So.3d 1208, 1213 (citing Cambre v. St. John the Baptist Parish, 12-590 (La. App. 5 Cir. 05/16/13), 119 So.3d 73, 81, writ denied, 13-1415 (La. 10/11/13), 123 So.3d 1227.) We observe that the trial court in its September 16, 2024 judgment expressly vacated the Hearing Officer's ruling finding Ms. Stewart in contempt of court for failing to appear at the July 17, 2024 hearing. To the extent that the Hearing Officer's additional rulings on contempt may not have been disposed of via the September 16, 2024 judgment, they were overruled when the court adopted a new final judgment on January 27, 2025 that superseded the interim judgment. Counsel for appellant failed to make any additional argument at the December 10, 2024 hearing on the rule. We find no error or abuse of discretion in the trial court's implied denial. This assignment of error is without merit.

CONCLUSION

On review of the entire record before us, we find no manifest error or abuse of discretion in the trial court's denial of Mr. Dorsey's motion for modification of custody. We decline to address arguments based on evidence attached in the appellate brief. We find no error or abuse of discretion in the trial court's implied denial of the rule for contempt. The judgment of the trial court is affirmed.

AFFIRMED

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

SCOTT U. SCHLEGEL

TIMOTHY S. MARCEL

JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

LINDA M. TRAN FIRST DEPUTY CLERK

MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF

(504) 376-1400

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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY

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 JUNE 30, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

CURTIS B. PURSELL CLERK OF COURT

25-CA-189

E-NOTIFIED

24TH JUDICIAL DISTRICT COURT (CLERK)

HONORABLE NANCY A. MILLER (DISTRICT JUDGE)

ARITA M. L. BOHANNAN (APPELLANT)

CAITLYN L. MAYER (APPELLANT)

CLARENCE ROBY, JR. (APPELLEE)

MAILED

NO ATTORNEYS WERE MAILED

FOOTNOTES

1.   The hearing officer's Interim Judgment also required the parties to communicate via the “Our Family Wizard” application and complete of a 12-hour “high-conflict” co-parenting course.

2.   Mr. Dorsey sought review of this judgment via writ, which this Court denied. See Dorsey v. Stewart, 24-465 (La. App. 5 Cir. 10/29/24), 2024WL4602142.

3.   The factors listed for the court's consideration in La. C.C. art. 134 include:(1) The potential for the child to be abused, as defined by Children's Code Article 603, which shall be the primary consideration.(2) The love, affection, and other emotional ties between each party and the child.(3) 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.(4) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.(5) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.(6) The permanence, as a family unit, of the existing or proposed custodial home or homes.(7) The moral fitness of each party, insofar as it affects the welfare of the child.(8) The history of substance abuse, violence, or criminal activity of any party.(9) The mental and physical health of each party. Evidence that an abused parent suffers from the effects of past abuse by the other parent shall not be grounds for denying that parent custody.(10) The home, school, and community history of the child.(11) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.(12) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child's safety or well-being while in the care of the other party.(13) The distance between the respective residences of the parties.(14) The responsibility for the care and rearing of the child previously exercised by each party.

TIMOTHY S. MARCEL JUDGE