Dvilansky v. Correu
204 So. 3d 686
La. Ct. App.2016Background
- On Sept. 27, 2015 an altercation occurred between Maya Dvilansky and James Correu in the presence of their ~4½‑month‑old daughter; Dvilansky left five days later and filed for protection.
- Dvilansky’s petition alleged physical assault, stalking, threats, sexual abuse, financial control, and rough handling of the infant; photos of bruises/scrapes were introduced at trial.
- A duty judge issued an ex parte temporary restraining order (Oct. 2, 2015); a hearing was held Nov. 6, 2015 after a supplementation of the petition.
- At the hearing both parties and Correu’s mother testified; police interviewed both parties on the day of the incident but made no arrests; a police report was excluded as hearsay.
- The trial court found Dvilansky and the child were entitled to a Protective Order, awarded temporary sole custody to Dvilansky, limited Correu to supervised visitation, ordered child support and Batterer’s Intervention Program, and set the order to expire May 6, 2017.
- Correu moved for a new trial (alleging prior counsel’s failures and false testimony); the trial court denied the motion and this appeal followed.
Issues
| Issue | Plaintiff's Argument (Dvilansky) | Defendant's Argument (Correu) | Held |
|---|---|---|---|
| Whether the trial court properly granted a protective order | Protective order appropriate because Dvilansky and child faced immediate danger from physical, sexual, verbal abuse and threats; photographic injuries corroborate | Trial court erred; Dvilansky was the aggressor at the incident and evidence is insufficient to show physical/sexual abuse | Affirmed: trial court’s credibility findings reasonable; no manifest error in issuing protective order |
| Whether the child was abused / whether visitation restrictions were justified | Child included in protection because parental abuse toward mother and risk to child’s welfare (rough handling, threats) | Insufficient evidence that the child was or would be physically endangered; restrictions on visitation overly restrictive | Affirmed overall protective order; visitation limited based on trial court’s credibility findings (dissent would remand as to visitation) |
| Whether the trial court abused discretion in excluding the police report | N/A (plaintiff objected to admitting the report) | Police report showed no charges and thus would corroborate Correu’s account; admission was necessary for defense | Exclusion of the police report as hearsay was sustained; appellate court deferred to trial court’s evidentiary rulings and credibility determinations |
| Whether a new trial was warranted for ineffective presentation of corroborating evidence | N/A | Prior counsel’s alleged neglect deprived Correu of a fair chance to present admissible corroboration (grounds for new trial) | Denied: Correu was represented and had a fair opportunity to defend; no just cause shown for new trial |
Key Cases Cited
- Alfonso v. Cooper, 146 So.3d 796 (La. App. 4th Cir.) (purpose and standards for domestic protective orders)
- Rabalais v. Nash, 952 So.2d 653 (La.) (manifest error standard for appellate review of facts)
- Mart v. Hill, 505 So.2d 1120 (La.) (standard for reversing fact‑finder under manifest error)
- Franz v. First Bank Sys., Inc., 868 So.2d 155 (La. App. 4th Cir.) (deference to trial court on credibility)
- Rosell v. ESCO, 549 So.2d 840 (La.) (trial court best positioned to judge witness demeanor)
- Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880 (La.) (appellate court will not disturb reasonable evaluations of credibility)
- Lee v. Smith, 4 So.3d 100 (La. App. 5th Cir.) (definition of domestic abuse excludes nonphysical acts not rising to criminal offenses)
- Rouyea v. Rouyea, 808 So.2d 558 (La. App. 1st Cir.) (limits on nonphysical acts qualifying as domestic abuse)
- Harper v. Harper, 537 So.2d 282 (La. App. 4th Cir.) (same)